        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs March 5, 2014

               RICHARD HERRERA v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Obion County
                  No. CC-12-CR-106     William B. Acree, Jr., Judge




                 No. W2013-02064-CCA-R3-PC - Filed April 9, 2014


The petitioner, Richard Herrera, appeals from the second summary dismissal of his petition
for post-conviction relief, alleging that the post-conviction court erred by summarily
dismissing the petition after this court remanded the case for an evidentiary hearing. Because
the post-conviction court erred by summarily dismissing the petition, we reverse the
judgment of the post-conviction court and remand the case to the post-conviction court for
the appointment of counsel and an evidentiary hearing on the petitioner’s claim of ineffective
assistance of counsel.

    Tenn. R. App. P. 3; Judgment of the Circuit Court Reversed and Remanded

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and R OBERT W. W EDEMEYER, JJ., joined.

Richard Herrera, Tiptonville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Clarence E. Lutz, Assistant
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

              In 2010, an Obion County Circuit Court jury convicted the petitioner of sexual
battery, attempted sexual battery, unlawful photographing, and attempted unlawful
photographing, and the trial court imposed an effective sentence of one year to be served in
confinement. See Richard Herrera v. State, No. W2012-02229-CCA-R3-PC, slip op. at 1
(Tenn. Crim. App., Jackson, Aug. 9, 2013) (Herrera II). The petitioner appealed, and this
court reversed his convictions of unlawful photographing and attempted unlawful
photographing but affirmed the remaining convictions and the effective one-year sentence.
See id. (citing State v. Richard Alexander Herrera, No. W2010-00937-CCA-R3-CD (Tenn.
Crim. App., Jackson, Sept. 23, 2011) (Herrera I)). The petitioner then filed a petition for
post-conviction relief, which was dismissed on grounds that the petitioner’s one-year
sentence had expired. This court reversed the summary dismissal and remanded “the case
for an evidentiary hearing.” Herrera II, slip op. at 1. Upon remand, the post-conviction
court summarily dismissed the petition a second time, ruling that the petitioner had failed to
state a colorable claim for post-conviction relief. It is from this second summary dismissal
that the petitioner now appeals.

              In this appeal, the petitioner contends that the post-conviction court erred by
summarily dismissing the petition on remand because this court had ordered an evidentiary
hearing. The petitioner also claims that the post-conviction court erred by concluding that
he had failed to state a colorable claim for post-conviction relief. The State contends that
summary dismissal was appropriate because the petitioner failed to specifically allege “that,
but for counsel’s failure to investigate, the jury would have been persuaded that the
defendant was incapable of committing the crimes of which he was convicted.”

               In Herrera II, we stated both that the case was remanded for an evidentiary
hearing and that the case was remanded for proceedings consistent with our opinion.
Herrera II, slip op. at 1, 2. The judgment states that the case was remanded for proceedings
consistent with our opinion. Although we concede that the language of our opinion in
Herrera II could have been more precise, we do not believe that the language in the opinion
allowed for the post-conviction court to summarily dismiss the petition a second time upon
remand. We noted particularly the State’s concessions that the petitioner was in custody, that
the petition was timely, and that the petitioner had claimed a deprivation of the effective
assistance of counsel, an historically colorable claim for post-conviction relief. See id., slip
op. at 2.

               “Under the doctrine of the law of the case, when an initial appeal results in a
remand to the trial court, the decision of the appellate court establishes the law of the case,
which must be followed upon remand.” State v. Carter, 114 S.W.3d 895, 902 (Tenn. 2003)
(citing State v. Jefferson, 31 S.W.3d 558, 560-61 (Tenn. 2000)). Thus, the post-conviction
court was obliged to abide by the remand order:

              Moreover, “it is a controlling principle that inferior courts must
              abide the orders, decrees and precedents of higher courts. The
              slightest deviation from this rigid rule would disrupt and destroy
              the sanctity of the judicial process. There would be no finality
              or stability in the law and the court system would be chaotic in
              its operation and unstable and inconsistent in its decisions.”

                                              -2-
State v. Irick, 906 S.W.2d 440, 443 (Tenn. 1995) (quoting Barger v. Brock, 535 S.W.2d 337,
341 (Tenn. 1976)). A trial court may deviate from the confines of a remand order only when

                 (1) the evidence offered at a trial or hearing after remand was
                 substantially different from the evidence in the initial
                 proceeding; (2) the prior ruling was clearly erroneous and would
                 result in a manifest injustice if allowed to stand; or (3) the prior
                 decision is contrary to a change in the controlling law which has
                 occurred between the first and second appeal.

Memphis Publ’g Co. v. Tennessee Petrol. Underground Storage Tank Bd., 975 S.W.2d 303,
306 (Tenn. 1998). None of these exceptions apply here. In consequence, the post-conviction
court was bound by the remand order to conduct an evidentiary hearing.

               Moreover, even if we concluded that the language of our remand order would
have permitted a second summary dismissal, the post-conviction court should have conducted
an evidentiary hearing on the claim of ineffective assistance of counsel, a traditionally
colorable claim for relief. As the State concedes, the petitioner claimed, with factual
specificity, that he was deprived of the effective assistance of counsel at trial. He named
several ways in which he believed that counsel had been ineffective, placing particular
emphasis on counsel’s failure to adequately litigate the issue of the petitioner’s mental illness
and its impact upon the petitioner’s ability to form the requisite mental state for his
conviction offenses. The Post-Conviction Procedure Act requires that a petition for relief
under the Act “contain a clear and specific statement of all grounds upon which relief is
sought, including full disclosure of the factual basis of those grounds.” T.C.A. § 40-30-
106(d). The pro se petitioner’s claim that he was deprived of the effective assistance of
counsel by specifically alleged actions of his counsel satisfies this requirement. The
petitioner was not required, as the State suggests, to couch his claims in the precise language
utilized by those learned in the law to differentiate deficient performance from prejudice
occasioned by deficient performance. Moreover, although the issue of the petitioner’s mental
health may have been litigated at trial and, to some extent, on appeal, the issue whether trial
counsel was ineffective in the presentation of that issue was not.

             Accordingly, the judgment of the post-conviction court is reversed, and the
case is remanded to that court for the appointment of counsel and an evidentiary hearing.1


        1
         The petitioner also contends that the post-conviction court erred by summarily dismissing his
petition without addressing his claim that that portion of his sentence barring him from entering any Walmart
                                                                                                 (continued...)

                                                     -3-
                                                         _________________________________
                                                         JAMES CURWOOD WITT, JR., JUDGE




        1
          (...continued)
for the remainder of his life rendered the judgment void. Because the post-conviction court did not address
this claim in its summary dismissal order, we do not address it in this appeal.

                                                   -4-
