             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON

                                MARCH 1997 SESSION
                                                        FILED
                                                           May 16, 1997
JAMES MARION,                         )
                                      )                Cecil Crowson, Jr.
                   APPELLANT,         )                 Appellate C ourt Clerk
                                      )    No. 02-C-01-9605-CR-00158
                                      )
                                      )    Shelby County
v.                                    )
                                      )    Joseph B. Dailey, Judge
                                      )
                                      )    (Post-Conviction Relief)
STATE OF TENNESSEE,                   )
                                      )
                     APPELLEE.        )



FOR THE APPELLANT:                         FOR THE APPELLEE:

C. Anne Tipton                             John Knox Walkup
Attorney at Law                            Attorney General & Reporter
140 North Third Street                     500 Charlotte Avenue
Memphis, TN 38103                          Nashville, TN 37243-0497

                                           Ellen H. Pollack
                                           Assistant Attorney General
                                           450 James Robertson Parkway
                                           Nashville, TN 37243-0493

                                           William L. Gibbons
                                           District Attorney General
                                           201 Poplar Avenue, Suite 3-01
                                           Memphis, TN 38103

                                           James M. Lammey
                                           Assistant District Attorney General
                                           201 Poplar Avenue, Suite 3-01
                                           Memphis, TN 38103




OPINION FILED:___________________________________


AFFIRMED IN PART AND REVERSED IN PART;
JUDGMENT VACATED AND REINSTATED


Joe B. Jones, Presiding Judge
                                     OPINION


       The appellant, James Marion1 (petitioner), appeals as of right from a judgment of

the trial court denying his suit for post-conviction relief following an evidentiary hearing. In

this Court, he contends the evidence establishes he was denied his constitutional right to

the effective assistance of counsel.

       Two people testified at the evidentiary hearing, the petitioner and the attorney who

represented him in the trial court and in the appellate court. Their respective testimony

conflicts as to every material fact save one, and the conflicts in the testimony cannot be

reconciled. Therefore, the evidence contained in the record does not preponderate against

the findings of fact made by the trial court regarding the representation in the trial court and

this Court.

       The petitioner testified his attorney never notified him of what occurred in this Court.

Counsel testified he did not know whether or not he notified the petitioner of the decision

of this Court. The record of the direct appeal reveals that counsel did not seek to withdraw

as counsel pursuant to Rule 14, Tennessee Supreme Court Rules.                   He sought an

extension of time to file an application for permission to appeal, but the Supreme Court

denied the motion because it was not timely filed. No application for permission to appeal

was filed on behalf of the petitioner.

       The trial court did not address this specific issue in its findings of fact. It was raised

by the petitioner and there is proof in the record concerning this issue. Based upon a

review of this record and the record of the direct appeal, it is crystal clear the petitioner was

denied his right to file an application for permission to appeal in the Supreme Court

pursuant to Rule 11, Tennessee Rules of Appellate Procedure.

       The judgment of this Court entered in State v. James E. Marion, Shelby County No.

02-C-1-9406-CR-00126 (Tenn. Crim. App., Jackson, December 14, 1994) is hereby



       1
        It is the policy of this Court to use the name used in the initial pleading filed in
the cause. The petition was brought in the name of "James Marion." When testifying,
the petitioner identified himself as "James Earl Marion." He was indicted and convicted
as "James E. Marion." The petitioner has styled the case in this Court using the name
of "James Earl Marion." All of these names refer to the same person.

                                               2
vacated and the judgment is reinstated effective on the date the judgment is entered in this

case. This will permit the petitioner to prepare and file an application for permission to

appeal.




                                          ________________________________________
                                               JOE B. JONES, PRESIDING JUDGE



CONCUR:



______________________________________
        GARY R. WADE, JUDGE



______________________________________
       CURWOOD WITT, JUDGE




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