         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 November 16, 2004 Session

              MARIO PENDERGRASS v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Davidson County
                          No. 93-C-1345    Seth Norman, Judge



                   No. M2003-02144-CCA-R3-PC - Filed January 25, 2005


The petitioner appeals the summary dismissal of his petition for post-conviction relief, arguing that
he should have been appointed post-conviction counsel and given an evidentiary hearing. We
conclude that the petitioner presents a colorable claim for relief under the more lenient standards
afforded a pro se petition. Accordingly, we reverse the summary dismissal of the petition and
remand the case to the post-conviction court for the appointment of counsel.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and THOMAS T.
WOODALL, JJ., joined.

Cynthia M. Fort, Nashville, Tennessee, for the appellant, Mario Pendergrass.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                              FACTS

        Based on his participation in the 1993 kidnapping and murder of a Nashville taxicab driver,
the petitioner, Mario Pendergrass, was convicted in a bench trial of premeditated murder, felony
murder, especially aggravated kidnapping, and especially aggravated robbery. After merging the two
first degree murder convictions, the trial court sentenced the petitioner to an effective sentence of
life plus 44 years. This court affirmed the convictions and sentences on direct appeal, and the
supreme court denied the petitioner’s application for permission to appeal. See State v. Mario
Pendergrass, No. M1999-02532-CCA-R3-CD, 2002 WL 517133, at *1 (Tenn. Crim. App. Apr. 5,
2002), perm. to appeal denied (Tenn. Oct. 7, 2002).
        On April 16, 2003, the petitioner filed a pro se, fill-in-the-blank “Petition for Relief from
Conviction or Sentence” in which he raised numerous grounds for relief and requested that counsel
be appointed, but failed to provide any specific factual allegations in support of his claims.
Accordingly, on May 12, 2003, the post-conviction court entered an order granting the petitioner an
additional thirty days to supplement his petition with the specific allegations of fact on which his
claims for relief were based. The petitioner responded with a pro se “Supplemental Pleadings and
Memorandum of Law in Support” in which, as stated by the petitioner, the following grounds for
relief were asserted:

                  A)       Prosecution intentionally withheld evidence as to witnesses[’]
                           statements that was favorable to the petitioner’s [sic] violates
                           due process rights.

                  B)       Petitioner was illegally seized and arrested without warrant.

                  C)       Petitioner[’s] convictions was [sic] based on evidence that
                           was constitutionally insufficient, and the unconstitutional
                           failure of the prosecution to disclose to the petitioner’s [sic]
                           evidence favorable to the petitioner denied him due process
                           rights.

                  D)       Petitioner[’s] convictions was [sic] based on evidence that
                           was constitutionally insufficient based upon inconsistent
                           testimony by the witnesses, which denied him due process
                           rights.

                  E)       Petitioner waived rights to jury trial was not knowingly and
                           intelligently [sic].

                  F)       Petitioner was denied the effective assistance of counsel in
                           violation of [the] Sixth Amendment to the United States
                           Constitutional [sic].

        In his accompanying memorandum of law, the petitioner asserted that the prosecution
intentionally withheld statements by witnesses that would have been favorable to his defense,
including the admission of James Patterson that, after fifteen years of drug abuse, he was either
unable to remember things or remembered them inaccurately;1 he was intimidated by police into


         1
          Patterson recounted at trial that the petitioner responded to his accomplice’s remark about killing someone by
warning him to stop talking and that if he was “going down,” his accomplice was going with him. Mario Pendergrass,
2002 W L 517133, at *4. On cross-examination, Patterson acknowledged he had used cocaine “‘off and on’ for
“approximately fifteen years” and had spent the day of the murder “smoking marijuana, drinking beer, and using
cocaine.” Id.

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making a statement following his warrantless, illegal arrest; he did not knowingly and intelligently
waive his right to a jury trial; and his trial counsel were ineffective for failing to seek “proper
discovery” or investigate the witnesses’ inconsistent statements, to raise any objections to the
inconsistent testimony at trial, or to properly prepare the petitioner “for a fair trial.”

        In an opinion filed on August 7, 2003, the post-conviction court denied the petition, finding
that the petitioner had not met his burden of proving his allegations by clear and convincing
evidence. Among other things, the court noted that whether the petitioner had knowingly waived
his right to trial by jury and whether his statement should have been suppressed as the result of his
allegedly unlawful arrest were issues which had previously been determined on direct appeal. The
court found that the petitioner had failed to provide a sufficient factual basis for his other claims,
including his claim of ineffective assistance of counsel:

               In the petition, petitioner makes only one allegation of ineffective
               assistance of counsel, which is based on counsel’s failure to seek
               proper discovery regarding witnesses’ testimony.           However,
               petitioner neglects to provide any support for this contention or
               further expound on what measures counsel failed to take to insure a
               proper defense for the petitioner. For absence of detail and lack of a
               solid factual basis upon which a claim may be founded, this issue is
               without merit.

        Thereafter, the petitioner filed a pro se notice of appeal to this court, followed by a motion
for the appointment of appellate counsel, which we granted.

                                            ANALYSIS

        The petitioner cites Billy Joe Henderson v. State, No. E2001-00438-CCA-R3-PC, 2001 WL
1464544, at *1 (Tenn. Crim. App. Nov. 19, 2001), to argue that the allegations of fact he provided
in his supplemental memorandum of law, when viewed under the more lenient standards afforded
a pro se petition, were sufficient to present a colorable claim for post-conviction relief. The State
disagrees, arguing that the petitioner failed to set forth “clear and specific facts upon which relief
could be granted.” We review the post-conviction court’s denial 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 of 1995 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


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                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.

                         (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) (2003). 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)). Furthermore, as the petitioner points out, “[i]n deciding whether a ‘colorable claim’ is
presented, pro se petitions should be held to less stringent standards than formal pleadings drafted
by lawyers,” with the petitioner given the aid of counsel if it cannot be conclusively determined from
the petition and accompanying records whether he is entitled to relief under the Act. Billy Joe
Henderson, 2001 WL 1464544, at *1 (citing Allen v. State, 854 S.W.2d 873, 875 (Tenn. 1993);
Swanson v. State, 749 S.W.2d 731, 734 (Tenn. 1988)).

         Although the issue is close, we agree with the petitioner that, when viewed in the more liberal
light afforded a pro se petition, the allegations of fact contained in the original and amended petitions
were sufficient to entitle him to the appointment of counsel to aid him in drafting a more complete
petition. At different points throughout his memorandum of law, the petitioner alleged, among other
things, that various witnesses, including James Patterson, had made statements that would have been
favorable to his defense. He further alleged that trial counsel failed to obtain the statements through
proper discovery or adequate investigation and that such failure constituted “‘cause and prejudice’
which denied [him] a fair trial.” These allegations, taken as true, would entitle the petitioner to relief
under the Post-Conviction Procedure Act. See generally Arnold, 143 S.W.3d at 786 (concluding that
pro se petition asserting that trial counsel was ineffective for failing to seek change of venue, in spite
of “[c]onstant [e]xploitation” by news media in county where case tried, presented colorable claim).


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Therefore, we reverse the denial of the petition and remand to the post-conviction court for the
appointment of counsel.


                                                    ___________________________________
                                                          ALAN E. GLENN, JUDGE




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