         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs June 24, 2003

               WILLIAM KIRK RILEY v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Hamilton County
                          No. 182318    Douglas A. Meyer, Judge



                                No. E2002-00694-CCA-MR3-PC
                                         July 11, 2003

The petitioner, William Kirk Riley, appeals the trial court's summary dismissal of his petition for
post-conviction relief. The issue presented for review is whether the petition was properly dismissed
without any opportunity to amend, without the appointment of counsel, and without an evidentiary
hearing. The judgment is reversed and the cause is remanded for an evidentiary hearing.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Reversed

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and NORMA
MCGEE OGLE , JJ., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, William Kirk Riley.

Paul G. Summers, Attorney General & Reporter, and Thomas E. Williams, III, Assistant Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

         On June 19, 1990, the petitioner filed a pro se petition for post-conviction relief under the
Post-Conviction Procedure Act of 1967. He alleged ineffective assistance of counsel as a ground
for relief:

       [C]ounsel failed to file application for permission to appeal unto Tennessee Supreme
       Court . . . or failed to ask, or seek and receive, permission to withdraw prior to filing
       it, and, to notify or advise petitioner of his right of pro se review from the Tennessee
       Supreme Court.

       Two months later, the petitioner filed an amendment requesting the appointment of counsel
and supplementing his claim of ineffective assistance of counsel:

       (a)     Counsel failed to interview any of the petitioner's witnesses; and
         (b)       counsel failed to adequately research and investigate the petitioner's case.

        Three days later, the trial court ordered the petitioner to file further pleadings in support of
his claims:

         A reading of the petition reveals that it alleges ineffective assistance of counsel but
         not sufficient facts to determine whether it claims incompetence or some other kind
         of inefficiency. If incompetence is claimed, then it must be heard and determined by
         the "original trial Judge" but if some other kind is claimed, it must be heard and
         determined by another Judge. The case will therefore be retained in this court until
         such determination can be made after further pleadings.1

        On September 18, 1990, Judge Douglas A. Meyer entered an order recognizing that the
petitioner was indigent and that the cause would require an evidentiary hearing. The office of the
public defender was appointed as counsel but did not make an appearance on behalf of the petitioner
and did not file any pleadings. Approximately four months later, the trial court dismissed the
petition.

       Although there was no order of dismissal, the court's minutes of January 10, 1991, reflect the
following:

                           The above styled petition came on today to be heard. The
                   [c]ourt, after hearing said petition, is of the opinion same is not well
                   taken, and the [p]ost[-c]onviction [p]etition is hereby dismissed due
                   to the petitioner['s] not alleging grounds upon which the [c]ourt has
                   jurisdiction to act.

        The petitioner, acting pro se, filed a March 25, 2002, motion in this court asking for a waiver
of the filing of a timely notice of appeal. This court granted the motion and authorized the appeal.

        The record of the trial establishes that during the early morning hours of September 13, 1986,
the defendant struck Herschel Stone as he walked out of the B&B Lounge in Chattanooga. The
murder victim, Douglas Gass, and others joined the fray. While Stone lay unconscious near the steps
of the lounge, the petitioner stabbed Gass with a machete, entered the passenger's seat of a car, and
sped away. The petitioner was arrested at his residence in Georgia later that same morning. When
police announced their presence, the petitioner ran into some nearby woods but was found and
returned to Hamilton County. In June of 1987, the petitioner was convicted of first degree murder
and assault and battery. The trial court imposed concurrent, Range I sentences of life imprisonment



         1
           Judge Russell C. Hinson signed the order; shortly thereafter, the case was transferred to a different division;
at that time the statute required the convicting judge, if available, to hear post-conviction claims of ineffective assistance
of counsel. See Tenn. Co de A nn. § 4 0-30 -103 (repe aled 1 995 ).

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and six months, respectively. This court affirmed on direct appeal. See State v. William Kirk Riley,
No. 1053 (Tenn. Crim. App., at Knoxville, July 8, 1998).

        In this appeal, the petitioner claims that the petition and amendment established a colorable
claim for relief and that he was entitled to the appointment of counsel, the opportunity to file further
amendments, and an evidentiary hearing. The state argues that the petitioner failed to assert facts
in support of his claim. The petitioner and the state agree that there was no evidentiary hearing.

        The petition was filed well before the passage of the 1995 amendments to the Post-
Conviction Procedure Act. At the time of filing, the Post-Conviction Procedure Act of 1967 was
in effect. Tennessee Code Annotated §§ 40-30-101 to -124, since repealed, applied. Tennessee
Code Annotated section 40-30-107 (repealed 1995) provided as follows:

               No petition for relief shall be dismissed for failure to follow the prescribed
        form or procedure until after the judge has given the petitioner a reasonable
        opportunity, with the aid of counsel, to file an amended petition.

      Another section of the act established liberal policies governing the dismissal, withdrawal,
or amendment of the petitions:

                (a) The court may grant leave to withdraw the petition at anytime prior to the
        entry of the judgment, may freely allow amendments and shall require amendments
        needed to achieve substantial justice and a full and fair hearing of all available
        grounds for relief. The district attorney general shall be allowed a reasonable time
        to respond to any amendments.

                 (b)The court shall look to the substance rather than the form of the petition
        and no petition shall be dismissed for technical defects, incompleteness or lack of
        clarity until after the petitioner has had reasonable opportunity, with aid of counsel,
        to file amendments.

Tenn. Code Ann. § 40-30-115 (repealed 1995).

        Under the 1967 Act, there were occasions when a pro se petitioner who had competently
drafted a petition for post-conviction relief and the issues raised did not require an evidentiary
hearing, that the trial court might summarily dismiss without the appointment of counsel. See
Crumley v. Tollett, 4 Tenn. Crim. App. 495, 474 S.W.2d 148 (1971). Under the law in effect at the
time of this petition, there was a statutory basis for such rulings:

                (a)(1) When the petition has been competently drafted and all pleadings, files
        and records of the case which are before the court conclusively show that the
        petitioner is entitled to no relief, the court may order the petition dismissed.



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               (2) In all other cases the court shall grant a hearing as soon as practicable.

Tenn. Code Ann. § 40-30-109(a). In cases of this nature, the trial court had to view as true all of the
petitioner's allegations of fact. See, e.g., Bland v. State, 2 Tenn. Crim. App. 77, 451 S.W.2d 699,
700 (1969). Only then could a court summarily dismiss. This court has recognized the "enormous
burden" of discretion granted trial judges under our prior law and suggested "great caution in the
exercise of these functions," especially in consideration of the provisions of Tennessee Code
Annotated sections 40-30-107 and 40-30-115. Cureton v. Tollett, 477 S.W.2d 233, 237 (Tenn. Crim.
App. 1971). In consequence, trial courts under the prior act traditionally appointed counsel, granted
amendments, and only then considered the propriety of disposition without an evidentiary hearing.
In Baxter v. Rose, our supreme court cited with approval § 4.4(a) of the ABA Standards, Post-
Conviction Remedies:

       (I)t is most desirable to avoid processing of applications for post conviction relief
       beyond the initial screening of the documents without counsel representing the
       applicant. Counsel should be provided for pro se applicants unable to afford
       adequate representation.

523 S.W.2d 930, 939 (Tenn. 1975). What constitutes an "artful" or a "competently drawn" petition
necessarily requires a subjective analysis. In recognition of the vagaries incident to such analysis,
this court traditionally chose to err on the side of adequate due process. In Swanson v. State, our
supreme court confirmed the liberal nature of our prior act:

       [A] petition stating a colorable claim for relief or demonstrating an unwaived or
       undetermined ground for relief is to be considered on its merits. Technical grounds
       for dismissal are clearly disfavored for such petitions.

                This [c]ourt has previously held that a pro se petition under the Act is "held
       to less stringent standards than formal pleadings drafted by lawyers, and the test is
       whether it appears beyond doubt that the [petitioner] can prove no set of facts in
       support of his claim which would entitle him to relief." Furthermore, when a
       colorable claim is presented in a pro se petition, dismissal without appointment of
       counsel to draft a competent petition is rarely proper. If the availability of relief
       cannot be conclusively determined from a pro se petition and the accompanying
       records, the petitioner must be given the aid of counsel.

749 S.W.2d 731, 734 (Tenn. 1988) (citations omitted).

        The pleadings offered by the petitioner in this case could have been more competently drafted
by able counsel. Certainly, the assertion that trial counsel failed to adequately research, prepare, or




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investigate, and failed to apply for permission to appeal to our supreme court2 might require some
elucidation. A general allegation of ineffective assistance of counsel covers a broad area and almost
always requires both amendment and an evidentiary hearing; that allegation in a first petition for
post-conviction relief, unless previously raised and determined, qualifies as a colorable claim. See,
e.g., Lewis Bolerjack v. State, No. 02C01-9306-CC-00156 (Tenn. Crim. App., at Jackson, Oct. 26,
1994). In considering constitutional claims under our prior act, the discretionary authority of the trial
court should generally favor providing both the appointment of counsel and the grant of an
evidentiary hearing to the pro se petitioner. David Siboloski v. State, No. 03C01-9210-CR-00369
(Tenn. Crim. App., at Knoxville, June 3, 1993).

        In our view, the petitioner should have the benefit of counsel, have the opportunity to further
amend the petition, and be afforded an evidentiary hearing. Accordingly, the judgment of the trial
court is reversed; the cause is remanded for further proceedings.



                                                          ___________________________________
                                                          GARY R. WADE, PRESIDING JUDGE




        2
          The former statutory reference for a delayed appeal was Tennessee Code Annotated section 40-30-120
(repealed 199 5).

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