         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs April 13, 2004

              EDDIE WAYNE GORDON v. STATE OF TENNESSEE

                    Direct Appeal from the Circuit Court for Gibson County
                             No. 12785   Clayburn Peeples, Judge



                       No. W2003-02376-CCA-R3-PC - Filed May 7, 2004



The Appellant, Eddie Wayne Gordon, appeals the Gibson County Circuit Court’s denial of his
petition for post-conviction relief. In 1983, Gordon pled guilty to first degree murder and was
sentenced to life imprisonment. In 1984, Gordon, proceeding pro se, filed the instant petition for
post-conviction relief. For twenty years, Gordon has unsuccessfully sought an evidentiary hearing
on his petition. Fundamental fairness dictates that Gordon receive the process that is due him.
Accordingly, the judgment of the trial court is reversed, and this matter is again remanded to the
Gibson County Circuit Court for an evidentiary hearing upon Gordon’s petition for post-conviction
relief.

           Tenn. R. App. P. 3; Judgment of the Trial Court Reversed and Vacated.

DAVID G. HAYES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT and
NORMA MCGEE OGLE , JJ., joined.

Eddie Wayne Gordon, pro se, Henning, Tennessee.

Paul G. Summers, Attorney General & Reporter; Thomas E. Williams, III, Assistant Attorney
General, for the Appellee, State of Tennessee.

                                               OPINION

         In 1983, a Gibson County grand jury returned a two-count indictment against the Appellant,
charging him with first degree murder of his ex-girlfriend and arson of the house in which she was
residing. The Appellant set fire to the residence and then shot the victim as she appeared at the door.
On October 24, 1983, the Appellant pled guilty to first degree murder and received a sentence of life
imprisonment. On April 14, 1984, the Appellant filed the instant pro se petition for post-conviction
relief, alleging ineffective assistance of counsel and that his guilty plea was “unknowingly” entered.
During the period from1984 through 1998, the Appellant, proceeding pro se, filed fifteen motions
in an effort to facilitate first-tier review of his petition. In August 1985, the trial court dismissed the
Appellant’s petition without an evidentiary hearing, finding that no ground for relief was presented.
In 1986, this court reversed the trial court’s ruling and remanded for appointment of counsel and an
evidentiary hearing. Eddie Wayne Gordon v. State, 1986 Tenn. Crim. App. LEXIS 2200 (Tenn.
Crim. App. at Jackson, Jan. 29, 1986).

        Counsel was appointed in 1986. However, the only motion filed by appointed counsel over
the next twelve years was a motion to withdraw filed in 1998, which was granted. During this
period, the Appellant continued to file pro se motions in furtherance of his case. Following this
court’s remand in 1986, the trial court entered an order on July 28, 1986, continuing the case
“indefinitely.” However, on March 16, 1987, without notice to the Appellant, the trial court
dismissed the petition for failure to prosecute. Notwithstanding dismissal of the case, motions
continued to be filed and heard by various trial judges sitting by interchange during the duly-elected
judge’s illness. Indeed, a total of five different trial judges have presided over these proceedings.

        In January 1999, Judge Don Allen appointed the public defender’s office to represent the
Appellant. Over the next two years, the public defender’s office investigated the matter and made
preparations for an evidentiary hearing. On December 27, 2001, the public defender’s office filed
a motion to determine the status of the case. On March 14, 2002, Judge Terry Lafferty concluded
that because the petition had been dismissed in 1987, there was nothing pending before the court to
act upon.

         On June 13, 2003, the Appellant, again proceeding pro se, filed a motion for the trial court
to reconsider the order of March 9, 1987, which dismissed the petition for post-conviction relief for
failure to prosecute. On October 8, 2003, Judge Clayburn Peeples entered an order dismissing the
petition, stating that the petition "fails to state any ground or claim upon which relief should be
granted under the Post Conviction Procedures Act. . . ." The Appellant timely appealed to this court.

        First, we would note that Judge Peeples’ ruling that ineffective assistance of counsel is not
a cognizable claim for post-conviction relief returns us full circle to Judge Dick Jerman, Jr.’s 1985
ruling holding the same. It is, and now should be fundamental, that ineffective assistance of counsel
constitutes a claim upon which post-conviction relief can be granted. Dean v. State, 59 S.W.3d 663,
667 (Tenn. 2001); see also Roosevelt Malone v. State, No. E2002-00782-CCA-R3-PC (Tenn. Crim.
App. at Knoxville, May 16, 2003). Moreover, the record reflects that in 1983, Judge Peeples was
the District Attorney General who signed the indictment against the Appellant, who prosecuted the
case, and who filed the motion to dismiss the post-conviction petition in 1984 upon grounds that it
failed to state a claim for which relief could be granted.

        Article VI, Section 11, of the Tennessee Constitution provides that no judge “shall preside
on the trial of any cause . . . in which he may have been counsel . . . except by consent of the
parties.” Moreover, Tennessee Code Annotated section 17-2-101(3) restates this prohibition.
Additionally, Rule 10, Canon 3E(1)(b), Rules of the Supreme Court of Tennessee, provides that a
judge who served as a lawyer in the matter in controversy shall disqualify himself from presiding
over any further proceeding. As the record contains no waiver of disqualification by the Appellant,


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plain error requires that the October 8, 2003 ruling by the trial court must be vacated. Tenn. R. Crim.
P. 52(b).

        This matter has languished in the system for twenty years. While we acknowledge the
propriety of the State’s present argument, based in part on the fact that there is no direct appeal of
a motion to reconsider, we refuse to compound the miscarriage of justice placed upon the Appellant
by another procedural default. The trial court was under an order of this court to afford the Appellant
appointed counsel and an evidentiary hearing. The record is silent as to any effort of appointed
counsel to represent the Appellant.1 This court is unable to discern any rational reason for dismissing
the petition for failure to prosecute, when the inaction was caused by the trial court's own failure to
rule on a motion and its order continuing the matter "indefinitely." Despite numerous attempts to
seek relief from this action, the Appellant’s uncounseled efforts have met with no success. The
Appellant has yet to be afforded his day in court on his petition for post-conviction relief. It is more
than apparent that the Appellant is entitled to a hearing on his petition for post-conviction relief as
a matter of both fundamental fairness and procedural due process. See Van Tran v. State, 66 S.W.3d
790, 812 (Tenn. 2001) (application of fundamental fairness in context of post-conviction
procedures); see generally Williams v. State, 44 S.W.3d 464 (Tenn. 2001).

        For the above reasons, the judgment of dismissal entered by the trial court is reversed, and
this matter is remanded to the trial court for an evidentiary hearing upon the Appellant’s 1984
petition for post-conviction relief. The public defender’s office remains as counsel of record.




                                                                   ___________________________________
                                                                   DAVID G. HAYES, JUDGE




         1
           Tennessee Code Annotated sec tion 40 -30-1 07(b)(1 ) provides that the co urt is required to appoint counsel when
requested by an ind igent petitioner. In furtherance of his duties, counsel is required to “review the petition, co nsult with
petitioner, and investigate all possible constitutional grounds for relief for the p urpo se of filing an amended petition, if
necessary.” R . Tenn. Sup. Ct. 2 8.

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