         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                FILED
                                AT KNOXVILLE
                                                               October 5, 1999

                               MAY 1999 SESSION               Cecil Crowson, Jr.
                                                             Appellate Court Clerk




LUCY KILLEBREW,                  *    C.C.A. # 03C01-9809-CR-00320

            Appellant,           *    SULLIVAN COUNTY

VS.                              *    Honorable Lynn W . Brown, Judge

STATE OF TENNESSEE,              *    (Post-Conviction--First Degree Murder)

            Appellee.            *



FOR THE APPELLANT:                    FOR THE APPELLEE:

LUCY KILLEBREW                                MICHAEL E. MOORE
Pro Se                                Solicitor General
SNF-7A, #117005
7575 Cockrill Bend Ind. Road          ELLEN H. POLLACK
Nashville, TN 37209-1057              Assistant Attorney General
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      H. GREELEY WELLS, JR.
                                      District Attorney General

                                      BARRY P. STAUBUS
                                      Assistant District Attorney
                                      140 Blountville Bypass
                                      Blountville, TN 37617-0526




OPINION FILED: _______________




DISMISSED



JOHN EVERETT WILLIAMS,
Judge
                                    OPINION

       The petitioner, Lucy Killebrew, appeals from the Sullivan County Criminal

Court’s denial of her motion to reopen her 1989 post-conviction relief petition.

We conclude that the petitioner did not comply with the requirements of

Tennessee Code Annotated § 40-30-217(c) in pursuing an appeal from the

denial of her motion to reopen. Therefore, this appeal is not properly before this

Court and we dismiss this appeal.



                            PROCEDURAL HISTORY

       The petitioner was found guilty by a Sullivan County jury on April 10,

1987, of First Degree Murder. She received a sentence of life in prison. Her

conviction was affirmed on direct appeal. See State v. Killebrew, 760 S.W.2d

228, 231, n.10 (Tenn. Crim. App. 1988). Subsequently, she filed a petition for

post-conviction relief in 1989. The trial court denied her petition for post-

conviction relief and a panel of this Court affirmed the trial court’s denial. See

Lucy Killebrew v. State, No. 941 (Tenn. Crim. App. filed January 11, 1991, at

Knoxville). Later, the petitioner pursued habeas corpus relief. See Killebrew v.

Bernhardt, 72 F. 3d 129 (6th Cir. 1995) (unpublished table decision).



       The petitioner filed this motion to reopen her 1989 post-conviction relief

petition in the Sullivan County Criminal Court on August 14, 1998. The Motion to

Reopen was filed as a verified petition but lacked any supporting documents or

affidavits. The Sullivan County Criminal Court denied and dismissed the

petitioner’s Motion to Reopen by Order entered August 28, 1998. On September

14, 1998, the petitioner filed a “Notice of Appeal” containing the following

language:

       Respectfully, the petitioner, Lucy Killebrew, hereby gives Notice of
       Appeal of this Court’s Order, dated September 1, 1998, received by
       her on September 3, 1998, denying her Motion to reopen a post-
       conviction petition, appealed to the Tennessee Court of Criminal
       Appeals at Knoxville.

                                         -2-
       Later the petitioner filed a pro se brief with this Court submitting the

following issues for review:

       (1) Whether or not the trial court abused its discretion by dismissing
           the Motion to Reopen when the ground alleged recent discovery
           of scientific, exculpatory evidence of the appellant’s actual
           innocence, that was withheld by the prosecution at trial;
       (2) Whether or not the trial court abused its discretion by dismissing
           the Motion to Reopen when the ground alleged actual
           innocence of the appellant without appointment of counsel and
           holding of an evidentiary hearing to allow appellant the chance
           to offer evidence of a constitutional claim.



                                     ANALYSIS

       Tennessee Code Annotated § 40-30-217 explains “Motion to Reopen” as

created by the Post-Conviction Procedure Act of 1995. Tennessee Code

Annotated § 40-30-217(c) sets forth the proper procedure for appealing the

denial of a motion to reopen a prior petition for post-conviction relief to this Court.

It provides as follows:

       (1) If the motions is denied, the petitioner shall have ten (10) days
           to file an application in the Court of Criminal Appeals seeking
           permission to appeal. The application shall be accompanied by
           copies of all documents filed by both parties in trial court and
           the order denying the motion. The state shall have ten (10)
           days to respond.



       This provision does not provide for an appeal as of right pursuant to Rule

3 of the Tennessee rules of Appellate Procedure from the denial of a Motion to

Reopen. An appeal as of right “does not require permission of the trial or

appellate court as a prerequisite to taking an appeal.” Tenn. R. App. P. 3(d). By

the explicit provision of Tennessee Code Annotated § 40-30-217(c), however, an

appeal to this Court from a denial of a motion to reopen requires that the

petitioner seek permission to appeal. This was not done in the case at bar. The

petitioner merely filed a Notice of Appeal with the clerk of the trial court as if she

were appealing pursuant to Rule 3 of the Tennessee Rules of Appellate

Procedure. See Tenn. R. App. P. 3(c). The entire language of the petitioner’s

notice of appeal is set out above.

                                          -3-
      This petitioner did not file an application with this Court seeking

permission to appeal, did not include copies of all the documents filed by both

parties in the trial court, and did not include the order denying the motion. The

petitioner’s failure to comply with the requirements of Tennessee Code

Annotated § 40-30-217(c) in pursuing this appeal leads us to conclude that this

appeal is not properly before this Court.



                                  CONCLUSION

      In accordance with the above, we must dismiss this appeal.




                                  ________________________________
                                  JOHN EVERETT W ILLIAMS, Judge


CONCUR:




________________________________
JAMES CURWOOD WITT, JR., Judge




________________________________
ALAN E. GLENN, Judge




                                        -4-
