Michael Raines v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 28, 2012
MICHAEL RAINES v. STATE OF TENNESSEE
Appeal from the Criminal Court for Polk County
No. 10-164 Carroll L. Ross, Judge
No. E2011-02117-CCA-R3-PC - Filed September 5, 2012
The Petitioner, Michael Raines, pro se, appeals the Polk County Criminal Court’s summary
dismissal of his petition for post-conviction relief from his conviction for second degree
murder and resulting twenty-three-year sentence. On appeal, the Petitioner contends that the
trial court erred in concluding that his petition was barred by the Post-Conviction Procedure
Act. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which T HOMAS T. W OODALL,
and C AMILLE R. M CM ULLEN, JJ., joined.
Michael Raines, Pikeville, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; and Robert Steven Bebb, District Attorney General, for the appellee, State of
Tennessee.
OPINION
The Petitioner was convicted by a Polk County Criminal Court jury of second degree
murder, and this court affirmed the conviction and twenty-two-year sentence. See State v.
Michael Raines, E2001-00996-CCA-R3-CD, Polk County (Tenn. Crim. App. Apr. 17, 2002),
perm. app. denied (Tenn. Sept. 30, 2002). The Petitioner sought post-conviction relief and
the trial court granted him a new trial. See State v. Michael Raines, E2007-00840-CCA-R3-
CD, Polk County, slip op. at 1 (Tenn. Crim. App. May 21, 2008), perm. app. denied (Tenn.
Aug. 25, 2010). The Petitioner was convicted of second degree murder at the second trial
and sentenced to twenty-three years’ confinement. Id. This court affirmed his conviction
and sentence on appeal. Id.
On December 6, 2010, the Petitioner filed a petition for post-conviction relief
contending that he did not receive the effective assistance of counsel during the second trial.
The trial court summarily dismissed the petition, finding that the Petitioner had filed a
previous post-conviction petition on May 21, 2009, which claimed only that the Petitioner
was denied second-tier review and was entitled to a delayed appeal. The court stated in its
March 31, 2011 order that appointed counsel during the first post-conviction proceeding filed
an affidavit stating the following:
I have discussed other possible grounds with the petitioner. I
have raised all non-frivolous constitutional grounds warranted
by existing law or a good faith argument for the extension,
modification, or reversal of existing law which petitioner has.
I am aware that any ground not raised shall be forever barred by
application of Tenn. Code Ann. 40-30-206(g), and have
explained this to petitioner.
The court found that a delayed appeal was granted on March 23, 2010, and that our supreme
court “affirmed” the Petitioner’s conviction on August 25, 2010. The court dismissed the
present petition because it concluded it was the Petitioner’s second.
Less than one month after the trial court entered its order dismissing the petition, the
Petitioner wrote to the court stating that he received the court’s “letter” informing him that
appointed counsel had filed a post-conviction petition one year earlier. The Petitioner denied
any knowledge of the first petition and detailed his failed attempts to contact appointed
counsel. The Petitioner stated that he only desired a sentence reduction and that he did not
think he would have been convicted had the jury known the length of his sentence. The
record contains an April 28, 2011 order stating that the Petitioner requested a reduction in
his sentence, that the Petitioner’s second post-conviction petition was dismissed on March
31, 2011, and that the trial court had no jurisdiction or authority to reduce the Petitioner’s
sentence. This appeal followed.
The Petitioner contends that the trial court erred in dismissing his petition for post-
conviction relief and argues that his petition was filed within one year of the supreme court’s
denying his request for permission to appeal pursuant to Tennessee Code Annotated section
40-30-102. He does not address the trial court’s finding that the present petition for relief
was his second. The State contends that the trial court properly dismissed the petition
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because only one petition may be filed attacking a single judgment. We agree with the State.
The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). On appeal, we
are bound by the trial court’s findings of fact unless we conclude that the evidence in the
record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.
2001). The Act “contemplates” only one petition for relief, and a petitioner may not file
more than one petition “attacking a single judgment.” T.C.A. § 40-30-102(c). If a previous
petition is resolved on the merits by a court of competent jurisdiction, a “subsequent petition
shall be summarily dismissed.” Id. A petitioner may move to reopen the first post-
conviction petition only if the motion is based (1) on a constitutional right that was not
recognized at the time of the trial, (2) on new scientific evidence establishing the petitioner’s
innocence, or (3) on a sentence enhanced because a previous conviction was found to be
invalid. Id. 40-30-117(a)(1)-(3).
This case reflects a result that occurs when a post-conviction petition attacks only the
failure to appeal. Once done, and the appeal is unsuccessful, no procedure exists to raise
claims about the trial court proceedings in the convicting trial after the delayed appeal is
concluded.
The trial court dismissed the Petitioner’s post-conviction petition because the
Petitioner filed a previous petition approximately two years earlier. The trial court found that
after the Petitioner was convicted of second degree murder at the second trial, the Petitioner
filed a petition for post-conviction relief on May 21, 2009, claiming that he was denied
second-tier review and entitled to a delayed appeal. The Petitioner does not address this
finding in his brief, and nothing reflects that the Petitioner’s current petition could serve as
the basis to reopen the previous petition for post-conviction relief. We conclude that the
evidence in the record does not preponderate against the trial court’s findings. The Petitioner
is not entitled to relief.
In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.
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JOSEPH M. TIPTON, PRESIDING JUDGE
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