        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON

                           Assigned on Briefs April 14, 2015

       CHRISTOPHER LANCE OSTEEN v. STATE OF TENNESSEE

              Direct Appeal from the Circuit Court for Madison County
                       No. C-14-131    Donald H. Allen, Judge



               No. W2014-01258-CCA-R3-PC - Filed August 17, 2015



The Petitioner, Christopher Lance Osteen, appeals the Madison County Circuit Court‟s
dismissal of his pro se petition for post-conviction relief. On appeal, the Petitioner
contends that the post-conviction court erred by summarily dismissing the petition for
failing to state a colorable claim without first appointing counsel to “perfect” the petition.
Based upon the record and the parties‟ briefs, we affirm the judgment of the post-
conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and JAMES CURWOOD WITT, JR., J., joined.

Christopher Lance Osteen, Pro se.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
James G. Woodall, District Attorney General; and Alfred Lynn Earls, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

        In September 2011, a Madison County Circuit Court Jury convicted the Petitioner
of the following crimes committed on September 26, 2010: burglary, a Class D felony;
reckless aggravated assault, a Class D felony; unlawful possession of a weapon with the
intent to go armed, a Class A misdemeanor; evading arrest, a Class A misdemeanor; and
resisting arrest, a Class B misdemeanor. After a sentencing hearing, the trial court
sentenced him as a Range II, multiple offender to an effective sentence of sixteen years,
eleven months, and twenty-nine days. On direct appeal of his convictions, the
Petitioner‟s sole argument was that the trial court erred by using prior convictions that
were listed in his presentence report, but not included in the State‟s notice of enhanced
punishment, to enhance his sentences. State v. Christopher Lance Osteen, No. W2011-
02714-CCA-R3-CD, 2013 WL 298042, at *2 (Tenn. Crim. App. at Jackson, Jan. 25,
2013). Upon review, this court affirmed the sentencing determinations of the trial court.
Id. at *3.

       After our supreme court denied the Petitioner‟s application for permission to
appeal, he filed a timely pro se petition for post-conviction relief, alleging that he was
sentenced in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v.
Washington, 542 U.S. 296 (2004), and State v. Gomez, 239 S.W.3d 733 (2007); that the
State failed to provide notice of its intent to seek enhanced punishment at sentencing; and
that he failed to have the requisite number of prior convictions in order to be sentenced as
a Range II, multiple offender. The State filed a response to the petition, arguing that the
petition failed to State a colorable claim for post-conviction relief.

        Subsequently, the post-conviction court filed an order summarily dismissing the
petition, finding that the Petitioner had waived all of his claims because he failed to raise
them in his motion for new trial or on direct appeal. As to the Petitioner‟s claims that the
State failed to provide notice of its intent to seek enhanced punishment at sentencing and
that he failed to have the requisite number of prior convictions in order to be sentenced as
a Range II, multiple offender, the court noted that it had reviewed the Petitioner‟s court
file, that the State filed a “„Notice of Request for Enhanced Punishment‟” three months
before the Petitioner‟s trial, and that the felonies listed in the notice showed that the
Petitioner “more than qualified as a Range II, multiple offender at the time of
sentencing.”

                                       II. Analysis

        On appeal, the Petitioner contends that the post-convictions court‟s failure to make
a preliminary determination on whether the petition stated a colorable claim prior to the
State‟s filing its response to the petition, as required by the post-conviction statute,
deprived him of a full and fair hearing on the issues because the court “for all practical
intents and purposes” adopted the State‟s argument in its response. He contends that
“[h]ad the statute been followed and counsel appointed, . . . it is more likely than not
[that] counsel would have amended the petition to frame the issues in the context of an
ineffective assistance of counsel claim.” The State argues that the post-conviction court
properly dismissed the petition. We agree with the State.
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        “Relief under [the Post–Conviction Procedure Act] shall be granted when the
conviction or sentence is void or voidable because of the abridgment of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.”
Tenn. Code Ann. § 40-30-103. 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.” Tenn. Code Ann. § 40-30-106(d). When a petition is timely filed, the
trial court must determine whether the petition asserts a colorable claim for post-
conviction relief. Tenn. Sup. Ct. R. 28 § 2(B)(2). A “colorable claim” is defined as “a
claim . . . that, if taken as true, in the light most favorable to petitioner, would entitle
petitioner to relief under the Post-Conviction Procedure Act.” Tenn. Sup. Ct. R. 28 §
2(h). If the facts alleged in the petition, taken as true, fail to state a colorable claim, then
summary dismissal is appropriate. State v. Arnold, 143 S.W.3d 784, (Tenn. 2004).
However, if the post-conviction court determines that the petition of an indigent pro se
petitioner states a colorable claim, then the court shall enter a preliminary order and
appoint counsel to represent the petitioner. Tenn. Code Ann. § 40-30-107(b)(1). The
State must then file an answer or other responsive pleading to the petition. See Tenn.
Code Ann. § 40-30-108(a). Whether a post-conviction petition was properly dismissed is
a question of law that this court reviews de novo. State v. Burnett, 92 S.W.3d 403, 406
(Tenn. 2002).

      Regarding the Petitioner‟s claim that he was sentenced in violation of Apprendi,
Blakey, and Gomez, this court has previously held that “Blakely issues themselves are
not cognizable in a post-conviction proceeding.” Jeffrey Owen Walters v. State, No.
M2008-01806-CCA-R3-PC, 2009 WL 3400687, at *1 (Tenn. Crim. App. at Nashville,
Oct. 20, 2009), perm. to appeal denied, (Tenn. 2010). Moreover, the Petitioner
committed the crimes in 2010 and was sentenced in 2011, well-after our legistlature
amended the Sentencing Act in 2005 to address the constitutional issues raised by
Blakely.

       As to the Petitioner‟s claims that the State failed to provide notice of its intent to
seek enhanced punishment at sentencing and that he failed to have the requisite number
of prior convictions in order to be sentenced as a Range II, multiple offender, those
claims also are not cognizable in a post-conviction petition. As this court has explained,

              Only issues of constitutional import are proper consideration
              for this court on review of a petition for post-conviction
              relief.   Tenn. Code Ann. § 40-30-203 (1997).               The
              Appellant‟s available avenue for relief on sentencing issues
              was the direct appeal of his case. It is well established that a
              party may not raise an issue in a post-conviction petition that
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             could have been raised on direct appeal. State v. Townes, 56
             S.W.3d 30, 35 (Tenn. Crim. App. 2000). “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.” Tenn. Code Ann. § 40-30-206(g)
             (1997). “The opportunity to raise the issue during a direct
             appeal of the conviction, coupled with a failure to pursue that
             appeal or a failure to raise the issue during that appeal,
             constitutes a waiver of the issue pursuant to Code section 40-
             30-206(g) for purposes of a post-conviction relief
             proceeding.” Townes, 56 S.W.3d at 35.

Andrew Cole v. State, No. W2002-01432-CCA-R3-PC, 2003 WL 22071451, at *4 (Tenn.
Crim. App. at Jackson, Aug. 29, 2003), perm. to appeal denied, (Tenn. 2004).

       Furthermore, this court‟s direct appeal opinion of the appellant‟s convictions
belies his claims. Specifically, this court referred to “the State‟s notice of enhanced
punishment, in which the State listed the felony convictions upon which it was relying in
support of its argument that the defendant should be sentenced as a multiple offender.”
Walters, No. M2008-01806-CCA-R3-PC, 2009 WL 3400687, at *2.

       We recognize that pro se petitions often are inartfully drafted and that pro se
petitioners are not held to the same stringent drafting standards as attorneys. However,
even liberally construing the Petitioner‟s claims, nothing in his pro se petition could be
construed as an allegation of ineffective assistance of counsel. Therefore, we conclude
that the trial court appropriately dismissed the petition without the appointment of
counsel or an evidentiary hearing.

                                    III. Conclusion

      Based upon the record and the parties‟ briefs, we affirm the judgment of the post-
conviction court.

                                                 _________________________________
                                                 NORMA MCGEE OGLE, JUDGE




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