        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE            FILED
                      OCTOBER SESSION, 1998             January 6, 1999

                                                   Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
JOHNNY WAYNE HARRIS,           )   C.C.A. NO. 03C01-9803-CR-00086
                               )
      Appe llant,              )
                               )
                               )   UNICOI COUNTY
VS.                            )
                               )   HON. LYNN W. BROWN
STATE OF TENNESSEE,            )   JUDGE
                               )
      Appellee.                )   (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                  CRIMINAL COURT OF UNICOI COUNTY


FOR THE APPELLANT:                 FOR THE APPELLEE:

JOH NNY WA YNE H ARR IS            JOHN KNOX WALKUP
Pro Se                             Attorney General and Reporter
P.O. Box 5000
Mountain City, TN 37683-5000       ELLEN H. POLLACK
                                   Assistant Attorney General
                                   425 Fifth Avenu e North
                                   Nashville, TN 37243

                                   DAVID CROCKETT
                                   District Attorney General

                                   KENT GARLAND
                                   Assistant District Attorney General
                                   Courthouse, Main Street
                                   Erwin, TN 37650



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                  OPINION

       The Defendant, Johnny Wayne Harris, appeals as of right from the order

of the trial court summarily dismissing his pro se petition for p ost-con viction relief.

We affirm the ju dgme nt of the trial co urt.



       Following a jury trial, the Defendant was found guilty of attempted first

degree murd er. On direct a ppea l, he argued two issues: that the evidence

presented was no t sufficient to support his conviction and th at the trial court

imposed an excessive sentence because it improperly weighed the enhancing

and mitigating factors. This Court affirmed both his conviction and his sentence

of twenty-five ye ars. State v. Johnny Wayne Harris and Gary L. (J ake) H arris,

No. 03C01-9507-CC-00202, 1996 WL 4035 85, at *6 (T enn. C rim. App .,

Nash ville, July 19, 19 96).



       The Defendant filed a pro se petition for post-conviction relief on December

17, 1996. The petition alleged that the Defendant was entitled to post-conviction

relief on the groun ds that: (1) he rece ived ineffective assistance of counsel, (2)

the convicting evidence was insufficient to support his conviction, (3) he received

an excessive sentence, (4) the trial judge erred in allowing certain prejudicial

evidence to be introduced at his tria l, and (5) the trial judge erred by disallowing

certain defens e testimony.



       In the order dismissing the petition, the trial judge found that the grounds

concerning the sufficien cy of the ev idence and the propriety of the sentence w ere



                                           -2-
raised on direct appeal and thus had been previously determined. The trial judge

further found that the issues concerning alleged errors of improperly admitting

some evidence and excluding other evidence were waived beca use they we re

not raised on direct appeal, and further, that these grounds would not provide a

basis for p ost-con viction relief.



       Regarding the allegation of ineffective assistance of counsel, relevant

portions of the petition for post-conviction relief sta te that th e Def enda nt’s

attorney did no t have th e Def enda nt’s full intere st in m ind, faile d to file meaningful

and “much-needed” motions, failed to file mitigating circumstances regarding

sentencing, did not represe nt the Defend ant zealously, an d perform ed no

investigation of witnesses on the Defendant’s behalf. The trial judge determined

that these allega tions d id not assert a colorable claim because the petition did not

allege any facts relative to sentencing that were not considered at the time the

Defe ndant was sentenced; and the petition did not name any witness whom

counsel should have interviewed, what such a witness’s testimony would have

been, whether he requested counsel to interview such witnesses, or how any

such witness’s testimony would have affected the verdict. We note that the

petition does not suggest what meaningful or “much-needed” motions the

Defendant believes his attorney should have filed.



       The 1995 Post-Conviction Procedure Act governs this petition and all

petitions filed after May 10, 1995. See Tenn. Code Ann. § 40-30-201. The Act

provides that a trial court must co nsider a petition within thirty days of its filing and

“examine it together with all the files, records, transcripts, and correspondence

relating to the judgment under attack.” Id. § 40-30-20 6(a). The pre scribed form

                                             -3-
for petitions requires that the grounds for relief be specified and that a petitioner

set out the facts to establish a “colorable claim.” See Tenn. R. Sup. Ct. 28,

§ 2(H). A colora ble cla im is on e “that, if taken as true, in th e light m ost favo rable

to petitioner, would en title petitioner to relief under the Post-Conviction Proced ure

Act.” Id. Furthermore, a petitioner must rebut the presump tion that claims ha ve

either been waived or previously determined. Tenn. Code Ann. § 40-30-204 (e).



       “A ground for relief is waived if the petitioner personally or through an

attorney failed to present it for determination in any procee ding before a c ourt of

comp etent jurisd iction in wh ich the gro und co uld have been p resente d . . . .”

Id. § 40-30-206(g). An issue has been previously determined “if a court of

competent jurisdiction h as ruled o n the m erits after a fu ll and fair hearing.” Id. §

40-30-2 06(h).

       Then, “[i]f 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. The order of dismiss al sha ll set forth the co urt’s
       conclusions of law.”

Id. § 40-30 -206(f).


       W e recognize that the Act “co ntem plates the filing of only one (1) p etition.”

See Tenn. Code Ann. § 40-30 -202( c). Th e legis lature c learly ex press ed its w ill

to limit numerous and frivolous challenges to convictions that arose under the

prior law by repealing th e entire former A ct and replacing it with more stringent

requirem ents in the curre nt Post-Conviction Procedure Act. In the case sub

judice, the Defendant timely filed a pro se post-con viction petition . Yet, the Act

provides that:

       [f]ailure to state a factu al bas is for the groun ds alle ged s hall res ult in
       imme diate dismissal of the petition. If, however, the petition was filed

                                              -4-
       pro se, the judge may enter an ord er statin g that th e petitio ner m ust file
       an amend ed petition that com plies with this section within fifteen (1 5)
       days or the petition will be dismissed.

Id. § 40-30-206(d) (emphasis added). Furthermore, the Rules of Post-Conviction

Procedu re provide that if the trial court determines that “a c olorab le claim is not

asserted by the petition, the cou rt shall enter an order dismissing the petition or

an order requiring that the petition be amen ded.”          T enn. R . Sup. C t. 28, §

6(B)(4)(a) (emphasis added ).        Thus, w hen a trial c ourt dete rmines that a

petitioner has not presented a colorable claim or that a claim has been waived,

the court may, in its discretion, summarily dismiss the petition without the

appointment of counsel.         Almost any ground for relief except ineffective

assistance of counsel may be raised during trial, and failure to raise a ground will

be deeme d a waiver. It appea rs clear that the legislature intended to restrict

somewhat the ability of convicted crimin als to co llaterally attack their convictions.

To a large extent, the availability and extent of post-c onvictio n rem edies lie within

the discretion of the legislature.



       W e do not be lieve that the trial court erre d by dism issing this p etition. W e

view the trial court’s rulings that the evidentiary and sentencing issues have been

previo usly determined or waived to be entirely correct. Although the petition

alleges the ineffective assistance of counsel, it does n ot contain a full disclosu re

of the factual basis of the grounds asserted. The petition instead contains bare

allegations of violations of constitutional rights and mere conclusions of law.

Although the sta tute gra nts the trial judg e the d iscretio n to allo w a pro se

petitioner fifteen days within which to amend the petition to comply with the code

section, the statute does not mandate that the judge do so. We believe the trial




                                           -5-
judge acted within h is discretionary authority in summarily dismissing the petition

for post-co nviction relief.



       The judgment of the trial court is affirmed.




                                 ____________________________________
                                 DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




                                        -6-
