Perry Saleem Lee v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 25, 2001
PERRY SALEEM LEE v. STATE OF TENNESSEE
Appeal from the Circuit Court for Williamson County
No. 1100-374 R.E. Lee Davies, Judge
No. M2001-01141-CCA-R3-PC - Filed December 13, 2001
The petitioner, Perry Saleem Lee, appeals the dismissal of his petition for post-conviction relief by
the Williamson County Circuit Court, which held that the petitioner’s claims for relief had been
either previously determined or waived. The petitioner complains about his appointed counsel and
the state’s purported shortcomings in the post-conviction process. He also complains about the trial
court not allowing an amendment to the petition, not allowing an evidentiary hearing, and not setting
forth findings of fact and conclusions of law as to each ground he raised. We affirm the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E.
GLENN, JJ., joined.
Perry Saleem Lee, Clifton, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
Ronald L. Davis, District Attorney General; and Mary K. Harvey, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
The petitioner was convicted in 1998 of aggravated assault and misdemeanor assault and
received an effective sentence of five years in the Department of Correction. The judgments of
conviction were affirmed on appeal. State v. Perry Saleem Lee, No. 01C01-9806-CC-00266,
Williamson County (Tenn. Crim. App. June 2, 1999), app. denied (Tenn. Nov. 22, 1999). In that
appeal, the petitioner, pro se, raised issues regarding the following: (1) the sufficiency of the
evidence, (2) the victim’s in-court identifications of him, (3) the trial proceeding in spite of his
reservations about counsel’s preparedness, (4) improper closing arguments, (5) the reasonable doubt
instruction, (6) the denial of his motion for a new trial, (7) the ineffective assistance of counsel, and
(8) the denial of trial records needed to perfect his appeal.
The post-conviction petition alleges myriad constitutional violations regarding events from
the petitioner’s arrest through his sentencing. It also alleges the ineffective assistance of counsel
through various specified “acts and omissions.” Counsel was appointed and an amended post-
conviction petition was filed, focusing upon claims of ineffective assistance of counsel. The state
did not answer the petition as amended; instead, it moved to dismiss it because the petitioner’s
claims were either waived or previously determined. The trial court granted the state’s motion for
the same reasons.
First, we consider the state’s contention on appeal that the petition was properly dismissed
because it was not filed within the one-year statute of limitations. It states that the petition was not
filed within one year of the Tennessee Supreme Court’s denial of the application for permission to
appeal, although it notes that the petition was marked filed by the trial court clerk on the next
business day. The state acknowledges that the petition reflects that the petitioner signed the petition
on October 10, 2000, and that filing is deemed to have occurred when a prisoner delivers a petition
to “the appropriate individual at the correctional facility.” Tenn. S. Ct. R. 28, § 2(G). However, it
asserts that no certification or evidence exists in the record to show such a delivery occurred.
We question the efficacy of the state raising this issue for the first time on appeal, thereby
negating any ability to resolve this matter in the trial court. As noted, the record reflects that the
petition was marked filed by the trial court clerk the next business day after the statute of limitations
had run. Neither the district attorney nor the trial court raised any concern about the timeliness of
the petition. For all we know, they accepted the natural inference that a state prisoner’s petition that
is received by the clerk the first business day after the time has run had been timely delivered to the
correctional authorities for mailing. We note that all other filings and correspondence from the
petitioner have been delivered by mail from a correctional facility. We certainly will not presume
otherwise for the petition under the existing circumstances. We see no merit to the state’s
contention.
As for the petitioner’s claims for relief presented in his pro se petition and the amendment
thereto, we conclude that they have, indeed, been previously determined or waived. Among other
issues, the petitioner raised the issue of the ineffective assistance of trial counsel in his original
appeal. This court’s resolution of the issue renders it previously determined. See Tenn. Code Ann.
§ 40-30-206(h). Such is true even if additional facts are now alleged to support the claim. See Cone
v. State, 927 S.W.2d 579, 582 (Tenn. Crim. App. 1995). Moreover, having taken the opportunity
to raise the issue of counsel’s ineffectiveness in the direct appeal, the petitioner’s failure to allege
all the various facts supporting the claim constitutes a waiver of any claim based on those facts. In
this respect, as is true for the remainder of the petitioner’s claims arising from the convicting and
sentencing process that were not already determined in the previous appeal, the failure to raise those
claims in the previous appeal constitutes a waiver that bars their consideration in this case. See
Tenn. Code Ann. § 40-30-206(g).
Given the lack of viability of the petitioner’s claims, the state was entitled to proceed upon
its motion to dismiss and the trial court was entitled to dismiss the case without an evidentiary
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hearing. Also, although it may be preferable for the trial court to render findings and conclusions
for each specific ground for relief presented, we do not believe that the trial court’s failure to do so
in the present case constitutes error. Any other procedural mishap or omission by the state or the
trial court that the petitioner perceives to exist is of no consequence.
Finally, regarding the petitioner’s complaints about his appointed post-conviction counsel,
we see nothing that would warrant relief. As the state notes, a post-conviction petitioner is not
constitutionally entitled to the effective assistance of counsel in the post-conviction process. See
House v. State, 911 S.W.2d 705, 714 (Tenn. 1995). In our view, the petitioner’s allegations about
counsel citing a repealed statute and including a previously determined claim in the amended petition
do not rise to a level of constitutional concern.
Based upon the foregoing and the record as a whole, the trial court’s judgment is affirmed.
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JOSEPH M. TIPTON, JUDGE
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