                                                                                         03/07/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 14, 2016

                 GEROME SMITH v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Sumner County
                     No. 330-1998       Joe Thompson, Judge
                     ___________________________________

                           No. M2016-01064-CCA-R3-PC
                       ___________________________________

The Petitioner, Gerome Smith, appeals from the Sumner County Criminal Court’s denial
of his pro se motion to vacate the post-conviction court’s judgment. On appeal, he argues
that the trial court erred in dismissing his motion. Upon review, we affirm the judgment
of the trial court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR. and J. ROSS DYER, JJ., joined.

Gerome Smith, Nashville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Lawrence Ray Whitley, District Attorney General, for the Appellee, State of
Tennessee.

                                        OPINION

      On April 3, 1996, the Petitioner was convicted by a Sumner County Jury of first
degree murder and sentenced to life imprisonment. Subsequently, the Petitioner filed
numerous pleadings challenging his conviction, including a direct appeal, State v.
Gerome J. Smith, No. 01C01-9610-CR-00421, 1998 WL 3618 (Tenn. Crim. App. Jan. 8,
1998); a post-conviction petition, Gerome Smith v. State, No. M1999-02511-CCA-R3-
PC, 2000 WL 1278374 (Tenn. Crim. App. Aug. 31, 2000); and a petition for writ of error
coram nobis, State v. Gerome J. Smith, No. M2009-01144-CCA-R3-CD, 2010 WL
3448047 (Tenn. Crim. App. Aug. 31, 2010). This court affirmed the Petitioner’s
conviction on direct appeal and affirmed the denial and dismissal of his petitions for post-
conviction relief and writ of error coram nobis. In 2007, this court and the Tennessee
Supreme Court also denied the Petitioner’s application for an extraordinary appeal
pursuant to Rule 10 of the Tennessee Rules of Appellate Procedure. The Sumner County
Criminal Court denied multiple motions by the Petitioner to re-open his post-conviction
petition.

       In the instant appeal, the Petitioner challenges the Sumner County Criminal
Court’s denial of his original post-conviction petition in which he claimed he received
ineffective assistance of counsel. Gerome Smith, 2000 WL 1278374, at *1. The post-
conviction court denied the petition on October 12, 1999, finding that counsel was
effective. Id. However, because counsel had failed to either withdraw or file an
application for permission to appeal this court’s decision to the Tennessee Supreme
Court, the post-conviction court allowed the Petitioner an opportunity to file a delayed
application for permission to appeal pursuant to Rule 11 of the Tennessee Rules of
Appellate Procedure. Id. This court affirmed the post-conviction court’s decision and
also granted the Petitioner sixty days within which to seek Rule 11 review pursuant to
Tennessee Supreme Court Rule 28. Id. at *3-4. On March 5, 2001, the Tennessee
Supreme Court denied the Petitioner’s application for permission to appeal.

        On January 11, 2016, the Petitioner filed a pro se motion to vacate the post-
conviction court’s October 12, 1999 order denying relief. The Petitioner claims that the
post-conviction court lacked subject matter jurisdiction and that the post-conviction
proceeding and all subsequently filed appeals were a “legal nullity.” On April 13, 2016,
the trial court entered an order summarily dismissing the Petitioner’s motion because “the
authority cited in Petitioner’s [m]otion, Rule 28 of the Tennessee Supreme Court Rules,
does not allow for the relief sought by the Petitioner” and because “the procedural history
of this matter . . . reflects that the Petitioner has already pursued all means available to
him in the [c]ourts of Tennessee to seek relief from the conviction in this cause.” It is
from this order that the Petitioner now appeals.

                                       ANALYSIS

       On appeal, the Petitioner argues that the post-conviction court did not have
jurisdiction to hear his March 30, 1998 petition for post-conviction relief and cites
Tennessee Rule of Civil Procedure 60.02 and Tennessee Supreme Court Rule 28 as
authority for the relief he seeks.

      Initially, we note that there is no statutory provision in the Post-Conviction
Procedure Act for filing a motion to vacate a judgment that is over seventeen years old.
Additionally, the Petitioner’s final appeal of the October 12, 1999 order at issue was
denied by the Tennessee Supreme Court on March 5, 2001. Pursuant to the Post-
Conviction Procedure Act, a petitioner must file for post-conviction relief within one year

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of the date of the final action of the highest state appellate court to which an appeal is
taken. See T.C.A. § 40-30-102(a).

       Statute of limitations aside, neither the Tennessee Rules of Civil Procedure nor the
Tennessee Rules of Criminal Procedure apply to post-conviction proceedings except as
specifically permitted. Tenn. Sup. Ct. R. 28 § 3(b); State v. West, 19 S.W.3d 753, 757
(Tenn. 2000). First, the Petitioner contends that Rule 60.02 of the Tennessee Rules of
Civil Procedure supports his request for relief from a final judgment. However, because
Tennessee Supreme Court Rule 28 does not authorize the application of Rule 60.02 in a
post-conviction setting, Rule 60.02 cannot apply to the Petitioner’s case. See Ritchie v.
State, No. E2002-02609-CCA-R3-PC, 2003 WL 21972931, at *3 (Tenn. Crim. App.
Aug. 18, 2003) (“Rule 28 does not authorize the application of Rule 60.02 in a post-
conviction setting”).

       Likewise, Supreme Court Rule 28 does not grant the Petitioner relief.
Specifically, the Petitioner contends that “the post[-]conviction court should have held all
post-conviction claims asserted in the petition in abeyance until after the resolution of the
Rule 11 delayed appeal” pursuant to Rule 28. The Petitioner cites Supreme Court Rule
28 section 8(D)(3), regarding post-conviction evidentiary hearings, which states that:

       In the event that the petition alleges that petitioner was unconstitutionally
       deprived of an appeal and was also entitled to relief on other grounds, the
       court shall bifurcate the proceedings and determine first whether petitioner
       was denied an appeal, while holding the other claims in abeyance. Those
       claims shall be considered after the outcome of the delayed appeal if
       allowed, or after the appeal of the claim, if denied.

Tenn. Sup. Ct. R. 28 § 8(D)(3) (2009) (emphasis added).

       However, we note that this provision of Rule 28 has been amended many times
since the Petitioner’s post-conviction petition was filed in 1998, and the language of Rule
28, which applies to his case, specified that the bifurcation was discretionary, not
mandatory. See Tenn. Sup. Ct. R. 28 § 8(D)(3) (2002) (amended 1996) (stating that “the
court may bifurcate the proceedings and determine whether petitioner was denied an
appeal first, while holding the other claims in abeyance” and that “those claims may be
considered after the outcome of the delayed appeal if allowed, or after the appeal of the
claim, if denied.”) (emphasis added). Moreover, there is nothing to indicate that the
provisions of Rule 28 should be applied retroactively to overturn long-final judgments in
post-conviction cases.



                                            -3-
       The Petitioner’s argument that the post-conviction court did not have jurisdiction
to hear his petition is also without merit. The Post-Conviction Procedure Act gives the
court of conviction the authority to adjudicate petitions for post-conviction relief. See
T.C.A. § 40-30-104(a). The Petitioner’s allegation of procedural deficiencies in the post-
conviction court’s handling of the case has no bearing on the power of the court’s ability
to hear the claims presented. Accordingly, the Petitioner’s motion to vacate is without
merit and the trial court’s summary dismissal was proper.

                                    CONCLUSION

      Upon review, we affirm the judgment of the trial court.

                                             ____________________________________
                                            CAMILLE R. McMULLEN, JUDGE




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