House v. State
| Decision Date | 25 September 1995 |
| Citation | 911 S.W.2d 705 |
| Parties | Paul Gregory HOUSE, Appellee, v. STATE of Tennessee, Appellant. |
| Court | Tennessee Supreme Court |
Charles W. Burson, Attorney General & Reporter, Amy L. Tarkington, Assistant Attorney General, Nashville, for Appellant.
Michael S. Pemberton, Harry P. Ogden, Lewis, King, Kreig & Waldrop, Knoxville, Jerry P. Black, Jr., University of Tennessee Legal Clinic, Knoxville, for Appellee.
The issues raised by the State in this appeal require an interpretation of the procedural default provisions of the Tennessee Post-Conviction Procedure Act. 1 Under the Act, "[a] ground for relief is 'previously determined' if a court of competent jurisdiction has ruled on the merits after a full and fair hearing." Tenn.Code Ann. § 40-30-112(a) (1990). The State's appeal requires that we determine whether "a full and fair hearing" occurs when a petitioner, though given the opportunity, fails to present proof on a ground for relief in a prior post-conviction proceeding. With respect to the waiver 2 provision, we must determine whether in a later post-conviction proceeding the rebuttable presumption of waiver 3 is overcome by an allegation that the petitioner did not personally waive the ground for relief in the prior proceeding. Finally, we must determine whether an allegation of ineffective assistance of prior post-conviction counsel precludes application of the defenses of waiver and previous determination.
We conclude that a "full and fair hearing" sufficient to support a finding of previous determination occurs if a petitioner is given the opportunity to present proof and argument on the petition for post-conviction relief. We further conclude that the rebuttable presumption of waiver is not overcome by an allegation that the petitioner did not personally and therefore, "knowingly and understandingly," waive the ground for relief. Waiver is to be determined by an objective standard under which a petitioner is bound by the action or inaction of his attorney. Because there is no right to effective assistance of counsel in post-conviction proceedings, an allegation of ineffective assistance of prior post-conviction counsel does not preclude application of the defenses of waiver and previous determination.
Accordingly, the Court of Criminal Appeals' judgment is reversed and the judgment of the trial court dismissing the petition for post-conviction relief is reinstated. 4
In 1986, the petitioner, Paul Gregory House, was convicted of the first-degree murder of Carolyn Muncey and sentenced to death by electrocution. This Court on direct appeal affirmed both the conviction and sentence. State v. House, 743 S.W.2d 141 (Tenn.1987). Thereafter, on February 25, 1988, the petitioner filed, pro se, his first petition for post-conviction relief, alleging several grounds for relief, including denial of effective assistance of counsel at both the guilt and sentencing phases of his trial. Specifically, the petitioner claimed that trial counsel had failed to give proper and adequate advice; failed to properly and adequately investigate and prepare the defense; failed to file appropriate pretrial motions; failed to make timely and necessary objections; failed to conduct appropriate voir dire of the jury; failed to properly prepare for trial and sentencing; failed to object to improper charges by the Court at the guilt stage of the trial; and failed to challenge a partial juror at the sentencing phase.
Counsel was then appointed and filed an amended petition advancing five additional grounds for relief. The original trial judge presided over a hearing on the petition. Counsel for both the petitioner and the State presented arguments on the allegations. The petitioner introduced the original trial record into evidence in support of the allegations. Neither side presented further proof.
The trial court judge, in ruling upon the allegations of ineffective assistance of counsel, specifically found that "trial counsel's preparation for and trial of this matter was exemplary ..." and that his "services were clearly within the range of competence required by applicable law." The trial judge overruled the remaining allegations of the petition and the amended petition.
On appeal the petitioner did not challenge the trial judge's finding on his claim of ineffective assistance of counsel. Instead, the petitioner argued that the jury instructions given at the sentencing phase of his trial precluded the jurors from considering any mitigating circumstances unless all jurors unanimously agreed to its existence. The Court of Criminal Appeals rejected that argument and affirmed the trial court's judgment dismissing the petition. This Court denied the petitioner's application for permission to appeal, and in October of 1990, the United States Supreme Court denied certiorari review.
Thereafter, on December 14, 1990, the petitioner, by and through counsel, filed this, his second petition for post-conviction relief, and included a motion for investigative and/or expert services. As grounds for post-conviction relief, the petitioner again alleged that he was denied his constitutional right to effective assistance of trial counsel. Once again, the petitioner generally asserted that his trial counsel failed to adequately investigate his case. More specifically, House alleged that his original trial counsel failed to call a witness at sentencing, failed to apply for state-funded expert assistance, and failed to obtain a complete medical and psychological examination. The State's response to the second petition was that the issues raised had been "previously determined" or in the alternative, waived.
House argued that the defense of previous determination did not bar a hearing on his second petition because the deficient performance of his initial post-conviction counsel in failing to investigate, address, and define the allegations of his pro se petition, and in failing to call witnesses or present other proof at the initial proceeding deprived him of a "full and fair" hearing. He also maintained that relief was not barred by the defense of waiver since he did not personally waive any grounds for relief at his prior post-conviction proceeding, and because the failure to litigate the merits of the claims was due to the ineffectiveness of the attorney appointed to represent him in his initial post-conviction proceeding. In support of his motion for investigative and/or expert services at state expense, the petitioner relied upon Tennessee Supreme Court Rule 13, Tenn.Code Ann. § 40-14-207(b) (1990 and Supp.1994), and Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).
Hearings on the petition were held, however, no evidence was presented at either hearing. The trial court judge denied both the petition for post-conviction relief and the motion for investigative and/or expert services at state expense, but delayed entry of an order to grant the petitioner time to undergo a psychological evaluation. The Middle Tennessee Mental Health Institute refused to evaluate the petitioner, however, maintaining that it did not have statutory authority to do so. Accordingly, the trial court entered orders dismissing the petition for post-conviction relief, and denying the motion for investigative and/or expert services.
The petitioner appealed, and on September 2, 1992, the Court of Criminal Appeals issued an opinion affirming the trial court's judgment. The Court of Criminal Appeals held that because the "ineffective assistance claim no matter how limited, was resolved at the first post-conviction proceeding, the issue most likely failed as having been previously determined. Relying upon Hugh Melson v. State, No. 1, 1992 WL 174272 (Tenn., Jackson, July 27, 1992), the intermediate court alternatively concluded that issues not pursued had been waived. In Melson, this Court determined that there is no right to counsel or effective assistance of counsel in post-conviction proceedings and concluded that an objective standard should be applied to determine whether a "knowing and understanding" waiver has occurred, under which, the conduct of an attorney will be imputed to the client. As for the petitioner's motion for expert and/or investigative services at state expense, the Court of Criminal Appeals relied upon an earlier intermediate court decision, Teague v. State, 772 S.W.2d 915, 927 (Tenn.Crim.App.1988), in which it was held that the statute and supreme court rule governing allowance of expert and/or investigative services do not apply to capital post-conviction proceedings.
On February 8, 1993, six months after the Court of Criminal Appeals' affirmance in this case, the opinion in Melson was withdrawn and the order granting review of Melson was set aside as improvidently granted. Because the Court of Criminal Appeals' had relied upon Melson to dispose of the issues in this case, we granted the petitioner's application for permission to appeal and remanded to the Court of Criminal Appeals for reconsideration in light of its withdrawal.
As a result, on March 28, 1994, the Court of Criminal Appeals released the opinion after remand in this case, and reversed the judgment of the trial court. The Court of Criminal Appeals concluded that although the ineffectiveness of prior post-conviction counsel is not a ground for relief, it is an "important factor" in determining whether a second post-conviction claim is barred by waiver or previous determination. The intermediate court determined that waiver should be measured by a personal, subjective standard and is only a bar if the petitioner "with full knowledge[ ] disregard[s] the issue." Likewise, the Court of Criminal Appeals held that previous determination will not serve as a bar unless proof was introduced during a previous "full and fair hearing" that provides the trial court a basis upon which to make a factual...
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