        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                        AT KNOXVILLE              FILED
                      JULY SESSION, 1997          December 18, 1997

                                                  Cecil Crowson, Jr.
                                                  Appellate C ourt Clerk

OLEN EDWARD HUTCHISON,     )   C.C.A. NO. 03C01-9702-CR-00065
                           )
     Appe llant,           )
                           )   CAMPBELL COUNTY
                           )
V.                         )
                           )   HON. JAMES WITT, JUDGE
STATE OF TENNESSEE,        )
                           )
     Appellee.             )   (POST-CONVICTION)



FOR THE APPELLANT:             FOR THE APPELLEE:

CHRISTOPHER VAN RIPER          JOHN KNOX WALKUP
STUART & VAN RIPER             Attorney General & Reporter
300 Market Street
Clinton, TN 37716              JOHN P. CAULEY
                               Assistant Attorney General
                               2nd Floor, Cordell Hull Building
                               425 Fifth Avenue North
                               Nashville, TN 37243-0943

                               WILLIAM PAUL PHILLIPS
                               District Attorney General

                               MICHAEL O. RIPLEY
                               Assistant District Attorney General
                               P.O. Box 323
                               Jacksboro, TN 37757



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                     OPINION
              The Petitioner, Olen Edward Hutchison, appeals as of right from the

trial court’s dismissal of his second petition for post-conviction relief.           The

dismissal followed argument by both parties on the State’s motion to dismiss.

The trial court allowed both parties to arg ue the m erits of the S tate’s mo tion to

dismiss, but no evidence was submitted by either side at the hearing. W e affirm

the judgm ent of the tria l court.



              In his appeal, Petitioner presents three (3) issues for review:

              (1)    The trial court erred by not finding that the statute of
                     limitations codified in Tennessee Code Annotated section 40-
                     30-202(a) violated the due process rights of Petitioner and by
                     not making findings of fact mandated by our supre me c ourt in
                     Sand s v. State, 903 S.W .2d 297 (Te nn. 1995).

              (2)    The trial court erred by findin g that s tatem ents in clude d within
                     an exhibit attached to the petition for post-conviction relief
                     were no t “Brady” materia l.

              (3)    The trial judge w ho gran ted the S tate’s mo tion to dismiss was
                     not one who was properly designated to hear this petition for
                     post-conviction relief pursuant to Tennessee Code Annotated
                     section 40-30-205.




                                F ACTUAL BACKGROUND



              Petitioner was c onvicted of the first degree murder of Hugh

Huddleston, conspiracy to take a life, and solicitation to commit first degree

murder. For the conviction of first degree murder, he received the de ath penalty.

The convictions and sentences were affirmed on direct appe al.                  State v.

Hutchison, 898 S.W .2d 161 (Tenn . 1994), cert. denied, ____ U.S. ____, 116

                                           -2-
S.Ct. 137 (19 95). On May 4, 19 95, Petition er filed his first pe tition for post-

conviction relief. The trial court denied the petition following an evide ntiary

hearing on September 27, 1995, and the dismissal of the first petition for p ost-

conviction relief was recently affirmed by a pan el of this cou rt. Olen Eddie

Hutchison v. State, No. 03C01-9601-CC-00033, Campbell County (Tenn. Crim.

App., Knoxville, Oct. 3, 1997). In the case sub judice, Petitioner filed his second

petition for post-co nviction relief pro se on August 1, 1996.      The State filed a

motion to dism iss this second petition on August 29, 1996. Petitioner filed a pro

se respo nse o n Sep temb er 12, 1 996, a nd Pe titioner’s counsel in the first po st-

convic tion petition appeared in the present case and filed a motion in the case

sub judice on Se ptem ber 17 , 1996 . The tr ial cou rt allowe d a he aring in this

matter o n Septe mber 1 9, 1996 , and dism issed the petition.



             In the seco nd pos t-conviction petition wh ich is the su bject of this

appe al, the Petitioner alleges that the State withhe ld exculpatory m aterial before

and during the original trial which led to his convictions. Petitioner alleged that

the material withheld was in violation of the mandates found in Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194 (1963). The specific item argued in this court to be

Brady material is a statement purportedly made by one Tony Goings to an

insurance company investigator. In this recording of the statemen t given by Mr.

Goings, one D avid Da vis told Mr. Goings about a conve rsation he had with

Richard Miller w ho wa s, as d escrib ed by o ur sup reme court in the direct appe al,

the chief prosec ution witne ss. Hutchison, 898 S.W.2d at 165. Petitioner a dmits

in his brief that the report from the insurance investigator was included in a large

volume of documents which Petitioner’s attorney was allowed to examine prior

to the hearing of the original po st-convictio n petition. Petitioner argues , however,

                                          -3-
that he and his counsel were not provided with adequate time to “examine and

utilize” the investigative report in order to include it in the original post-conviction

hearing .



              The trial court dismissed the present petition because it was filed

after the expiration of the applicable one year statute of limitations and a prior

petition for post-conviction relief had be en previo usly filed an d heard on its

merits. He als o ruled that the claims and issues asserted had been waived

pursuant to Tenness ee Co de Ann otated se ction 40-3 0-206(g ), and the facts

alleged in the Petition, even if taken as true, failed to sho w that th e Petitio ner is

entitled to relief as the alleged exculpatory evidence does not constitute “Brady”

material pursu ant to Tenn essee C ode Ann otated section 4 0-30-206(f).



                              D UE PROCESS VIOLATION



              Relying upon Sand s v. State, 903 S.W.2d 297 (Tenn. 1995), the

Petitioner argues that the trial court erred by not making certain findings of fact

as mand ated in tha t decision of our supreme court, and by not finding that the

statute of limitations violated his due process rights. In Burford v. State, 845

S.W.2d 204 (Tenn. 1992), our supreme court held that the three-year statute of

limitations then in effect on post-conviction petitions complies with the due

process requirements of the United States and Tennessee Constitutions.

Howeve r, the supreme court also recog nized that “before a state m ay termin ate

a claim for failure to comply with procedural requirements such as statutes of

limitations, due p roces s requ ires tha t poten tial litigants be provided an

opportu nity for the presentation of claims at a meaningful time and in a

                                          -4-
meaningful manne r.” Id. at 208 (citations omitted). The refore, the suprem e court

found that in particular circumstances, application of the statute of limitations

might not afford a reasonable opportunity to have an issue heard and decided.

Id. In add ition, the court s ugge sted th at “[c]lea rly, it wou ld be h elpful in such

instances for the legislature to adopt a shorter statute of limitations for later

arising grounds providing such a reasonable opportunity.” Id. In a sepa rate

concurring opinion Justice Daughtrey also noted that “[i]t obviously would be best

if the Te nnes see G enera l Asse mbly would enact legislation dealing spec ifically

with the effect of T.C.A. § 40-30-102 [statute of limitations on post-conviction

matters] on later-a rising grounds .” Id. at 212.



              Petition er’s first petition for post-convic tion relie f attack ing his

convictions and sentences was timely filed and an evidentiary hearing was held.

Not only does the statute of limitations bar the second petition for post-conviction

relief, but it is also barred by the provisions of Tennessee Code Annotated

section 40-30-202(c) which states in part, “[t]his part contemplates the filing of

only one (1) petition for post-conviction relief. In no event may more than one (1)

petition for pos t-conv iction re lief be filed attacking a single judgment.” Tennessee

Code Annotated section 40-30-206(b) provides in pertin ent pa rt that “[i]f it plainly

appears from the face of the petition, any annexed exhibits or the prior

proceedings in the cas e that . . . a prior petition was filed attacking the conviction

and was resolved on the merits, the judge shall enter an order dismissing the petition.”



              As noted above, Petitioner candidly admits that he had access to the

alleged “Brady” material prior to the hearing on the first petition for po st-

conviction relief. There is no evidence in the record to suggest that Petitioner

                                          -5-
was not provided an opportunity for the presentation of claims at a meaningful

time and in a m eaningful m anner as req uired by Burford, 845 S.W.2d at 208.



              There fore, this issu e is withou t merit.



 F INDING THAT ALLEGED EXCULPATOR Y INFORMATION WAS N OT “BRADY” MATERIAL



              The trial cou rt was ju stified in dism issing this sec ond p etition for

post-conviction relief on the basis that it had been filed after expiration of the

statute of limitations, and another petition for relief had already been filed and

heard on the merits. However, the trial court erred in relying upon Tennessee

Code Annotated section 40-30-206(f) to support dismissal of the petition without

an evide ntiary hea ring.



              In its order dismis sing the petition, the trial court stated that the

allegations in the petition, even if true, failed to show that the Petitioner was

entitled to relief, failed to show that the claims for relief had not been waived, and

made a finding that the allege d excu lpatory eviden ce did not constitute “Brady”

mate rial.   In its ruling from the ben ch, the trial court expressed doubt that

Petitione r could pro ve the alleg ations co ntained in the petition .



              Included within the petition are the allegations that the prosecution

know ingly presented perjured testimony during the trial and withheld exculpa tory

information, among other c laims . In esse nce, it appears from the record that the

trial court m ade a d etermin ation, witho ut an evid entiary hearing, that it did not

believe the allegation s.

                                           -6-
             The standa rd in Ten nesse e Cod e Anno tated sec tion 40-3 0-206(f)

requires the trial court to assume the facts alleged to be true, and then make a

determination that the Petitioner is still not entitled to any relief. Also, there are

allegations in the petition that the claims fo r relief were n ot waived .        We

respe ctfully find that the trial court applied the wrong standard of review and the

petition shou ld not have been dismissed pursuant to Tennessee Code Annotated

section 40-30-206(f).    However, since we determined that the petition was

prope rly dismiss ed bec ause it ha d been filed after exp iration of the statu te of

limitations and a prior post-conviction petition had been filed and heard on the

merits, any error by the trial court was harmless.



                            T RIAL COURT’S JURISDICTION



             Petitioner argues that Judge James C. Witt did not have jurisdiction

to enter an order dismissing the petition for post-conviction relief. In support of

his argument, he relies upon Tennessee Code Annotated section 40-30-205(b)

which provides as follows:


      At either the trial proceeding or an appellate proceeding reviewing
      the proceeding, the presiding judge of the ap propr iate co urt sha ll
      assign a judge to hear the petition. The issue of competency of
      counsel may be heard by a judge other than the original hearing
      judge. If a presiding judge is unable to assign a judge, the chief
      justice of the supreme court shall designate an approp riate judge to
      hear the matter.


             It appears from the record that Judge Witt was designated to preside

over the trial of the original charges and also was designated to hear the first

petition for post-conviction relief. Counsel for Petitioner did not challenge the




                                         -7-
approp riateness of Judge Witt to hear the case until the morning of the hearing

on the S tate’s mo tion to dism iss.



              W hile we recognize that the language contained in Tennessee Code

Annotated section 40-30 -205(b) app ears to be man datory , we als o note there is

nothing in the record to indicate that the presiding judge of the Circuit Court of

Cam pbell County would not appoint Judge Witt to hear this particular petition.

Even if it was error for Judge Witt to hear the State’s motion to dismiss without

strict compliance with Tennessee Code Annotated section 40-30-205(b), we hold

that it was harmless error. In May v. Sta te, 589 S.W.2d 933, 934 (Tenn . Crim.

App. 1979), our court held that it was harmless error for the trial court to dismiss

a petition for post-conviction relief with out an eviden tiary he aring a nd no t com ply

with a statute requiring the court to designate a judge other than the one who

presided at trial to hear a related post-conviction matter. This issue is without

merit.



              Finding no reversible error, we affirm the judgment of the trial court.

The senten ce of dea th will be carried out as provided by law on the 8th day of

April, 1998, unless otherwise ordered by the Tennessee Supreme Court or other

proper a uthority.


                                   ____________________________________
                                   THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
DAVID H. WELLES , Judge



                                           -8-
___________________________________
JOHN K. BYERS, Senior Judge




                              -9-
