        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                               FILED
                              AT KNOXVILLE                    January 3, 2000

                                                             Cecil Crowson, Jr.
                         NOVEMB ER SESSION, 1999            Appellate Court Clerk




DAVID CHAR LES H AFT,             )   C.C.A. NO. 03C01-9905-CR-00181
                                  )
           Appe llant,            )
                                  )   HAMILTON COUNTY
V.                                )
                                  )
                                  )   HON. DOUGLAS A. MEYER
STATE OF TENNESSEE,               )
                                  )
           Appellee.              )   (POST -CON VICTIO N)



FOR THE APPELLANT:                    FOR THE APPELLEE:

DAVID CHAR LES H AFT, pro se          PAUL G. SUMMERS
STSRCF, Unit 13                       Attorney General & Reporter
Route 4, Box 600
Pikeville, TN 37367                   MICH AEL J. F AHEY , II
                                      Assistant Attorney General
                                      2nd Floor, Cordell Hull Building
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      WILL IAM H. C OX, III
                                      District Attorn ey Ge neral
                                      600 Market Street, Suite 310
                                      Chattanooga, TN 37402




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION

       On January 23, 1991, Petitioner David Charles Haft was convicted of first

degree murder and attem pted firs t degre e mu rder. T he trial c ourt su bseq uently

imposed sentences of life and twenty years, respectively. On October 30, 1998,

Petitioner filed a petition for post-co nviction relief, o r in the altern ative, a motion to

reopen a previou s petition. On March 23, 1999, the po st-con viction c ourt su mm arily

dismissed the petition and denied the motion to reopen. Petitioner challenges the

dismissal of his petition and the denial of his motion to reopen, raising the following

issues:

       1) whether the post-conviction court erred when it summarily dismissed the
       petition and denied the motion to re open without condu cting an eviden tiary
       hearing and making findings of fact and conclusions of law; and

       2) whether Petitioner’s mental incompetency excused any noncompliance with
       the requ iremen ts of the Po st-Con viction Pro cedure Act.

After a review of the record, we affirm the post-conviction court’s dismissal of the

petition and denial of the motion to reopen.



                                   I. BACKGROUND




       After he was convicte d and sentenc ed in 1 991, P etitione r challe nged his

convictions on direct appeal. This C ourt su bseq uently a ffirmed his con victions in

David Charle s Haft v. Sta te, No. 03C01-9108-CR-00254, 1992 WL 84222 (Tenn.

Crim. A pp., Kno xville, April 28, 1 992), perm. to appeal denied, (Tenn. 199 2).



       Petitioner filed a pro se petition for post conviction relief on April 19, 1993.

Counsel was subsequently appointed and an amended petition was filed on August

                                             -2-
30, 1993. The petition, as amended, asserted that Petitioner was denied effective

assistance of counsel. After a full hearing on the issues raised in the petition, the

post-conviction court dismissed the petition. This Court affirmed the dismissal of the

petition in David Charles Haft v. State, No. 03C01-9411-CR-00400, 1995 WL

262117 (Tenn. Crim. A pp., Kno xville, May 5, 1 995), perm. to appeal denied, (Tenn.

1995).



         Petitioner filed the petition and/or motion to reopen at issue in this case on

October 30, 1998, complaining of numerous alleged errors relating to assistance of

coun sel, the indictment, the selection of the grand jurors, the conduct of the

prosecutor, the introduction of certain evidence, a nd the jury instruction s.         In

addition, Petitioner alleged that he had failed to raise these claims earlier because

he had been, and remains, mentally incompetent.              The post-conviction court

sum marily dism issed the pe tition and/or motio n on Ma rch 23, 1 999. Th e post-

conviction court found that the pe tition was s ubject to summary dismissal pursuant

to Tennessee Code Annotated section 40-30-202(c) because Petitioner had already

filed a previous petition that was resolved on the merits. The post-conviction co urt

also found that Petitioner h ad failed to meet th e require ments of Tennessee Code

Annotated section 40-30-217 for reopening the previous petition.



                       II. SUMM ARY DIS MISS AL AND D ENIAL




         Petitioner contends tha t the post-conviction c ourt erred when it dismissed his

petition and denied his motion to reopen without conducting an evidentiary hearing

and making findings of fact and conclusions of law in regard to each claim for re lief.




                                            -3-
                                             A.




       Tennessee Code An notated section 40-30-202(c) provides:

       This part contemplates the filing of only one (1) petition for post-conv iction
       relief. In no event may more than one (1) petition for post-conviction relief be
       filed attacking a single judgment. If a prior petition has been filed which was
       resolved on the merits by a court of competent jurisdiction, any second or
       subsequent petition shall be summarily dismissed. A petitioner may move to
       reopen a pos t-conv iction proceeding that has been concluded, under the
       limited circumstances set out in § 40-30-217.

Tenn . Code Ann. § 4 0-30-20 2(c) (199 7).



       Because Petitioner’s first post-co nviction pe tition was re solved o n the m erits

after a full evid entiary hearin g, the s econ d petitio n at issu e in this case was c learly

subject to summ ary dismissal pu rsuant to the exp ress terms of the above statute.

Petitioner is not entitled to relief on this issue.



                                             B.




       Tennessee Code Annotated section 40-30-217 provides that a motion to

reopen a post-co nviction pe tition shall be granted only if:

       (1) Th e claim in the m otion is based upon a final ruling of an appellate cou rt
       estab lishing a constitutional right that was not recognized as existing at the
       time of trial, if retrospective application of that right is required. Such motion
       must be filed within one (1) year of the ruling of the high est state a ppellate
       court or the United States supreme court establishing a constitutional right
       that was not recognized as existing at the time of trial; or
       (2) The claim in the motion is based upon new scientific evidence establishing
       that such petitioner is actually innocent of the offense or offenses for which
       the petitioner was convicted; or
       (3) The claim asserted in the motion seeks relief from a sentence that was
       enhanced because of a previous conviction and such conviction in the case
       in which the cla im is asserted was not a guilty plea with an agreed sentence,
       and the previous conviction has subsequently been held to be invalid, in which
       case the motion must be filed within one (1) year of the finality of the ruling
       holding th e previou s convictio n to be inva lid . . . .

                                             -4-
Tenn. Code Ann. § 40-30-217(a) (1997). In addition, the statute requires that the

facts underlying the claim, if true, must establish by clear and convincing evidence

that the petitioner is entitled to have the conviction set aside or the sentence

reduced. T enn. Cod e Ann. § 40 -30-217(a)(4) (1 997).



       We have c arefully exam ined th e petitio n and/or m otion to reope n at issu e in

this case, and we find no facts tending to establish one of the three grounds recited

above which would perm it reopening the previous petition.              Thus, we cannot

conclude that the post-conviction court abused its discretion by denying the motion

to reopen. Petitioner is not entitled to relief on this issue.



                     III. ALLEGED MENTAL INCOMPETENCY




       Petitioner alleges that he h as been m entally incomp etent since be fore his trial.

Petitioner contends that this alleged mental incompetency excused any

noncompliance with the requirem ents of Tennessee Code Annotated sections 40-30-

202(c) and 40-30-217 cited above.



       In support of his argument, Petitioner cites Wa tkins v. State, 903 S.W.2d 302

(Tenn. 1995); John P aul Sea ls v. State, No. 03C01-9802-CC-00050, 1999 WL 2833

(Tenn. Crim. A pp., Kno xville, Jan. 6, 19 99), perm. to appeal granted, (Tenn. 199 9);

and Vikki Lyn n Spellm an v. State , No. 02C01-9801-CC -00036, 1998 WL 517840

(Tenn. Crim. App., Jackson, Aug. 21, 1998), perm. to appeal granted, (Tenn. 199 9).

In all three of these case s, the a ppella te cou rt held that m ental in com peten cy tolls

the statute of limitation s that gov erns the filing of post-c onviction p etitions. See

Watkins, 903 S.W .2d at 306 ; John Paul S eals, 1999 WL 28 33, at *2; Vikki Lynn

                                            -5-
Spellman, 1998 WL 517840, at *2. Essentially, Petitioner argues that under these

three cases, mental incompetency excuses all noncompliance with the req uireme nts

of the Po st-Con viction Pro cedure Act.



      In the three case s cited above , the pe titioner filed a post-conviction petition

that was dismissed without a hearing or a consideration of the merits, the petitioner

then filed a second petition alleging that he or she was mentally incompetent when

the first petition was filed, the post-conviction court summarily dismissed the second

petition because it was filed after the statute of limitations expired, and the appellate

court held that due process required a tolling of the statute of limitations because of

men tally incom petenc y. Watkins, 903 S.W.2d at 303, 305 –07; John Paul S eals,

1999 W L 2833 , at *1–2; Vikki Lynn Spellman, 1998 WL 517840, at *1–2.



      W e do not ag ree with Petitioner that these three cases stand for the general

proposition that mental incompetency excuses all noncompliance with the

requirem ents of the Post-Conviction Procedure Act. Rather, these cases only stand

for the limited propos ition that m ental inco mpete ncy tolls the statute of limitations

because otherwise, the petitioner would not have a reaso nable o pportun ity to

challe nge h is or her conviction if a petition was barred by the statute of limitations.

Indeed, this Court specifically noted in John Paul S eals that dismissal of the second

petition in that case would have been proper under sectio n 40-3 0-202 (c) if the first

petition had been resolved on the merits. 1999 WL 2833, at *4.



      In this case, Petitioner’s second petition was summarily dismissed because

he had already filed a previous petition that was resolved on the merits after a full

evidentiary hearing, not because it was barred by the statute of limitations.

                                           -6-
Therefore, this is not a case where dismissal of the petition and denial of the motion

to reopen would deny Petitioner a reasonable opportunity to challenge his or her

conviction. More over, w e note that in the three cases cited above, the State either

conceded that the petitioner was incom petent, Watkins, 903 S.W .2d at 303, or there

was independent indicia of incom petenc e in the rec ord, John Paul S eals, 1999 WL

2833, at *2–3; Vikki Lynn Spellman, 1998 W L 5178 40, at *3. In contras t, Petition er’s

conclusory allegations of mental incompetence are not supported by any

independent indicia of incompetence contained in the record.



       Because Petitioner had previously filed a petition that was resolved on the

merits after a full evidentiary hearing, we conclude that the post-con viction court

prope rly dismissed the petition pursuant to section 40-30-202(c). Petitioner is not

entitled to relief on this issue.



                                    IV. CONCLUSION




       Because Petitioner had previously filed a post-conviction petition that was

resolved on the me rits, we affirm the po st-con viction c ourt’s dismissal of the petition

in this case pu rsuant to section 4 0-30-20 2(c). Because requirements of section 40-

30-217 for reopening the previous petition have not been satisfied, we affirm the

post-conviction court’s denial of the motion to reopen.



                                    ____________________________________
                                    THOMAS T. W OODALL, Judge




                                            -7-
CONCUR:



___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JERRY L. SMITH, Judge




                               -8-
