             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                           FILED
                                    AT KNOXVILLE                         August 25, 1999

                                                                        Cecil Crowson, Jr.
                                MAY 1999 SESSION                        Appellate C ourt
                                                                            Clerk




GARY WILLIAM HOLT,                     )
                                       )    No. 03C01-9808-CR-00279
      Appellant,                       )
                                       )    Hamilton County
v.                                     )
                                       )    Honorable Douglas A. Meyer, Judge
STATE OF TENNESSEE,                    )
                                       )    (Post-Conviction)
      Appellee.                        )




FOR THE APPELLANT:                          FOR THE APPELLEE:

JOHN ALLEN BROOKS                           JOHN KNOX WALKUP
736 Georgia Avenue                          Attorney General & Reporter
Suite 600
Chattanooga, TN 37402                       R. STEPHEN JOBE
(Elbow Counsel)                             Assistant Attorney General
                                            425 Fifth Avenue North
GARY WILLIAM HOLT, pro se                   Nashville, TN 37243-0493
TDOC #105031
South Central Correctional Center           WILLIAM H. COX, III
P. O. Box 279                               District Attorney General
Clifton, TN 38425-5346
                                            YOLANDA D. MITCHELL
                                            Assistant District Attorney General
                                            600 Market Street, Suite 310
                                            Chattanooga, TN 37402




OPINION FILED: ____________________________________


AFFIRMED


ALAN E. GLENN, JUDGE
                                       OPINION

       The petitioner, Gary William Holt, has appealed as of right from the denial of post-

conviction relief. He claims that the bystander jury process utilized during his trial violated

his rights to due process and to an impartial jury. Based upon our review of this matter,

as well as the applicable law, we affirm the decision of the trial court.



       The petitioner was convicted of armed robbery in August 1977 and sentenced to life

imprisonment. This Court affirmed his conviction and sentence in March 1979. The

Tennessee Supreme Court denied permission to appeal further in July 1979. The United

States Supreme Court denied certiorari in October 1979. This appeal arose from Holt’s

third petition for post-conviction relief. See Gary William Holt v. State, No. 1089, 1989 WL

12313 (Tenn. Crim. App., Knoxville, Feb. 15, 1989), perm. app. denied (Tenn. 1989)

(appeal from denial of second petition for post-conviction relief); Gary William Holt v. State,

No. 20, 1989 WL 5971 (Tenn. Crim. App., Knoxville, Jan. 26, 1989) (appeal from denial

of petition for writ of habeas corpus in state courts); see also Holt v. Reynolds, 47 F.3d

1169 (6th Cir. 1995) (appeal from grant of writ of habeas corpus in federal court). The

present petition for post-conviction relief was filed on June 23, 1989. The petition alleged

Holt was denied due process and the right to an impartial jury through the bystander juror

summoning process employed at his trial.



                                   FACTS OF THE CASE


       At Holt’s trial, the venire was exhausted before a complete jury was selected. The

trial court directed the sheriff to order a deputy not involved in Holt’s case to select two

potential jurors as allowed in Tenn. Code Ann. § 22-2-308(a)(2). The court stated:

              Now, we are going to have to start picking up jurors, and I will
              direct the sheriff to direct one of his officers not involved in the
              trial of this case to pick up some jurors and we will have them
              here at one o’clock. Sheriff, I guess two ought to be enough
              to start with, and have some officer not involved to pick up two
              more people and bring them here at one o’clock.



       The record from Holt’s trial does not provide a clear picture of the procedure used

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to select the two potential jurors summoned according to the provisions of the bystander

jury statute. However, two potential jurors arrived at the court after the noon recess. One

potential juror was excused for medical reasons; the other, Becky Dockery, was seated on

the panel after voir dire was completed.



       Three individuals testified at the post-conviction hearing: Larry Wallace, McMinn

County Sheriff at the time of Holt’s trial; Jerry Estes, Holt’s trial counsel; and, Holt himself.

Wallace stated he did not recall a deputy selecting bystander jurors at Holt’s trial.

According to Wallace, one of the deputy sheriffs who acted as a court officer probably

selected the two potential jurors. These deputies worked for the court, even though they

were technically employed by the sheriff’s department. Detective David Guy handled the

majority of the investigation in Holt’s case, and it would have been very unlikely for him to

have worked with any of the court officers during an investigation.



       Estes testified he did not recall if a deputy summoned bystander jurors at Holt’s trial.

Estes further stated he discussed voir dire tactics with counsel for a co-defendant and with

Holt. If any problems had arisen during the process, he would have raised the issue on

appeal.



       Holt testified he remembered that Sergeant Sidney Matthews was the deputy sent

to summon jurors at his trial. Holt further stated Matthews was involved in the investigation

of his case. According to Holt, Matthews helped look for a discarded license plate

introduced the morning of Holt’s trial. Holt remembered seeing Matthews with mud on his

boots from the area of the search. Holt also indicated Matthews told him he was involved

in the investigation. Matthews did not, however, testify at Holt’s trial.



       After considering the testimony presented at the post-conviction hearing, the trial

court denied Holt’s petition for relief. Holt timely appealed.




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                                   DISCUSSION OF LAW


           I. The post-conviction court erred in not finding that the
              bystander juror selection procedure utilized in the instant case
              violated appellant’s constitutionally secured due process rights.

           II. The post-conviction court erred in not finding that the trial court
               was without jurisdiction to try the instant case when it failed to
               complete the trial by insuring the defendant his Sixth
               Amendment right to a fair and impartial jury.


       Holt argues the bystander juror summoning procedure violated his due process

rights. Specifically, he argues the trial court erred in requiring the sheriff to direct a deputy

to summon two bystander jurors. Holt asserts the sheriff and his deputies, as interested

parties, could not participate in the jury selection process without infringing upon Holt’s due

process rights.



       When a sufficient number of persons cannot be chosen from the venire, Tenn. Code

Ann. § 22-2-308(a)(2) provides the court “may, if the judge thinks proper, direct the sheriff,

to summon a sufficient number [of potential jurors] to complete the jur[y].”



       In State v. Coury, 697 S.W.2d 373 (Tenn. Crim. App.), perm. app. denied (Tenn.

1985), this Court held the bystander jury selection procedure employed at trial was not

grounds for reversal where the defendant was not forced to accept an incompetent juror.

Coury, 697 S.W.2d at 378-79. In an appeal from a denial of a writ of habeas corpus

arising out of the same case, the Sixth Circuit addressed the constitutionality of

Tennessee’s bystander jury statute. See Coury v. Livesay, 868 F.2d 842 (6th Cir. 1989).

The Sixth Circuit held the bystander juror selection process used in Coury did not deprive

the defendant of any constitutional rights. Coury, 868 F.2d at 845. In selecting prospective

jurors, individuals were chosen in a random, objective manner. Further, the investigating

officers involved in Coury’s case did not personally execute the judge’s order, but rather

delegated this responsibility to another division of the sheriff’s department, one not involved

in investigation or prosecution of any defendant. Id. For these reasons, the Sixth Circuit

held, under the facts of Coury’s case, the bystander jury process as applied was not

unconstitutional. Id.

                                               4
       In the case sub judice, there is no indication from the record before us that the

bystander jury procedures were applied unconstitutionally. Wallace testified a sheriff’s

deputy assigned to the court was likely the person who selected the two potential jurors.

Such a person would not have been involved with the investigation or prosecution of cases.

During voir dire, Dockery, the bystander juror seated on the panel, stated she did not know

what the case was about, nor had anyone spoken to her about the case. Although at the

post-conviction hearing Holt stated the deputy who selected the two potential jurors was

involved in the investigation of his case, Holt provided no evidence other than his own

testimony. The record shows Matthews did not testify at Holt’s trial, contradicting Holt’s

assertion of Matthews’s importance to the case against him.



       Any conflicts in testimony, and other evidence presented, are properly resolved by

the trier of fact. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). Those factual findings

are conclusive on appeal unless the evidence in the record preponderates against them.

State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983), perm. app. denied (Tenn.

1984). Applying the facts of the case sub judice to the rules propounded in our decision

in State v. Coury and the Sixth Circuit decision in Coury v. Livesay, we find no error in the

trial court’s decision to deny post-conviction relief.



       This assignment has no merit.



          III. The post-conviction court erred in refusing to allow appellant
               to argue that he had received ineffective assistance of
               counsel at the trial of this case on the premise that the
               ground for relief had been previously determined.


       Here, Holt argues the trial court erred in refusing to allow him to argue and present

evidence that he received ineffective assistance of counsel at trial.



       The Post-Conviction Relief Act provides a ground for relief is previously determined

“if a court of competent jurisdiction has ruled on the merits after a full and fair hearing.”



                                              5
Tenn. Code Ann. § 40-30-112(a) (repealed 1995). The State correctly asserts the issue

of ineffective assistance of counsel was determined during the proceedings for Holt’s

second petition for post-conviction relief. After conducting a hearing, the trial court found

the issue was without merit. This Court affirmed the trial court’s judgment on appeal. Gary

William Holt v. State, No. 1089, 1989 WL 12313 (Tenn. Crim. App., Knoxville, Feb. 15,

1989), perm. app. denied (Tenn. 1989). Holt argues his ineffective assistance of counsel

claim did not arise until the Sixth Circuit’s decision in Coury v. Livesay, issued February 23,

1989. Coury, 868 F.2d at 842. However, as Holt’s present petition states, his claim arose

from the language of the Tennessee Supreme Court’s decision in Oliphant v. State, 153

Tenn. 130, 135, 282 S.W.2d 206, 209 (1926) (disqualifying sheriff and deputies from

summoning jurors in certain cases), issued April 10, 1926.



       Holt was afforded an opportunity to present his constitutional claims in a full and fair

hearing in a previous petition for relief and is therefore barred from doing so here. See

House v. State, 911 S.W.2d 705, 710-13 (Tenn. 1995) (barring second petition for post-

conviction relief alleging ineffectiveness of trial counsel as previously determined because

petitioner received a "full and fair hearing" on his original post-conviction petition, which

also alleged ineffectiveness of counsel).



       This assignment has no merit.



          IV. The post-conviction court erred in refusing to allow the
              appellant to establish his actual innocence as a part of his
              proof to show that he suffered actual bias in the juror
              selection utilized at his trial.


       Here, Holt argues the trial court erred in refusing to allow him to present testimony

concerning the evidence supporting his conviction. According to Holt, he offered this

testimony to establish his innocence in order to overcome any procedural default. Holt has

failed to cite a specific portion of the record in which he finds error. Accordingly, he has

waived consideration of the issue in this appeal. Tenn. Ct. Crim. App. R. 10(b); State v.

Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim. App.), perm. app. denied (Tenn. 1988).



                                              6
       As for Holt’s claim his testimony was offered to establish his actual innocence to

overcome a procedural default, the State correctly points out an appeal from a denial for

post-conviction relief is not the proper avenue for this claim. See Rust v. Zent, 17 F.3d

155, 162 (6th Cir. 1994) (stating federal court may grant habeas relief if petitioner presents

extraordinary case whereby constitutional violation resulted in conviction of innocent

defendant, in such case procedural failures in state court may be overlooked).



       This assignment has no merit.



       For the foregoing reasons, we affirm the decision of the court below.




                                           ________________________________________
                                           ALAN E. GLENN, JUDGE


CONCUR:




____________________________________
JAMES CURWOOD WITT, JR., JUDGE




____________________________________
JOHN EVERETT WILLIAMS, JUDGE




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