Anthony E. Perry v. State of Tennessee

The Appellant, Anthony E. Perry, appeals the Shelby County Criminal Court’s denial of his petition for post-conviction relief. Perry was convicted of first-degree felony murder in the perpetration of kidnapping and especially aggravated kidnapping and is currently serving an effective sentence of life imprisonment in the Department of Correction. The convictions were affirmed on direct appeal to this court. In July, 2002, Perry filed a pro se petition for post-conviction relief alleging, among other issues, multiple grounds for ineffective assistance of counsel, and, following the appointment of counsel, an amended petition was filed seeking a delayed appeal of his convictions upon the ground that Perry had been deprived of his right to seek second-tier appellate review. At the post-conviction level, the State conceded Perry’s entitlement to a delayed appeal. Nonetheless, on September 17, 2002, the post-conviction court denied Perry’s post-conviction petition based upon its perceived lack of jurisdiction to grant a delayed appeal, without addressing the merits of Perry’s remaining post-conviction issues or reserving them for a later determination. The Appellant then appealed the dismissal of his petition to this court. While the appeal was pending in this court, the post-conviction court entered a second order, on January 2, 2003, reversing its prior dismissal of the petition and granting Perry a delayed appeal. No action was ever taken by Perry in furtherance of the delayed appeal. Perry later moved to voluntarily dismiss his appeal, which was still pending before this court. Within one year from the voluntary dismissal of the appeal, the post-conviction court appointed substitute counsel to represent Perry for the purpose of pursuing the ineffective assistance claims alleged in the petition. Following the filing of three amended post-conviction petitions, a post-conviction hearing was held on December 21, 2005, at which Perry asserted ineffective assistance of counsel based upon trial counsel’s (1) failure to seek suppression of his warrantless arrest within his home, in violation of Payton v. New York, and (2) failure to request lesser-included instructions at trial. After hearing the evidence presented, the post-conviction court denied the petition upon the merits. Perry now appeals that denial. On appeal, the State initially argues that the post-conviction court was without jurisdiction to review Perry’s alleged claims of ineffective assistance of counsel. In support of this argument, the State asserts that the post-conviction court lost jurisdiction of the case when Perry filed a timely notice of appeal to this court from the post-conviction court’s order entered on September 17, 2002, denying post-conviction relief. We agree. As the September 2002 order specifically denied the post-conviction petition, without reservation of any issues, Perry’s only relief was through the appeal to this court. By voluntarily dismissing that appeal, the Appellant has defaulted those issues which collaterally challenged his conviction. The subsequent order entered by the post-conviction court granting the delayed appeal had no force and effect, and any actions, including the filing of amended post-conviction petitions, were not validly before the post-conviction court. Thus, the post-conviction court’s order of September 5, 2006, denying relief must be reversed and vacated.