         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs August 7, 2001

                   TARRAN KYLES v. STATE OF TENNESSEE

                  Direct Appeal from the Circuit Court for Madison County
                         No. C-00-247    Roy B. Morgan, Jr., Judge



                  No. W2000-02152-CCA-R3-PC - Filed September 6, 2001


The Appellant, Tarran Kyles, proceeding pro se, appeals from the order of the Madison County
Circuit Court denying his petition for post-conviction relief. The post-conviction court in a
“Preliminary Order”dismissed Kyles’ petition, finding that the only issue raised in the petition was
previously determined on direct appeal. For the reasons stated below, we affirm the judgment of the
post-conviction court dismissing the petition without an evidentiary hearing.


               Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E. GLENN,
JJ., joined.

Tarran Kyles, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; John H.
Bledsoe, Assistant Attorney General; James G. (Jerry) Woodall, District Attorney General; and Al
Earls, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                            OPINION

                                           Background

       The Appellant was convicted for one count of felony murder and one count of especially
aggravated robbery. The trial court sentenced the Appellant to consecutive sentences of life without
the possibility of parole for the felony murder conviction and to thirty-five years as a Range II,
multiple offender for the especially aggravated robbery conviction. These convictions and
sentences were later affirmed on direct appeal. See State v. Tarran Kyles, No. 02C01-9807-CC-
00203 (Tenn. Crim. App. at Jackson, July 15, 1999), perm. to appeal denied, (Tenn. Nov. 29, 1999).
         On July 14, 2000, the Appellant timely filed a pro se petition for post-conviction relief,
alleging that his appellate counsel was ineffective for failing to argue on appeal the lack of
independent corroboration of accomplice testimony required to support his conviction.1 On July
21, 2000, the post-conviction court entered a preliminary order summarily dismissing the Appellant’s
petition upon grounds that the Appellant’s issue of accomplice corroboration was previously
determined on direct appeal and, thus, could not be relitigated in a post-conviction proceeding. On
August 23, 2000, the Appellant filed his notice of appeal. The Rules of Appellate Procedure require
that a notice of appeal be filed within thirty days after the entry of the judgment from which the
defendant is appealing. Tenn. R. App. P. 4(a). The Appellant filed his notice of appeal more than
thirty days after the order dismissing his petition was entered; thus, rendering it untimely.
Notwithstanding, this court may waive an untimely filing of a notice of appeal "in the interest of
justice." See State v. Scales, 767 S.W.2d 157 (Tenn.1989); see also Tenn. R. App. P. 3(e) & 4(a).
In this case, we waive the filing requirement and choose to address the issues raised by Appellant.

         The Appellant first argues on appeal that he received ineffective assistance of counsel at trial.
He assigns numerous factual grounds for ineffectiveness, including: (1) failure to interview
witnesses, (2) failure to submit articles of clothing of victim for “hair and blood analysis,” (3) failure
to object to hearsay evidence, (4) failure to properly cross-examine witnesses at trial, (5) failure to
“file motion to produce physical evidence,” and (6) trial counsel erred in advising petitioner “not to
testify in his own defense.” As previously noted, the Appellant’s allegations in his petition before
the post-conviction court focused solely upon ineffectiveness of appellate counsel while Appellant’s
argument on appeal focuses upon ineffectiveness of counsel at trial and upon entirely different
reasons and factual grounds. This court’s review is appellate only. Tenn. Code Ann. § 16-5-108.
Thus, we are precluded from reviewing issues of fact which have been raised for the first time upon
appeal. See Tenn. R. App. P. 36; Butler v. State, 789 S.W.2d 898, 902 (Tenn. 1990).

        Second, the Appellant argues on appeal that his conviction was based on the
“unconstitutional failure of the prosecution to disclose exculpatory evidence, citing as authority
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963)." The evidence referred to by the Appellant
consists of “articles of clothing” worn by the accomplice which were forwarded to the FBI crime lab
for forensic testing. No testing of these “articles” was conducted by the FBI. Relief under Brady
is not available unless the Appellant can establish that the evidence improperly withheld was
material to the defendant. State v. Edgin 902 S.W.2d 387, 389 (Tenn. 1995). Because testing on
the articles was never completed, there is no showing that the evidence was exculpatory to the
Appellant or material to the defense. This issue is without merit.

       Third, the Appellant contends that the State failed to furnish “Jencks Act” material at trial.
The Post-Conviction Act provides a method by which a defendant may challenge a conviction or
sentence for violation of a state or federal constitutional right. Tenn. Code Ann. § 40-30-203. The


        1
           In his petition, the Appellant alleges: “Simply, counsel waived opportunity to expound upon the one point
of law through which the Petitioner’s conviction could not stand, the fact that the Petitioner/Appellant/Defendant’s
identity w as never c orrobo rated, yet n ever m entioned this fact in the a ppellate br ief to any d etail.”

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requirement that the State produce statements of witnesses under the provisions of Tenn. R. Crim.
P. 26.2, commonly referred to as Jenck’s material, confers a procedural right as opposed to a
constitutional right. Accordingly, this claim, even if valid, is not cognizable in a post-conviction
proceeding.

         Fourth, the Appellant argues that his petition for post-conviction relief should be granted
based on “newly discovered evidence.” Specifically, he lists various witnesses who are willing to
testify that his co-defendant, Roy Easley, admitted to being the person who killed the victim. Again,
a petition for post-conviction is limited to constitutional error. Tenn. Code Ann. § 40-30-217(a)(1);
but see Tenn. Code Ann. § 40-30-217(a)(2)(a petitioner may file a motion in the trial court to reopen
the first petition for post-conviction relief where the claim in the motion is based upon new scientific
evidence establishing that the petitioner is actually innocent of the offense or offenses for which the
petitioner is convicted). In the present case, the newly discovered evidence constitutes neither
scientific proof nor constitutional error. As such, this issue is also without merit.

        Finally, the Appellant again on appeal challenges the sufficiency of the convicting evidence
contending that, “A verdict of guilty and reasonable doubt clearly existed in this case.” Specifically,
he argues at length that his conviction was based solely “upon the testimony of a co-defendant” and
that no evidence was presented at trial to prove accomplice corroboration.

        An action for post-conviction relief is a collateral proceeding rather than an appeal from the
underlying judgment of conviction. It may not serve as a substitute for a direct appeal. Rulings on
issues that were previously raised at trial or on direct appeal and issues that could have been raised
in earlier proceedings but were not, are ordinarily deemed waived. Tenn. Code Ann. § 40-30-
206(f)(g)(h). Principles of waiver and issues previously determined narrow the range of issues
available to a post-conviction petitioner to “an abridgement of any right guaranteed by the
Constitution of Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-209.

        In the direct appeal of this case, a panel of this court held:

        [W]e conclude that [Easley’s] testimony is sufficiently corroborated. . . . The
        corroboration of Mr. Easley’s testimony showed that the defendant went with Mr.
        Easley to the victim’s house to obtain money, that the defendant was in the house
        when the victim was killed, and that the defendant watched the stolen items while
        Mr. Easley searched for a buyer. From this corroboration, the jury could rationally
        conclude beyond a reasonable doubt that Mr. Easley testified truthfully about the
        defendant’s involvement and that the defendant was guilty of felony murder and
        especially aggravated robbery.

State v. Tarran Kyles, No. 02C01-9807-CC-00203 (Tenn. Crim. App. at Jackson, July 15, 1999),
perm. to appeal denied, (Tenn. Nov. 29, 1999). Because the issue of sufficiency of the evidence and
the underlying issue of corroboration of accomplice testimony was previously determined on direct
appeal, this issue may not again be relitigated in a post-conviction proceeding.

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       For the reasons stated, we affirm the judgment of the Madison County Circuit Court
dismissing the Appellant’s post-conviction petition without an evidentiary hearing.




                                                 ___________________________________
                                                 DAVID G. HAYES, JUDGE




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