         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs March 3, 2009

                     RICKIE REED v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                         No. P-28123     John P. Colton, Jr., Judge



                    No. W2008-01584-CCA-R3-PC - Filed March 25, 2009


The pro se petitioner, Rickie Reed, appeals the dismissal of his motion to reopen his petition for
post-conviction relief. Because he failed to comply with the statutory requirements for seeking
discretionary review of the dismissal of his motion, this court has no jurisdiction in the case.
Accordingly, the appeal is dismissed.

                   Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

ALAN E. GLENN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
CAMILLE R. MCMULLEN , JJ., joined.

Rickie Reed, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Alexia M. Fulgham, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

                                              FACTS

        In 2001, the petitioner was convicted of second degree murder and attempted second degree
murder and sentenced to consecutive sentences of twenty-three and twelve years respectively. This
court affirmed the convictions on direct appeal, and our supreme court denied application for
permission to appeal. See State v. Rickie Reed, No. W2001-02076-CCA-R3-CD, 2002 WL
31443196, at *1 (Tenn. Crim. App. Oct. 31, 2002), perm. to appeal denied (Tenn. Mar. 17, 2003).
 The petitioner filed a petition for post-conviction relief on February 4, 2004, alleging ineffective
assistance of counsel. The post-conviction court denied the petition, and this court affirmed the
decision. See Rickie Reed v. State, No. W2004-01878-CCA-R3-PC, 2005 WL 1457954, at *1
(Tenn. Crim. App. June 17, 2005).
         On January 29, 2008, the petitioner filed a pro se motion to reopen his post-conviction
arguing that State v. Gomez, 239 S.W.3d 733 (Tenn. 2007), established a new rule of constitutional
law that applied retroactively to his case. Specifically, he alleged that he was illegally sentenced by
the trial court’s use of factors other than his prior convictions to enhance his sentence. He also
alleged that he received ineffective assistance of trial and appellate counsel, that his indictment was
defective because it failed to put him on notice of the elements of the offenses, and that he was
mentally incompetent from the time of his arrest through the time of the filing of his motion to
reopen his post-conviction petition. On June 16, 2008, the post-conviction court entered a written
order dismissing the motion to reopen on the basis that none of the petitioner’s allegations satisfied
the criteria for reopening a petition for post-conviction relief. On July 3, 2008, the petitioner filed
a notice of appeal in the post-conviction court.

                                              ANALYSIS

        The State argues that the appeal should be dismissed because the petitioner failed to comply
with the requirements for appealing the dismissal of a motion to reopen. The State further argues that
even if the petitioner had complied with the statutory requirements for seeking review of a lower
court’s dismissal of his motion to reopen, none of his claims would justify relief. We agree with the
State.

        A petitioner has no appeal as of right from a lower court’s denial of his motion to reopen a
post-conviction petition. See Tenn. R. App. P. 3(b); Timothy Roberson v. State, No.
W2007-00230-CCA-R3-PC, 2007 WL 3286681, at *9 (Tenn. Crim. App. Nov. 7, 2007), perm. to
appeal denied (Tenn. Apr. 14, 2008); Miko T. Burl v. State, No. W2005-01640-CCA-R3-PC, 2006
WL 3371395, at *1 (Tenn. Crim. App. Nov. 17, 2006). The statute governing motions to reopen
post-conviction petitions provides that “[i]f the motion 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 the documents filed by both parties in the trial
court and the order denying the motion.” Tenn. Code Ann. § 40-30-117(c) (2006); see also Tenn.
Sup. Ct. R. 28, § 10(B); Graham v. State, 90 S.W.3d 687, 689 (Tenn. 2002) (“Accordingly, Tenn.
Code. Ann. § 40-30-217(c) outlines four requirements for an appeal from a motion to reopen to be
considered: (1) the timeliness of filing, (2) the place of filing, (3) the application to be filed, and (4)
the attachments to the application.”).

         The petitioner failed to file his application for permission to appeal within ten days of the
date on which the post-conviction court’s denial of the motion was filed, to file in the proper court,
or to attach the relevant documents. Because he failed to substantially comply with the procedural
requirements outlined in the statute, we lack jurisdiction to entertain the appeal. Moreover, even if
he had complied with the procedural requirements, we would affirm the dismissal of the motion,
as none of the issues raised satisfy the requirements under Tennessee Code Annotated section 40-30-
117(a) for reopening a petition for post-conviction relief.




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                                       CONCLUSION

        Because the petitioner failed to comply with the statutory requirements for seeking
discretionary review of the denial of his motion to reopen the post-conviction petition, we lack
jurisdiction in this case. Accordingly, the appeal is dismissed.


                                                    ___________________________________
                                                    ALAN E. GLENN, JUDGE




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