             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT KNOXVILLE               FILED
                           NOVEMBER 1998 SESSION
                                                               January 15, 1999

                                                               Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk


GARY (JAKE) HARRIS,             )
                                )          C.C.A. No. 03C01-9803-CR-00085
      Appellant,                )
                                )          Unicoi County
v.                              )
                                )          Honorable Lynn W . Brown, Judge
STATE OF TENNESSEE,             )
                                )          (Post-Conviction)
      Appellee.                 )




FOR THE APPELLANT:                         FOR THE APPELLEE:

Gary (Jake) Harris, pro se                 John Knox Walkup
West Tennessee High Security Facility      Attorney General & Reporter
P. O. Box 1050                             425 Fifth Avenue, North
Henning, TN 38041                          Nashville, TN 37243-0493

                                           Todd R. Kelley
                                           Assistant Attorney General
                                           425 Fifth Avenue, North
                                           Nashville, TN 37243-0493

                                           David E. Crockett
                                           District Attorney General
                                           Route 19, Box 99
                                           Johnson City, TN 37601

                                           Kent W. Garland
                                           Assistant District Attorney General
                                           Unicoi County Courthouse
                                           Erwin, TN 37650



OPINION FILED: _______________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE
                                      OPINION


       The appellant, Gary Harris, referred herein as the petitioner, appeals as of right from

the summary dismissal of his petition for post-conviction relief by the Unicoi County

Criminal Court. The trial court entered an order dismissing the petition for post-conviction

relief on the basis that the petition, taken as a whole, did not state a colorable claim for

post-conviction relief. In his pro se appeal, the petitioner presents six issues for review:

              1. Whether the trial court erred in dismissing the
                 petitioner’s post-conviction petition without appointment
                 of counsel to add and/or amend the post-conviction
                 petition.

              2. Whether the petitioner suffered from ineffective
                 assistance of counsel.

              3. Whether the evidence used by the prosecution was
                 sufficient to convict the petitioner of the crime of
                 attempted murder first degree.

              4. Whether the trial court erred in handing down a
                 sentence which was excessive and in violation of the
                 law.

              5. Whether the trial court erred in allowing prejudicial
                 information into the trial that had no probative value and
                 in fact had absolutely nothing to do with the criminal
                 proceedings brought before the jury.

              6. Whether the trial court erred in not allowing a witness
                 for the defense to present testimony in violation of the
                 petitioner’s constitutional rights.


       After a review of the entire record, briefs of all parties, and the applicable law, the

trial court’s judgment is affirmed.



                                      BACKGROUND



       The facts at a jury trial revealed in November, 1992, the victim, the petitioner, and

a co-defendant, Johnny Wayne Harris, were at a party. The petitioner and co-defendant

are brothers and the victim is their cousin. The men got into a shouting match at the party.

When the victim attempted to leave the party, the petitioner and the co-defendant followed

him outside where the co-defendant shot him in the area of the groin, hip, and front thigh.

The victim was found several hours later in the street. He almost bled to death. As a result

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of the trial, the jury found the petitioner guilty of aiding and abetting the attempted murder

first degree of the victim.



       On direct appeal, the petitioner presented two appellate issues: the evidence was

not sufficient to support his conviction and the trial court erred in imposing an excessive

sentence. This Court, in State v. Johnny Wayne Harris and Gary L. (Jake) Harris, No.

03C01-9507-CC-00202, 1996 LEXIS 421 (Tenn. Crim. App., Knoxville, July 19, 1996), per.

app. denied (Tenn. 1996), affirmed the trial court’s judgment.



       On December 12, 1996, the petitioner filed a petition for post-conviction relief

alleging as grounds for relief: (1) the evidence was not sufficient to support a conviction

of aiding and abetting first degree murder; (2) prosecutorial misconduct on the part of the

District Attorney General; and (3) judicial misconduct for the arbitrary, capricious, and

uncaring disregard by the trial court. The petitioner requested appointment of counsel. On

August 12, 1997, the post-conviction court entered a preliminary order dismissing the

petition on the basis the petition did not state a colorable claim for relief.



       On September 22, 1997, the petitioner filed a motion to reconsider in response to

the post-conviction court’s order of dismissal. In the motion to reconsider, the petitioner

enlarged on his claim for relief. The petitioner alleged that he raised ineffectiveness of his

counsel as one of his grounds for relief. The motion also contained some vague wordage

regarding the testimony of defense witnesses being guaranteed by the Sixth Amendment.

Again, the petitioner requested appointment of counsel to assist him in amending the

petition. On December 2, 1997, the post-conviction court entered an order denying the

motion to reconsider on the basis the motion and petition did not state a colorable claim

for post-conviction relief.




                                              3
                                     LEGAL ANALYSIS



       Since the petitioner contends the post-conviction court erred in dismissing the

petition without a hearing and appointment of counsel and the state disagrees, we will

resolve which party is correct.



       The new Post-Conviction Procedure Act governs this petition and all petitions filed

after May 10, 1995. Tenn. Code Ann. § 40-30-201, et seq. Once a petition for post-

conviction relief has been filed, the trial court must examine the petition, together with all

files, records, transcripts, and correspondence relating to the judgment under attack.

Tenn. Code Ann. § 40-30-206(a). In the same statute, subsection (d) sets out the

requirements as to what the petition must contain:


              The petition must contain a clear and specific statement of all
              grounds upon which relief is sought, including full disclosure of
              the factual basis of those grounds. A bare allegation that a
              constitutional right has been violated and mere conclusions of
              law shall not be sufficient to warrant any further proceedings.
              Failure to state a factual basis for the grounds alleged shall
              result in immediate dismissal of the petition. If, however, the
              petition was filed pro se, the judge may enter an order stating
              that the petitioner must file an amended petition that complies
              with this section within fifteen (15) days or the petition will be
              dismissed.


Tenn. Code Ann. § 40-30-206(d).



       From a careful reading of the petition for post-conviction relief filed on December

12, 1996 in this record, the petitioner did not make a specific claim of the denial of effective

assistance of counsel. Nor did the petitioner allege any facts of ineffective assistance of

counsel which would support relief. In August, 1997, the post-conviction court was justified

in dismissing the petition for post-conviction relief based upon the allegations in the record.

The petitioner’s allegation of insufficient evidence to support his conviction for aiding and

abetting attempted murder first degree has been previously determined. See State v.

Johnny Wayne Harris and Gary L. (Jake) Harris, No. 03C01-9507-CC-00202, supra. An

issue has been previously determined “if a court of competent jurisdiction has ruled on the



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merits after a full and fair hearing.” Tenn. Code Ann. § 40-30-206(h). As to the allegations

of prosecutorial misconduct and judicial misconduct, these matters have been waived. The

petitioner must rebut the presumption that claims have been either waived or previously

determined. Tenn. Code Ann. § 40-30-204(e). The presumption of waiver exists as

follows:

              A ground for relief is waived if the petitioner personally or
              through an attorney failed to present it for determination in any
              proceeding before a court of competent jurisdiction in which
              the ground could have been presented unless:

                  (1) The claim for relief is based upon a constitutional
                      right not recognized as existing at the time of trial
                      if either the federal or state constitution requires
                      retroactive application of that right; or

                  (2) The failure to present the ground was the result
                      of state action in violation of the state or federal
                      constitution.

Tenn. Code Ann. § 40-30-206(g).



       We find the post-conviction court was justified in summarily dismissing the petition

for post-conviction as of August, 1997.



       In the motion to reconsider, the petitioner alleged for the first time deficiency in his

trial counsel’s representation. However, the petitioner failed to set forth any specific facts

or allegations in support thereof.1 The petitioner has failed to comply with the requirement

of the Tennessee Post-Conviction Procedure Act. Tenn. Code Ann. § 40-30-206. We do

not find the post-conviction court abused its discretion in denying the motion to reconsider

or in refusing to appoint counsel.




       1
        It is only on appeal in his brief that the petitioner sets forth a factual claim of
ineffective assistance of counsel.

                                               5
     The post-conviction court’s judgment is affirmed.




                                ________________________________________
                                L. T. LAFFERTY, SENIOR JUDGE



CONCUR:




___________________________________
DAVID H. WELLES, JUDGE




___________________________________
JAMES CURWOOD WITT, JR., JUDGE




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