Lewis v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: October 15, 1998
• Docket: 03C01-9802-CR-00054
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED SEPTEMBER 1998 SESSION October 15, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk KENNETH RUSSELL LEWIS, ) ) Appellant, ) No. 03C01-9802-CR-00054 ) ) Hamilton County v. ) ) Honorable Stephen M. Bevil, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )

ORDER

The petitioner, Kenneth Russell Lewis, has applied for permission to

appeal from the Hamilton County Criminal Court’s refusal to reopen his post-conviction

case that had previously been dismissed with prejudice.1 He is seeking relief relative to

his second degree murder conviction upon his guilty plea in December 1991 for which

he received a twenty-five year sentence. He asserts that (1) the dismissal of his post-

conviction case with his purported agreement resulted from the ineffective assistance of

counsel, (2) the state has violated its agreement not to oppose parole, and (3) his

attorney in the convicting case was ineffective in representing him. He also has moved

for consideration of “Post-Judgment Facts” by which he seeks to submit for our

consideration medical records that he claims bear upon his issues regarding counsel.

Pursuant to T.C.A. § 40-30-216(c), the petitioner could seek review of the

denial of his motion to reopen by filing an application with this court seeking permission

to appeal. The application may not be granted “unless it appears that the trial court

abused its discretion in denying the motion.” Id.

1 The p etitioner has procee ded in this c ase as if it were an ap peal as o f right, an ap peal to which he is not entitled. We will treat his brief as an application pursuant to T.C.A. § 40-30-216(c). The reopening of a post-conviction case is allowed in very limited

situations. There must be either a new constitutional right established with

retrospective application to the petitioner’s case, new scientific evidence that

establishes the petitioner’s actual innocence, or the invalidation of a prior conviction

that was used to enhance the petitioner’s sentence. T.C.A. § 40-30-217(a)(1)-(3). The

petitioner alleges none of these in this case. In this respect, even though his convicting

case counsel’s affidavit supports the petitioner’s claim that the state agreed not to

oppose parole, such a claim does not constitute grounds to reopen his previous post-

conviction case. Also, a claim of ineffective assistance of post-conviction counsel

relative to the post-conviction case being dismissed does not provide the petitioner an

avenue of relief. See House v. State, 911 S.W.2d 705, 714 (Tenn. 1995).

We conclude that the trial court did not abuse its discretion in refusing to

reopen the petitioner’s post-conviction case. In consideration of the foregoing, it is

hereby ORDERED as follows:

(1) The Motion for Consideration of Post-Judgment Facts is denied.

(2) Permission to appeal is denied.

(3) The costs of this cause are taxed against the state.

____________________________ Joseph M. Tipton, Judge

CONCUR:

_________________________ John H. Peay, Judge

_________________________ David G. Hayes, Judge