         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs January 15, 2003

                     AMIN SHABAZZ v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                            No. 99-A-553    Seth Norman, Judge



                    No. M2002-01302-CCA-R3-PC - Filed February 14, 2003


Petitioner, Amin Shabazz, filed a petition for post-conviction relief attacking his conviction for sale
of a controlled substance containing more than 0.5 grams of cocaine, following a plea of nolo
contendere in the Davidson County Criminal Court. He received a ten-year sentence. The
conviction occurred on August 27, 2001, and the petition for post-conviction relief was timely filed
on April 22, 2002. The trial court dismissed the petition without appointing counsel, without
allowing Petitioner to amend the petition, and without an evidentiary hearing. On appeal, the
Petitioner asserts that the trial court erred by summarily dismissing the petition. The State agrees.
Following a review of the record, we reverse the judgment of the trial court, and remand this case
for an evidentiary hearing and for the post-conviction trial court to further allow Petitioner to receive
all procedural rights granted to him pursuant to the Post-Conviction Relief Act.

                          Tenn. R. App. P. 3, Appeal as of Right;
           Judgment of the Post-Conviction Court is Reversed and Remanded

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which DAVID H. WELLES and
ROBERT W. WEDEMEYER , JJ., joined.

Amin Shabazz, Clifton, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Joe Seaborg, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

        In his pro se petition for post-conviction relief, Petitioner alleges that he is entitled to relief
because he received ineffective assistance of counsel leading up to his conviction which is the
subject of the post-conviction petition. Specifically, Petitioner makes factual allegations in support
of his assertion of ineffective assistance of counsel. Petitioner alleges that his counsel failed to
conduct timely, reasonable, and adequate pre-trial investigation; failed to interview potential
witnesses; failed to secure known exculpatory evidence; failed to adequately consult with him prior
to the nolo contendere plea; and failed to explain the ramifications of the plea agreement and the
laws governing the criminal offense for which he was charged. The pro se petition also alleges other
examples of ineffective assistance of counsel. The factual allegations are contained in approximately
five and one-half typewritten pages in the petition for post-conviction relief.

        The basis for the trial court’s summary dismissal of the petition for post-conviction relief is
not clear. After recognizing that the petition alleges ineffective assistance of counsel by “failing to
investigate the case, failing to secure statements and exculpatory evidence, and failing to consult
with and explain the ramifications of the plea agreement,” the trial court’s order dismissing the
petition states as follows:

         Since the petitioner pled nolo contendere to the aforementioned offense, it is
         difficult to understand how counsel was ineffective in its representation of the
         petitioner. To succeed on a claim of ineffective assistance of counsel, a petitioner
         bears the burden of showing both that his counsel’s performance was deficient and
         that this deficient performance prejudiced the outcome of the proceeding. See
         Strickland, 466 U.S. at 687. The petitioner, apparently satisfied with the plea
         agreement, accepted the settlement and sealed the deal. Petitioner’s counsel
         negotiated with the prosecution and formulated such an arrangement, which is by
         no means an unreasonable offer. If the petitioner is attacking counsel’s decision
         to work out the plea and advise that petitioner accept it, let it be known that “[i]t
         is not this Court’s function to second-guess tactical and strategic decisions
         pertaining to defense matters.” Henley v. State, 960 S.W.2d 572, 579 (Tenn.
         1997).

         Petitioner has not shown that his counsel was so ineffective as to affect the result
         of this case.

         It is apparent that the petitioner knowingly and voluntarily entered the plea
         agreement, which would preclude the right to appeal. Upon petitioner’s plea, the
         Court inquired as to petitioner’s consent to the agreement and waiver of appeal,
         to which he responded in the affirmative.

         Tennessee Code Annotated section 40-30-206 sets forth reasons for summarily dismissing
a petition for post-conviction relief. None of these are applicable in the case sub judice. The reasons
for dismissal relied upon by the post-conviction trial court are not included among the statutory
reasons for dismissing a post-conviction petition without an evidentiary hearing.

       In his petition, Petitioner included an affidavit of indigency and moved the court to appoint
counsel to represent him, for leave to amend his petition for post-conviction relief, and for an
evidentiary hearing.



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         The pro se petition filed in this case presents a “colorable claim.” See Tenn. Sup. Ct. R. 28,
§ 2(H). Accordingly, we are compelled to reverse the judgment of the post-conviction court and
remand this case for an evidentiary hearing and for other proceedings pursuant to the Post-
Conviction Relief Act, including, but not necessarily limited to, the investigation as to whether
Petitioner is entitled to appointed counsel, the opportunity to amend the petition for post-conviction
relief, and an evidentiary hearing.

                                          CONCLUSION

       For the foregoing reasons, the judgment of the post-conviction court is reversed and this case
is remanded for proceedings consistent with this opinion.


                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE




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