Assigned on Briefs at Knoxville January 18, 2017
from the Criminal Court for Shelby County No. 05-00559 J.
Robert Carter, Jr., Judge
Petitioner, Tony Wolfe, appeals from the Shelby County
Criminal Court's denial of his motion to reopen his
post-conviction petition on the basis of newly discovered
scientific mental health evidence. He contends that the
post-conviction court erred in denying his motion without
conducting a hearing on the merits. Because the Petitioner
has no appeal as of right from the denial of a motion to
reopen and did not follow the procedure required for seeking
permission to appeal, we dismiss the appeal.
R. App. P. 3 Appeal as of Right; Appeal Dismissed
Mothershead, Nashville, Tennessee, for the appellant, Tony
Herbert H. Slatery III, Attorney General and Reporter; Robert
W. Wilson, Assistant Attorney General; Amy Weirich, District
Attorney General; for the appellee, State of Tennessee.
H. Montgomery, Jr., J., delivered the opinion of the court,
in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr.,
H. MONTGOMERY, JR., JUDGE
Petitioner was convicted of first degree premeditated murder.
See State v. Tony Wolfe, No. W2008-01243-CCA-R3-CD,
2009 WL 1025871 (Tenn. Crim. App. Apr. 8, 2009) (Wolfe
I), perm. app. denied (Tenn. Sept. 28, 2009).
His petition for post-conviction relief alleged that he
received the ineffective assistance of counsel. The
post-conviction court denied relief, and this court affirmed
its judgment. Tony Wolfe v. State (Wolfe
II), No. W2012-00611-CCA-R3-PC, 2013 WL 5488574, at *1,
8 (Tenn. Crim. App. Sept. 30, 2013), perm. app.
denied (Tenn. Feb. 11, 2014). The Tennessee Supreme
Court denied the Petitioner's application for permission
to appeal on February 11, 2014. Id.
March 2, 2016, the Petitioner filed his motion to reopen the
post-conviction matter, alleging "newly discovered
scientific mental health evidence" related to his
diagnosis of post-traumatic stress disorder (PTSD). He
alleged that he first received the diagnosis following a
December 9, 2014 evaluation at the Tennessee Department of
Correction (TDOC) Deberry Special Needs Facility and that the
diagnosis was again provided in a February 2016 report from
Dr. Pamela Auble, both of which occurred after the supreme
court denied review of his post-conviction appeal. The
Petitioner acknowledged that he had raised the claim in his
previous post-conviction petition but that he had been unable
to prove prejudice because post-conviction counsel did not
have him evaluated by a forensic psychologist before the
post-conviction hearing. He claimed that evidence of PTSD
could have been used at his trial to negate the premeditation
element of first-degree murder. He attached Dr. Auble's
report and additional TDOC mental health records in support
of his allegations.
post-conviction court found that mental health evaluations
and a PTSD diagnosis were not "newly discovered type of
evidence or newly arising science" and that even if the
allegations were viewed in the light most favorable to the
Petitioner, they did not establish the Petitioner's
actual innocence of the offense because the 2016
psychologist's report opined that the Petitioner actions
could have been the "product of excitement and
passion." The court concluded that for these reasons,
Tennessee Code Annotated section 40-30-117(a), pertaining to
the limited situations in which a petitioner may reopen his
petition for post-conviction relief, did not apply. The court
denied relief on this basis. This appeal followed.
Petitioner contends that the post-conviction court erred in
summarily denying his motion to reopen. The State counters
that the Petitioner's appeal is improper because no
appeal as of right exists from the denial of a motion to
reopen a post-conviction petition and that he failed to
follow the statutory procedure for seeking permission to
appeal to this court. The State contends that, in any event,
the Petitioner's allegations that he was suffering from
PTSD failed to demonstrate actual innocence. In his reply
brief, the Petitioner acknowledges his error in failing to
seek permission to appeal but asks this court to consider the
merits of his appeal in the interests of justice.
relief is available "when the conviction or sentence is
void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the
Constitution of the United States." T.C.A. §
40-30-103 (2012). After a post-conviction petition has been
(a) A petitioner may file a motion in the trial court to
reopen the first post-conviction petition only if ...