State v. Antonio Crenshaw ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON FILED MAY SESSION, 1997 October 13, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk ANTONIO CRENSHAW, ) C.C.A. NO. 02C01-9607-CR-00217 ) Appe llant, ) ) SHELBY COUNTY ) V. ) ) HON. BERNIE WEINMAN, JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (POST-C ONVIC TION) FOR THE APPELLANT: FOR THE APPELLEE: ANTONIO L. CRENSHAW, pro se JOHN KNOX WALKUP Inmate #123924 Attorney General & Reporter R.M.S.I., Unit 5 7475 Cockrill Bend Ind. Road JANIS L. TURNER Nashville, TN 37209-1010 Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243 JOHN W. PIEROTTI District Attorney General REGINALD HENDERSON Assistant District Attorney General 201 Poplar Avenue, Ste. 301 Memphis, TN 38103 OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE OPINION The Petitioner, Antonio Crenshaw, appeals from the order of the Shelby County Criminal Cour t dism issing his second petition for post-conviction relief without an evidentiary hearing. In its order, the trial court dismissed the petition based upon Tennessee Code Annotated section 40-30-202(c) (Supp. 1996) because the Petitioner’s prior post-conviction petition had been resolved on the m erits. W e affirm the judgm ent of the tria l court. On July 16, 1990, Petitioner was convicted of the offense of rape following a trial in the Criminal Co urt of Shelby Co unty. This court affirmed the conviction on direct a ppeal, an d the supreme court denied his application for permission to appeal on January 27, 1992. On November 3, 1993, he filed a petition for post-c onvictio n relief a ttackin g this conviction based upon allegations of receiving ineffective assistance of counsel. The trial court dismissed the petition and this court affirmed the dismissal of the post-conviction petition on August 30, 1995. Antonio Crens haw v. S tate, No. 02C01-9502-CR-00050, Shelby C ounty (T enn. C rim. App ., Jackso n, Aug. 3 0, 1995 ). On April 18, 1996 , Petitioner filed his seco nd petition for post- conviction relief in the Criminal Court of Shelby County. As grounds for relief, he alleged that the indictment was insufficient because it failed to allege all of the eleme nts of rape, that there was an unconstitutional selection of both the grand jury which return ed the indictm ent an d the p etit jury which convicted him, that the State refused to disclose exculpatory eviden ce, that there were various errors by -2- the trial court during and a fter his tria l, that the State was guilty of prosecutorial miscond uct, and that the p rosecution us ed perjured tes timony. The new “Post-Conviction Proce dure A ct” was enac ted by P ublic Acts of 1995, ch. 207. Section 3 of that Act provided that the Act shall go vern a ll petitions for post-co nviction relief filed after May 10, 1995. Petitioner’s second petition, therefore, is governed by the new Act. Tennessee Code Annotated section 40-30-202(c) provides in pertinent part as follows: (c) This part co ntem plates the filing of only one (1) p etition for po st- conviction relief. In no event may more than one (1) petition for post-conviction relief be filed atta cking a sing le judgm ent. If a prior petition has been filed which w as reso lved on th e merits by a court of competent jurisdic tion, an y seco nd or s ubse quen t petition shall b e summ arily dismis sed. Regarding the allegations that the State failed to disclose exculpatory evidence, the Petitioner alleges that the eviden ce perta ined to inconsistent statements and “other evidence” made by and concerning prosecution witnesses which contradicted the State’s theory of the case against Petitioner. Specifically, Petitioner alleges that “[a]mong others, the [S]tate made a deal with State witness Katron Kendrick to reduce the pending charges against him in exchange fo r his false ev idence conce rning the seque nce of ev ents involving the facts of this case .” He a lso alleg es the prose cution withhe ld computer printouts and jail logbooks which conclusively showed that Petitioner was not ho used or phys ically present at the location of the rape. Petitioner fails to allege when or how he obtained the information which forms the basis of these allegations and did not file any exhibits with his petition to support the allegations. -3- Therefore, we conclude that the allegations in the petition concerning the failure to disclose exculpatory evidence do not rise to the level nece ssary to grant relief under Burford v. State, 845 S.W .2d 204 (Tenn . 1992). W e have carefully reviewed the rema ining a llegatio ns co ntaine d in the petition and note that all could have b een b rough t either in the direct appeal of the conviction or in the first petition for post-co nviction relief. Petitioner does not set forth the reasons that he did not bring these grounds in prior proceedings, other than asserting that the new Post-Conviction Procedure Act allows him one year from May 10, 1995 to file a petition for post-conviction relief. This assertion is without m erit. See Arnold C arter v. State , ____ S.W.2d ____, No . 03-S-01- 9612-C R-001 17, Mon roe Co unty (Te nn., at Kn oxville, Sep t. 8, 1997). Petitioner also argues on appeal that the trial court erred by dismissing his petition without entering a preliminary order pursuan t to Tennessee Code Annotated section 40-30-207. However, as argued by the State in its brief, Tennes see C ode A nnota ted se ction 4 0-30- 206(b ) states in pertinent part as follows : “If it plainly appears from the face of the petition, any annexed exhibits or the prior proceedings in the case that . . . a prior petition was filed attacking the conviction and was resolved on the m erits, the judge shall enter an order dismissing the petition.” Likewise, Petitioner’s assertions that the -4- trial court did not properly comply with the provisions of Tennessee Code Anno tated sec tion 40-3 0-206(a ) are witho ut merit. We affirm the ju dgme nt of the trial co urt. ____________________________________ THOMAS T. W OODALL, Judge CONCUR: ___________________________________ GARY R. WA DE, Judge ___________________________________ JOHN H. PEAY, Judge -5-