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Cunningham v. State

Court of Criminal Appeals of Tennessee, Nashville

November 28, 2017

JAMES MCKINLEY CUNNINGHAM
v.
STATE OF TENNESSEE

          Session October 17, 2017

         Appeal from the Circuit Court for Grundy County No. 6751 Larry B. Stanley, Jr., Judge

         Petitioner, 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 relief.

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

          Robert S. Peters, Winchester, Tennessee, for the appellant, James McKinley Cunningham.

          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., JJ., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE.

         Nearly 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.

         After a 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.

         Petitioner 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.[1] 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.

         On June 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.[2] 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 trial.[3]

         At the 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.

         Pretrial 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 ...


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