Crumley v. Tollett

OPINION

DWYER, Judge.

The issue in this record is whether a trial judge may dismiss a petition for post conviction relief without a hearing and appointment of counsel. We hold that he may do so when the petition on its face shows no constitutional abridgment.

The petitioner is incarcerated serving a ninety-nine year sentence for committing the offense of murder in the first degree. His petition is handwritten and is not too dissimilar to the numerous petitions that are filed in court emanating from the penitentiary. It appears to be in good form and contains many of the usual ratio deci-dendi clips from cited authorities. His contention, apparent from a reading of the petition is that he was denied a fair trial by reason of adverse publicity given his case prior to trial. This assertion is not supported by any relation of facts but there is to be found an abundance of conclusions siphoned from his cited authorities.

In Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 750, 21 L.Ed.2d 718, the following language may be found:

“In most federal courts, it is the practice to appoint counsel in post-conviction proceedings only after a petition for post-conviction relief passes initial judicial evaluation and the court has determined that issues are presented calling for an evidentiary hearing. E. G., Taylor v. Pegelow, 335 F.2d 147 (C.A. 4th Cir. 1964); United States ex rel. Marshall v. Wilkins, 338 F.2d 404 (C.A.2d Cir. 1964). See 28 U.S.C. § 1915(d); R. Sokol, A. Handbook of Federal Habeas Corpus 71-73 (1965).” (Emphasis added.)

In American Bar Association Project on Minimum Standards for Criminal Justice Standards Relating to Post Conviction Remedies, Section 4.4 the following language may be found:

“ . . . On the other hand, it is not necessary to appoint counsel for every application. If an application, in light of the state’s response, raises no claim cognizable in a post-conviction proceeding, it is wasteful to appoint counsel to determine solely if the applicant has some grounds for relief not stated in his original application." (Emphasis added.)

In Monts v. State, Tenn.Crim.App., 455 S.W.2d 627, 629, the following may be found:

“ . . . In fact his statement in the petition amounts to an unsupported conclusory allegation. Our Federal Courts have held that when a motion is made to vacate or set aside a judgment the movant must set forth facts which entitle him to relief. Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing. O’Malley v. United States, 285 F.2d 733 (C.A. 6).”

We concur in the trial court’s ruling in this record that unsupported conclusions do not require a hearing.

Court-appointed counsel contends Monts v. State, supra, is not in point because counsel had been appointed for Monts, as opposed to this record where counsel was not appointed. He relies upon T.C.A. 40-3815 to sustain his insistence. We have held that when the petition does not allege facts sufficient to justify a hearing the court may dismiss the petition. This petition was not dismissed for want of form, technical defects or lack of clarity.

This petition is in proper form and the substance of it does not create an issue in our opinion calling for an evidentiary hearing. It therefore follows that the trial court is not under a duty to appoint counsel.

The judgment of the trial court in dismissing the petition is affirmed.

MITCHELL, J., concurs.