        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 11, 2014

               OSCAR T. BERRY v. STATE OF TENNESSEE

              Appeal from the Criminal Court for Davidson County
                  No. 89-F-1984     Cheryl Blackburn, Judge



               No. M2013-01927-CCA-R3-PC-Filed June 26, 2014


Petitioner, Oscar Berry, was convicted of first degree murder in 1991 and was sentenced to
life imprisonment. He filed a direct appeal of his conviction, which was dismissed by this
Court in 1992. State v. Oscar Thomas Berry, No. 01-C01-9201-CR-00033, 1992 WL 275402
(Tenn. Crim. App., at Nashville, Oct. 8, 1992). His petition for post-conviction relief, filed
in 1997, was dismissed by the trial court as untimely. In 2013, Petitioner filed a motion to
reopen the post-conviction proceedings. He contended that several recent decisions by the
United States Supreme Court established constitutional rights in post-conviction proceedings
that did not exist at the time of his conviction, thereby allowing his case to be re-opened
under the authority of Tennessee Code Annotated § 40-30-117(a)(1). The trial court rejected
his theory and dismissed his motion. After careful review of the controlling law, we affirm.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS,
and N ORMA M CG EE O GLE, JJ., joined.

Oscar T. Berry, Tiptonville, Tennessee, Pro Se

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Assistant
Attorney General; Victor S. Johnson, District Attorney General; Roger Moore, Assistant
District Attorney, for the appellee, State of Tennessee.

                                         OPINION



                                              1
                                     Factual Background

        A Davidson County jury convicted Petitioner of premeditated first-degree murder on
April 30, 1991. He was sentenced to life imprisonment. Petitioner filed a direct appeal of
his conviction, asserting that the evidence was insufficient because of the lack of proof of
premeditation. This Court disagreed and affirmed Petitioner’s sentence and conviction.
State v. Oscar Thomas Berry, No. 01-C01-9201-CR-00033, 1992 WL 275402 (Tenn. Crim.
App., at Nashville, Oct. 8, 1992).

       Petitioner filed his first petition for post-conviction relief on December 8, 1997, over
five years after the dismissal of his direct appeal. He contended that he was denied equal
protection of law because his attorney failed to appeal the decision of this court to the
Tennessee Supreme Court. The post-conviction court denied the petition because it was filed
outside the one year statute of limitations for post-conviction relief. See T.C.A. § 40-30-
102(a). The court also noted that Petitioner’s counsel had, in fact, pursued an appeal to the
Tennessee Supreme Court, which declined review.

       The current appeal results from a motion, filed by Petitioner on March 26, 2013, to
reopen the post-conviction proceeding, or in the alternative for habeas corpus relief.
Petitioner alleged that his attorney at trial had informed him that the State was willing to
offer him a sentence of eighteen years at 30 percent if he pled guilty, but that the attorney
nonetheless advised him to go to trial. He further alleged that but for his attorney’s advice,
he would have been willing to accept the State’s offer. Since his trial resulted in a first
degree murder conviction and a life sentence, he argued that he received ineffective
assistance of counsel.

        To overcome the passing of the statute of limitations on post-conviction appeals,
Petitioner relied on several decisions of the United States Supreme Court that were filed after
the denial of his original petition for post-conviction relief and dealt with claims of
ineffective assistance of counsel. He argued that those cases established a constitutional
right that was not recognized at the time of his trial and he was, therefore, entitled to further
review of his claim. See T.C.A. § 40-30-117(a)(1).

        On July 26, 2013, the Criminal Court of Davidson County filed a sixteen page order
denying Petitioner’s motion to reopen the post-conviction proceeding. The court discussed
in detail the cases relied upon by Petitioner but held that those cases and subsequent
decisions by the state and federal courts interpreting them did not establish a constitutional
right that was applicable to the circumstances of his case. This appeal followed.




                                               2
                                               Analysis

        Tennessee law gives petitioners the right to file a motion in the trial court to reopen
a first post-conviction petition under certain limited circumstances, including when:

       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 petition
       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[.]

       T.C.A. § 40-30-117(a)(1).

                                        A. Martinez v. Ryan

       Petitioner first relies on the case of Martinez v. Ryan, 566 U.S. ___, 132 S.Ct. 1309
(2012).1 In that case, an Arizona jury convicted Luis Martinez of sexual abuse of a minor and
he was sentenced to life imprisonment. Martinez filed a direct appeal of his conviction. His
attorney argued, among other things that the evidence was insufficient and that newly
discovered evidence warranted a new trial. The attorney did not, however, raise a claim of
ineffective assistance of counsel because under Arizona law, a convicted person may not raise
such an issue on direct appeal.

        Martinez, represented by new counsel, filed a “Notice of Post-Conviction Relief.”
Despite initiating that proceeding, the new counsel did not claim that trial counsel was
ineffective, and she later filed a statement asserting she could find no colorable claims at all.
Martinez subsequently filed a second notice of post-conviction relief in the Arizona trial
court, claiming ineffective assistance of counsel in both the trial court and the post-conviction
court. Martinez's petition was dismissed, in part in reliance on an Arizona statute barring
relief on a claim that could have been raised in a previous collateral proceeding. The
dismissal was affirmed by the Arizona Court of Appeals, and the Arizona Supreme Court
denied review. Martinez, 566 U.S. at ___, 132 S. Ct. at 1314.



       1
          We note that Martinez v. Ryan was decided on March 20, 2012, and that Petitioner’s motion to
reopen his post-conviction proceedings was filed on March 26, 2013, thereby apparently falling outside
the limitations period set out in Tennessee Code Annotated § 40-30-117(a)(1). The State did not assert
on appeal that the motion was untimely and the operation of Supreme Court Rule 28, § 2(G) may have
rendered it timely in any case, so we will decide this appeal on other grounds.

                                                   3
       Martinez then sought relief in United States District Court for the District of Arizona,
which denied his petition under the doctrine of procedural default. Martinez v. Schriro, 2008
WL 5220909 (D. Ariz. 2008). The Ninth Circuit Court of Appeals likewise affirmed the
dismissal of Martinez’s petition. Martinez v. Schriro, 623 F.3d 731 (9th Cir. 2010). The
United States Supreme Court granted Certiorari to address a very narrow issue that arose
under Arizona law. To understand that issue, we must step back and look at some earlier
decisions of the Court regarding the right to counsel by indigent defendants.

        In Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court declared that the
right to counsel is a fundamental constitutional right, essential to due process of law, and that
it is made obligatory upon the States by the Fourteenth Amendment. Thus, an indigent
defendant, faced with charges that could lead to the loss of his freedom, is entitled to the
assistance of appointed counsel. Inherent in the right to counsel is the right to effective
assistance of counsel. “A guilty plea is open to attack on the ground that counsel did not
provide the defendant with ‘reasonably competent advice.’” Cuyler v. Sullivan, 446 U.S. 335,
344 (1980); see also Strickland v. Washington, 466 U.S. 668, 686 (1984) (holding, among
other things, that “the proper standard for attorney performance is that of reasonably effective
assistance.”).

        In a case decided on the same day as Gideon v. Wainwright, the Supreme Court
declared that the Fourteenth Amendment also guarantees an indigent criminal defendant the
right to appointed counsel on the first appeal of his conviction. Douglas v. People of State
of California, 372 U.S. 353 (1963). In Evitts v. Lucey, 469 U.S. 387, 396 (1985), the Court
further declared that “[a] first appeal as of right therefore is not adjudicated in accord with due
process of law if the appellant does not have the effective assistance of an attorney.” In
Kenneth Wayne Campbell v. State, 904 S.W.2d 594 (Tenn. 1995), the Tennessee Supreme
Court cited Evitts, and declared that “[a]s with trial counsel, the right to representation by
appellate counsel also ‘necessarily includes the right to effective assistance of counsel.’”
Campbell, 904 S.W.2d at 596; see also Vernon Cooper v. State, 849 S.W.2d 744, 746 (Tenn.
1993) (stating that “a party whose counsel is unable to provide effective representation is in
no better position than one who has no counsel at all.”).

       The United States Supreme Court chose not to extend the constitutional right to
counsel beyond the first appeal of a criminal conviction. In Pennsylvania v. Finley, 481 U.S.
551 (1987), it ruled that there was no equal protection or due process right to appointed
counsel in post-conviction proceedings. In Coleman v. Thompson, 501 U.S. 1277 (1991), the
Court reasoned that in the absence of any constitutional right to counsel at post-conviction
proceedings, there could also be no constitutional right to effective counsel at such
proceedings.



                                                4
       The Martinez v. Ryan Court affirmed the general principle of Coleman v. Thompson,
but found that the operation of Arizona law created a narrow exception. Because Arizona does
not permit a convicted person to raise the claim of ineffective assistance of trial counsel on
direct review, the Court noted that he must instead bring the claim in state collateral
proceedings. The Court reasoned that “where the initial-review collateral proceeding is the
first designated proceeding for a prisoner to raise the ineffective-assistance claim, the
collateral proceeding is the equivalent of a prisoner's direct appeal as to that claim.” Martinez,
566 U.S. at ___, 132 S. Ct. at 1319.

       The Court was troubled by the fact that under Arizona law, an individual who believes
his conviction or sentence was the result of the shortcomings in the quality of his
representation at trial can only raise that issue in a proceeding at which he has no
constitutional right to receive reasonably effective representation. The Court concluded that
the Arizona scheme could deprive a defendant of any opportunity for meaningful review of
a claim of ineffective assistance of counsel. The Court accordingly reversed the lower courts
and remanded the case for further consideration of Martinez’s claims of ineffective
representation at both the trial and post-conviction levels.

        Unlike in Arizona, there is no prohibition in Tennessee against litigation of ineffective
counsel claims on direct appeal. See, State v. Monroe, No. E2011–00315–CCA–R3–CD,
2012 WL 2367401 at *4 (Tenn. Crim. App. at Knoxville, June 22, 2012). Thus, Petitioner
was entitled to raise the issue of ineffective assistance of counsel in his direct appeal, as well
as in a timely-filed post-conviction petition. That right was not affected by the Martinez
ruling. Further, the Martinez Court specifically stated that it was not making a constitutional
ruling, but rather an equitable ruling that only applied under the limited circumstances before
it. Martinez, 566 U.S. at __, 132 S. Ct. at 1319. Since Martinez did not establish a
constitutional right that was unrecognized at the time of Petitioner’s trial, it does not give
Petitioner the right under Tennessee Code Annotated Section 40-30-117(a)(1) to be heard on
his motion to reopen his first post-conviction petition on constitutional grounds.

                                        B. Other Cases

        Petitioner also relies on the case of Lafler v. Cooper, __ U.S. __, 132 S.Ct. 1376
(2012), as a possible source of constitutional rights that were not recognized at the time of his
trial and which would therefore entitle him to reopen his post-conviction petition. The
allegations in Lafler closely resemble Petitioner’s claims in this case. Like Petitioner, Lafler
was charged with serious crimes – assault with intent to murder and three other offenses. The
prosecution offered to dismiss two of the charges and to recommend a sentence of 51 to 85
months for the other two in exchange for a guilty plea. Lafler rejected the plea and went to
trial, which resulted in convictions on all counts and a mandatory minimum sentence of 185

                                                5
to 360 months’ imprisonment.

        After proceedings in the state appellate courts had run their course, Lafler looked to
the federal courts for recourse. He alleged that he had rejected the offered plea on the basis
of his attorney’s advice and that the advice was deficient because the attorney informed Lafler
of “an incorrect legal rule.” The Supreme Court agreed that Lafler was entitled to move
forward, and possibly to even have the original plea offer reinstated, if he was able to prove
all the elements of ineffective assistance of counsel as set out in Strickland v. Washington.
In reaching its decision, the Supreme Court relied on earlier precedent establishing that the
Sixth Amendment requires effective assistance of counsel at all the critical stages of a
criminal proceeding, United States v. Wade, 388 U.S. 218 (1967), including plea negotiations,
Hill v. Lockhart, 474 U.S. 52 (1985).

       Since the issuance of the Lafler opinion and Missouri v. Frye, 132 S.Ct. 1399 (2012),
a companion case released on the same day, numerous litigants have applied to the courts of
Tennessee and elsewhere for post-conviction review of convictions and sentences that were
affected, one way or another, by plea negotiations.2

        While Lafler and Frye may serve as valuable precedent for analysis of timely-filed
petitions for post-conviction relief, we know of no cases that have found them to have
established a previously unrecognized constitutional right. In fact, many courts have reached
the opposite conclusion. For example, in Marcus Stovall v. United States, Nos. 1:12-cv-377,
1:02-cr-32, 2013 WL 392467 (E.D.Tenn. Jan. 31, 2013), the Federal District Court stated that
“neither the Frye or Lafler case constitute a new rule as they merely applied the Sixth
Amendment right to effective assistance of counsel claims according to the test first
articulated in Strickland v. Washington, and established in the plea bargaining context in Hill
v. Lockhart.” 2013 WL 392467 at *2 (citations omitted); see also Buenrostro v. United
States, 697 F.3d 1137 (9th Cir. 2012); In re King, 697 F.3d 1189 (5th Cir. 2012); Hare v.
United States, 688 F.3d 878 (7th Cir.2012); In re Perez, 682 F.3d 930 (11th Cir. 2012).

        In Bruce L. Robinson v. State, No. W2012-01401-CCA-R3-PC, 2013 WL 1858628,
at *3 (Tenn. Crim. App. at Jackson, May 2, 2013), this court also concluded that Frye did not

        2
         In Frye, the petitioner’s attorney failed to inform him that the prosecution had offered him a
plea bargain and the petitioner went to trial after the offer expired, resulting in a much longer sentence
than was offered. The Frye Court found that the attorney’s conduct fell below the standard of
reasonableness set out in Strickland v. Washington and remanded the case to the post-conviction court for
further proceedings. The Tennessee Supreme Court was faced with similar facts in Harris v. State, 875
S.W.2d 662 (Tenn. 1994) and reached a similar result. Of course, in the present case, as in Lafler, there
was no allegation that the defense attorney failed to convey a plea offer to the petitioner, only that the
attorney’s advice regarding the offer was deficient.

                                                    6
announce a new rule of constitutional law to be applied retroactively. In Johnny L. McGowan
v. State, M2012-02490-CCA-R3-PC, 2013 WL 5310473 (Tenn. Crim. App. at Nashville,
Sept. 20, 2013), we acknowledged our holding in Robinson, and concluded “that Lafler,
likewise, does not establish a new constitutional right requiring retroactive application.” 2013
WL 5310473 at *2. We reached the same conclusion in Gary K. Thomas v. State,
E2012-02086-CCA-R3-PC, 2013 WL 1092770 (Tenn. Crim. App. at Knoxville, Mar. 15,
2013) and Derrick Hodge v. State, E2013-01883-CCA-R3-PC, 2014 WL 644703 (Tenn. Crim.
App. at Knoxville Feb. 19, 2014).

        As we noted above, Petitioner would have been entitled to reopen his untimely petition
for post-conviction relief only if he were able to establish a claim that was based on a final
ruling of an appellate court establishing a constitutional right that was not recognized at the
time of his trial and if retrospective application of that right was required. The cases he cited
did not establish any new constitutional rights, and we accordingly find that the post-
conviction court correctly dismissed his motion to reopen his petition for post-conviction
relief.

                                       C. Habeas Corpus

        Petitioner captioned the pro se pleading that led to this appeal as “Petition for Reopen
Post-Conviction in Alternative Petition for State Habeas Corpus.” In the body of the pleading,
he does not set out any separate ground for habeas corpus relief, such as a void judgment or
illegal confinement, nor does the record indicate the existence of any such ground.

       Further, the procedural requirements for filing an application for the writ of habeas
corpus are mandatory and must be scrupulously followed. Archer v. State, 851 S.W.2d 157,
165 (Tenn. 1993) (citing Bateman v. Smith, 194 S.W.2d 336, 337 (Tenn. 1946)). Those
requirements are:

       (a) Application for the writ shall be made by petition, signed either by the party
       for whose benefit it is intended, or some person on the petitioner's behalf, and
       verified by affidavit.

       (b) The petition shall state:

               (1) That the person in whose behalf the writ is sought, is illegally
       restrained of liberty, and the person by whom and place where restrained,
       mentioning the name of such person, if known, and, if unknown, describing
       the person with as much particularity as practicable;



                                               7
              (2) The cause or pretense of such restraint according to the best
       information of the applicant, and if it be by virtue of any legal process, a copy
       thereof shall be annexed, or a satisfactory reason given for its absence;

              (3) That the legality of the restraint has not already been adjudged upon
       a prior proceeding of the same character, to the best of the applicant's
       knowledge and belief; and

             (4) That it is first application for the writ, or, if a previous application
       has been made, a copy of the petition and proceedings thereon shall be
       produced, or satisfactory reasons be given for the failure so to do.

       T.C.A. § 29-21-107.

        In his petition, Petitioner did not state that the illegality of his restraint has not
previously been adjudicated, nor did he say whether this was his first application for the writ.
Also, as the State points out, Petitioner did not attach a copy of the judgment of conviction
to his petition, although it is now found in the technical record. Accordingly, the lower court
did not err in dismissing the motion/petition before it, including any claim for habeas corpus
relief.

                                          Conclusion

       We affirm the judgment of the post-conviction court.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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