Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs July 21, 2015
Appeal from the Circuit Court for Rhea County No. 16878 J. Curtis Smith, Judge
Roy Len Rogers, Pikeville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; James Michael Taylor, District Attorney General; and James William Pope III, Assistant District Attorney General, for the Appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the Court, in which Camille R. McMullen and Robert L. Holloway, Jr., JJ., joined.
ROGER A. PAGE, JUDGE
Petitioner filed a pro se petition requesting post-conviction relief on July 14, 2014. In his petition, petitioner alleged several errors committed by the trial court, trial counsel, and the State. In summarily dismissing the petition, the post-conviction court stated, in part:
[F]rom all of which it duly appears to the Court that the petition alleges the following:
(1.) The evidence was insufficient to convict Petitioner of first degree murder;
(2.) The State withheld exculpatory evidence;
(3.) The trial court erred in not allowing the 911 tape to be played.
All of these issues were raised on direct appeal. . . . A petition shall be dismissed if the claims for relief have been previously determined. . . . Issues previously determined on direct appeal cannot be litigated in a post-conviction proceeding.
On appeal, petitioner alleges that in addition to the issues addressed by the post-conviction court, his petition also alleged ineffective assistance of counsel, prosecutorial misconduct, and insufficiency of indictment. Petitioner argues that these allegations presented a colorable claim for relief and that the post-conviction court should not have summarily dismissed the petition; it should have appointed counsel who could have considered filing an amended petition and aided petitioner in articulating his legal arguments with more clarity. In support of his argument, petitioner indicates two specific segments of his petition in which he argued ineffective assistance of counsel, prosecutorial misconduct, and insufficiency of his indictment. These unedited segments are as follows:
The case at Bar has no one to say that Mr. Rogers was the man that fired the shot into the window. The shot was fired at about 12:00am. At 12:09am a Daniel Witherow testified he and Mr. Rogers' "Petitioner" were on the phone talking to each other. This is why if the phone records would have been submitted it would show this to be true and for his trial counsel and the state's D.A. not to do so violated Jacksons, Strickland v. Washington, see also, U.S. v. Bess, 593 F.2d 749. (C.A. 6 Ky.) 1979, "an attorney's job arguing a case before a jury is to persuade that body, ...