        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs October 5, 2010

                  COREY FINLEY v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                     No. 03-05912     W. Otis Higgs, Jr., Judge


             No. W2010-00902-CCA-RM-PC - Filed November 1, 2010


The petitioner, Corey Finley, appeals the post-conviction court’s summary dismissal of his
petition for post-conviction relief from his attempted first degree murder and aggravated
assault convictions. On appeal, he argues that he stated a colorable claim in his petition;
therefore, the post-conviction court erred in dismissing his petition without conducting an
evidentiary hearing. The State concedes that the post-conviction court erred in summarily
dismissing the petition. After review, we reverse the judgment of the post-conviction court
and remand for the appointment of counsel and an evidentiary hearing.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed
                                  and Remanded

A LAN E. G LENN, J., delivered the opinion of the Court, in which J.C. M CL IN and C AMILLE
R. M CM ULLEN, JJ., joined.

Magan N. White, Jackson, Tennessee, for the appellant, Corey Finley.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; William
L. Gibbons, District Attorney General; and Nicole C. Germain, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

                                         FACTS

       On August 9, 2005, the petitioner was convicted of attempted first degree murder and
aggravated assault and sentenced to an effective term of twenty-three years in the
Department of Correction. This court affirmed his conviction and sentence on direct appeal.
State v. Corey Finley, No. W2005-02804-CCA-R3-CD, 2007 WL 1651879, at *1 (Tenn.
Crim. App. June 7, 2007), perm. to appeal granted (Tenn. Oct. 15, 2007). The Tennessee
Supreme Court granted the petitioner’s application for permission to appeal for the limited
purpose of remanding the case to this court for reconsideration in light of State v. Gomez,
239 S.W.3d 733 (Tenn. 2007). On remand, this court reaffirmed the petitioner’s twenty-
three-year sentence, and our supreme court denied his application for permission to appeal.
State v. Corey Finley, No. W2007-02321-CCA-RM-CD, 2008 WL 726567, at *1 (Tenn.
Crim. App. Mar. 18, 2008), perm. to appeal denied (Tenn. Sept. 29, 2008).

        On May 21, 2009, the petitioner filed a pro se petition for post-conviction relief.
Along with the form petition, the petitioner filed a motion requesting the appointment of
counsel and a memorandum of law in support of his petition. Among the petitioner’s claims
for relief was the allegation that he was denied the effective assistance of counsel. The State
filed a response on June 11, 2009, asserting that the petition “should be denied without a
hearing for failing to properly allege a justiciable ground for post-conviction relief.” That
same day, the post-conviction court entered an order stating, “Based upon the motion of the
State of Tennessee the Court finds the petition for post-conviction relief is not well-taken.
IT IS HEREBY ORDERED that the Petition for Post Conviction Relief shall hereby be
DISMISSED.” On June 23, 2009, the petitioner filed a motion to reconsider, which the
post-conviction court denied by order filed on September 18, 2009. During the interim, the
petitioner filed a notice of appeal and a motion to accept a late-filed notice of appeal. On
September 9, 2009, this Court denied the petitioner’s motion to accept a late-filed notice of
appeal. After discretionary review by the Tennessee Supreme Court, the court ordered on
April 23, 2010 that the timely filing of a notice of appeal be waived in the interest of justice.

                                         ANALYSIS

       On appeal, the petitioner argues that the post-conviction court erred in summarily
dismissing his petition without appointing counsel and conducting an evidentiary hearing.
The State agrees with the petitioner’s assertion. We review the post-conviction court’s
dismissal of the petition, as an issue of law, de novo on the record without a presumption of
correctness. See Burnett v. State, 92 S.W.3d 403, 406 (Tenn. 2002).

       Section 40-30-106 of the Post-Conviction Procedure Act provides in pertinent part:

               (d) The 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 state a factual basis for the grounds alleged
       shall result in immediate dismissal of the petition. If, however, the petition

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       was filed pro se, the judge may enter an order stating that the petitioner must
       file an amended petition that complies with this section within fifteen (15)
       days or the petition will be dismissed.

              (e) If a petition amended in accordance with subsection (d) is
       incomplete, the court shall determine whether the petitioner is indigent and in
       need of counsel. The court may appoint counsel and enter a preliminary order
       if necessary to secure the filing of a complete petition. Counsel may file an
       amended petition within thirty (30) days of appointment.

               (f) Upon receipt of a petition in proper form, or upon receipt of an
       amended petition, the court shall examine the allegations of fact in the
       petition. If 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
       dismissal shall set forth the court’s conclusions of law.

Tenn. Code Ann. § 40-30-106(d)-(f) (2006). A petition presents a “colorable claim,”
sufficient to withstand summary dismissal, when the facts alleged, “‘taken as true’” and “‘in
the light most favorable to [the] petitioner’” would entitle the petitioner to relief under the
Post-Conviction Procedure Act. Arnold v. State, 143 S.W.3d 784, 786 (Tenn. 2004)
(quoting Tenn. Sup. Ct. R. 28, § 2(H)). In determining whether a colorable claim has been
presented, “pro se petitions are to be ‘held to less stringent standards than formal pleadings
drafted by lawyers.’” Gable v. State, 836 S.W.2d 558, 559-60 (Tenn. 1992) (quoting
Swanson v. State, 749 S.W.2d 731, 734 (Tenn. 1988)).

        In his petition and attached memorandum of law, the petitioner asserted that he was
denied the effective assistance of counsel because, among other things, counsel “failed to
fully explain the laws that governed his specific charges, and to help him understand the
consequences of sentencing if he chose not to accept the State’s offer”; failed to object to
the State’s late-filing of an intent to seek enhanced punishment; did not advise him of what
evidence or witnesses were going to be used against him; did not advise him of the lesser-
included offenses of the indicted charges; and “failed to interview or attempt to interview
the victim or any other [S]tate witness to be called in chief.” He asserted that the result of
the proceeding would have been different had he been “effectively represented” by counsel.
In the light most favorable to the petitioner, the allegations in his petition and memorandum
of law state a colorable claim for post-conviction relief. Therefore, the post-conviction court
erred in summarily dismissing the petition.



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                                   CONCLUSION

      Based upon the foregoing, we reverse the judgment of the post-conviction court and
remand the case for the appointment of counsel and an evidentiary hearing.


                                                _________________________________
                                                ALAN E. GLENN, JUDGE




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