458 S.W.2d 642 | Tenn. Crim. App. | 1970
OPINION
Albert Phillips appeals from the dismissal without an evidentiary hearing of his petition for post-conviction relief. The petition sets out that in May, 1964, the defendant was convicted of rape and sentenced to ninety-nine years in the penitentiary. It states that he pled not guilty and was represented by employed counsel. The petition sets out that a prior habeas corpus petition had been heard and dismissed, and upon appeal to our Supreme Court the dismissal affirmed.
We may judicially notice the history of this case in more detail. State ex rel. Wilkerson v. Bomar, 213 Tenn. 499, 376 S.W.2d 451. The original conviction was affirmed by our Supreme Court in an unpublished opinion released December 11, 1964. The prior habeas corpus petition is the subject of a published Supreme Court opinion reported in State ex rel. Phillips v. Henderson, 220 Tenn. 701, 423 S.W.2d 489.
The instant petition alleges, first that there was no evidence to support the verdict of the jury; and that the evidence preponderated against his guilt and in favor of his innocence. These allegations form no basis for a right to an evidentiary hearing. The weight or sufficiency of the evidence is not a proper subject of inquiry in a post-conviction proceeding. This is a proper subject for direct appeal. Such an appeal was taken in this
Phillips next alleges that he was prejudiced by the systematic exclusion of women from the juries which indicted and tried him; and by the failure of his employed counsel to advise him of his right to have women upon the juries. To treat the second point first, the action or non-action of retained counsel is no ground for relief. State ex rel. Dych v. Bomar, 213 Tenn. 699, 378 S.W.2d 772; State ex rel. Johnson v. Heer, 219 Tenn. 604, 412 S.W.2d 218; Davis v. Bomar (C.C.A. 6th 1965), 344 F.2d 84. As for the alleged systematic exclusion of women from the Grand and petit juries to his alleged prejudice, there is serious doubt that he, not being a member of the allegedly excluded class, could be heard to complain, without an averment of specific, personal prejudice. Further, the exclusion of women from jury service in Tennessee has been partially statutory. However, we need not reach that question. We hold that his right to raise this question was waived when it was not raised upon the trial by motion or plea
Phillips contends that his conviction is invalid because, he says, Negroes were systematically excluded from the Legislature which enacted the pertinent statutes.
The Public Defender, representing Phillips on this appeal, contends that the petition should not have been dismissed without first bringing Phillips from the penitentiary to Memphis so that a conference could have been had and possible amendments drawn up. There is no merit to this assignment. When a post-conviction petition is complete and the alleged grounds for relief clearly set out, the law does not require that the petitioner be transported to the county of his crime to confer with appointed counsel about other possible grounds. To so hold would simply mean that every penitentiary prisoner would file a paper, however lacking in merit or substance, in order to get a trip away from the penitentiary. We find no such requirement in our Post-Conviction Procedure Act.
We affirm the judgment of the trial court in dismissing this petition without an evidentiary hearing.