Howard Glen Humphrey v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
FEBRUARY SESS ION, 1999 May 5, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
HOWARD GLENN HUMPHREY, ) C.C.A. NO. 03C01-9807-CR-00231
)
Appe llant, )
) HAMILTON COUNTY
V. )
)
) HON. DOUGLAS A. MEYER, JUDGE
STATE OF TE NNE SSE E, )
)
Appellee. ) (POST-CONVICTION)
FOR THE APPELLANT: FOR THE APPELLEE:
LEROY PHILLIPS, JR. JOHN KNOX WALKUP
PHILLIPS & CAPUTO Attorney General & Reporter
312 Vin e Street
Chattanooga, TN 37403 R. STEPHEN JOBE
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
WILL IAM H. C OX, III
District Attorney General
BATES W. BRYAN, JR.
Assistant District Attorney General
600 Market Street, Suite 310
Chattanooga, TN 37402
OPINION FILED ________________________
REVERSED AND REMANDED
THOMAS T. WOODALL, JUDGE
OPINION
The Petitioner, How ard G lenn H ump hrey, a ppea ls as of r ight the trial cou rt’s
dismissal of his petition for post-co nviction relief. After a careful review of the record,
we reverse and reman d to the trial court for an evidentiary hearing on the grounds
raised in the petition and all amendment thereto.
Petitioner was convicted in 1988 of first degree murder and assault with intent
to comm it first degree murde r. See State v. Howard Glenn Humphrey, C.C.A. No.
1111, Hamilton C ounty (Tenn. Crim. A pp., Kno xville, Dec. 28 , 1989), perm. to appeal
denied (Tenn. 1990). He was se ntenced to life imp risonmen t plus five years
enhancement due to use of a firearm for first degree murder, and to a concurrent
twelve year se ntenc e for as sault with intent to commit first degree murde r. Id. His
convictions were affirmed on direct appeal to this Court, and the Tennessee
Supre me C ourt den ied perm ission to ap peal on April 2, 199 0. Id.
Petitioner filed a pro se petition for pos t-conv iction re lief on A pril 30, 1992. On
August 4, 1992, he filed a pro se amendment to the petition, adding an additional
ground for relief based on a supreme court case decided shortly after his original
petition was filed. The State filed an answer to the petition on September 2, 1992,
and a supplemental answer on March 17, 1994. With the assistance of couns el,
Petitioner filed an amen ded petition on F ebruary 21, 1995, m erely setting forth
additional facts su pportin g the p reviou s claim of ineffe ctive as sistan ce of c ouns el.
The State subsequently filed an answer to the amended petition. The trial court
reset several evidentiary hearing dates for various reasons from December 1995
through February 1997. On February 27, 1997, the trial court entered an order
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holding all proceedings in the instan t case in abe yance until Ju ly 17, 1997, pending
resolution in the sup reme c ourt of Carter v. State, 952 S.W .2d 417 (Te nn. 1997).
On October 27, 1997, the trial judge dismissed the petition without conducting an
evidentiary hearing based on its finding that the petition was time barred under the
principles announced in Carter. Petition er filed a tim ely notic e of ap peal. In this
appe al, Petition er argu es, an d the S tate co nced es, tha t the trial c ourt er red in
dismissing his pe tition for p ost-co nviction relief with out co nduc ting an evidentiary
hearing .
A panel of this Court affirmed Petitioner’s convictions a nd the supre me cou rt
denied perm ission to app eal on April 2, 1990. See Humphrey, C.C.A . No. 1 111, s lip
op. at 1. Under the Post-Con viction Act in effect at that time, P etitioner had three
years from the date of the final action o f the highe st state ap pellate co urt in whic h
to file for post-conviction relief. Tenn . Code An n. § 40-30-10 2 (repealed 1 995).
Petitioner filed his pro se petition for pos t-conv iction re lief on A pril 30, 1 992, w ell
within the three year limitatio ns period . Petitioner d id mak e two ad ditional filings,
both of which were amendments to his original petition. He first filed a pro se
amendment setting forth an additional ground for relief based on a decision of the
supreme court released shortly after the filing of the original petition. After counsel
was appointed to assist Petitioner, he filed a second amended petition which set
forth no new ground s, but did o utline add itional facts s upporting the claim of
ineffective a ssistanc e of coun sel as alleg ed in the o riginal petition .
In its order of dismissal, the trial court concluded that the petition was time
barred unde r the prin ciples anno unce d in Carter. 952 S.W.2d 417. It is abun dantly
clear from the record, however, that the original petition for post-conviction relief was
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timely filed. The additional filings were amendments to the original petition which
was timely filed. See, e.g., Terry D . Barber v . State, C.C.A. No. 02-C-01-9508-CC-
00210, Lake County (Tenn. Crim. App ., Jackson, Jun e 28, 1996 ), perm. to appeal
denied (Tenn . 1996).
Based on the foregoing, we find that the trial c ourt er red in s umm arily
dismissing Petitioner’s petition for post-conviction relief without conducting an
evidentiary hearing. Therefore, we remand this case to the trial court for an
evidentiary hearing.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
JERRY L. SMITH, Judge
___________________________________
L. T. LAFFERTY, Senior Judge
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