Court of Criminal Appeals of Tennessee, Nashville
Session October 17, 2017
from the Circuit Court for Grundy County No. 6751 Larry B.
Stanley, Jr., Judge
James McKinley Cunningham, was convicted of first degree
murder after shooting his father. The conviction was affirmed
on direct appeal. State v. James McKinley
Cunningham, No. M1999-01995-CCA-R3-CD, 2000 WL 1520247,
at *1 (Tenn. Crim. App. Oct. 13, 2000), perm. app.
denied (Tenn. Apr. 23, 2001). Petitioner initially
sought post-conviction relief in 2002 and amended the
petition in 2015. Nearly fourteen years after the original
petition was filed, the post-conviction court held a hearing
and denied relief. We affirm the denial of post-conviction
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
S. Peters, Winchester, Tennessee, for the appellant, James
Herbert H. Slatery III, Attorney General and Reporter; Sophia
S. Lee, Senior Counsel; Mike Taylor, District Attorney
General; and David Shinn, Assistant District Attorney
General, for the appellee, State of Tennessee.
Timothy L. Easter, J., delivered the opinion of the court, in
which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr.,
TIMOTHY L. EASTER, JUDGE.
twenty-one years ago, Petitioner shot and killed his father.
He loaded the body into the trunk of his mother's car,
drove to a remote location near Monteagle, Tennessee, and
dumped the body in a ravine. Then, he burned a sofa, disposed
of his father's clothing, and got rid of the murder
weapon. Id. at *1. Shortly thereafter, Petitioner,
his girlfriend, and his mother fled to Oklahoma. Id.
All of these facts have never been disputed by Petitioner.
jury trial, Petitioner was convicted of first degree murder
and sentenced to life imprisonment. His conviction was
affirmed on direct appeal and the Tennessee Supreme Court
denied permission to appeal on April 24, 2001.
filed a lengthy pro se petition for post-conviction relief.
The petition certified that it was given to prison
authorities for mailing on April 18, 2002, but the petition
was not filed until April 24, 2002. The rambling petition
spanned nearly forty pages and raised various grounds for
relief, including allegations that Petitioner's
confession was coerced, his arrest was unlawful, his
conviction was based on a violation of the privilege against
self-incrimination, the State failed to disclose evidence
favorable to the defense, his conviction was based on illegal
evidence, his conviction was based on the action of an
unconstitutionally impaneled grand jury, he received
ineffective assistance of trial counsel, and "other
grounds." Post-conviction counsel was appointed to
represent Petitioner in August of 2002.
19, 2002, the State answered the petition, arguing that it
was barred by the statute of limitations. That same day, a
transport order was filed to transport Petitioner to the
Circuit Court of Grundy County for a hearing on August 7,
2002. For reasons unbeknownst to this Court, nothing appears
in the technical record after the transport order until a
Motion to Set Aside Order of Dismissal was filed by
Petitioner through post-conviction counsel on April 2, 2015.
According to the motion, Petitioner sought to have the
"order of dismissal" set aside to consider an
amended petition for post-conviction relief in which
Petitioner wished to raise a Sixth Amendment violation
alleging ineffective assistance of trial counsel in the plea
bargaining process. We have been unable to locate an order of
dismissal in the technical record. Thus, it appears that the
petition for post-conviction relief languished in the
post-conviction court for fourteen years until Petitioner
filed an amended petition for post-conviction relief. The
amended petition, filed on April 20, 2015, adopts the
allegations raised in the original petition and raises
additional grounds for relief including the ineffective
assistance of counsel in the plea bargaining phase of
hearing on the petition for post-conviction relief, pretrial
counsel testified that he represented Petitioner prior to
trial. At the time of the hearing, he was seventy-two years
of age. Pretrial counsel served as the District Public
Defender of the 12thJudicial District in 1989 and
practiced law for approximately forty years, retiring in
2012. Several other attorneys in the Public Defender's
Office represented Petitioner prior to the time pretrial
counsel became involved in the case. Pretrial counsel met
with Petitioner several times to discuss the case.
counsel explained that the common procedure in the district
was to have a "discussion day" in each case prior
to trial. The discussion day was the equivalent of a
settlement conference. He represented Petitioner for a short
period of time before he withdrew from the case. Pretrial
counsel could not recall the reason for the withdrawal but
recalled that in June of 1998, prior to his withdrawal, he
extended a written offer of settlement to the Assistant
District Attorney General. In the letter, Petitioner offered
to enter a plea to voluntary manslaughter in exchange for a
six-year sentence. Pretrial ...