           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE            FILED
                            OCTOBER 1997 SESSION
                                                         January 8, 1998

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
RUSSELL STRADER, JR.,          *    C.C.A. NO. 03C01-9611-CC-00433

      APPELLANT,               *    RHEA COUNTY

VS.                            *    Hon. Paul A. Swafford, Jr., Judge

STATE OF TENNESSEE,            *    (Post-Conviction)

      APPELLEE.                *

                               *



For Appellant:                      For Appellee:

Russell Strader, Jr.                John Knox Walkup
Pro Se                              Attorney General and Reporter
No. 093164                          450 James Robertson Parkway
M.C.R.C.F., P.O. Box 2000           Nashville, TN 37243-0493
Wartburg, TN 37887-2000
                                    Timothy F. Behan
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    J. Michael Taylor
                                    District Attorney General
                                    Third Floor
                                    First American Bank Building
                                    Dayton, TN 37321



OPINION FILED: ____________________




AFFIRMED




GARY R. WADE, JUDGE
                                        OPINION

              The petitioner, Russell Strader, Jr., appeals the trial court's dismissal

of his petition for post-conviction relief. He presents the following issues for our

review:

              (I) whether the trial court erred by dismissing the petition
              because all of the issues raised had been waived or
              previously determined; and

              (II) whether the trial court committed certain procedural
              errors under the new Post-Conviction Procedure Act
              which require a remand.



              We affirm the judgment of the trial court.



              The petitioner was convicted of aggravated sexual battery and first

degree burglary. The trial court imposed consecutive, Range II sentences of sixteen

and ten years respectively. On June 2, 1993, our court affirmed the judgment.

State v. Russell Strader, Jr., No. 03C01-9206-CR-00217 (Tenn. Crim. App., at

Knoxville, June 2, 1993). An application for appeal to the supreme court was denied

on October 4, 1993. On May 2, 1996, the petitioner filed a timely pro se petition for

post-conviction relief alleging the following grounds for relief:

              (a) impermissibly suggestive identification procedures;

              (b) ineffective assistance of trial counsel;

              (c) prosecutorial misconduct; and

              (d) the imposition of consecutive sentences.

Several months later, the trial court granted a motion by the state to dismiss.



                                             I

              Initially, the petitioner claims that the trial court erred by determining

that all grounds had been either waived or previously determined. We cannot

                                            2
agree.



              "A ground for relief is previously determined if a court of competent

jurisdiction has ruled on the merits after a full and fair hearing." Tenn. Code Ann. §

40-30-206(h). A "full and fair hearing" occurs if the "petitioner is given the

opportunity to present proof and argument on the petition for post-conviction relief."

House v. State, 911 S.W.2d 705, 714 (Tenn. 1996) (footnote omitted). See Tenn.

Code Ann. § 40-30-206(h).



              Under the Post-Conviction Procedure Act, waiver occurs if "the

petitioner personally or through an attorney failed to present [the ground] for

determination in any proceeding before a court of competent jurisdiction in which the

ground could have been presented." Tenn. Code Ann. § 40-30-206(g). "Waiver in

the post-conviction context is to be determined by an objective standard under

which a petitioner is bound by the action or inaction of his attorney." House, 911

S.W.2d at 714 (footnote omitted).



              As to the suggestive identification claim, the petitioner contends that

he was the only individual in the photo lineup who wore a t-shirt decorated with

animal forms. On direct appeal, however, the petitioner argued his trial counsel was

ineffective for failing to challenge the pretrial identification. This court ruled as

follows:

                      Counsel viewed the photographic array presented
              to the victim prior to the trial. This evidence was not
              introduced during the trial. When the trial judge saw the
              photographs introduced into evidence, he commented
              that the features of the people depicted in the
              photographs were quite similar. This Court reached the
              same conclusion after viewing a copy of the
              photographs. Thus, challenging the pretrial identification
              procedure would have been an effort in futility. The
              pretrial identification made at the preliminary hearing was

                                             3
              also within proper bounds. It was not suggestive.
              Counsel is not required to pursue frivolous issues.

Strader, slip op. at 12 (emphasis added). While the prior claim was made in the

context of ineffective assistance, this court has already determined that the

photographic lineup was not impermissibly suggestive. The substantive issue,

therefore, has been previously determined. Tenn. Code Ann. § 40-30-206. If we

consider this issue standing alone and not as part of the prior claim of ineffective

assistance, we must also hold that the issue has been waived. Id. It is not

permissible for a defendant in a criminal prosecution to object to the introduction of

evidence at trial on one ground and then later, in a post-conviction claim, assert the

same objection on a different basis. State v. Miller, 668 S.W.2d 281, 285 (Tenn.

1984).



              The petitioner also alleged in this proceeding that his counsel was

ineffective at trial in other ways. In our view, this contention has been previously

determined. On direct appeal, the petitioner argued as follows:

              [R]etained counsel (a) did not adequately confer with him
              prior to trial, (b) did not adequately investigate a potential
              alibi defense, (c) did not interview the victim or the
              investigating officer, (d) did not properly challenge the
              victim's identification ..., (e) did not properly use the
              statements made by the victim during his cross-
              examination of her, (f) did not object to prejudicial
              hearsay testimony related by Deputy Cranfield, and (g)
              did not advise the appellant of changes in the law under
              which he was sentenced.

Strader, slip op. at 9. This court considered the claims in detail in its prior opinion

and then ruled that the level of service was in compliance with professional

guidelines. Id. at 13. Ineffective assistance of counsel is generally a single ground

for relief under the post-conviction statute. Cone v. State, 927 S.W.2d 579, 581-82

(Tenn. Crim. App. 1995). "'[T]he fact that such violation may be proved by multiple

acts or omissions does not change the fact that there remains only one ground for


                                            4
relief.'" Frank McCray v. State, No. 01C01-9108-CR-00255, slip op. at 10 (Tenn.

Crim. App., at Nashville, Sept. 11, 1992) (quoting William Edward Blake v. State,

No. 1326, slip op. at 3 (Tenn. Crim. App., at Knoxville, Mar. 19, 1991)). A petitioner

may not relitigate previously determined grounds for relief by presenting additional

factual allegations. Cone, 927 S.W.2d at 581-82. Thus, we must consider this

ground as having been previously determined on the direct appeal. Tenn. Code

Ann. § 40-30-206.



              The petitioner has also alleged three counts of prosecutorial

misconduct. His initial claim is as follows:

              The prosecutor failed to make available for inspection by
              counsel for petitioner, color photo[s] used in the photo-
              array presented to Ms. Scoggins, in violation of the Brady
              rule .... Further, prosecutor continued to deny access to
              the original color photo[s] on motion for new trial, and did
              not produce the original photo[s] in court, after being
              requested to do so, thereby causing the court to base
              it[s] decision on poor quality, black and white
              photocopies.

This contention has also been waived. The pleadings confirm that the petitioner

knew about this possible Brady violation during the motion for new trial and on direct

appeal. By failing to raise this issue at either of those times, the petitioner waived

the issue. Tenn. Code Ann. § 40-30-206. A second claim of misconduct is that the

prosecutor "elicited ... improper testimony from police officials." Because this issue

was clearly available on direct appeal but was not pursued, this issue has been

waived. Id.



              The petitioner also argues prosecutorial misconduct in that the

prosecutor "actually made the in-court identification of the petitioner as [the victim's]

assailant." Our court rejected this issue on direct appeal: "if the conduct of the

assistant district attorney general constituted error, it was harmless ...." Strader, slip


                                            5
op. at 7. Thus, this issue qualifies as having been previously determined. Tenn.

Code Ann. § 40-30-206.



              Finally, the petitioner argues that the consecutive sentences (1) are

excessive and (2) constitute cruel and unusual punishment. On direct appeal, the

petitioner challenged and our court affirmed the imposition of consecutive

sentences:

                      Based upon a review of the record, the trial court
              properly ordered the sentences to be served
              consecutively. ... [T]he appellant's lengthy history of prior
              convictions and criminal behavior illustrates that the
              appellant refuses or is unwilling to conform his conduct to
              that of a lawful and productive citizen. ... [H]e has
              become more dangerous and brazen as time has
              progressed. As a result, a lengthy sentence is needed to
              protect the citizens of this state from the appellant.
                      This issue is without merit.

Strader, slip op. at 8. Thus, the claim that the sentences are excessive has been

previously determined. Tenn. Code Ann. § 40-30-206.



              The failure to argue on direct appeal that the sentences were cruel and

unusual constitutes a waiver of that particular challenge to the imposition of

consecutive sentences. Id. A waiver occurs when the "petitioner personally or

through an attorney fail[s] to present [the ground] for determination in any

proceeding before a court of competent jurisdiction in which the ground could have

been presented." Tenn. Code Ann. § 40-30-206(g). Our research indicates that

challenges to sentencing based on cruel and unusual punishment trace back to at

least 1910, when the Supreme Court ruled that the prohibition against cruel and

unusual punishment requires that "punishment for crime should be graduated and

proportioned to [the] offense." Weems v. United States, 30 S. Ct. 544, 549 (1910).

Thus, the claim of cruel and unusual punishment was available to the petitioner and

"could have been presented" on direct appeal. Tenn. Code Ann. § 40-30-206(g).

                                           6
The failure to do so constitutes a waiver. Id.



               In summary, all of the issues in the petition have either been waived or

previously determined. That determination leads us to the inevitable conclusion that

the trial court did not err by dismissing the petition. "If the facts alleged, taken as

true, fail to show that the petitioner is entitled to relief or fail to show that the claims

for relief have not been waived or previously determined, the petition shall be

dismissed." Tenn. Code Ann. § 40-30-206(f). A colorable claim is "'one that alleges

facts showing that the conviction resulted from an abridgment of a constitutional

right and which demonstrates that the ground for relief was not previously

determined or waived.'" Waite v. State, 948 S.W.2d 283, 284-85 (Tenn. Crim. App.

1997) (quoting Hugh Ronald Carmley v. State, No. 03C01-9305-CR-00167, slip op.

at 6 (Tenn. Crim. App., at Knoxville, Jan. 13, 1994)). Because this petition failed to

state a colorable claim, there was no error in dismissing it.



               Nor did the trial court err by failing to appoint counsel. The trial court

may dismiss without appointing counsel "when ... the petition does not include a

possible ground for relief." Waite, 948 S.W.2d at 284. If it "'appears beyond doubt

that the [petitioner] can prove no set of facts in support of his claim which would

entitle him to relief,'" the petition may be summarily dismissed. Id. at 285 (quoting

Swanson v. State, 749 S.W.2d 731, 734 (Tenn. 1988)) (alteration in original). By

the terms of Tenn. Code Ann. § 40-30-206, "the trial court was obligated to review

the petition and dismiss it without hearing or appointment of counsel if the

allegations in the petition failed to show that any claims for relief have not been

previously waived or determined." Hobert Reece v. State, No. 03C01-9605-CC-

00190, slip op. at 3 (Tenn. Crim. App., at Knoxville, May 14, 1997). In our view, the

trial court did not err by dismissing the petition.


                                              7
                                             II

               The petitioner next contends the trial court made certain procedural

errors under the new Post-Conviction Procedure Act. First, he complains that the

trial court erred by not reviewing his petition within thirty days and determining

whether it contained a colorable claim. The petitioner correctly notes that Tenn.

Code Ann. § 40-30-206(a) provides as follows:

               The trial judge to whom the case is assigned shall, within
               thirty (30) days of the filing of the original petition, ...
               examine it together with all the files, records, transcripts,
               and correspondence relating to the judgment under
               attack, and enter an order in accordance with the
               provisions of this section or § 40-30-207.

Despite this requirement, by October of 1996 no action had been taken on the

petition, which was filed in May of 1996. On October 7, 1996, the petitioner filed a

petition for writ of mandamus. Two days later, the state filed a motion to dismiss.

Within a week, the trial court entered an order dismissing the petition because each

issue had been previously determined or waived. The petitioner argues that

because the trial judge failed to comply with this provision, "sanctions" are

appropriate.



               In State v. Jones, 729 S.W.2d 683, 685 (Tenn. Crim. App. 1986), the

defendant complained because the trial court did not conduct a sentencing hearing

within the thirty days required by statute. Our court ruled that the accuracy of the

claim did not mean the defendant was entitled to substantive relief: "it is the general

rule in Tennessee that statutory provisions which relate to the mode or time of doing

an act to which the statute applies are not to be mandatory, but directory only." Id.

This general rule is especially applicable where there is no "showing of prejudice."

Big Fork Mining Co., v. Tennessee Water Quality Control Bd., 620 S.W.2d 515, 521

(Tenn. App. 1981). The same rationale would apply here. There has been no

showing that the petitioner was prejudiced by the trial court's failure to act within the

                                             8
time frame required by the statute. This issue is without merit.



              Next, the petitioner claims that the trial court erred by allowing the

state to file its motion to dismiss before entering a preliminary order. If the trial court

had entered a preliminary order, the state would have thirty days to respond to the

petition. Section 40-30-208(a), Tenn. Code Ann., provides that "the district attorney

general shall represent the state and file an answer ... within thirty (30) days." Also,

our Supreme Court Rules provide the "state shall file an answer or motion to dismiss

within thirty (30) days of the preliminary order." Tenn. Sup. Ct. Rule 28, § 6(C)(6).

In that regard, the state's motion to dismiss may have been premature; the new Act

contemplates that the state is not required to file an answer until after the

preliminary order is entered.



              Nevertheless, the petitioner was not harmed by the state's filing the

motion to dismiss before the trial court entered a preliminary order or dismissed the

case. The pleading was merely superfluous. The trial court was required by statute

to dismiss the petition at the preliminary stage whether a response had or had not

been filed by the state. Tenn. Code Ann. § 40-30-206.



              Accordingly, the judgment of the trial court is affirmed.



                                           __________________________________
                                           Gary R. Wade, Judge




                                             9
CONCUR:



________________________________
David H. Welles, Judge



________________________________
Jerry L. Smith, Judge




                                   10
