          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                        DECEMBER 1999 SESSION
                                                   FILED
                                                     March 3, 2000

JAMES WEBB,                       *            Cecil Crowson, Jr.
                                       No. W1998-00047-CCA-R3-PC
                                              Appellate Court Clerk
      Appellant                   *    HAYWOOD COUNTY
VS.                               *    Hon. Dick Jerman, Jr., Judge

STATE OF TENNESSEE,               *    (Post-Conviction)

      Appellee.                   *


For the Appellant                         For the Appellee

James Webb, Pro Se                     Paul G. Summers
#244079                                Attorney General and Reporter
NWCX Site 2
Route 1, Box 660                       J. Ross Dyer
Tiptonville, TN 38079                  Assistant Attorney General
                                       Cordell Hull Building, 2nd Floor
                                       425 Fifth Avenue North
                                       Nashville, TN 37243-0493

                                       Clayburn L. Peeples
                                       District Attorney General
                                       110 S. College Street, Suite 200
                                       Trenton, TN 38382-1841




OPINION FILED:



REVERSED AND REMANDED


NORMA MCGEE OGLE, JUDGE
                                        OPINION

       The petitioner, James Webb, appeals as of right from the trial court’s order

summarily dismissing his pro se petition for post-conviction relief without an
evidentiary hearing. We REVERSE the judgment of the trial court and REMAND

for appointment of counsel and review of petitioner’s claims.



                                I. Procedural History

       A Haywood County jury convicted petitioner of aggravated rape. On direct

appeal, he presented various issues for review which included whether the trial
court erroneously excluded testimony regarding jury unanimity at the motion for new

trial. This Court affirmed both the conviction and the sentence imposed by the trial

court. State v. James Webb, C.C.A. No. 02C01-9512-CC-00383, Haywood County

(Tenn. Crim. App. filed February 27, 1997, at Jackson), perm. to app. denied,

(Tenn. November 10, 1997).



       Petitioner filed a pro se petition for post-conviction relief on January 23, 1998.

The petition claimed (1) that petitioner received ineffective assistance of trial

counsel and (2) that the trial court erred in refusing to allow proof of alleged jury

misconduct. The petition also contained specific factual bases to support the

allegation regarding ineffective assistance of counsel.


       In its order of dismissal, the trial court summarily dismissed the petition

stating only, “upon the petition for post conviction relief filed by . . . James Webb,
the entire record and all the evidence in this cause . . . it satisfactorily appears to the

Court that the said petition . . . does not state any ground or claim upon which relief

may or should be granted.” The trial court made no specific findings to accompany
its dismissal.




                                      II. Analysis

       The 1995 Post-Conviction Procedure Act, Tenn. Code Ann. § 40-30-201 to

-310, provides that a trial court must consider a petition within thirty days of its filing
and “examine it together with all the files, records, transcripts, and correspondence

relating to the judgment under attack.”           Tenn. Code Ann. § 40-30-206(a).

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Furthermore, the “prescribed form for petitions requires that the grounds for relief

be specified and that a petitioner set out the facts to establish a ‘colorable claim.’”

Harris v. State, 996 S.W.2d 840, 841 (Tenn. Crim. App. 1999)(citing Tenn. R. Sup.
Ct. 28, § 2(H)). If the facts alleged, taken as true, would entitle petitioner to relief,

the trial court should not dismiss the petition. See Tenn. Code Ann. § 40-30-206(f),

(i).


       In this case, the post-conviction relief petition specifically asserted that trial

counsel was ineffective for: (1) failing to interview witnesses proffered by petitioner
regarding the victim’s motive to testify against him; (2) failing to present those same

witnesses at trial; and (3) failing to investigate the state’s claim that a witness

against petitioner was unavailable. These claims were further supported by specific
factual allegations. As to petitioner’s claim that the trial court erred in its refusal to

allow questioning to establish jury misconduct, this ground for relief was either

waived for failure to present it on direct appeal or previously determined on direct
appeal. See Tenn. Code Ann. § 40-30-206(g), (h).



       We conclude the trial court erred in its summary dismissal of the ineffective

assistance of counsel claim. Unlike the petition reviewed by the panel in Harris

which contained “bare allegations of violations of constitutional rights and mere
conclusions of law,” 996 S.W.2d at 842, this petition contains a “full disclosure of

the factual basis of the grounds asserted.” Id. The petition asserted a colorable

claim which requires additional consideration.




                                    III. Conclusion

       Based upon the foregoing, we REVERSE the judgment of the trial court and

REMAND this matter for appointment of post-conviction counsel and for such other

proceedings as may be necessary.




                                                  ____________________________
                                                   Norma McGee Ogle, Judge


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CONCUR:



___________________________
Gary R. Wade, Presiding Judge



____________________________
John Everett W illiams, Judge




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