         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                        DECEMBER 1998 SESSION            FILED
                                                            April 20, 1999

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
STATE OF TENNESSEE,           )
                              ) C.C.A. No. 02C01-9805-CC-00131
      Appellee,               )
                              ) Madison County
V.                            )
                              ) Honorable Whit Lafon, Judge
                              )
ROBERT LEE MOORE,             ) (Petition for Post-Conviction Relief)
                              )
      Appellant.              )
                              )



FOR THE APPELLANT:               FOR THE APPELLEE:


JOSEPH L. PATTERSON              JOHN KNOX WALKUP
225 West Baltimore Suite B       Attorney General & Reporter
Jackson, TN 38301
                                 ELIZABETH T. RYAN
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 425 Fifth Avenue North
                                 Nashville, TN 37243

                                 JAMES G. “JERRY” WOODALL
                                 District Attorney General

                                 AL EARLS
                                 Assistant District Attorney
                                 P.O. Box 2825
                                 Jackson, TN 38302-2825




OPINION FILED: ___________________


AFFIRMED


JOHN EVERETT WILLIAMS,
Judge
                                          OPINION

        The petitioner, Robert Lee Moore, appeals under Tennessee Code

Annotated § 40-30-216 and contests the post-conviction court’s dismissing his

petition for relief. The petitioner alleges that ineffective assistance of his trial

counsel merits a new trial. He further alleges that the Order Denying Post-

Conviction Relief was improperly entered and lacks proof adduced at the post-

conviction relief evidentiary hearing. We AFFIRM the Order below.



                                       BACKGROUND

        In May 1994, the Circuit Court of Madison County, Tennessee, sentenced

the petitioner, Robert Lee Moore, as a career criminal after convicting him of

possession of a schedule II controlled substance with intent to sell or deliver. 1

The petitioner was represented by counsel at trial.



        After this Court affirmed the conviction and sentencing on direct appeal,

the petitioner filed a pro se petition for post-conviction relief regarding the May

1994 conviction and other convictions pertinent to the sentence. The petitioner,

seeking either a new trial or a new sentencing hearing, alleged that he entered

guilty pleas to those prior charges without being advised of his rights against self-

incrimination and to confront and cross-examine witnesses. He further alleged

that he was not advised of “any of his rights” in the schedule II substance

possession case. Finally, he argued that the trial judge erred by not charging the

jury with lesser offenses at the conclusion of his trial for possession of schedule

II substance.



        The post-conviction court appointed counsel for the petitioner, and the

petitioner amended his petition. The petitioner further addressed the prior


        1
          The record shows that the petitioner has faced earlier and apparently unrelated
schedule II substance possession charges. However, we discuss only this most recent
conviction.

                                               -2-
convictions and both the jury instructions and the sentencing for his schedule II

possession charge. Further, the state’s response to his proposed amendments

included an allegation that “‘any issue regarding failure to raise errors at

sentencing were [sic] waived by failing to raise these issues on appeal.’” In the

petitioner’s first amended petition, he alleged that this response “plainly”

indicated ineffective assistance of counsel during both the trial and the direct

appeal of that trial. He then specifically asserted that counsel’s not objecting to

the jury instructions at his schedule II substance possession trial and improperly

presenting pertinent time frames of prior convictions germane to his career

criminal sentence constituted ineffective assistance of counsel.



       Finally, the petitioner filed a second amendment to his petition alleging

that the schedule II substance possession charge indictment omitted the

requisite mental state.



       At the post-conviction relief evidentiary hearing, the petitioner entered

exhibits of the minutes from a hearing regarding a prior aggravated assault

charge and of indictments regarding both his prior convictions and his schedule II

substance possession charge. The petitioner testified that his trial counsel did

not call an important witness, who had since died. The petitioner also testified

that his counsel ineffectively prepared for the defense and did not communicate

with the petitioner. The Circuit Court of Madison County, Division I, dismissed

the petition. That court held that the petitioner waived his argument regarding

failure to call the witness by omitting that issue from his pleadings. The trial

court also held that this Court’s affirmation, on direct appeal, of the petitioner’s

career criminal sentencing barred that issue as grounds for post-conviction relief.

The post-conviction court additionally held that the petitioner offered neither

proof nor any factual allegations of his remaining claims of ineffective assistance

of counsel.2


       2
           The post -con viction Ord er als o add ress ed ot her c laim s not pres ente d in this appe al.

                                                     -3-
       On this appeal, the petitioner alleges that he did not approve the

subsequent post-conviction court Order and that this Order lacks a certificate of

service to him. He further alleges that the Order omits proof he adduced at his

hearing. He requests a new trial.



                           STANDARD OF REVIEW

       At an evidentiary hearing pursuant to a post-conviction relief petition, the

petitioner must provide clear and convincing evidence that a “conviction or

sentence is void or voidable because of the abridgment of any right guaranteed

by the Constitution of Tennessee or the Constitution of the United States.” Tenn.

Code Ann. §§ 40-30-203, 210(f). Tennessee Code Annotated § 40-30-210(c)

limits a petitioner at a post-conviction relief evidentiary hearing “to evidence of

the allegations of fact in the petition.” A trial court’s findings of fact and

conclusions of law from the petitioner’s evidentiary hearing carry the weight of a

jury verdict. See Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

This Court does not reweigh or reevaluate evidence and does not substitute its

own inferences for those determined by the trial court. See id. The petitioner

must show that “the evidence contained in the record preponderates against the

judgment entered in the cause.” Id.



                                     ANALYSIS

       We first address the petitioner’s asserted “prima facie case” of ineffective

assistance of counsel. The petitioner claims that trial counsel did not call a

particular witness, a witness who allegedly died after the trial. However, the

petitioner’s pleadings omit any relevant factual allegations. The trial court’s

Order Dismissing Petition correctly states that the petitioner waived this claim by

omission. Tenn. Code Ann. § 40-30-210(c) (“[p]roof upon the petitioner’s claim or

claims for relief shall be limited to evidence of the allegations of fact in the

petition”); see Thomas Edward Murphy, Jr. v. State, No. 02C01-9710-CC-00378




                                          -4-
(Tenn. Crim. App. filed Nov. 9, 1998, at Jackson). This allegation is without merit.



       The petitioner also alleges that his counsel improperly presented the

dates of prior convictions pertinent to the subsequent career criminal sentence.

This Court approved the sentence on direct appeal. “It is . . . well-settled law in

the area of post-conviction practice that issues which were previously determined

in earlier proceedings are not subject to relitigation.” Robert Senick v. State, No.

01C01-9711-CR-00550 (Tenn. Crim. App. filed Dec. 3, 1998, at Nashville). We

concur with the post-conviction court’s determination that the ruling on the direct

appeal precludes this issue as a basis for post-conviction relief.



       The petitioner’s remaining points pertinent to his prima facie case involve

the trial counsel’s preparation for the defense and communication with the

petitioner. The petitioner asserts that his testimony at the post-conviction

hearing “clearly created a factual issue as to the number of meetings and the

entire course of preparation for the trial and sentencing.” The Code requires

more than a “factual issue.” The statutes require “clear and convincing

evidence.” Tenn. Code Ann. § 40-30-210(f).



       None of the three petitions comprised the requisite “factual allegations” of

deficient communication with the petitioner and general lack of preparation.” A

post-conviction court reviews a submitted petition without regard for the “factual

merits of the allegations” and determines whether, assuming the allegations are

true, a “colorable claim is stated.” John Paul Seals v. State, No. 03C01-9802-

CC-00050 (Tenn. Crim. App. filed Jan. 6, 1999, at Knoxville). However, “[t]he

petitioner shall include allegations of fact supporting each claim for relief set forth

in the petition.” Tenn. Code Ann. § 40-30-204(e). Further,

       [t]he petition must contain a clear and specific statement of all
       grounds upon which relief is sought, including full disclosure of the
       factual basis of those grounds. A bare allegation that a
       constitutional right has been violated and mere conclusions of law
       shall not be sufficient to warrant any further proceedings. Failure to



                                          -5-
       state a factual basis for the grounds alleged shall result in
       immediate dismissal of the petition.


Tenn. Code Ann. § 40-30-206(d) (emphasis added).



       The petitioner’s pleadings did not constitute “allegations of fact” regarding

either generally deficient preparation or communication. Appointed counsel

twice amended the pro se petition. The first amended petition noted that the

state’s response to the proposed amendments in part asserted that “‘any issue

regarding failure to raise errors at sentencing were [sic] waived by failing to raise

these issues on appeal.’” The petitioner alleges that this response “plainly”

indicates ineffective assistance of counsel at trial. We agree with the post-

conviction court: the petitioner waived these grounds for relief by omission.



       In Johnny Wayne Harris v. State, No. 03C01-9803-CR-00086 (Tenn.

Crim. App. filed Jan. 6, 1999, at Knoxville), this Court approved the dismissal of

a petitioner’s claim because the petition did not satisfy statutory requirements.

Allegations that his trial counsel was ineffective, for reasons including less than

zealous representation and not conducting witness investigations, did not

constitute a “colorable claim,” because the petition omitted, among other factors,

the identity of the witnesses and to what the witnesses would have testified. The

petition fell short of the required “full disclosure of the factual basis of the

grounds asserted.” Id.; see also Thomas Edward Murphy, Jr. v. State, No.

02C01-9710-CC-00378 (Tenn. Crim. App. Filed Nov. 9, 1998, at Jackson). But

cf. Coyce E. Wells v. State, No. 01C01-9602-CC-00054 (Tenn. Crim. App. filed

Jan. 16, 1997, at Nashville) (The petitioner’s assertion that “he experienced

ineffective assistance of counsel at original sentencing for lack of appeal”

constituted a sufficient “factual basis.”).



       In the instant case the petitioner relied on a conclusory sentence in his

first amended petition. The petitioner asserted that the state’s response “clearly”



                                              -6-
established ineffective assistance of counsel both on appeal and at the trial.

Apparently, the petitioner concluded that his noting the state’s argument, which

addressed the petitioner’s waiving issues by not including them on his direct

appeal, in conjunction with the petitioner’s testimony at the hearing established

a “factual allegation.” We agree with the post-conviction court decision that the

petitioner did not “state any factual basis” for these particular alleged bases of

relief.



          Further, even if the petitioner established the requisite factual allegations,

his proof at the hearing fell substantially below the required standard       His

offered proof consisted solely of his own testimony and several exhibits. The

petitioner offered no explanation regarding the relevance of prior indictments and

hearing minutes to the claimed deficient preparation and communication. He

offered no relevant proof beyond his own testimony. “The presumption is that

the attorney rendered effective assistance, and the burden is on the petitioner to

prove that the assistance was ineffective.” Thomas Edward Murphy v. State, No.

02C01-9710-CC-00378 (Tenn. Crim. App. filed Nov. 9, 1998, filed at Jackson).

“In a post-conviction proceeding, a petitioner’s uncorroborated testimony is

insufficient to carry this burden of proof.” Id. We do not find the preponderance

of evidence necessary to overturn the post-conviction court’s finding on this

issue. Also, the petitions contested the trial court’s jury instructions, but the

petitioner offered no proof of this issue at the hearing. Therefore, these points of

the petitioner’s appeal are also without merit.



          The petitioner’s remaining argument addresses the trial court’s Order

Denying Post-Conviction Relief. He asserts that this Order was improperly

entered because the petitioner did not approve the Order and because the Order

lacked a certificate of service for the petitioner’s counsel. The petitioner

apparently contends that the filing prejudices his appeal by depriving him of




                                            -7-
opportunity to ensure that the Order incorporated certain “proof adduced in the

hearing.”



       Tennessee Code Annotated § 40-30-211(b) requires that the post-

conviction court file a final order comprising the “findings of fact and conclusions

of law with regard to each . . . ground presented.” The Order adequately

explains the factual and legal bases for the post-conviction court’s denying relief

regarding the career criminal sentencing and the jury instructions. This Court

reviewed the hearing transcript and concurs with the post-conviction court’s

finding that the petitioner presented insufficient proof to carry his claims

regarding failure to call a witness, inadequate prepare for the defense, and

deficient communication with the petitioner, See Daniel B. Taylor v. State, No.

02C01-9703-CR-00091 (Tenn. Crim. App. filed March 18, 1998, at Jackson)

(Reversal of the post-conviction court’s judgment is not necessary, despite

noncompliance with the statute, if “the record transmitted to this [C]ourt is

sufficient to effectuate a meaningful appellate review on each ground raised in

the petition.”). This issue is without merit.



                                  CONCLUSION

       The post-conviction court’s dismissal of the petition is AFFIRMED and the

petitioner’s appeal as to the filing of that court’s order is DISMISSED.




                                                _____________________________
                                                JOHN EVERETT W ILLIAMS, Judge




                                          -8-
CONCUR:




____________________________
GARY R. WADE, Presiding Judge




(NOT PARTICIPATING)
THOMAS T. W OODALL, Judge




                                -9-
