         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs December 11, 2002

                BILLY WAYNE COSBY v. STATE OF TENNESSEE

                     Direct Appeal from the Circuit Court for Giles County
                              No. 8918    Robert L. Jones, Judge



                      No. M2001-01538-CCA-R3-PC - Filed June 27, 2003


The petitioner, Billy Wayne Cosby, pled nolo contendere in the Giles County Circuit Court to
aggravated assault and received a sentence of eight years incarceration. Subsequently, the petitioner
filed for post-conviction relief, which petition was denied. On appeal, the petitioner contests the
summary dismissal of his post-conviction petition. Upon review of the record and the parties’ briefs,
we reverse the judgment of the post-conviction court and remand for the appointment of new counsel
and further proceedings in accordance with this opinion.

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

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN
EVERETT WILLIAMS, JJ., joined.

Lucy D. Henson, Pulaski, Tennessee, for the appellant, Billy Wayne Cosby.

Paul G. Summers, Attorney General and Reporter; Christine M. Lapps, Assistant Attorney General;
and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                       I. Factual Background
                        Pursuant to a plea agreement, the petitioner entered a plea of nolo contendere
on April 4, 1998, to a charge of aggravated assault. The facts set forth at the guilty plea hearing
established that the petitioner went to a house in Pulaski where he discovered his ex-wife. Using a
sawed-off shotgun, the petitioner fired through a door, striking her in the arm. The plea agreement
provided that the petitioner would be sentenced as a Range II multiple offender to eight years
incarceration in the Tennessee Department of Correction.

                Subsequently, on March 31, 1999, the Giles County Circuit Court Clerk received a
letter from the petitioner requesting post-conviction relief. The petitioner stated in his letter that he
wanted to “file this post conviction under misrepresentation of counsel.” Additionally, the petitioner
alleged that he was not advised of his right to appeal and further alleged that when he pled guilty he
was not aware that his wife had stated that “it was an accident.” The court clerk sent a letter to
petitioner advising him that his letter had been received and “Judge Hamilton has determined that
the PCR can be filed on the basis of the letter.” The clerk further advised the petitioner that the case
would be placed on the April 19, 1999, docket for consideration of appointment of counsel.

                The record reflects that on August 9, 1999, Judge Robert L. Jones entered an order
stating that the petitioner’s letter had been considered as a petition for post-conviction relief and
summarily denying petitioner relief. The order did not set forth any findings of fact or the court’s
conclusions of law supporting the dismissal. The following day, August 10, 1999, the post-
conviction court entered an order finding that the petitioner was indigent and appointing attorney
Mac Peebles to represent the petitioner.

                On May 5, 2000, the petitioner, acting pro se, filed a “Motion for Relief From Final
Judgment.” The petitioner alleged that on April 19, 1999, attorney James M. Peebles, Jr., had been
appointed to represent him. He further stated that he was unaware of the court’s order denying post-
conviction relief. He asserted that “on or about April 11, 2000,” he asked an attorney at the
correctional facility to assist him in determining the status of his post-conviction proceeding. The
attorney at the correctional facility was able to obtain a copy of the order dismissing the petition.
The petitioner asserted that he was never advised that his petition had been dismissed and was never
advised of his right to appeal the decision. On May 22, 2000, the post-conviction court entered an
order denying the petitioner’s motion.

                Subsequently, the petitioner filed a pro se motion in this court requesting that we
waive the timely filing of the notice of appeal. In an order dated July 27, 2001, this court concluded
that the petitioner was attempting to appeal the post-conviction court’s dismissal of his post-
conviction petition. We noted that the post-conviction court had appointed counsel for the petitioner,
that counsel had not been allowed to withdraw from representation, and that, generally, counsel
appointed by post-conviction courts to represent petitioners in post-conviction proceedings are also
responsible for representing the petitioners through the initial appellate review to this court. This
court ordered counsel to file a response stating whether he had requested to withdraw from further
representation of the petitioner and, if not, why he did not file a notice of appeal on behalf of the
petitioner.

                 Counsel filed a response as ordered by this court. Counsel stated that he was
appointed to represent the petitioner during proceedings on the underlying charges and that he had
not heard from the petitioner since July 1, 1999. Counsel stated that at the petitioner’s request,
counsel filed a petition requesting the petitioner’s transfer from the Giles County Jail to the
Tennessee Department of Correction. The order approving the transfer was signed by the trial court
on July 7, 1999. This court ordered counsel to file an amended response explaining to the court the
nature of petitioner’s post-conviction proceeding, whether he notified the petitioner that he had been



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appointed to represent him in the post-conviction proceedings, and whether he notified the petitioner
of the denial of his petition.

                 Accordingly, counsel filed an amended response stating that he was never informed
of his appointment to represent the petitioner during the post-conviction proceeding and he did not
know the reasons for the post-conviction court’s denial of the petition. Additionally, counsel stated
that he was “somewhat confused” as to what this court wanted of him and noted that he was seventy-
four years old, in bad health, and was in the process of terminating his law practice. In response, this
court allowed counsel to withdraw, waived the timely filing of the notice of appeal, and remanded
this matter to the post-conviction court for the appointment of new counsel. This court further
ordered that new counsel “immediately file a notice of appeal with the trial court.”

               Following remand to the post-conviction court, new counsel was appointed and the
notice of appeal was filed. On appeal, the petitioner contends that the post-conviction court erred
in summarily dismissing his pro se petition for post-conviction relief. The petitioner asserts that he
was denied the “opportunity to realize post-conviction proceedings” and that this matter should be
remanded to the post-conviction court to allow the petitioner “to amend his petition and seek post-
conviction relief by and through the assistance of appointed counsel.”

                                              II. Analysis
                 The Post-Conviction Procedure Act of 1995 provides that a post-conviction petition
must be filed with the clerk of the court in which the conviction occurred. See Tenn. Code Ann. §
40-30-204(a) (1997). 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. See Tenn.
Code Ann. § 40-30-206(d) (1997). A bare allegation that a constitutional right has been violated and
mere conclusions of law shall not be sufficient to warrant further proceedings. Id. Moreover, failure
to state a factual basis for the grounds alleged shall result in immediate dismissal of the petition. Id.
In the event that the petition is dismissed, the order of dismissal shall set forth the court’s
conclusions of law. See Tenn. Code Ann. § 40-30-206(f).

                 In Burnett v. State, 92 S.W.3d 403, 406 (Tenn. 2002), our supreme court explained
the process which a post-conviction court should use to determine whether a post-conviction petition
should be dismissed without a hearing. First, the post-conviction court should consider the petition
to determine whether the petition asserts a colorable claim. Id. A colorable claim is “a claim that,
if taken as true, in the light most favorable to the petitioner, would entitle petitioner to relief under
the Post-Conviction Procedure Act.” Id.; see also Tenn. Sup. Ct. R 28 § 2(H). If the facts alleged,
taken as true, do not state a colorable claim, the petition should be dismissed. See Tenn. Code Ann.
§ 40-30-206(f). When determining if a colorable claim has been presented, pro se petitions should
be held to less stringent standards than formal pleadings drafted by lawyers. See Allen v. State, 854
S.W.2d 873, 875 (Tenn. 1993). “If the availability of relief cannot be conclusively determined from
a pro se petition and the accompanying records, an appellate must be given the aid of counsel.” Billy
Joe Henderson v. State, No. E2001-00438-CCA-R3-PC, 2001 WL 1464544, at *1 (Tenn. Crim. App.
at Knoxville, Nov. 19, 2001).


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                If the post-conviction court determines that a pro se petitioner has presented a
colorable claim, the court, upon determination that the petitioner is indigent, shall appoint counsel
for the petitioner. See Tenn. Code Ann. § 40-30-207(b)(1). Counsel must file an amended petition
or, if counsel concludes after consultation with the petitioner that the petition should not be
amended, counsel must provide written notice to the court that an amended petition will not be filed.
See Tenn. Code Ann. § 40-30-207(b)(2).

                In the instant case, we are unable to conclude that the procedures set forth in the Post-
Conviction Act were followed. As we noted, the petitioner was notified that his “letter” would be
considered as a post-conviction petition and the issue of appointment of counsel would be considered
on April 19, 1999. The record does not reflect the occurrence of any proceedings regarding this
matter on April 19,1999.1 On August 9, 1999, an order was entered dismissing the petition. The
order summarily noted that the “defendant’s letter which was treated as an application for post
conviction relief be and the same is hereby dismissed.”

                Without explanation, the following day the trial court appointed counsel to represent
the petitioner. The order does not indicate the nature of the proceedings for which counsel was
appointed, but does reference the docket number of the petitioner’s post-conviction proceedings.

                It is apparent from the record, and the State concedes, that counsel was not aware of
his appointment to represent the petitioner and that he took no action on the petitioner’s behalf. The
State further acknowledges that the order dismissing the post-conviction petition does not reflect the
post-conviction court’s basis for denying the petitioner’s claim. Although we are unable to
determine the basis for the court’s dismissal of the post-conviction petition, the record does indicate
that the dismissal was done prior to appointment of counsel and without the benefit of an evidentiary
hearing. Regardless, the State contends that the petitioner’s claim of ineffective assistance of
counsel was without merit and is therefore subject to summary dismissal.

                 We are limited by the nature and the language of the document considered by the
post-conviction court. This problem is further compounded by the post-conviction court’s
appointment of counsel after the summary dismissal of the post-conviction petition and by the failure
of appointed counsel to take any action on behalf of the petitioner. Moreover, we are unable to
conclusively determine the basis upon which the trial court dismissed the petition. From our review,
it appears that the petitioner has alleged a colorable claim that he received the ineffective assistance
of trial counsel. See Dean v. State, 59 S.W.3d 663, 667 (Tenn. 2001).

                                                   III. Conclusion



         1
             In response to an inq uiry from the petitioner’s appellate counsel, the official criminal court reporter for the
Twenty-Second Judicial District stated that after spending “over 13 hours of uncompensated time playing wild Cosby
chase . . . my professiona l opinio n is that the [A pril 19 , 199 9] hearing d id not occur in open co urt.”

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               Based upon the foregoing, we conclude that this matter should be remanded to the
post-conviction court for appointment of counsel to allow the appellant an opportunity to amend his
post-conviction petition and for further proceedings in accordance with the 1995 Post-Conviction
Act.



                                                     ___________________________________
                                                     NORMA McGEE OGLE, JUDGE




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