        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs June 24, 2014

                  GENE S. RUCKER v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Hamilton County
                      No. 262241     Barry A. Steelman, Judge




                 No. E2014-00405-CCA-R3-PC - Filed August 14, 2014


The Petitioner, Gene S. Rucker, was convicted of aggravated arson and criminally negligent
homicide, for which he was sentenced to an effective sentence of twenty-two years. On
direct appeal, this Court affirmed his convictions and sentence. State v. Gene Shelton
Rucker, Jr., No. E2002-02101-CCA-CCA-R3-CD, 2004 WL 2827004 (Tenn. Crim. App.,
at Knoxville, Dec. 9, 2004), perm. app. denied (Tenn. March 21, 2005). Subsequently the
Petitioner filed a petition for post-conviction relief, which was denied on the grounds that it
was time barred. This Court affirmed the post-conviction court’s judgment denying relief.
Gene S. Rucker v. State, No. E2007-00380-CCA-R3-PC, 2007 WL 2405133 (Tenn. Crim.
App., at Knoxville, Aug. 24, 2007) no Tenn. R. App. P. 11 app. filed. On February 18, 2013,
the Petitioner filed a motion to reopen his petition for post-conviction relief. The post-
conviction court denied the motion to reopen, and the Petitioner appeals that decision. After
a thorough review of the record and applicable law, we affirm the judgment of the post-
conviction court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J. and D. K ELLY T HOMAS, J R., J., joined.

Gene S. Rucker, pro se, Nashville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; and
William H. Cox, III, District Attorney General, for the Appellee, State of Tennessee.

                                          OPINION
                                       I. Background
                                      A. Facts at Trial
       This case arises from the Petitioner’s setting fire to his girlfriend’s clothes inside their
apartment, which caused the apartment building and an adjoining bar to burn down, killing
one resident of the apartment building. Rucker, 2004 WL 2827004, at *1. On November
1, 2001, a Hamilton County jury convicted the Petitioner of aggravated arson and criminally
negligent homicide. Because the only issue in this appeal involves the procedural
requirements for post-conviction proceedings, we will not repeat the lengthy facts here.

                               B. Post-Conviction Petition

       After our supreme court denied the Petitioner’s Rule 11 application for permission to
appeal his convictions on March 21, 2005, the Petitioner filed a petition for post-conviction
relief on December 6, 2006. Upon reviewing the petition, the post-conviction court
concluded that it was time barred and dismissed the petition. This Court affirmed the post-
conviction court’s judgment. Gene S. Rucker v. State, No. E2007-00380-CCA-R3-PC, 2007
WL 2405133 (Tenn. Crim. App., at Knoxville, Aug. 24, 2007) no Tenn. R. App. P. 11 app.
filed.

       On February 18, 2013, the Petitioner filed a motion to reopen his post-conviction
petition, claiming that he had received the ineffective assistance of counsel and that a recent
decision by the United States Supreme Court in Martinez v. Ryan, 132 S.Ct. 1309 (2012)
established a new rule of constitutional law for post-conviction relief that would retroactively
apply to his ineffectiveness claim. The Petitioner subsequently amended his motion to
include additional arguments related to his ineffectiveness claim. The Petitioner also filed
a motion in abeyance, requesting that the post-conviction court place his motion to reopen
in abeyance for ninety days, pending the outcome of another petition filed in federal court.
The post-conviction court granted the Petitioner’s motion in abeyance. On June 21, 2013,
the post-conviction court issued an order denying the Petitioner’s motion to reopen,
concluding that Martinez did not entitle the Petitioner to reopen the post-conviction petition.
The post-conviction court concluded that:

              The [P]etitioner’s claim of ineffective assistance of counsel [was]
       untimely filed and therefore not potentially legitimate at the time of the
       original petition, [thus] even if Martinez establishes a new, retrospectively-
       applicable, constitutional right, it is inapplicable to this case.

Subsequently, the Petitioner filed additional pleadings requesting that the post-conviction
court reconsider its decision and attempting to raise additional issues unrelated to this appeal.
On October 31, 2013, the post-conviction court issued an order reiterating its denial of the
Petitioner’s motion to reopen and disposing of all additional issues. It is from that judgment

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that the Petitioner now appeals.

                                       II. Analysis

       On appeal, the Petitioner contends: (1) that the post-conviction court abused its
discretion when it denied his motion to reopen; (2) that the post-conviction court violated the
Petitioner’s due process right to “have his claim reviewed under the ‘colorable’ claim
standard instead of the ‘clear and convincing’ standard; and (3) that the post-conviction court
violated the Petitioner’s constitutional right to due process and equal protection. The State
responds that the Petitioner’s appeal of the post-conviction court’s summary dismissal of his
motion to reopen is not properly before this Court and should therefore be dismissed. The
State further contends that, even if the Petitioner’s appeal were properly before this Court,
the Petitioner would not be entitled to relief because Martinez has “limited application to
those cases where post-conviction counsel failed to preserve claims on ineffective assistance
of counsel.”

       The Post–Conviction Procedure Act sets forth narrow circumstances in which a
petition for post-conviction relief may be reopened. The statute provides that a petitioner
may only file a petition to reopen if:

       (1) The claim in the motion is based upon a final ruling of an appellate court
       establishing a constitutional right that was not recognized as existing at the
       time of trial, if retrospective application of that right is required. The motion
       must be filed within one (1) year of the ruling of the highest state appellate
       court or the United States Supreme Court establishing a constitutional right
       that was not recognized as existing at the time of trial; or

       (2) The claim in the motion is based upon new scientific evidence establishing
       that the petitioner is actually innocent of the offense or offenses for which the
       petitioner was convicted; or

       (3) The claim asserted in the motion seeks relief from a sentence that was
       enhanced because of a previous conviction and the conviction in the case in
       which the claim is asserted was not a guilty plea with an agreed sentence, and
       the previous conviction has subsequently been held to be invalid, in which case
       the motion must be filed within one (1) year of the finality of the ruling
       holding the previous conviction to be invalid[.]

T.C.A. § 40-30-117(a)(1)-(3) (2010).



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       The post-conviction court found that the Petitioner’s claims did not meet the criteria
of Tennessee Code Annotated section 40-30-117 for reopening a previous petition. We agree
with the post-conviction court that the Petitioner did not establish that his claims were based
upon either a newly established constitutional right, new scientific evidence, or that his
sentence was enhanced by invalid convictions. More specifically, we agree with the post-
conviction court’s conclusion that Martinez does not afford relief to the Petitioner. Thus, we
conclude that the criteria necessary to reopen a previous petition were not present in the
Petitioner’s case and that the post-conviction court properly denied his motion to reopen his
petition. See T.C.A. § 40-30-117. Accordingly, we affirm the judgment of the post-
conviction court.

                                        III. Conclusion

       Based upon the foregoing and the record as a whole, we affirm the judgment of
the post-conviction court.


                                                _________________________________
                                                  ROBERT W. WEDEMEYER, JUDGE




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