Burt v. State
| Decision Date | 13 February 1970 |
| Parties | Troy BURT, Appellant, v. STATE of Tennessee, Appellee. |
| Court | Tennessee Court of Criminal Appeals |
Hugh W. Stanton, Jr., Walker Gwinn, Memphis, for appellant.
David M. Pack, Atty. Gen., Robert H. Roberts, Asst. Atty. Gen., Nashville, Phil M. Canale, Jr., Dist. Atty. Gen., James G. Hall, Asst. Dist. Atty. Gen., Memphis, for appellee.
Troy Burt appeals from the dismissal without an evidentiary hearing of his petition for the writ of habeas corpus, treated by the Criminal Court of Shelby County as a petition under the Post Conviction Procedure Act.
Burt is serving a ten year penitentiary sentence for armed robbery. He was tried upon a not guilty plea, his conviction appealed to and affirmed by this Court, and certiorari denied by our Supreme Court.
The petition sub judice alleges (1) that he is being unlawfully held in violation of the Thirteenth and Fourteenth Amendments to the U.S. Constitution and art. 1, Sections 8 and 33 of the Tennessee Constitution; that (2) he was not advised of his right to counsel at a police show-up, did not have counsel present and did not waive his right to counsel; that (3) women were systematically exluded from the Grand and petit juries which dealt with him; and that (4) he was unlawfully transferred from the Shelby County jail to the State penitentiary while his case was still on appeal. In the face of these allegations, the State's motion to strike the petition was granted without an evidentiary hearing. Counsel was appointed, but Burt was not ordered brought from the penitentiary to Memphis to attend the hearing upon the motion to strike or to confer with counsel.
The distinguished Public Defender, as he has in many similar cases, takes the position that it was error for the trial court not to have the petitioner returned to Memphis to confer with counsel about possible amendments to the petition before dismissing it without an evidentiary hearing. We do not agree that the Post Conviction Procedure Act requires this, where the grounds of the petition are clearly stated and have no legal merit. This is not a case of a dismissal for formal defects, as alluded to in T.C.A. § 40--3807 as not being a proper basis for dismissal without allowing opportunity for amendment; but this is a situation of lack of legal merit appearing upon the face of the petition, and may be dismissed under the authority of T.C.A. § 40--3809. As we have said in many other cases, a ruling that upon the filing of any paper writing by a prisoner he must be given an opportunity in the county of his conviction to confer with counsel before his petition can be dismissed without a hearing is not only beyond anything explicit or implicit in the Post Conviction Procedure Act, but would lead to the total disruption of our penal system. We could except multiple petitions from each and every inmate, whose life of incarceration could be transformed into one of travel. Should procedural relief of this nature be found to be needed, a much more reasonable solution would be to have counsel available at the penitentiaries.
The first ground of relief set out in this petition is too general to merit consideration; alleging no facts, but just the conclusion of the pleader that he is being deprived of certain unnamed constitutional rights in some unspecified way. Such a conclusory allegation does not give rise to a right to an evidentiary hearing. O'Malley v. United States, 285 F.2d 733 (6th Cir).
The line-up question sought to be raised by the next allegation is without merit for two immediately apparent reasons. First, this is a question to be raised on direct appeal, which he has already had. Questions as to the admissibility of evidence are not for post conviction determination. 39 C.J.S. Habeas Corpus § 29(J), p. 518. Fernandez v. Klinger, 346 F.2d 210 (9th Cir. 1965), cert. den. 382 U.S. 895, 86 S.Ct. 191, 15 L.Ed.2d 152. This question was either determined on his appeal, or waived by his failure there to raise it. Questions previously determined are foreclosed by T.C.A. § 40--3812.
Secondly, the alleged constitutional right to counsel at a line-up was not yet promulgated by the U.S. Supreme Court when his line-up was held in April, 1967. The Wade and...
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Adkins v. State
...right to appeal in return for a concurrent sentence. Cf. Arthur v. State, 483 S.W.2d 95, 97 (Tenn.1972). In Burt v. State, 2 Tenn.Crim.App. 408, 413, 454 S.W.2d 182, 185 (1970), this court held as When the constitutional right asserted was as well recognized at the time of the trial as now,......
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State ex rel. Henderson v. Russell
...newly announced since his trial, but a right well recognized and protected at that time.' We held to the same effect in Burt v. State, Tenn.Cr.App., 454 S.W.2d 182 (cert. denied May 4, From these authorities, it results that the judgment of the lower court dismissing the petition is affirme......
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Holiday v. State
...they were on the date of the hearing. It was held that the issues in this case were governed by the rule set forth in Burt v. State, 2 Tenn.Cr.App. 408, 454 S.W.2d 182, to the effect 'When the constitutional right asserted was as well recognized at the time of the trial as now, and a proced......
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Woodson v. State
...v. Russell, 3 Tenn.Cr.App. 204, 459 S.W.2d 176 (1970); Johnson v. State, 3 Tenn.Cr.App. 17, 456 S.W.2d 864 (1970); Burt v. State, 2 Tenn.Cr.App. 408, 454 S.W.2d 182 (1970); State ex rel. Lawrence v. Henderson, 1 Tenn.Cr.App. 119, 433 S.W.2d 96 (1968). Any error, therefore, is waived and the......