                                                                                        08/23/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs June 26, 2018

                KRISTIE M. SMITH v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                         No. 100561 G. Scott Green, Judge
                     ___________________________________

                            No. E2017-02344-CCA-R3-PC
                       ___________________________________

The Petitioner, Kristie M. Smith, appeals from the denial of post-conviction relief,
alleging the trial court erred in summarily dismissing her petition for post-conviction
relief. Upon our review, we affirm the judgment of the post-conviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ROBERT H. MONTGOMERY, JR., JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the appellant, Kristie M. Smith.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Charme Allen, District Attorney General; and Ta Kisha M. Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       On April 29, 2008, the Petitioner was convicted of first degree murder, for which
she received a life sentence. See State v. Kristie M. Smith, No. E2010-00549-CCA-R3-
CD, 2011 WL 5517646, at *1-2 (Tenn. Crim. App. Nov. 14, 2011), perm. app. denied
(Tenn. Jan. 14, 2014). In her motion for new trial, the Petitioner alleged, among other
things, ineffective assistance of counsel. The trial court denied her motion for new trial
and found that the Petitioner’s trial counsel was not ineffective. The Petitioner appealed
and this court affirmed the judgment of the trial court. See Kristie M. Smith, 2011 WL
5517646, at *16. The Petitioner filed a pro se petition for post-conviction relief on
November 7, 2012, and an amended petition through appointed counsel on July 5, 2013,
alleging that appellate counsel was ineffective for failure to file a Rule 11 application
with the Tennessee Supreme Court and that the Petitioner’s trial was “tainted by
structural error due to in-court and out-of-court misbehavior by the trial court judge[.]”
The post-conviction court granted the Petitioner a delayed Rule 11 application which was
subsequently denied by the Tennessee Supreme Court. See Kristie M. Smith, 2011 WL
5517646.

        Post-Conviction Hearing. At the November 15, 2017 post-conviction hearing,
the State presented its motion for summary dismissal of the petition for post-conviction
relief and argued that the Petitioner’s issues had been waived or previously litigated.
Both parties agreed that the Petitioner’s original petition for post-conviction relief was
timely filed and that “partial relief” was granted to the Petitioner through the delayed
Rule 11 application. The Petitioner conceded that the ineffective assistance of counsel
issue was previously litigated during “a pretty extensive hearing” on the Petitioner’s
motion for new trial and again on direct appeal.

        The Petitioner also conceded that “[a] structural error is not going to be supported
based on the out-of-court conduct of the trial court judge” when the record does not
reflect that the out-of-court misconduct affected the trial. See State v. Letalvis Cobbins,
No. E2013-00476-CCA-R3-CD, 2014 WL 4536564, at *13 (Tenn. Sept. 12, 2014).
However, the Petitioner maintained that the trial judge’s “in-court misbehavior”
constituted a due process violation and prejudiced her at trial. Specifically, the Petitioner
asserted that the trial judge “was dozing off, took unnecessary recesses, [and] was
inattentive” and that the Petitioner was prejudiced because:

        [I]f the [trial judge] was not during the course of the trial in a condition to
        be attentive to the evidence, that the [trial judge] wouldn’t be in a position
        to knowingly and competently exercise the thirteenth juror evaluation of the
        evidence in the case and, also, the rulings the [trial judge] made with regard
        to evidentiary issues.

       The post-conviction court found that the Petitioner was afforded a “full and fair”
hearing, that she was permitted to file a delayed Rule 11 application, and that the rest of
her claims had been waived or previously determined. The post-conviction court granted
the State’s motion and summarily dismissed the petition for post-conviction relief. It is
from this order that the Petitioner now appeals.

                                             ANALYSIS

       On appeal, the Petitioner argues that her original trial was prejudiced by the trial
court’s “in-court misconduct.”1 She specifically contends that this issue was not waived

        1
          Although other issues were raised by the Petitioner in her petition for post-conviction relief,
none of them are argued in her brief on appeal. Accordingly, those issues are waived.
                                                  -2-
or previously determined. The State responds that the post-conviction court properly
dismissed the petition for post-conviction relief because “any due process objection could
have been [raised] during the motion for new trial proceedings” and the Petitioner waived
her claim by failing to object or raise this issue in prior proceedings. Upon our review,
we agree with the State.

       In reaching our conclusion, we are guided by the following well-established law
pertaining to post-conviction relief. Post-conviction relief is only warranted when a
petitioner establishes that his or her conviction or sentence is void or voidable because of
an abridgment of a constitutional right. T.C.A. § 40-30-103. The Tennessee Supreme
Court has held:

       A post-conviction court’s findings of fact are conclusive on appeal unless
       the evidence preponderates otherwise. When reviewing factual issues, the
       appellate court will not re-weigh or re-evaluate the evidence; moreover,
       factual questions involving the credibility of witnesses or the weight of
       their testimony are matters for the trial court to resolve. The appellate
       court’s review of a legal issue, or of a mixed question of law or fact such as
       a claim of ineffective assistance of counsel, is de novo with no presumption
       of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation
marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State,
303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f);
Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.
2009). Evidence is considered clear and convincing when there is no serious or
substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316
S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009);
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

       The Post-Conviction Procedure Act states that a petition for post-conviction relief
“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.” T.C.A. § 40-30-106(d).
Bare allegations that a constitutional right has been violated and mere conclusions of law
will not be sufficient to warrant further proceedings. See id. Furthermore, the
petitioner’s “[f]ailure to state a factual basis for the grounds alleged shall result in
immediate dismissal of the petition.” Id. Tennessee Code Annotated section 40-30-
106(g) explains when a Petitioner’s claims have been waived:



                                           -3-
       (g) 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 unless:

              (1) The claim for relief is based upon a constitutional right
              not recognized as existing at the time of trial if either the
              federal or state constitution requires retroactive application of
              that right; or

              (2) The failure to present the ground was the result of state
              action in violation of the federal or state constitution.

T.C.A. § 40-30-105(g). Furthermore, issues that have been “previously determined” may
not be re-litigated in a post-conviction procedure. See T.C.A. § 40-30-106(f). A ground
for relief has been previously determined when “a court of competent jurisdiction has
ruled on the merits after a full and fair hearing.” See T.C.A. § 40-30-106(h). “A full and
fair hearing has occurred where the petitioner is afforded the opportunity to call witnesses
and otherwise present evidence, regardless of whether the petitioner actually introduced
any evidence.” Id.; see Miller v. State, 54 S.W.3d 743, 747-48 (Tenn. 2001) (holding
that the issue raised and resolved in the petitioner’s direct appeal “cannot be revisited in
this post-conviction proceeding.”).

        Here, the Petitioner argues that she was prejudiced by the trial judge’s “in-court
misconduct” and that the trial judge was unable to act in his capacity as the thirteenth
juror due to his out-of-court drug use. The State responds that the trial judge’s in-court
actions would have been visible to the Petitioner and her counsel during trial and any
resulting due process violations could have been raised in the Petitioner’s motion for new
trial or on direct appeal. By failing to object or raise these issues on previous appeal, the
State asserts that the Petitioner has now waived this issue. In its order denying the
petition for post-conviction relief, the post-conviction court cited the Tennessee Supreme
Court’s holding that “any structural error due to an alleged infirmity of the trial judge in
[the Petitioner]’s case does encompass the judge’s conduct apart from the trial.” See
State v. Davidson, 509 S.W.3d 156 (Tenn. 2016). Furthermore, the post-conviction court
concluded that any in-court misconduct by the trial court could have been previously
litigated.

       Upon review, we conclude that the post-conviction court properly dismissed the
Petitioner’s petition for post-conviction relief. The record reflects that the Petitioner was
permitted to file her Rule 11 application for review of this court’s decision and the
Tennessee Supreme Court denied the Petitioner’s application. See State v. Kristie M.
                                            -4-
Smith, No. E2010-00549-CCA-R3-CD, 2011 WL 5517646, at *1-2 (Tenn. Crim. App.
Nov. 14, 2011), perm. app. denied (Tenn. Jan. 14, 2014). The Petitioner failed to argue
this issue in her Rule 11 application and thus waived it on appeal. Accordingly, the
Petitioner is not entitled to relief.

                                   CONCLUSION

      Based upon the foregoing reasoning and analysis, the judgment of the post-
conviction court is affirmed.


                                           ____________________________________
                                           CAMILLE R. MCMULLEN, JUDGE




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