             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE              FILED
                            DECEMBER 1998 SESSION
                                                            March 3, 1999

                                                          Cecil W. Crowson
WILLIAM D. PEWITT,             )                         Appellate Court Clerk
                               )
             Appellant,        )    No. 01C01-9804-CC-00195
                               )
                               )    Williamson County
v.                             )
                               )    Honorable Henry Denmark Bell, Judge
                               )
STATE OF TENNESSEE             )    (Post-Conviction)
                               )
             Appellee.         )


For the Appellant:                  For the Appellee:

William D. Pewitt, Pro se           John Knox Walkup
No. 119709, T.C.I.P.                Attorney General of Tennessee
Route 1                                    and
Only, TN 37140-9709                 Daryl J. Brand
                                    Assistant Attorney General of Tennessee
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493

                                    Ronald L. Davis
                                    District Attorney General
                                    Williamson County Courthouse
                                    P.O. Box 937
                                    Franklin, TN 37065-0937




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                        OPINION



              The petitioner, William D. Pewitt, appeals as of right from the dismissal of

his petition for post-conviction relief by the Williamson County Circuit Court. He seeks

relief from his 1994 convictions for witness coercion, a Class D felony, and assault, a

Class A misdemeanor. His convictions were affirmed on appeal. State v. William D.

Pewitt, No. 01C01-9411-CC-00375, Williamson County (Tenn. Crim. App. Aug. 22,

1996), app. denied (Tenn. Jan. 1, 1997). The petitioner contends that the trial court

erred in dismissing his petition without appointing counsel, allowing amendment of the

petition with the aid of counsel, or holding an evidentiary hearing. We affirm the trial

court’s order dismissing the petition for failure to state a claim.



              The original petition filed by the petitioner alleges that the prosecution

suppressed evidence favorable to the petitioner, but no particulars are mentioned. It

alleges that there was prosecutorial and judicial misconduct in the case that “could

extend” to an unconstitutionally selected and impaneled jury, but no particulars are

mentioned. It alleges that the petitioner was denied the effective assistance of counsel,

but no particulars are mentioned. It also alleges that the petitioner has “documents and

information” of newly discovered evidence to support his contention that he was denied

a fair, unbiased and impartial trial, but no particulars are mentioned. The petition

asserts that the petitioner needs a copy of all the case records in order to address the

issues completely, and it refers to a Tennessee Bureau of Investigation probe “into the

charges of wrongdoing by officials in the 21st district” as “evidence enough” to warrant

the appointment of counsel and a hearing.



              Pursuant to T.C.A. § 40-30-206(d), the trial court entered an order noting

the complete lack of a factual basis for relief in the petition and requiring the petitioner

to file an amended petition containing a factual basis for each ground alleged and



                                              2
including supporting documents. The petitioner filed an amendment to his petition and

attached as Exhibit A copies of letters to him from David Gatchell and copies of 1994

and 1996 publications apparently stemming from Mr. Gatchell, including a publication

called The Independent.



              The amendment alleges that the TBI probe ordered by the governor’s

office and the articles published by The Independent are sufficient to justify the

appointment of counsel, discovery, and a hearing in which to develop the petition and

case further. It also alleges that the petitioner’s trial attorney failed to interview

witnesses, failed to ferret out evidence not disclosed by the prosecution, failed to make

proper objections during the trial, and failed to represent the petitioner adequately and

effectively. The amendment contains no other allegations regarding the petitioner’s

claims.



              The documents in Exhibit A contain allegations regarding past litigation in

the 21st judicial district, none dealing with the petitioner’s case. The 1994 article

reports that then Governor Ned Ray McW herter sent charges of wrongdoing made by a

citizens’ group against some 21st judicial district officials to the TBI for review. The

central thrust of the complaints are reported to have dealt with the district attorney’s

office and the Perry County sheriff. No mention is made of further developments, if

any, occurring in the succeeding three and one-half years before the petitioner filed his

post-conviction petition.



              The trial court dismissed the petition as amended. It stated that the

petitioner still failed to allege a factual basis for any of the grounds he alleged.



              The petitioner asserts that the trial court cannot dismiss an inartfully

drawn petition without providing aid of counsel. He cites a repealed statute and a case



                                               3
based upon the repealed Post-Conviction Procedure Act. The record reflects that the

petition was prepared on the form provided by the Tennessee Supreme Court. See

Tenn. Sup. Ct. R. 28 app. A. It is anything but inartfully drawn. The form petition

includes the following admonition:

              INCLUDE UNDER EACH VIOLATION YOU CLAIM EACH
              AND EVERY FACT YOU FEEL SUPPORTS THIS CLAIM.
              EXPLAIN IN DETAIL HOW YOU ARE PREJUDICED BY THE
              VIOLATION AND WHY YOU ARE ENTITLED TO RELIEF. BE
              SPECIFIC.

As previously noted, the petitioner provided no factual basis for his claims in the

petition. Pursuant to T.C.A. § 40-30-206, the trial court is to give preliminary

consideration to the original petition. Subsection (d) provides as follows:

                      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 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.


The trial court in this case ordered an amendment and expressly advised the petitioner

that the factual basis for his claimed grounds must be provided. The trial court was not

required to appoint counsel for the purpose of providing the factual basis for the

petitioner’s claims.



              The petitioner’s amended petition adds nothing in the way of relevant

allegations except for his claim of ineffective assistance of counsel. However, the

allegations of fact as to that claim, taken as true, do not show that the defendant’s

Sixth Amendment right to the effective assistance of counsel was violated. In

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), a capital case, the

United States Supreme Court reviewed an ineffective assistance of counsel claim that

was dismissed without a hearing. The Court determined that the ineffective assistance


                                             4
of counsel claim that would merit relief from a conviction or sentence has two

components: (1) that counsel’s performance was professionally deficient and (2) that

the deficiency was prejudicial in terms of rendering a reasonable probability that the

result of the trial was unreliable or the proceedings fundamentally unfair. Id. at 687,

104 S. Ct. at 2064. In holding that the dismissal was appropriate, the Court concluded

that the petitioner failed to show that either prong existed. Id. at 700, 104 S. Ct. at

2071.



                  In the present case, the bare allegations that counsel failed to interview

witnesses, failed to discover evidence not disclosed by the prosecution and failed to

make proper objections during the trial carry neither a hint of deficient performance by

counsel nor a glint of those actions prejudicing the petitioner at his trial. 1 Therefore, the

petitioner’s allegations fail to state a ground for post-conviction relief. Pursuant to

T.C.A. § 40-30-206(f), the trial court was obligated to dismiss the petition. Absent the

petition alleging a colorable claim for relief, the petitioner was entitled to neither the

appointment of counsel nor an evidentiary hearing.



                  In consideration of the foregoing and the record as a whole, the judgment

of the trial court is affirmed.



                                                              _______________________________
                                                              Joseph M. Tipton, Judge




                  1
                  The p etitioner ass erts a few additional fa cts in his ap pellate brief, b ut they are too late.
See, e.g., Gary (Ja ke) Ha rris v. State , No. 03C01-9803-CR-00085, Unicoi County (Tenn. Crim. App. Jan.
15, 1999). In any event, most of the allegations do not appear to relate to the claims he made in his trial
court pleadings.

                                                         5
CONCUR:



__________________________
John H. Peay, Judge



__________________________
Norma McGee Ogle, Judge




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