Court of Criminal Appeals of Tennessee, Knoxville
JACKIE F. CURRY
STATE OF TENNESSEE
Assigned on Briefs March 21, 2017
from the Criminal Court for Knox County No. 101343 Bobby R.
Jackie F. Curry, appeals the trial court's denial of his
motion to reopen post-conviction proceedings. Petitioner
argues that the United States Supreme Court's decision in
Lafler v. Cooper, 566 U.S. 156 (2012), established a
new rule of constitutional law that should be applied
retroactively to his case. Because Petitioner failed to
follow the statutory requirements to seek discretionary
review of a motion to reopen, this Court does not have
jurisdiction, and we dismiss the appeal.
R. App. P. 3 Appeal as of Right; Appeal Dismissed
L. Gulley, Jr., Knoxville, Tennessee, for the appellant,
Jackie F. Curry.
Herbert H. Slatery III, Attorney General and Reporter; Lacy
Wilber, Senior Counsel; Charme P. Allen, District Attorney
General; and Leslie Nassios, Assistant District Attorney
General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the court, in
which John Everett Williams and J. Ross Dyer, JJ., joined.
TIMOTHY L. EASTER, JUDGE
and Procedural Background
years ago, Petitioner was convicted of three counts of
aggravated rape for acts committed against his ex-girlfriend,
who had an order of protection against him. State v.
Jackie F. Curry, No. E2000-02475-CCA-R3-CD, 2001 WL
872789, at *1-3 (Tenn. Crim. App. Aug. 2, 2001), perm.
app. denied (Tenn. Nov. 5, 2001). He was sentenced to a
total effective sentence of 66 years in the Department of
Correction. On direct appeal, this Court affirmed
Petitioner's convictions and sentences, and the Tennessee
Supreme Court denied permission to appeal. Id. at
then, Petitioner has attempted on numerous occasions to
challenge his convictions and sentences. In March 2004, he
filed a petition for writ of habeas corpus, which was
dismissed by the trial court, and this Court affirmed.
Jackie F. Curry v. State, No. E2004-01227-CCA-R3-HC,
2005 WL 927158, at *1 (Tenn. Crim. App. Apr. 21, 2005),
no perm. app. filed. Petitioner filed his first
petition for post-conviction relief in January 2005, which
was dismissed by the trial court as untimely, and this Court
again affirmed. Jackie F. Curry v. State, No.
E2005-00418-CCA-R3-PC, 2005 WL 3343826, at *1 (Tenn. Crim.
App. Dec. 7, 2005), no perm. app. filed. In June
2005, Petitioner filed a petition for relief under the
Post-Conviction DNA Analysis Act, which was dismissed by the
trial court; Petitioner did not appeal to this Court. In June
2006, Petitioner filed for federal habeas corpus relief,
which was dismissed by the District Court. Jackie F.
Curry v. Howard Carlton, Warden, No. 3:06-CV-255, 2006
WL 2087742, at *1 (E.D. Tenn. July 25, 2006). In January
2007, Petitioner filed a second petition for habeas corpus
relief, which was dismissed by the trial court, and this
Court affirmed. Jackie F. Curry v. Howard Carlton,
Warden, No. E2007-02526-CCA-R3-HC, 2008 WL 3066823, at
*1 (Tenn. Crim. App. Aug. 4, 2008), perm. app.
denied (Tenn. Dec. 8, 2008). In February 2010,
Petitioner filed a motion to reopen his petition for DNA
analysis, which was likewise dismissed, and no appeal was
taken. In April 2010, Petitioner filed a third petition for
habeas corpus relief, which was dismissed by the trial court,
and this Court affirmed. Jackie F. Curry v. Howard
Carlton, Warden, No. E2011-00607-CCA-R3-HC, 2011 WL
4600621, at *2 (Tenn. Crim. App. Oct. 6, 2011), perm.
app. denied (Tenn. Jan. 10, 2012), cert.
denied, 566 U.S. 929 (Apr. 2, 2012).
present petition, styled "Petition For Reopen
Post-Conviction In Alternative Petition For State Habeas
Corpus, " was filed on March 25, 2013. In the petition,
Petitioner alleges that he received ineffective assistance of
counsel because his trial attorney advised him to turn down a
favorable plea offer. Petitioner asserts that the United
States Supreme Court's decision in Lafler v.
Cooper, 566 U.S. 156 (2012), established a new rule of
constitutional law that should be applied retroactively to
his case. See T.C.A. § 40-30-117(a)(1)
(allowing post-conviction proceedings to be reopened under
limited circumstances, including when the claim is
"based upon a final ruling of an appellate court
establishing a constitutional right that was not recognized
as existing at the time of trial, if retrospective
application of that right is required"). On April 24,
2013, the post-conviction court appointed counsel. On
September 20, 2013, the State filed a response, arguing that
the petition should be dismissed. On March 14, 2014,
Petitioner filed a "Reply to State's Response and
Response to State's Oral Motion to Dismiss,
" attaching letters from Petitioner's
trial counsel to his father that allegedly contain
"express and/or implicit admissions . . . of [trial
counsel's] ineffective assistance of counsel in regard to
your Petitioner's original trial." On August 9,
2016,  the post-conviction court filed an order
denying the petition as either a petition to reopen
post-conviction proceedings or as a petition for habeas
corpus relief. Petitioner filed a notice of appeal on
September 8, 2016.
initial matter, the State urges this Court to dismiss the
present appeal because Petitioner failed to follow the
procedural requirements for appealing the dismissal of a