        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                Assigned on Briefs September 15, 2015 at Knoxville

     CHRISTOPHER MICHAEL HOOTEN v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Maury County
                  Nos. 19679 & 19949       Robert L. Jones, Judge


               No. M2015-00618-CCA-R3-PC – Filed October 22, 2015


The pro se Petitioner, Christopher Michael Hooten, appeals as of right from the Maury
County Circuit Court‟s summary dismissal of his petition for post-conviction relief. On
appeal, the Petitioner contends that his petition presented a colorable claim of ineffective
assistance of counsel and, therefore, that the post-conviction court erred by summarily
dismissing the petition. The State concedes that the Petitioner presented a colorable
claim for relief. Following our review, we agree with the parties and remand for the
appointment of counsel and an evidentiary hearing.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                & Case Remanded

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE, and ALAN E. GLENN, JJ., joined.

Christopher Michael Hooten, Pro Se, Mountain City, Tennessee.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; and Brent Cooper, District Attorney General, for the appellee, State of
Tennessee.

                                        OPINION

        Following a jury trial, the Petitioner was convicted of first degree felony murder,
first degree premeditated murder, tampering with evidence, and aggravated robbery. The
judgments of conviction were entered on February 2, 2012. The Petitioner appealed his
convictions, and this court denied relief. See State v. Christopher Michael Hooten, No.
M2012-00979-CCA-R3-CD, 2013 WL 5436712 (Tenn. Crim. App. Sept. 27, 2013),
perm. app. denied (Tenn. Feb. 24, 2014).
       The Petitioner timely filed a petition for post-conviction relief wherein he asserted
that he received ineffective assistance of counsel. As grounds for his claim, the Petitioner
alleged that trial counsel was deficient for failing to object to the State‟s improper
bolstering of a witness, Burnace McDonald. In particular, the petition asserted that, at the
Petitioner‟s trial, the State called the assistant district attorney general who had
prosecuted and eventually negotiated a plea deal with Mr. McDonald to vouch for Mr.
McDonald‟s credibility. The Petitioner argued that Mr. McDonald was a “jail house
snitch” who was the State‟s “only critical witness” and that the failure to object to the
assistant district attorney general‟s testimony prejudiced his trial.

        On March 13, 2015, the post-conviction court summarily dismissed the petition
after finding that the Petitioner had failed to present a colorable claim for relief. In its
order, the post-conviction court assessed the merits of the Petitioner‟s ineffective
assistance claim and concluded that “[t]here was nothing ineffective about trial counsel‟s
performance.” It is from this order that the Petitioner now timely appeals.

                                        ANALYSIS

       On appeal, the Petitioner contends that his petition alleged a colorable claim of
ineffective assistance of counsel and that the post-conviction court erred by summarily
dismissing his petition. The State concedes the post-conviction court‟s error.

       The decision of a post-conviction court to summarily dismiss a petition for post-
conviction relief for failure to state a colorable claim is reviewed as a matter of law. See
Burnett v. State, 92 S.W.3d 403, 306 (Tenn. 2002). Therefore, our review of the post-
conviction court‟s dismissal is de novo. See id.; Fields v. State, 40 S.W.3d 450, 457
(Tenn. 2001).

       Tennessee Code Annotated section 40-30-106(d) states that a petition for post-
conviction relief must specify grounds for relief and set forth facts to establish a colorable
claim. “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 of a
petition, taken as true, would not entitle a petitioner to relief, then the post-conviction
court may dismiss the petitioner without the appointment of counsel or an evidentiary
hearing. Tenn. Code Ann. § 40-30-106(f). Furthermore, “pro se petitions are to be „held
to less stringent standards than formal pleadings drafted by lawyers.‟” Gable v. State,
836 S.W.2d 558, 559-60 (Tenn. 1992) (quoting Baxter v. Rose, 523 S.W.2d 930, 939
(Tenn. 1975)).

       In his petition, the Petitioner asserted that trial counsel was ineffective for failing
to object to the State‟s improper bolstering of a witness and concluded that this failure
ultimately affected the outcome of his trial. In the light most favorable to the Petitioner,

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this claim, if taken as true, would entitle the Petitioner to relief. We note that the post-
conviction court found that no colorable claim was presented only after improperly
assessing the merits of the ineffective assistance of counsel allegation. However, a
court‟s opinion regarding “[t]he ultimate success or failure of a petitioner‟s claims is not
a proper basis for dismissing a post-conviction petition without conducting an evidentiary
hearing.” William Alexander Cocke Stuart v. State, M2003-01387-CCA-R3-PC, 2004
WL 948390, at *3 (Tenn. Crim. App. May 4, 2004). Accordingly, the Petitioner is
entitled to the appointment of counsel and an evidentiary hearing on the merits of his
petition.

                                     CONCLUSION

       Based upon the foregoing and the record as a whole, the judgment of the post-
conviction court is reversed, and this case is remanded for further proceedings consistent
with this opinion.


                                                  _________________________________
                                                  D. KELLY THOMAS, JR., JUDGE




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