        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs August 3, 2004

                   CARL JOHNSON v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Shelby County
                          No. P-26265    Joseph B. Dailey, Judge



                  No. W2003-02760-CCA-R3-PC - Filed January 25, 2005


The petitioner, Carl Johnson, was convicted by a jury in the Shelby County Criminal Court of
especially aggravated robbery, and he received a sentence of twenty-five years in the Tennessee
Department of Correction. Subsequently, the petitioner filed for post-conviction relief, alleging
numerous instances of ineffective assistance of counsel. The post-conviction court dismissed the
petition without conducting a full evidentiary hearing. The petitioner now appeals the dismissal of
his petition. Upon our review of the record and the parties’ briefs, we reverse the post-conviction
court’s dismissal of the petition and remand for an evidentiary hearing.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
THOMAS T. WOODALL, J., joined.

Lance R. Chism, Memphis, Tennessee, for the appellant, Carl Johnson.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                           OPINION

                                    I. Factual Background

      In 1999, the petitioner was convicted of especially aggravated robbery. Briefly, the facts
adduced at trial revealed that

               [o]n August 29, 1998, [the petitioner and his co-defendant, Derrick
               Sutton,] and two female acquaintances, Treasy Alsobrook and Toshia
               Rainey, developed a plan to rob the victim when he arrived at Ms.
                Alsobrook’s house later that evening for a date. The evidence further
                showed that in the early morning hours of August 30, 1998, the
                defendants executed the plan, robbing the victim as he sat in his car
                waiting for Ms. Alsobrook and shooting him twice as he fled from the
                car.

State v. Carl Johnson, No. W2000-00278-CCA-R3-CD, 2001 WL 1335110, at *1 (Tenn. Crim. App.
at Jackson, Apr. 4, 2001). On direct appeal, this court affirmed the petitioner’s conviction. Id.

        Thereafter, the petitioner timely filed a petition for post-conviction relief, alleging several
grounds for relief. The petitioner’s chief complaint was that his trial counsel was ineffective.
Specifically, the petitioner alleged that counsel was ineffective by failing to request that the trial
court instruct the jury on aggravated assault as a lesser-included offense of especially aggravated
robbery. Additionally, the petitioner contended that counsel was ineffective in failing to pursue a
judgment of acquittal based upon State v. Owens, 20 S.W.3d 634 (Tenn. 2000), arguing that “the
violence in this case came after the actual theft of property.” Further, counsel failed to raise either
of these issues on appeal. At the post-conviction evidentiary hearing, the petitioner reiterated his
grounds for relief, emphasizing the lesser-included offense instruction issue and the Owens issue.
The post-conviction court stated:

                I just think it’s a misplaced effort to make these arguments
                [concerning lesser-included offense instructions and Owens] at a
                post-conviction petition such as this. This is not the place – the time
                or place to make these arguments. If they were to have been made,
                they should have been made at the time of trial or on appeal and
                failing that, the Court of Appeals could have recognized them and
                taken action on its own. But this is simply not a continued appeal.

In sum, the post-conviction court dismissed the petitioner’s complaints of counsel’s ineffectiveness
regarding lesser-included offense instructions and Owens without conducting a full evidentiary
hearing as to these issues, finding that the issues raised had been waived or previously addressed.
The petitioner appeals the dismissal.

                                               II. Analysis

         The Post-Conviction Procedure Act of 1995 provides that a post-conviction 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.” Tenn. Code Ann. § 40-30-106(d) (2003). A bare
allegation that a constitutional right has been violated and mere conclusions of law will not be
sufficient to warrant further proceedings. Id. Moreover, failure to state a factual basis for the
grounds alleged will result in immediate dismissal of the petition. Id. In the event of a dismissal,
the trial court shall file an order dismissing the petition within thirty days of the filing of the petition.
See Tenn. Code Ann. § 40-30-106(a). The order of dismissal shall set forth the court’s conclusions


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of law. See Tenn. Code Ann. § 40-30-106(f). We will review the post-conviction court’s
determinations de novo. See Burnett v. State, 92 S.W.3d 403, 406 (Tenn. 2002).

        In Burnett, 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. Id. 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.
(quoting 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. § 40-30-106(f); see also Waite v.
State, 948 S.W.2d 283, 284 (Tenn. Crim. App. 1997).

         In its order dismissing the petition, the post-conviction court stated:

                          As to the complaints that allege that the trial judge failed to
                  charge certain lesser included offenses and other principles of law,
                  those matters were or should have been raised on direct appeal and
                  are not the proper subject of a post-conviction relief petition. As to
                  the remaining complaints regarding the conduct of trial counsel, . . .
                  it is this Court’s opinion that [counsel] represented his client
                  zealously, and thoroughly, and extremely competently. That his
                  client did not obtain the results that he wanted is not a factor in
                  assessing the effectiveness of trial counsel.

        Before we begin our analysis, it is noteworthy that the petitioner raised several instances of
ineffective assistance of counsel in his post-conviction petitions. Yet, on appeal, the petitioner has
preserved only his complaints regarding the ineffectiveness of counsel regarding lesser-included
offense instructions and Owens. With that constraint in mind, we observe that the post-conviction
court stated that a “full and complete hearing” had been held regarding the petitioner’s claims.
However, as we have previously related, the record reflects that the post-conviction court found the
claims of ineffective assistance based on counsel’s failure to request a charge on lesser-included
offense instructions and counsel’s failure to raise the Owens issue were “not the proper subject of
a post-conviction relief petition,” denying the petition without conducting an evidentiary hearing as
to those issues.1

        Additionally, the post-conviction court reasoned that the petitioner had “waived” his issues
regarding lesser-included offense instructions and Owens for failure to raise those issues on direct
appeal. Significantly, the petitioner’s complaints do not involve the issues themselves; rather, the
petitioner’s complaints relate to counsel’s ineffectiveness in failing to properly pursue and preserve
his issues involving lesser-included offense instructions and Owens. See Howard Eugene Buchanan


         1
           W e note that the petitioner was allowed an opportunity for a full hearing as to all other issues raised in his
post-conviction petition.

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v. State, No. M2003-01815-CCA-R3-PC, 2004 WL 1114589, at *5 (Tenn. Crim. App. at Nashville,
May 19, 2004), perm. to appeal denied, (Tenn. 2004). Accordingly, we conclude that the petitioner
has not waived his ineffective assistance of counsel claim.

         Further, the post-conviction court repeatedly stated that the petitioner’s issues regarding
lesser-included offense instructions and Owens had been previously determined by this court’s
failure to sua sponte find error in the petitioner’s trial during our examination of his case on direct
appeal. Specifically, the post-conviction court stated, “[I]f it were obvious prejudice, the Court of
Appeals would have taken some action. See, we’ve gone past their review. They’ve shown
willingness in the past repeatedly to step in and send cases back for retrial when they feel as though
prejudice existed.”

        Clearly, issues that have been previously determined cannot support a basis for post-
conviction relief. See Tenn. Code Ann. § 40-30-106(f); Harris v. State, 947 S.W.2d 156, 174 (Tenn.
Crim. App. 1996). “A ground for relief is previously determined if a court of competent jurisdiction
has ruled on the merits after a full and fair hearing. A full and fair hearing has occurred where the
petitioner is afforded the opportunity to call witnesses and otherwise present evidence, regardless
of whether the petitioner actually introduced any evidence.” Tenn. Code Ann. § 40-30-106(h). In
the instant case, the post-conviction court dismissed the petitioner’s claims without allowing the
petitioner to present evidence. Therefore, because the petitioner’s ineffective assistance complaints
have not been tested by the crucible of proof, his complaints have not been previously determined.

        Additionally, we observe that in order to survive summary dismissal, a petitioner is not
required to prove any claim in his petition; instead, a petitioner need only allege a colorable claim.
See Shazel v. State, 966 S.W.2d 414, 415-16 (Tenn. 1998) (“There obviously is an important
distinction between the right to seek relief in a post-conviction proceeding and the right to have relief
in a post-conviction proceeding.”). Ordinarily, a petitioner is required to prove his claims by clear
and convincing evidence at an evidentiary hearing. However, a hearing on these issues did not take
place in the instant case.

        Further, it appears that the post-conviction court dismissed the petition after determining that
the petitioner would be unable to prevail following an evidentiary hearing. See Roosevelt Malone
v. State, No. E2002-00782-CCA-R3-PC, 2003 WL 21145488, at *2 (Tenn. Crim. App. at Knoxville,
May 16, 2003). We note that the ultimate success or failure of a petitioner’s claims is not a proper
basis for dismissing a post-conviction petition without conducting an evidentiary hearing. Id.; see
also Tenn. Code Ann. § 40-30-106(b)-(d). The petitioner alleged that his counsel was ineffective
regarding lesser-included offense instructions and Owens. Typically, ineffective assistance is a
colorable ground for post-conviction relief. Moreover, the petitioner offered factual support for his
complaints of ineffective assistance. Accordingly, without making any determinations on the merits
of the petitioner’s complaints, we conclude that the post-conviction court should have allowed the
petitioner to fully present his claims. See Waite, 948 S.W.2d at 285; Amin Shabazz v. State, No.
M2002-01302-CCA-R3-PC, 2003 WL 354511, at *2 (Tenn. Crim. App. at Nashville, Feb. 14, 2003).



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         Finally, we note that the petitioner filed a supplemental brief in this case, arguing that the
sentence imposed upon the petitioner violated the strictures of the recently released Supreme Court
opinion Blakely v. Washington, __ U.S. __, 124 S. Ct. 2531 (2004), which opinion appears to impact
the validity of Tennessee’s current sentencing scheme. See State v. Julius E. Smith, No. E2003-
01059-CCA-R3-CD, 2004 WL 1606998, at *4 (Tenn. Crim. App. at Knoxville, July 19, 2004). In
fact, a panel of this court has determined that Blakely “establishes a new rule in this state.” State v.
Chester Wayne Walters, No. M2003-03019-CCA-R3-CD, 2004 WL 2726034, at *20 (Tenn. Crim.
App. at Nashville, Nov. 30, 2004). Based upon Walters, the petitioner contends that he is entitled
to relief based upon the retroactivity test announced in Teague v. Lane, 489 U.S. 288, 109 S. Ct.
1060 (1989), for new “watershed rule[s] of criminal procedure.” However, this court has recently
determined that Blakely does not establish a new watershed rule, concluding that Blakely does not
apply retroactively to cases on collateral appeal. See Donald Branch v. State, No. W2003-03042-
CCA-R3-PC, 2004 WL 2996894, at *10 (Tenn. Crim. App. at Jackson, Dec. 21, 2004). Thus, the
petitioner is not entitled to relief on this issue.

                                           III. Conclusion

       Based upon the foregoing, we reverse the judgment of the post-conviction court and remand
for an evidentiary hearing solely on the petitioner’s complaint of the ineffectiveness of counsel
regarding lesser-included offense instructions and Owens.



                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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