         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                               Assigned on Briefs July 21, 2004

               COREY CARTWRIGHT v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                           No. 2002-A-427    Seth Norman, Judge



                    No. M2002-02600-CCA-R3-PC - Filed October 21, 2004


The petitioner, Corey Cartwright, appeals as of right from the dismissal of his petition for post-
conviction relief by the Davidson County Criminal Court. He seeks relief from his Class C felony
conviction for possession of less than one-half gram of cocaine with intent to sell and resulting
sentence of ten years in confinement. He contends that the post-conviction court erred in summarily
dismissing his petition without appointing counsel, that he received the ineffective assistance of
counsel, and that the trial court erred in sentencing. We affirm the trial court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER , J., and
JOE G. RILEY , SP . J., joined.

Corey D. Cartwright, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Victor
S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                              OPINION

        This case relates to the petitioner’s conviction for selling cocaine to an undercover informant
participating in a sting operation. On November 6, 2001, officers of the Nashville Police
Department’s Metro Vice Squad set up a sting operation at Shoney’s Inn on Demonbreum Street.
It consisted of an undercover informant calling known drug dealers and asking to buy drugs. When
the drug dealers arrived at the hotel, went to the informant’s room and sold her drugs, members of
the Metro Vice Squad would immediately arrest them. In order to obtain evidence for the
prosecution, the officers placed surveillance equipment in the room to record the drug sales.

        The petitioner was charged with the sale of more than one-half gram of cocaine, a Class B
felony, but pursuant to a plea agreement with the state, he pled guilty to possession with intent to sell
less than one-half gram of cocaine, a Class C felony, and received a sentence of ten years in
confinement as a Range II, multiple offender. The petitioner filed a petition for post-conviction
relief alleging that he received the ineffective assistance of counsel, that the trial court erred in
summarily dismissing his petition without appointing him counsel, and that the trial court erred in
sentencing.

        I. INEFFECTIVE ASSISTANCE OF COUNSEL/“COLORABLE CLAIM”

         Regarding the ineffective assistance of counsel, the petition alleges that one of the officers
at the scene “field tested” the drugs. It alleges there were color and weight discrepancies between
the cocaine which was “field tested” and the cocaine which was retained by the police department
as evidence. The petition claims that the petitioner’s attorney failed to investigate these
discrepancies further or file any pretrial motions in an effort to exclude this evidence. The petition
also alleges that the petitioner’s attorney’s performance was deficient because the attorney failed to
attempt to exclude certain statements made by the petitioner as a violation of his Fifth Amendment
right against self-incrimination. While the section of the petition concerning the alleged Fifth
Amendment violation does contain a statement that the “petitioner’s guilty plea [was] unintelligently
submitted,” the petition does not allege or otherwise indicate that the petitioner would have gone to
trial but for his attorney’s deficient performance.

        On September 19, 2002, the trial court summarily dismissed the petition for post-conviction
relief without appointing the petitioner counsel pursuant to Tennessee’s Post-Conviction Procedure
Act. See T.C.A. § 40-30-106. On appeal, the petitioner contends the trial court erred. The state
contends that the petition was facially deficient and that the trial court properly dismissed it.

         Whether a trial court properly dismissed a petition for post-conviction relief for failure to
state a claim for relief is reviewed as a question of law. See Burnett v. State, 92 S.W.3d 403, 406
(Tenn. 2002). Thus, our review of the trial court’s dismissal of the petition is de novo. See id.;
Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

        The Post-Conviction Procedure Act states that a petition for post-conviction relief must
specify the grounds for relief and set forth facts to establish a colorable claim for relief. See T.C.A.
§ 40-30-106(d). “A colorable claim is a claim, in a petition for post-conviction relief, 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). When the facts, taken as true, fail to
demonstrate that the petitioner is entitled to relief, then the trial court may dismiss the petition.
T.C.A. § 40-30-106(f). When the trial court concludes that a petition does not present a “colorable
claim,” it may summarily dismiss the petition without appointing counsel. See Blair v. State, 969
S.W.2d 423, 424 (Tenn. Crim. App. 1997); see also Pewitt v. State, 1 S.W.3d 674, 674 (Tenn. Crim.
App. 1999) (holding that a petition alleging “no particulars” of ineffective assistance of counsel did
not state a “colorable claim”); but cf. Arnold v. State, __ S.W.3d __, No. E2003-00691-SC-R11-PC
(Tenn. Aug. 31, 2004) (holding that a petition stated a “colorable claim” when it alleged that an



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attorney’s failure to move for a change of venue in a case involving intense media publicity resulted
in prejudice to the petitioner).

         In order to assert a “colorable claim” in the context of the ineffective assistance of counsel,
a petitioner must satisfy the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052
(1984). In Strickland, the Court determined that the ineffective assistance of counsel claim that
would merit relief from a conviction or sentence has two components: (1) that counsel’s performance
was professionally deficient and (2) that the deficiency was prejudicial in terms of rendering a
reasonable probability that the result of the trial was unreliable or that the proceedings were
fundamentally unfair. Id. at 687, 104 S. Ct. at 2064. A petition that fails to demonstrate either of
these prongs necessarily fails. Id. at 700, 104 S. Ct. at 2071.

         In assessing the right to vacate a conviction based upon the ineffective assistance of counsel
relative to guilty pleas, a petitioner must show (1) that the representation during the plea process or
the advice given was deficient and (2) “that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,
474 U.S. 52, 56, 106 S. Ct. 366, 370 (1985). Of singular importance to this case, the Supreme Court
in Hill held that the dismissal of the habeas corpus petition without a hearing was proper because
the petition failed to allege the kind of prejudice necessary to satisfy the second prong.

        Taking the allegations in the petition as true and in the most favorable light, we hold that the
petitioner has failed to state a “colorable claim” that would entitle him to the appointment of counsel
under the Post-Conviction Procedure Act. See T.C.A. § 40-30-206(f); Tenn. Sup. Ct. R. 28, § 2(H).
The petition alleges that the cocaine which the undercover informant gave to the officer was different
in weight and color from the cocaine which the police department held as evidence to be used against
the petitioner and that the attorney’s performance was deficient because he failed to attempt to
exclude the evidence through pretrial motions. However, the petition does not allege that, but for
this error, the petitioner would have proceeded to trial. The petitioner has failed to allege the
necessary prejudice under Hill, and the trial court was correct in summarily dismissing the petition.
See Hill, 474 U.S. at 56, 106 S. Ct. at 370.

                                  II. EXCESSIVE SENTENCE

        The petitioner next claims that his sentence is illegal. Although the petition for post-
conviction relief does not contain any allegations concerning improper sentencing, the petitioner’s
brief on appeal claims that the state did not comply with the notice requirement regarding the use
of enhancement factors, see T.C.A. § 40-35-202, that he received the ineffective assistance of
counsel because his attorney did not contest his Range II, multiple offender status based upon the
state’s failure to file the proper notice, and that his sentence should be modified without the
withdrawal of his guilty plea. The state contends that the petitioner has waived these issues for
failure to raise them on direct appeal and in the petition for post-conviction relief. We agree with
the state.



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         The Post-Conviction Procedure Act states, “A ground for relief is waived if the petitioner .
. . failed to present it for determination in any proceeding before a court of competent jurisdiction
in which the ground could have been presented . . . .” T.C.A. § 40-30-106(g). It also states that
appeals from the dismissal of a petition for post-conviction relief are to be governed by the rules of
appellate procedure. Id. at § 40-30-116. The advisory commission comments to Rule 36(a),
T.R.A.P., state that it is an “accepted principle that a party is not entitled to relief if the party invited
error, waived an error, or failed to take whatever steps were reasonably available to cure an error.”

       The record reflects that the petitioner failed to challenge the legality of his sentence on direct
appeal and that the petition for post-conviction relief is devoid of any allegation of improper
sentencing. We hold the petitioner has waived this issue for failure to properly prosecute his
sentencing claims. Based on the foregoing and the record as a whole, we affirm the judgment of the
post-conviction court.



                                                          ___________________________________
                                                          JOSEPH M. TIPTON, JUDGE




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