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Wright v. Perry

Court of Criminal Appeals of Tennessee, Jackson

January 18, 2017

ERIC R. WRIGHT
v.
GRADY PERRY, WARDEN

          Assigned on Briefs October 4, 2016

         Appeal from the Circuit Court for Hardeman County No. CC-16-CR-44 Joseph H. Walker, III, Judge

         The pro se petitioner, Eric R. Wright, appeals the habeas court's summary dismissal of his petition for writ of habeas corpus alleging eleven reasons why the habeas court erred. After review, we affirm the summary dismissal of the petition.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Eric R. Wright, Whiteville, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; and Jonathan H. Wardle, Assistant Attorney General, for the appellee, State of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which Camille R. McMullen and Timothy L. Easter, JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE

         FACTS

         In January 1990, the Shelby County Grand Jury indicted the petitioner for one count of robbery with a deadly weapon and two counts of assault with intent to commit murder in the first degree, all committed on October 15, 1989. The petitioner was convicted by a jury of all counts. See Eric Wright v. State, No. W2009-00864-CCA-R3-PC, slip op. at 2 (Tenn. Crim. App. Sept. 24, 2010).

         On September 20, 1990, the petitioner was sentenced as a Range III, persistent offender, to consecutive terms of thirty years for the robbery and sixty years for each assault, resulting in an effective sentence of 150 years. See Eric R. Wright v. Michael Donahue, No. 2:11-cv-03102-SHM-tmp, 2015 U.S. Dist. LEXIS 136175, at *3 (W.D. Tenn. Mar. 31, 2015). Because the offenses were committed before the effective date of the 1989 Sentencing Act but the petitioner was convicted after the effective date of the Act, the trial court was to calculate the appropriate sentence under both the 1982 and 1989 sentencing law and impose the lesser sentence of the two. See Eric Wright, No. W2009-00864-CCA-R3-PC, slip op. at 11. The maximum effective sentence under the 1982 law would have been 180 years with no parole, which was more than the 150 years at 45% the petitioner received under the 1989 law. See id.

         A brief summary of the evidence adduced at trial from an opinion of this court affirming the denial of one of the petitioner's petitions for post-conviction relief is as follows:

This matter concerns the October 15, 1989 robbery of a Circle K service station on Lamar Avenue in Memphis, Tennessee. The evidence presented at the petitioner's trial showed that, at approximately 4:50 a.m. that day, two black males entered the store, and one of them shot Ricky Coleman, the store clerk's boyfriend, in the face without warning. The store clerk, Stella Oakes Coleman, [1] opened the register for the men, and they removed the cash from the drawer. Mrs. Coleman testified that there was approximately $20 in the register. The men demanded that she open the store's safe, but she was not able to open the time-lock safe. Instead, the men pressed the button on the safe that allowed clerks to access the currency when they needed change. In this way, the men took $10 in $1 bills from the safe. When Mrs. Coleman went to check on Mr. Coleman, who was lying on the floor, the shooter shot her twice.

See id. at 2.

         The petitioner filed a direct appeal, in which he challenged the sufficiency of the convicting evidence, the legality of the verdict, and the trial court's failure to grant a special jury instruction. State v. Eric R. Wright, No. 02C01-9107-CR-00152, 1992 WL 1414, at *1 (Tenn. Crim. App. Jan. 8, 1992). This court affirmed the petitioner's convictions and sentences by memorandum opinion on January 8, 1992. Id. The petitioner did not timely file an application for permission to appeal this court's decision to the Tennessee Supreme Court. See Eric Wright v. State, No. W2001-00386-CCA-R3-PC, 2001 WL 1690194, at *1 (Tenn. Crim. App. Dec. 17, 2001). Evidently, the petitioner's appellate counsel failed to inform the petitioner that his direct appeal had been denied, and his attorney never filed a Rule 11 application for permission to appeal or moved to withdraw. See id. This came to light when the petitioner, on April 27, 2000, filed a motion for appointment of counsel to file a Rule 11 application. See id. The Tennessee Supreme Court denied the petitioner's motion for appointment of counsel to file a Rule 11 application but indicated that the petitioner's recourse was to file a post-conviction petition alleging ineffective assistance of counsel and seeking a delayed appeal. See id.

         On December 11, 2000, the petitioner filed a petition for post-conviction relief. See id. The post-conviction court denied the petition as untimely, but this court remanded the case to determine whether due process tolled the statute of limitations. See id. at *2-3.[2] On remand, the post-conviction court held that due process tolled the statute of limitations and granted permission for the petitioner to seek a delayed Rule 11 appeal. See Eric Wright, No. W2009-00864-CCA-R3-PC, slip op. at 3. The Tennessee Supreme Court denied the ...


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