Tennessee Rules of the Supreme Court

RULES OF THE SUPREME COURT OF THE
STATE OF TENNESSEE
(Rules 25-End)

EFFECTIVE JANUARY 28, 1981

Rule 25. Tennessee Lawyers' Fund for Client Protection.

Sec. 1. Tennessee Lawyers' Fund for Client Protection.

1.01 There is hereby established the Tennessee Lawyers' Fund for Client Protection to reimburse claimants for losses caused by any dishonest conduct committed by lawyers duly licensed to practice in this state.

1.02 The purpose of the Tennessee Lawyers' Fund for Client Protection is to promote public confidence in the administration of justice and the integrity of the legal profession as a whole by reimbursing at least a portion of losses caused by the rare instances of dishonest conduct of lawyers licensed to practice law in the courts of this state.

1.03 As used in these rules, "dishonest conduct"means the misappropriation or willful misapplication of a person's money, securities or other property.

1.04 The scope of this rule shall apply to dishonest conduct meeting the following criteria:

(a) The dishonest conduct occurred on or after the 1st day of July, 1991.

(b) The attorney was acting as an attorney.

Sec. 2. Funding.

2.01 The fund shall consist of monies or other properties obtained by the following:

(a) Payments of $10 per year from attorneys collected annually with the yearly registration fees by the Board of Professional Responsibility of the Supreme Court of Tennessee; attorneys exempted under Rule 9, Section 20.2 are also exempted from this rule; attorneys who became life members of the fund on or before December 7, 1993, shall also be exempted from this rule.

(b) Recoveries by subrogation or from attorneys or former attorneys or their estates reimbursed to the Fund for payments made by the Fund;

(d) Earnings on investments of the Fund. [As amended by order entered December 7, 1993.]

Sec. 3. Funds.

3.01 All monies or other assets allocated to the Fund shall be held in a separate account in the name of the Fund, subject to written direction of the Board.

Sec. 4. Composition of Board.

4.01 The Board shall consist of six lawyers and three non-lawyers appointed for initial terms as follows:

(a) One lawyer from the Grand Division of East Tennessee to be appointed by the Supreme Court of Tennessee for a three year term;

(b) One lawyer from the Grand Division of Middle Tennessee to be appointed by the Supreme Court of Tennessee for a two year term;

(c) One lawyer from the Grand Division of West Tennessee to be appointed by the Supreme Court of Tennessee for a one year term;

(d) One non-lawyer from the Grand Division of East Tennessee to be appointed by the Supreme Court of Tennessee for a three year term;

(e) One non-lawyer from the Grand Division of Middle Tennessee to be appointed by the Supreme Court of Tennessee for a two year term;

(f) One non-lawyer from the Grand Division of West Tennessee to be appointed by the Supreme Court of Tennessee for a one year term;

(g) One lawyer from the Grand Division of East Tennessee to be appointed by the Supreme Court of Tennessee for a one year term;

(h) One lawyer from the Grand Division of Middle Tennessee to be appointed by the Supreme Court of Tennessee for a two year term;

(i) One lawyer from the Grand Division of West Tennessee to be appointed by the Supreme Court of Tennessee for a three year term.

4.02 Subsequent appointments shall be for a term of three years. Bar associations within the State of Tennessee may recommend individuals for appointment to the Board.

4.03 No appointee who has served two full terms of three years shall be eligible for reappointment to the Board until three years after the termination of the most recent term.

4.04 Vacancies shall be filled by appointment by the Supreme Court of Tennessee, whether said vacancies exist due to expiration of a member's term, death, or disability.

4.05 The Supreme Court of Tennessee shall select a chairperson, vice-chairperson, secretary-treasurer and such other officers as the Court deems appropriate.

4.06 The Board members shall be bonded in such manner and amount as the Supreme Court of Tennessee may determine.

4.07 Board members shall serve without compensation but shall be reimbursed for their actual and necessary expenses incurred in the discharge of their duties.

Sec. 5. Board Meetings.

5.01 The Board shall meet as frequently as necessary to carry out its duties, but no less than once per year.

5.02 The Chairperson shall call a meeting at any reasonable time, or upon the request of at least three members of the Board.

5.03 A quorum for any meeting of the Board shall be five members.

5.04 Minutes of meetings shall be taken and permanently maintained by the Board.

5.05 Meetings by telephone conference are permitted.

5.06 When the Board is hearing a claim, approval of a claim shall require the affirmative vote of a majority of members present. See Section 10.08 for the procedures for hearing claims.

Sec. 6. Duties and Responsibilities of the Board.

6.01 The Board shall have the following duties and responsibilities:

(a) To receive, evaluate, determine and pay approved claims;

(b) To promulgate rules of procedure not inconsistent with these Rules and subject to prior approved by the Supreme Court of Tennessee;

(d) To provide a full report at least annually to the Supreme Court of Tennessee and make other reports and publicize the activities to the public and the Bar;

(e) The staff and physical resources of the Commission on Continuing Legal Education will assist in the Board's performance of its functions effectively and without delay; the Board will compensate the staff for its services;

(f) To retain and compensate consultants, actuaries, agents, legal counsel and other persons as necessary; this authority to contract for professional services as needed by the board shall not be construed to authorize the board to hire employees of the board;

(g) To prosecute claims for restitution to which the Fund is entitled;

(h) To submit an annual budget for approval by the Supreme Court of Tennessee;

(i) To perform all other acts necessary or proper for the fulfillment of the purposes and effective administration of the Fund.

Sec. 7. Conflict of Interest.

7.01 A member of the Board who has or has had a lawyer-client relationship or financial relationship with a claimant or lawyer who is the subject of a claim shall not participate in the investigation or adjudication of a claim involving that claimant or lawyer.

7.02 A member of the Board with a past or present relationship, other than as provided in Section 7.01 of this rule, with a claimant or the lawyer whose alleged conduct is the subject of the claim shall disclose such relationship to the Board and, if the Board deems appropriate, that member shall not participate in any proceeding relating to such claim.

Sec. 8. Immunity.

8.01 The members, employees and agents of the Board are absolutely immune from civil liability for all acts in the course of and within the scope of their official duties.

Sec. 9. Procedures and Responsibilities for Claimants.

9.01 The Board shall prepare and approve a form of claim.

9.02 The form shall include at least the following information provided by the claimant under penalty of perjury:

(a) Name and address of claimant, home and business telephone, occupation and employer, social security number;

(b) Name, address and telephone number of the lawyer alleged to have dishonestly taken or willfully misapplied the claimant's money or property;

(d) Whether the claimant's agreement with the lawyer was in writing, and, if so, attach a copy;

(e) Specify whether the claimant's loss involves money, securities or other property;

(f) The amount of loss and the date when the loss occurred, and if documentation is available, attach a copy;

(g) The date when the claimant discovered the loss, and how the claimant discovered the loss;

(h) A description of the lawyer's alleged dishonest conduct and the names and addresses of any persons who have knowledge regarding the loss;

(i) Whether the loss has been reported to the district attorney, police, disciplinary agency or other (specify); and if so, furnish a copy of the complaint and describe what action was taken;

(j) Whether the loss potentially can be reimbursed from any other source, such as insurance, fidelity or surety agreement and, if so, specify the source of such potential recovery;

(k) Description of any steps taken to recover the loss directly from the lawyer, or any other source;

( l) Any other facts believed to be important to the Fund's consideration of the claim;

(m) How the claimant learned about the Fund;

(n) The name, address and telephone number of the claimant's present lawyer, if any;

(o) A statement that the claimant agrees to cooperate with the Board in reference to the claim or civil actions which may be brought in the name of the Board or in the name of the claimant pursuant to a subrogation and assignment which shall be contained within the claim.

9.03 The claimant shall have the responsibility of completion of the claim form and establishing that a compensable claim may exist.

9.04 The claim shall be filed with the Board in the manner and place designated in its rules of procedure.

Sec. 10. Processing Claims.

10.01 Immediately upon receipt by the Board, a copy of the claim shall be served upon the lawyer by certified mail or personal delivery directed to the address currently listed for such lawyer in the records of the Board of Professional Responsibility.

10.02 Whenever it appears that a claim is not compensable pursuant to these rules, the claimant shall be advised of the reasons why the claim is not compensable, and that unless additional facts to support eligibility are submitted to the Fund within 30 days, the claim shall be dismissed.

10.03 A certified copy of an order disciplining a lawyer for the same conduct alleged in a claim, or a final judgment imposing civil or criminal liability therefor, shall be evidence that the lawyer committed such conduct.

10.04 The Board of Professional Responsibility of the Supreme Court of Tennessee shall be promptly notified of the claim and requested to furnish a report of its investigation on the matter to the Board. Upon receipt of the report of investigation of the disciplinary board, the Board shall evaluate whether the investigation is complete and determine whether the Board shall conduct additional investigation. The Board may withhold final action on any claim until disciplinary proceedings involving the same act or conduct has been concluded, or may proceed before disciplinary proceedings are concluded, in its discretion.

10.05 The Board may conduct its own investigation when it deems it appropriate.

10.06 The Board may request that testimony be presented to complete the record. Upon request, the claimant and lawyer, or either of their personal representatives, will be given an opportunity to be heard. Attendance of witnesses and production of evidence may be compelled by a subpoena.

10.07 When the record is complete the claim shall be determined on the basis of all available evidence. Determinations shall be made upon the basis of a preponderance of the evidence.

10.08 Hearings may be held in the Grand Division of the State where the claimant and/or the accused lawyer resides. The Chairperson may designate the Board to sit in panels of three Board members as assigned by the Chairperson. A concurrence of all three panel members sitting shall constitute a decision of the Board. If a claim is not unanimously approved by a panel of three, then the full Board shall be presented the record and approval of a claim shall require the affirmative vote of a majority of Board members present. Notice shall be given to the claimant and the lawyer of the Board's determination and the reasons therefore.

10.09 Any proceeding upon a claim need not be conducted according to technical rules relating to evidence, procedure and witnesses. Any relevant evidence may be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in court proceedings. The claimant shall have the duty to supply relevant evidence to support the claim.

Sec. 11. Judgments.

11.01 The Board may require that claimants seeking more than $1,000 obtain a judgment against the offending lawyer or former lawyer. Claimants may be eligible for payment from the Fund if the judgment shall remain unpaid after reasonable efforts to collect same.

Sec. 12. Eligible Claims.

12.01 The claim must be filed no later than one year after the loss was or reasonably should have been discovered.

12.02 Except as provided by Section 12.03 of this rule, the following losses shall not be reimbursable:

(a) Losses suffered by spouses, children, parents, grandparents, siblings, partners, associates and employees of lawyer(s) causing the losses;

(b) Losses covered by any bond, surety agreement, insurance contract to the extent covered thereby; including any loss to which any bonding agent, surety or insurer is subrogated, to the extent of that subrogated interest;

(c) Losses of any financial institution which are recoverable under a "banker's blanket bond"or similar commonly available insurance or surety contract;

(d) Loss of any business entity controlled by the lawyer or any person or entity described in Section 12.02, (a), (b) or (c) hereof;

(e) Losses of a governmental entity or agency.

12.03 In cases of special and unusual circumstances, the Board may, in its discretion, recognize a claim which would otherwise be excluded under this rule.

12.04 Paragraph 12.03 above notwithstanding, no payment from the fund shall include interest, costs or attorneys' fees accrued as a result or consequence of prosecuting the claim before the Board, except as may be allowed pursuant to Section 18.01 herein.

Sec. 13. Limitations on Amount of Reimbursements.

13.01 No payment shall exceed the sum of $100,000 for loss sustained by any one claimant nor the aggregate sum of $250,000 with respect to losses caused by any one lawyer or former lawyer. No payment shall exceed $250,000 per transaction regardless of the number of persons aggrieved or the amount of loss in such transaction. No payment shall exceed ten percent of the assets of the Fund at the time it is made, exclusive of funds received for Life Memberships. Where joint liability of wrongdoers exists, the Board has discretion to allocate payments as it deems appropriate within these limits. Payments may be in lump sum or installments as the Board may determine.

Sec. 14. Considerations on Payment of Claims.

14.01 In determining whether to pay a claim and the amount to be paid, the Board may consider any matter which, in its discretion, it deems relevant, including but not limited to the following:

(a) The conduct, including negligence, if any, of the claimant which contributed to the loss;

(b) The hardship which the claimant suffered because of the loss;

(c) The total amount of reimbursable losses of applicants on account of any one lawyer or former lawyer or association of lawyers;

(d) The total amount of reimbursable losses in previous years for which total reimbursement has not been made and the total assets of the Fund; and

(e) Other sources of funds available to compensate the claimant for the loss.

Sec. 15. Legal Rights to Payment from Fund.

15.01 No person shall have any right to payment from the Fund as a claimant, third-party beneficiary or otherwise.

15.02 Decisions of the Board shall be final and not be subject to appeal or review by any court.

Sec. 16. Subrogation.

16.01 Payments on approval claims shall be made from the Fund only upon condition that the Board receives, in consideration for any payment from the Fund, a pro tanto assignment from the claimant of the claimant's right against the lawyer involved, or his or her personal representative, his or her estate or assigns or of the claimant's right against any third party or entity concerning the dishonestly caused loss for which the claimant is receiving reimbursement from the Fund, and to the extent of such payment, a lien shall be created in favor of the Fund which shall attach to any asset that may be payable to the claimant from, or on behalf of, the person or entity who caused the claimant's loss and which resulted in the claimant's award of reimbursement from the Fund.

16.02 If the reimbursement is made, the Fund shall be subrogated in the amount of the reimbursement. The Board may bring such action as it deems advisable against the lawyer, the lawyer's estate and any other person or entity who may be liable for the loss within three years from the date of payment to the claimant.

16.03 Should the claimant bring any action for recovery or reimbursed losses directly against the lawyer, the lawyer's estate or any other person or entity who may be liable for the loss, the claimant shall notify the Board of such action and send a copy of the complaint. Any voluntary payment from the lawyer or other recovery from any source shall also be reported to the Board.

16.04 The claimant shall cooperate in any effort the Board undertakes to achieve reimbursement for the Fund.

Sec. 17. Confidentiality.

17.01 Applications, proceedings and reports involving applications for reimbursement are confidential until the Board authorizes reimbursement to the claimant, except as provided below.

17.02 If the lawyer whose alleged conduct gave rise to the claim requests that the matter be made public, or if the lawyer's alleged conduct is the subject of a public disciplinary, civil or criminal proceeding, the requirement of confidentiality is waived.

17.03 Section 17.01 shall not be construed to deny access to relevant information by professional discipline agencies or other law enforcement authorities as the Board shall authorize, or the release of statistical information which does not disclose the identity of the lawyer or the parties.

17.04 Both the claimant and the lawyer shall be advised of the status of the Board's consideration of the claim and shall be informed of the final determination and the reasons for the determination.

17.05 The Board shall have discretion to seal such parts of a file that would be damaging to a claimant or to which the claimant has a statutory right of confidentiality.

Sec. 18. Compensation for Representing Claimants.

18.01 No lawyer shall charge or accept compensation for prosecuting a claim on behalf of a claimant, unless approved by the Board.

18.02 This prohibition only pertains to proceedings before the Board and not to the seeking of civil judgments and other actions taken by lawyers on behalf of claimants.

Sec. 19. Payments to the Board.

19.01 Failure of any lawyer to pay the amounts required by Section 2.01(a) of this rule shall be grounds for the suspension of the license to practice.

19.02 The Board of Professional Responsibility shall deposit all funds collected on behalf of the Tennessee Lawyer’s Fund for Client Protection with the State Treasurer; all such funds including earnings on investments and all interest and proceeds from said funds, if any, are deemed to be, and shall be designated as, funds belonging solely to the Tennessee Lawyer’s Fund for Client Protection. Withdrawals from those funds shall only be made by the Tennessee Lawyer’s Fund for Client Protection for the purposes set forth in this rule, and for such other purposes as this Court may from time to time authorize or direct. [Amended by order filed June 28, 2002]

[Adopted November 16, 1989.]

Rule 26. Order for Use of Videotape Equipment to Record Court Proceedings

Sec. 1. Scope of Order.

1.01 The provisions of this order shall apply to any court of record authorized by the Supreme Court of Tennessee to use videotape equipment to record court proceedings.

Rule 26. Order for Use of Videotape Equipment or CD-ROM to Record Court Proceedings

Sec. 1. Scope of Order.

1.01. The provisions of this order shall apply to any court of record authorized by the Supreme Court of Tennessee to use videotape or CD-ROM equipment to record court proceedings.

Sec. 2. Record of Trial Court Proceedings.

2.01. The term "transcript" used in Rule 24, Tennessee Rules of Appellate Procedure, shall include a videotape or CD-ROM recording of court proceedings recorded and maintained in accordance with the following procedures:

(A) Videotape and CD-ROM Recordings. In court proceedings where videotape or CD-ROM equipment is available, the official record of court proceedings shall consist of two (2) videotape or CD-ROM recordings, recorded simultaneously, of the proceedings. Upon the filing of a notice of appeal, one of the two (2) videotape or CD-ROM recordings, or a court-certified copy of a portion thereof, recording the court proceeding being appealed, shall be filed and certified by the clerk as part of the record on appeal. The second videotape or CD-ROM recording shall be retained by the clerk of the trial court.

(B) Method of Identification.

(1) Official Recordings. For identification purposes, the clerk shall designate on each of the two (2) official videotape or CD-ROM recordings, on line one, the judicial district number, the name of the court, including the division in which the proceeding is being held, the number of the videotape or CD-ROM (counting all videotapes or CD-ROMs used since the start of the current calendar year), either the letter "A," if the videotape or CD-ROM is retained by the court, or the letter "B," if the videotape or CD-ROM is to be filed as the record on appeal. On the second line, the clerk shall designate the caption and case file number of the proceeding recorded on the videotape or CD-ROM (for example: Smith vs. Jones, No. 93-325) or the nature of the proceedings before the court if those proceedings pertain to more than one case (for example: criminal motions). On the third line, the clerk shall designate the date on which the videotape or CD-ROM was recorded in the form MM/DD/YY.

(2) Certified Copies. If a court-certified copy of a portion of any tape or CD-ROM is prepared for filing as a part of the record on appeal, the first line will be marked with the judicial district number, the name of the court, including the division in which the proceeding is being held, and the word "copy." The second line will contain the caption of the case being appealed, the case file number, and the number of the source videotape or CD-ROM used to make the copy. The third line will contain the date on which the source videotape or CD-ROM was recorded.

(3) Simultaneously Made and Duplicate Copies. A party to any court proceeding may order, in advance, a simultaneously made copy of the proceeding. The cost of a simultaneously made videotape or CD-ROM shall be $15.00 per tape or CD-ROM payable to the clerk of the appropriate court at the time the order is placed. The court shall arrange for the recording of duplicate copies of videotapes or CD-ROMs for use by counsel in preparing an appeal or subsequent proceedings. The clerk shall collect from the person requesting a duplicate videotape or CD-ROM a fee of $30.00 for each duplicate videotape or CD-ROM requested. In cases involving parties declared to be indigent by the Court, the Administrative Office of the Courts will furnish the tapes or CD-ROMs for duplication and no fee will be assessed.

(C) Exhibit List and Trial Log. The trial judge or his/her designee shall keep a written exhibit list and log listing admission of each exhibit and the beginning and end of each witness's testimony by reference to the videotape or CD-ROM. The automatic logs of all video or CD-ROM recorded proceedings are to be maintained by the court clerk in an appropriate repository.

(D) Depositions. In a court proceeding in which videotape or CD-ROM equipment is being used to record the proceeding, the official record of a deposition admitted into evidence may be, in the trial judge's discretion, either the transcript of the deposition or the videotape or CD-ROM recording of the deposition.

Sec. 3. Procedure on Filing Notice of Appeal.

3.01. Upon the filing of a Notice of Appeal in any case in which the trial proceedings have been videotape or CD-ROM recorded, the clerk of the court shall within thirty (30) days cause to be filed the videotape or CD-ROM recording or recordings of the entire trial proceeding, unless otherwise agreed by the parties. Within fifteen (15) days after filing the Notice of Appeal, any party to the action shall cause to be filed a designation of any pre-trial or post-trial proceedings to be included in the trial record. If any party files such a designation, all other parties to the action shall have an additional fifteen (15) days to file a designation of any additional proceedings to be included. If any proceeding in any designation so filed was not videotaped or CD-ROM recorded, such designation shall be clearly marked "WRITTEN TRANSCRIPT REQUIRED." Where the pre-trial or post-trial proceedings were recorded, the clerk of the court shall, within thirty (30) days from the date the designation is filed, cause to be filed the videotape or CD-ROM recording of the designated proceedings or a certified copy thereof.
Once all videotapes or CD-ROMs or combination of videotapes or CD-ROMs and written transcripts, making up the record on appeal, have been assembled, each tape or CD-ROM or transcript will be given a volume number in chronological order of the proceedings recorded and transcribed. The clerk of court shall then proceed in accordance with Rule 25, Tennessee Rules of Appellate Procedure.

Sec. 4. Procedure on Appeal.

4.01. (A) References to Videotape or CD-ROM Recordings. The provisions of Rule 27, Tennessee Rules of Appellate Procedure, shall apply except that reference to a volume of the trial record which is a videotape or CD-ROM recording shall be to volume number, month, day, year, hour, minute and second at which the reference begins as recorded on the videotape or CD-ROM. For example: (Vol. 2, 10/27/92; 02:24:05p). If the recording covers only a single day, the month, day and year may be omitted.

(B) Evidentiary Appendix. Rule 28, Tennessee Rules of Appellate Procedure, allowing the optional filing of a transcription of the evidence in the form of an appendix attached to an appellate brief, remains in effect. There shall appear, however, at the beginning of each segment of evidence so transcribed and at intervals of not greater than ten minutes of court time, a videotape or CD-ROM reference which corresponds to that point of the transcription.

(C) Transcription for Appellate Court. The appellate court, in its discretion, may order the preparation of a transcript of all or any portion of the videotape or CD-ROM recording. The transcript shall be prepared and filed with the clerk of the trial court within thirty (30) days from the date it is ordered and shall be approved in accordance with Tenn. R. App. P. 24(f). Within fifteen (15) days after approval, the clerk of the trial court shall prepare and transmit a supplemental record containing the transcript to the clerk of the appellate court. The appellate court may also, in its discretion, order the preparation of supplemental briefs containing references to the transcript required by Tenn. R. App. P. 27(g). The costs of the transcript and the supplemental record shall be taxed by the appellate court consistently with Tenn. R. App. P. 40.

Sec. 5. Establishment of Local Procedures.

5.01. The judges of a judicial district in which the videotape or CD-ROM equipment is used to record court proceedings may, by order, establish further procedures relating to videotape or CD-ROM recordation of court proceedings, provided such procedures do not conflict with the provisions of this order, statutory provisions or rules adopted by the Supreme Court of Tennessee, and provided, further, such procedures are approved by the Supreme Court prior to implementation. [Amended by order filed November 13, 2001]

Rule 27. Judicial Performance and Evaluation Program

Sec. 1. Statement of Purpose.

1.01. Tennessee's judicial system touches the lives of everyone who lives and works in Tennessee. The quality of justice available in Tennessee's courts hinges, in large measure, on the quality of the judges who administer the system. Accordingly, the public, the bar, and the judicial system itself have a vital interest in a responsive and respected judiciary.

1.02. Tennessee's judiciary consists of persons who strive to administer justice to the best of their abilities and to discharge the duties of their offices impartially and efficiently. Tennessee's judges also share a common commitment to improve their own judicial skills and to improve the quality of justice in all the courts of Tennessee.

1.03. In the face of society's increasing litigiousness, improving the administration of justice in Tennessee can best be accomplished by instituting a program of continuous self-improvement that has the broad based support of Tennessee's judges and attorneys and that empowers the judges, with the assistance of their peers, to enhance and to broaden their own judicial skills.

1.04. The Tennessee Judicial Conference has formally petitioned the Court to establish a judicial performance program for self-improvement. Self-improvement programs should include formal, objective evaluations of a judge's performance and routine, periodic review of the results of these evaluations with each judge. Self-improvement programs must preserve judicial independence and must not interfere with the performance of the judge's regular duties. They must also recognize and preserve the confidentiality of all persons requested to evaluate a judge's performance.

1.05. The Tennessee legislature has adopted the Tennessee Plan which establishes a merit-based process for selecting and retaining the members of Tennessee's three appellate courts. To promote informed retention decisions, the statute requires the Judicial Evaluation Commission to publish reports concerning the appellate judges seeking retention for a full term. In addition to its primary purpose of self-improvement, the Judicial Performance and Evaluation Program must provide information that will enable the Judicial Evaluation Commission to perform objective evaluations and to issue fair and accurate reports concerning the appellate judges' performances.

1.06. The Court can best implement a procedure to aid the public in evaluating the performance of appellate judges mandated by the legislature and also respond to the Judicial Conference's initiative to improve the professional performance of judges by adopting a unitary rule, which recognizes that the purposes of both the legislative and judicial actions, though distinct, are mutually dependent. The legislation cannot ensure the selection of well-qualified judges unless there are well-qualified persons available to be chosen; the availability of well-qualified persons is augmented and enhanced by a program designed to improve the professional ability and performance of judges. A rule that recognize and utilizes this complementary relationship and imposes high ethical and professional standards for the education, selection, and evaluation of judges will best serve the administration of justice.

Sec. 2. Judicial Performance and Evaluation Program.

2.01. In accordance with this court's inherent supervisory authority over the court system and the judges, and pursuant to Tenn. S. Ct. R. 11, Tenn. Code Ann. § 16-3-501 (1994) and Tenn. Code Ann. § 17-4-201 (1994), there is hereby established a Judicial Performance and Evaluation Program as part of the judicial branch of state government.

2.02. The Judicial Performance and Evaluation Program shall be administered by a Judicial Performance Program Committee ("committee") whose members shall be appointed by the Supreme Court. The committee's membership shall be broadly based and shall be composed of persons of independent quality drawn from the bench, the bar, and nonlawyers familiar with the judicial system. The Supreme Court shall name the chair of the committee and shall prescribe the terms of the members.

2.03. The committee shall have the responsibility for the design, the implementation, and the day-to-day operation of the Judicial Performance and Evaluation Program. The committee's decisions shall be consistent with this rule, and the committee has no power to waive or modify any provision of this rule.

2.04. The committee shall be administratively attached to the Administrative Office of the Courts but for all purposes other than administration shall be considered independent. The Administrative Office of the Courts shall provide staff assistance to the committee, and the committee may, to the extent that funds are available, retain other experts and consultants to assist with any part of its duties.

2.05. The committee shall meet at least two times per year or at the call of the chair or the request of a majority of the committee members.

2.06. The committee shall administer the program for trial judges of courts or record (trial judges) and appellate judges for the purpose of self-improvement.

2.07. The committee shall provide to the Judicial Evaluation Commission with the appellate judge survey results which shall be used by the Commission to evaluate appellate judges and publish a final report on each appellate judge except where the appellate judge has been in office less than one (1) year before the filing deadline of a declaration of candidacy for either an unexpired term or for a full eight (8) year term.

Sec. 3. Evaluation Criteria.

3.01. Appellate and trial judges shall be evaluated based on the following specific criteria:

(A) Integrity —In addition to other appropriate performance measures, the committee shall consider:

(1) avoidance of impropriety and appearance of impropriety;

(2) freedom from personal bias;

(3) ability to decide issues based on the law and the facts without regard to the identity of the parties or counsel, or the popularity of the decision and without concern for or fear of criticism;

(4) impartiality of actions; and

(5) compliance with the Code of Judicial Conduct contained in Tenn. S. Ct. R. 10.

(B) Knowledge and understanding of the law —In addition to other appropriate performance measures, the committee shall consider:

(1) understanding of substantive, procedural, and evidentiary law;

(2) attentiveness to factual and legal issues before the court; and

(3) proper application of judicial precedents and other appropriate sources of authority.

(C) Ability to communicate —In addition to other appropriate performance measures, the committee shall consider:

(1) clarity of bench rulings and other oral communications;

(2) quality of written opinions with specific focus on clarity and logic, and the ability to explain clearly the facts of the case and the legal precedents at issue; and

(3) sensitivity to the impact of demeanor and other nonverbal communications.

(D) Preparation and attentiveness —In addition to other appropriate performance measures, the committee shall consider:

(1) judicial temperament, including courtesy to all parties and participants; and

(2) willingness to permit every person legally interested in a proceeding to be heard, unless precluded by law or rules of court.

(E) Service to the profession and the public —In addition to other appropriate performance measure, the committee shall consider:

(1) efficient administration of caseload;

(2) attendance at and participation in judicial and continuing legal education programs;

(3) participation in organizations which are devoted to improving the administration of justice;

(4) efforts to ensure that the court is serving the public and the justice system to the best of its ability and in such a manner as to instill confidence in the court system; and

(5) service in leadership positions and within the organizations of the judicial branch of government.

(F) Effectiveness in working with other judges and court personnel —In addition to other appropriate performance measures, the committee shall consider:

(1) exchanging ideas and opinions with other judges during the decision-making process;

(2) commenting on the work of colleagues;

(3) facilitating the performance of the administrative responsibilities of other judges; and

(4) working effectively with court staff.

Sec. 4. Evaluation Procedure for Trial and Appellate Judges.

4.01. The Judicial Performance and Evaluation Program shall include the regular evaluation of the performance of appellate and trial judges. The evaluations shall be carried out using professionally accepted methods to provide objective and reliable evaluations and to reduce the risk of unfair ratings and statistical comparisons. Evaluations shall be based on sufficient data to ensure the statistical reliability of the evaluation information.

4.02. The Judicial Performance and Evaluation Program for trial judges shall be for the purposes of self-improvement only. The Judicial Performance and Evaluation Program for appellate judges, in addition to being used for self-improvement purposes, shall also be used for the evaluation required of all appellate judges seeking election or re-election to a full eight (8) year term under Tenn. Code Ann. § 17-4-201(b) (1994).

Sec. 5. Evaluation Procedure for Appellate Judges for Retention Recommendations.

5.01. The Judicial Evaluation Commission created by Tenn. Code Ann. § 17-4-201(b) (1994) shall perform evaluations of all appellate judges seeking election or reelection to a full eight (8) year term for the purpose of aiding the public in evaluating the performance of the appellate judges in accordance with the provisions of this rule. The Judicial Evaluation Commission has no power to waive or modify any provision of this Rule.

5.02. The Judicial Evaluation Commission shall be administratively attached to the Administrative Office of the Court but for all purposes other than administration shall be considered independent.

5.03. The Administrative Office of the Courts shall provide staff assistance to the Judicial Evaluation Commission, and the Commission may also request assistance from the committee. The assistance provided to the Judicial Evaluation Commission shall be consistent with the funds available for the operation of the program.

5.04. The Judicial Evaluation Commission's evaluation shall be consistent with the criteria in Section 3.01 and shall be based on the results of the evaluation surveys conducted by the committee, the personal information contained in an approved self-reporting form, and on such other comments and information as the Commission shall receive from any source.

If, because of gubernatorial appointment, an appellate judge holds office less than one (1) year before the filing deadline of a declaration of candidacy for either an unexpired term or a full eight (8) year term, and evaluation surveys are not available from the committee, the Judicial Evaluation Commission shall conduct an evaluation and make a retention recommendation using an approved self-reporting form, the judge's application, and other reliable information.

5.05. All evaluations and final reports must be approved by the full Judicial Evaluation Commission, but the Judicial Evaluation Commission may, in its discretion, use panels to prepare interim or preliminary reports or recommendations for consideration by the full Judicial Evaluation Commission.

5.06. The Judicial Evaluation Commission, or a panel thereof, shall conduct a public interview with each appellate judge seeking election or re-election to a full eight (8) year term. The Judicial Evaluation Commission's meetings and deliberations shall be public.

5.07. The Judicial Evaluation Commission may accept, and in its discretion, may solicit public comments concerning the performance of the appellate judges seeking election or re-election to a full eight (8) year term. The Judicial Evaluation Commission shall provide each appellate judge a reasonable opportunity to respond to any information or comment received by the Commission regarding that judge prior to the preparation of the Commission's evaluation of that judge.

5.08. The Judicial Evaluation Commission shall provide each appellate judge seeking election or re-election to a full eight (8) year term with a draft of its evaluation and shall provide the appellate judge with a reasonable opportunity to comment or respond either personally or in writing before the publication of the final report required by Tenn. Code Ann. § 17-4-201(c) (1994).

5.09. The public report required by Tenn. Code Ann. § 17-4-201(c) (1994) shall, at the appellate judge's request, include the judge's response to the Judicial Evaluation Commission's evaluation. The judge's response, which shall be in addition to the Commission's report, shall not exceed 200 words.

Sec. 6. Confidentiality.

6.01. Evaluations conducted as part of the Judicial Performance and Evaluation Program must be conducted candidly and in strict confidence so that they may be based on reliable information and so that the areas for improvement may be determined fairly. The disclosure of evaluation information other than in the manner permitted by this rule or Tenn. Code Ann. § 17-4-201(c) (1994) would be counterproductive to the goals of the performance program and would reduce the free flow of information and responses.

6.02. All records and information obtained and maintained by the committee and the Judicial Evaluation Commission concerning the performance of individual judges shall be strictly confidential and shall not be disclosed except as provided in this rule. The committee and the Judicial Evaluation Commission shall ensure the confidentiality of information regarding the performance of all judges and shall preserve the anonymity of all persons who may be requested to furnish evaluation information.

6.03. Records and information pertaining to the performance and evaluation of judges shall not be disclosed except as follows:

(1) Except as provided by Section 6.03(4), only the individual judge being evaluated and the person or persons selected to present the data to the judge shall be permitted to know to which judge particular information applies.

(2) The committee may provide aggregated statistical information that does not identify specific judges to the Administrative Office of the Courts and the Tennessee Judicial Conference for use in the development of Judicial education programs.

(3) The committee shall provide an annual public report to the Supreme Court concerning the operation of the program. The report may contain aggregated statistical information that does not identify individual judges and may also contain recommendations for improvements in the program.

(4) The committee shall provide the Judicial Evaluation Commission with a tabulation of all survey responses with regard to all appellate judges, except appellate judges in office less than one (1) year. The Judicial Evaluation Commission shall treat the tabulations of the survey responses used in preparing its evaluation and final report pursuant to Tenn. Code Ann. § 17-4-201 as confidential.

6.04. Except when publicly disclosed in accordance with Section 6.03, all information, questionnaires, notes, memoranda, or other data declared confidential by this rule shall not be admissible as evidence, nor discoverable in any action of any kind in any court or before any tribunal, board, agency, or persons.

6.05. Trial judges shall not disclose any portion of the results of the survey of their own performance except in their response to the Judicial Evaluation Commission's evaluation pursuant to Section 5.08. Candidates for judicial office shall be bound by the same restrictions, and in addition, shall not directly or indirectly, call for the release of otherwise confidential information by any judge, the committee, the Judicial Evaluation Commission, or any other person or entity.

6.06. All records pertaining to a particular judge maintained by the committee or the Judicial Evaluation Commission shall be destroyed six months after the judge's death or retirement. The records shall not be destroyed if the judge applies for or is certified as a senior judge in accordance with Tenn. Code Ann. § 17-2-302 (1994).

[Added by order entered June 14, 1995; as amended by order entered May 15, 1997; by order entered July 28, 1997; and by order entered March 26, 1998.]

Rule 28. Tennessee Rules of Post-Conviction Procedure.

Sec. 1. Scope and Authority of Rules

(A) Purpose —These rules supplement the remedies and procedures set forth in the Post-Conviction Procedure Act (hereinafter the "Act"), Tenn. Code Ann. § 40-30-201 et seq. (1996 Supp.).

(B) Authority —These rules are adopted pursuant to Tenn. Code Ann. § 40-30-218 (1996 Supp.) and the inherent authority of the Tennessee Supreme Court.

Sec. 2. Definitions

(A) Petition for Post-Conviction Relief —A petition for post-conviction relief is an application to the court, filed by or on behalf of a person convicted of and sentenced for the commission of a criminal offense, that seeks to have the conviction or sentence set aside or an appeal granted on the ground or grounds that the conviction or the sentence or the denial of an appeal violated the state or federal constitution. A pro se petition is one filed by a petitioner without the benefit of counsel.

(B) Answer —An answer is a response filed by the state to the petition for post-conviction relief that admits or denies every claim in the petition and which raises affirmative and specific statutory defenses.

(C) Motion to Reopen —A motion to reopen is a request filed by or on behalf of a person whose original petition for post-conviction relief has been finally ruled upon, to reopen the post-conviction proceeding to consider a new claim of constitutional error pursuant to Tenn. Code Ann. § 40-30-217.

(D) Waiver —A ground for relief is waived if petitioner or petitioner's counsel failed to present the ground for determination in any proceeding before a court of competent jurisdiction in which the ground could have been presented. A rebuttable presumption of waiver arises if a ground for relief was not raised before a court of competent jurisdiction in which it could have been raised. Waiver does not occur if the claim for relief is based upon a constitutional right not recognized at the time of the prior proceeding and if either the state or federal constitution requires retroactive application of the right.

(E) Previously Determined —A claim for relief is previously determined if a court of competent jurisdiction has ruled on the merits of the claim after a full and fair hearing at which petitioner is afforded the opportunity to call witnesses and present evidence.

(F) Post-Conviction Proceeding —A post-conviction proceeding is a proceeding filed and adjudicated in accordance with these rules of post-conviction procedure.

(G) Filing —Papers required or permitted to be filed by the rules of post-conviction procedure, when filed by an attorney or a pro se petitioner who is not incarcerated, are filed when received by the clerk of court.

If papers required or permitted to be filed by these rules are prepared by or on behalf of a pro se petitioner incarcerated in a correctional facility and are not received by the clerk of the court until after the time fixed for filing, filing shall be timely if the papers were delivered to the appropriate individual at the correctional facility within the time fixed for filing. "Correctional facility"shall include a prison, jail, county workhouse or similar institution in which the pro se petitioner is incarcerated. This provision shall also apply to service of papers by pro se petitioners pursuant to these rules. Should timeliness of filing or service become an issue, the burden is on the pro se petitioner to establish compliance with this provision. [Amended by order filed November 2, 1999.]

(H) Colorable Claim —A colorable claim is a claim, in a petition for post-conviction relief, that, if taken as true, in the light most favorable to petitioner, would entitle petitioner to relief under the Post-Conviction Procedure Act.

Sec. 3. Applicability of Other Rules

(A) Rules Applicable —The Tennessee Rules of Evidence apply in post-conviction proceedings except as otherwise provided by these rules.

(B) Rules Not Applicable —Neither the Tennessee Rules of Civil Procedure nor the Tennessee Rules of Criminal Procedure apply to post-conviction proceedings except as specifically provided by these rules.

Sec. 4. Commencement of Post-Conviction Proceeding

(A) Manner of Commencing —A post-conviction proceeding is commenced by filing a petition as defined in Section 2 in the court in which petitioner was convicted or sentenced, if the court was a court of record, or, if the conviction or sentence was not in a court of record, by filing a petition as defined in Section 2 in the court of record having criminal jurisdiction in which the conviction occurred or the sentence was imposed.

(B) Time for Commencing —A petition for post-conviction relief must be filed within the statute of limitations set forth in Tenn. Code Ann. § 40-30-202.

(C) Filing the Petition —A petition shall be filed in accordance with Section 2(G) of these rules.

(D) Filing Fees —No filing fee shall be a prerequisite for the filing of a petition for post-conviction relief.

(E) Place of Filing —A petition shall be filed in the court in which the conviction was obtained or in which the sentence was imposed. If the conviction was not obtained in a court of record, the petition shall be filed in a court of record having criminal jurisdiction in the county in which the conviction occurred or the sentence was imposed.

Sec. 5. Nature of Pleadings

(A) Nature of Pleadings —The pleading in a post-conviction case shall consist of a petition or a motion to reopen and a responsive motion or answer.

(B) Number of Petitions —Each petitioner shall be entitled to file only one petition for each conviction or sentence incurred.

(C) Limitation of Petitions —Each petition shall be limited to claims arising from the judgment or judgments entered in a single trial or proceeding. A petitioner who desires to obtain relief from judgments entered in more than one trial or proceeding must file separate petitions for each trial or proceeding.

(D) Form of Petition or Motion to Reopen —The petition for post-conviction relief shall be substantially in the form set forth in the appendix. Likewise, a motion to reopen a post-conviction proceeding shall be substantially in the form set forth in the appendix.

(E) Contents of Petition —The petition shall contain:

(1) the biographical and case identifying information contained in the form petition in the appendix;

(2) an affidavit of petitioner in the form set forth in the appendix;

(3) each and every error that petitioner asserts as a ground for relief, including a description of how petitioner was prejudiced by the error(s);

(4) specific facts supporting each claim for relief asserted by petitioner;

(5) specific facts explaining why each claim for relief was not previously presented in any earlier proceeding;

(6) the name or names of any attorney(s) who prepared or assisted in preparing the petition.

(F) Effect of Failure to Comply with Rule —A petition may be dismissed without a hearing if it:

(1) is not timely filed;

(2) is filed while another post-conviction petition or direct appeal regarding the same conviction is pending;

(3) does not contain specific factual allegations;

(4) does not state the reasons that the claim is not barred by the statute of limitations, waived, or previously determined; or

(5) does not entitle petitioner to relief even if taken as true.

(G) Contents of State's Response —The answer shall admit or deny each and every allegation set forth in the petition. The state shall file a motion to dismiss which includes the facts relied upon to support the motion to raise as a defense that:

(1) the petition is barred by the statute of limitations;

(2) the claim has been waived or previously determined;

(3) the petition is not filed in the court with jurisdictions;

(4) the petition asserts a claim for relief from judgments entered in separate trials or proceedings;

(5) a post-conviction petition or direct appeal regarding the same conviction is currently pending; or

(6) the facts alleged fail to show that petitioner is entitled to relief.

(H) Time for Filing Answer or Motion —The answer or motion to dismiss shall be filed no more than thirty (30) days after the filing of the amended petition or written notice that no amendment will be filed as required by Tenn. Code Ann. § 40-30-207(b)(2), except for good cause shown.

(I) Effect of Failure to Comply with Rule —The failure to timely file the answer or motion to dismiss within thirty (30) days of the amended petition or written notice that no amendment will be filed or the failure to detail the facts relating to the defenses enumerated in subsection (5)(G) shall not entitle petitioner to relief without proof, but may result in the imposition of sanctions in the exercise of the trial judge's discretion.

Sec. 6. Procedure After Petition Filed

(A) Clerk's Obligations —

(1) Upon receiving a petition for post-conviction relief, the clerk shall file the original document and process it pursuant to Tenn. Code Ann. § 40-30-205.

(B) Court Obligations —

(1) The presiding judge shall assign a judge to hear the case who may be the original hearing judge. Should the presiding judge fail to assign a judge, and no judge is designated by the Chief Justice, the judge who presided at the original trial shall hear the petition.

(2) Within thirty (30) days after a petition or amended petition is filed, the judge to whom the case is assigned shall review the petition and all documents related to the judgment and determine whether the petition states a colorable claim.

(3) In the event a colorable claim is stated, the judge shall enter a preliminary order which:

(a) appoints counsel, if petitioner is indigent;

(b) sets a deadline for the filing of an amended petition;

(c) directs disclosure by the state of all that is required to be disclosed under Rule 16 of the Tennessee Rules of Criminal Procedure, to the extent relevant to the grounds alleged in the petition, and any other disclosure required by the state or federal constitution;

(d) orders the state to respond and, if appropriate, to file with the clerk certain transcripts, exhibits, or records from the prior trial or hearing; and

(e) makes other orders as are necessary to the efficient management of the case.

(4)(a) In the event the court concludes after the preliminary review that a colorable claim is not asserted by the petition, the court shall enter an order dismissing the petition or an order requiring that the petition be amended.

(b) No pro se petition shall be dismissed for failure to follow the prescribed form until the court has given petitioner a reasonable opportunity to amend the petition with the assistance of counsel.

(c) In the event the court concludes that dismissal is appropriate, the court shall enter an order specifying its findings of fact and conclusions of law in support of the determination that the petition does not state a colorable claim. The order shall state specifically the facts which support dismissal including whether the petition is barred by the statute of limitation, was filed in a court without jurisdiction, or whether the petition fails to specify the grounds for relief, the facts supporting those grounds, or fails to establish that the claim(s) have not been waived or previously determined.

(5) In the event the court finds that certain claim(s) are colorable and others are not, the court shall enter an order specifying which claims are dismissed and which claims must be responded to by the state. The order shall comply with the requirements of sections (6)(B)(2) and (3) above.

(6) After the state's response is filed, the court shall again review the petition, amended petition, answer or motion, and related documents to determine whether a colorable claim has been stated. If a colorable claim has not been stated, the court shall dismiss the petition by order setting forth the findings of fact and conclusions of law. If a colorable claim is stated, the court shall enter an order requiring the state to answer the allegations, if it has not done so, and setting an evidentiary hearing. The court's order shall be filed within thirty (30) days of the state's response.

(7) The court may issue such interlocutory orders, including stays of execution, as may be required.

(8) Upon motion, in capital cases involving indigent petitioners, the court may authorize expenditure of funds for experts, investigation, or similar services in accordance with Rule 13, § 2B(10) of the Rules of the Supreme Court of Tennessee. The court's order granting or denying the motion shall include specific findings of fact and conclusions of law and shall, upon request, be filed under seal with the record.

(9) All orders issued by the court except orders of dismissal and final orders shall be served upon counsel for petitioner, or petitioner if pro se, and the district attorney general.

(10) Orders of dismissal shall be considered final orders for purposes of appeal. Orders of dismissal and all final orders shall be served upon counsel for petitioner, the district attorney general, the Attorney General and Reporter in Nashville, and any authority imposing restraint on petitioner. The clerk shall certify on each order the date of entry and the date and manner of service.

(C) Petitioner's and State's Obligations —

(1) In the event the court dismisses the petition, petitioner may appeal as of right in accordance with the Tennessee Rules of Appellate Procedure. In the event the court requires petitioner or the state to take other steps to prepare the case for trial, petitioner and the state shall comply.

(2) Appointed or retained counsel shall be required to review the pro se petition, file an amended petition asserting other claims which petitioner arguably has or a written notice that no amended petition will be filed, interview relevant witnesses, including petitioner and prior counsel, and diligently investigate and present all reasonable claims.

(3) Appointed or retained counsel shall file the certificate of counsel set forth in the appendix within 30 days of either being retained or appointed to represent petitioner, except for good cause shown.

(4) If retained counsel has prepared or assisted in preparing the initial petition and intends to represent petitioner, counsel shall sign the initial petition and shall file the certificate of counsel set forth in the appendix.

(5) Appointed counsel who fails to comply with this section may be denied compensation for services rendered.

(6) The state shall file an answer or a motion to dismiss within thirty (30) days of the filing of the amended petition or of the written notice that no amended petition will be filed. The answer or motion to dismiss shall comply with the statute and with the requirements of Section 5(G).

(7) Upon receiving the court's preliminary order, the state shall provide to petitioner discovery of all those items deemed discoverable under Rule 16, Tennessee Rules of Criminal Procedure, if relevant to the issues raised in the post-conviction petition, and shall provide any other disclosure required by the state or federal constitution.

(8) Petitioner may withdraw a petition at any time prior to the evidentiary hearing, but the withdrawn petition does not toll the statute of limitations. [Amended by order filed October 15, 1998.]

Sec. 7. Discovery & Production of Evidence

(A) Discovery —The state shall provide discovery in accordance with Section 6(C)(7).

(B) Production of Documents —The court may require any clerk of any Tennessee court to furnish copies of documents, orders, or records to petitioner or to file the documents in the clerk's office at the state's expense.

Sec. 8. Evidentiary Hearing

(A) Timing —Upon finding that the petition states a colorable claim and within thirty (30) days of the state's response, the court shall enter an order scheduling an evidentiary hearing.

(B) Continuances —The evidentiary hearing shall be conducted within four (4) months of the order scheduling the hearing. The hearing shall not be continued except by order of the court finding that unforeseeable circumstances render a continuance a manifest necessity. No continuance shall extend the hearing more than sixty (60) days beyond the original hearing date.

(C) Witnesses —

(1) Petitioner

(a) Petitioner has the right to testify unless petitioner is incarcerated in a state that will not release petitioner to the custody of Tennessee for appearance at the evidentiary hearing.

(b) Petitioner shall testify at the evidentiary hearing if the petition raises substantial issues of facts, unless petitioner is incarcerated out of state.

(c) If petitioner is incarcerated out of state, petitioner shall be allowed to offer testimony by affidavit or deposition.

(d) Under no circumstances shall petitioner be required to testify regarding the facts of the conviction which the petition attacks unless necessary to establish the allegations of the petition or necessary to the state's attempt to rebut the allegations of the petition.

(2) Affidavit and Deposition Testimony —If the judge allows affidavit or deposition testimony under the provisions of Tenn. Code Ann. § 40-30-210(a), the judge shall allow the other party sufficient time to file affidavits or depositions in response. If the state is allowed to file deposition testimony, the state shall provide to counsel for indigent petitioners or indigent petitioners if pro se a copy of the deposition at state expense.

(3) Subpoenas —Each party shall have the right to subpoena witnesses for appearance at the evidentiary hearing.

(D) Hearing Procedure —

(1) Petitioner shall be required to present petitioner's case and to establish the grounds alleged and the entitlement to relief by clear and convincing evidence.

(2) Each party shall have the right to examine all witnesses.

(3) In the event that the petition alleges that petitioner was unconstitutionally deprived of an appeal and was also entitled to relief on other grounds, the court shall bifurcate the proceedings and determine first whether petitioner was denied an appeal, while holding the other claims in abeyance. Those claims shall be considered after the outcome of the delayed appeal if allowed, or after the appeal of the claim, if denied.

(4) The hearing shall be limited to issues raised in the petition.

(5) If evidence is objected to on the basis that it concerns issues not raised in the petition or answer, the court may allow amendments and shall do so freely when the presentation of the merits of the cause will otherwise be subserved. The court shall liberally allow a continuance in the event an amendment is allowed to enable the objecting party to meet the evidence.

(6) The hearing, and any other proceedings regarding the petition, shall be recorded.

Sec. 9. Determination & Relief

(A) Decision —The court shall enter an order granting or denying the petition within sixty (60) days of the conclusion of the proof. The order shall contain specific findings of fact and conclusions of law relating to each issue presented. The deadline for entry of the order shall not be extended unless the court finds that unforeseeable circumstances make an extension a manifest necessity. In such circumstances, the order shall not be delayed more than thirty (30) days beyond the original deadline.

(B) Availability of Relief —A petitioner shall be entitled to post-conviction relief when petitioner's conviction or sentence is void or voidable because of the violation of any right guaranteed by the state or federal constitution, including a right not recognized as existing at the time of the trial or sentencing if either constitution requires retrospective application of that right.

(C) Orders Granting Relief —If the court finds that petitioner is entitled to relief, the court shall enter an order vacating and setting aside the judgment of conviction or sentence or an order granting a delayed appeal. The court shall also enter any other appropriate supplementary orders that may be necessary and proper.

(D) Grant of a Delayed Appeal —

(1) By the Trial Court

(a) Appeal as of Right Pursuant to Rule 3, Tennessee Rules of Appellate Procedure - Upon determination by the trial court that the petitioner was deprived of the right to file an appeal pursuant to Rule 3, Tennessee Rules of Appellate Procedure, the trial court shall apply the procedures set out in Tennessee Code Annotated section 40-30-213.

(b) Appeal Pursuant to Rule 11, Tennessee Rules of Appellate Procedure -

(i) Upon determination by the trial court that the petitioner was deprived of the right to request an appeal pursuant to Rule 11, Tennessee Rules of Appellate Procedure, the trial court shall enter an order granting the petitioner a delayed appeal, staying the post-conviction proceedings pending the final disposition of the delayed appeal, and providing that the order is final for purposes of appeal under this rule.

(ii) The State may appeal to the Court of Criminal Appeals as of right from the trial court's grant of a delayed appeal by filing a notice of appeal with the trial court clerk within thirty (30) days of entry of the trial court's order granting the delayed appeal. The appeal shall then proceed in accordance with the Tennessee Rules of Appellate Procedure as in any appeal as of right. If the Court of Criminal Appeals does not reverse the trial court's order granting a delayed appeal, the State may file an application for permission to appeal under Rule 11, Tennessee Rules of Appellate Procedure, and the case shall then proceed in accordance with that rule until final disposition by the Supreme Court. If the State does not file a Rule 11 application, the petitioner has sixty (60) days from the issuance of the mandate of the Court of Criminal Appeals to file the delayed Rule 11 application with the Supreme Court. If the State files a Rule 11 application, but the Supreme Court denies the application or grants the application but does not reverse the trial court's order granting a delayed appeal, the petitioner shall have sixty (60) days from the issuance of the mandate of the Supreme Court to file the delayed Rule 11 application.

(iii) If the State chooses not to appeal the trial court's grant of a delayed appeal, the State shall file a notice of its intention not to appeal within thirty (30) days of entry of the trial court's order granting a delayed appeal. The petitioner has sixty (60) days from the date of filing of this notice to file the delayed Rule 11 application. In the event the State fails to file this notice, the delayed Rule 11 application will be considered timely if filed within ninety (90) days of entry of the trial court's order granting a delayed appeal.

(iv) Upon the filing of a delayed Rule 11 application in accordance with this rule, the Appellate Court Clerk shall immediately reinstate the original appeal on the docket and serve notice on all parties. The case shall then proceed in accordance with Rule 11, Tennessee Rules of Appellate Procedure.

(2) By the Appellate Court

(a) Appeal as of Right Pursuant to Rule 3, Tennessee Rules of Appellate Procedure - If the trial court determines that the petitioner was not deprived of the right to appeal pursuant to Rule 3, Tennessee Rules of Appellate Procedure, this ruling may be challenged as part of any Rule 3 appeal from the trial court's final judgment in the post-conviction proceedings. The Court of Criminal Appeals shall consider and resolve this issue along with any other issues raised in the post-conviction appeal. Should the Court of Criminal Appeals grant a delayed appeal, the post-conviction appeal shall not be stayed; instead, any party may challenge the decision of the Court of Criminal Appeals, or any portion thereof, by filing an application for permission to appeal pursuant to Rule 11, Tennessee Rules of Appellate Procedure.

(b) Appeal Pursuant to Rule 11, Tennessee Rules of Appellate Procedure -

(i) If the trial court determines that the petitioner was not deprived of the right to request an appeal pursuant to Rule 11, Tennessee Rules of Appellate Procedure, this ruling may be challenged as part of any Rule 3 appeal from the trial court's final judgment in the post-conviction proceedings. The Court of Criminal Appeals shall consider first the trial court's denial of the delayed appeal before resolving other issues raised in the post-conviction appeal. If the Court of Criminal Appeals determines that the trial court properly denied the request, the Court of Criminal Appeals shall dispose of the remaining issues in the post-conviction appeal. If, however, the Court of Criminal Appeals determines that the trial court erred in denying the delayed appeal, the Court of Criminal Appeals shall enter an order granting the petitioner a delayed appeal and staying the post-conviction proceedings pending the final disposition of the delayed appeal.

(ii) If the Court of Criminal Appeals grants a delayed appeal, the State may file an application for permission to appeal pursuant to Rule 11, Tennessee Rules of Appellate Procedure, within sixty (60) days from the date of the filing of the order of the Court of Criminal Appeals. The case shall then proceed in accordance with Rule 11. If the Supreme Court denies the Rule 11 application or grants the application but does not reverse the intermediate court's order granting a delayed appeal, the petitioner shall have sixty (60) days from the issuance of the mandate of the Supreme Court to file a delayed Rule 11 application. If the State does not file a Rule 11 application, the petitioner has sixty (60) days from the issuance of the mandate of the Court of Criminal Appeals to file the delayed Rule 11 application with the Supreme Court.

(iii) Upon the filing of a delayed Rule 11 application in accordance with this rule, the Appellate Court Clerk shall immediately reinstate the original appeal on the docket and serve notice on all parties. The case shall then proceed under Rule 11, Tennessee Rules of Appellate Procedure.

(3) New Issues Resulting from Delayed Appeal

(a) Where a delayed appeal is granted and the petitioner is unsuccessful on appeal, and new issues cognizable in a post-conviction proceeding result from the handling of the delayed appeal, the petitioner may amend the original post-conviction petition to include such new issues.

(b) Where the post-conviction appeal has been stayed in the Court of Criminal Appeals, the case may be remanded to the trial court for the taking of evidence on any new issues resulting from an unsuccessful delayed appeal. (Amended by order filed May 8, 2001 and by order filed October 22, 2002 and by order filed August 25, 2003.)

Sec. 10. Appeals

(A) Dismissals or Denials of Petition —An appeal from the dismissal or denial of a post-conviction petition shall be in accordance with the Tennessee Rules of Appellate Procedure.

(B) Denials of Motions to Reopen —A petitioner whose motion to reopen is denied shall have ten (10) days to seek permission to appeal by filing an application, accompanied by the order denying the motion, in the Court of Criminal Appeals. The state shall have ten (10) days to respond. The Court of Criminal Appeals may allow the parties to file additional briefs, argue the case, or both. In the event the Court of Criminal Appeals finds that the trial court abused its discretion by denying the motion to reopen, the court shall, by order, remand the case to the trial court for further proceedings.

When the Court of Criminal Appeals affirms the trial court's decision denying the motion to reopen, the petitioner shall have sixty (60) days from the date of the Court of Criminal Appeals decision to seek permission to appeal in the Tennessee Supreme Court by filing a Rule 11, application, Tenn. R. App. P. The application shall be accompanied by copies of all documents filed by both parties in the trial court and the orders denying the motion in the trial court and the Court of Criminal Appeals. The State shall have fifteen (15) days to file a response. The Supreme Court may allow the parties to file additional briefs, argue the case, or both. Permission to appeal will be denied unless it appears that the trial court abused its discretion by denying the motion to reopen. In the event the Supreme Court determines that the trial court abused its discretion by denying the motion, the Supreme Court, by Order, shall remand the case to the trial court for further proceedings.

(C) Motions for Review of Motions for Stay —Either party may request review of a trial court's ruling on a motion for stay of execution by filing a motion for review in the Tennessee Court of Criminal Appeals within five (5) days of the trial court's ruling on the stay of execution. The Court of Criminal Appeals may allow the opposing party to respond in writing within three (3) days of the service of the motion for review or may ascertain the party's position by other means. Oral argument shall not be permitted unless ordered by the appellate court. A single judge of the appellate court, or a three-judge panel, shall rule on the motion within five (5) days of the filing of the motion for review. In the event the appellate court finds that the lower court abused its discretion in ruling on the motion for a stay of execution, it shall set aside the order denying the stay and enter an order either granting or denying the stay, as appropriate. Review of the Court of Criminal Appeals' action may be sought in the Supreme Court. In the event review is sought in the Supreme Court, the procedures for filing and processing the motion shall be the same as those for review in the Court of Criminal Appeals.

[Amended by order entered August 25, 1997.]

Sec. 11. Withdrawal of Post-Conviction Petition in Capital Case.

(A) Determination of Trial Court- Before allowing a petitioner under sentence of death to withdraw the petitioner’s post-conviction petition, the trial court shall address the petitioner personally in open court and ascertain that the petitioner

(1) does not desire to proceed with any post-conviction proceedings;
(2) understands the significance and consequences of withdrawing the post- conviction petition; and
(3) is knowingly, intelligently, and voluntarily, without coercion, withdrawing the petition; and
(4) is competent to decide whether to withdraw the post-conviction petition.

The hearing at which the trial court addresses the petitioner shall be recorded. At the hearing the trial court may consider any evidence and argument relevant to items (1) through (4). The trial court shall enter an order granting or denying withdrawal of the petition and stating the court’s findings regarding items (1) through (4). An order of the trial court granting withdrawal and dismissing the petition shall become final thirty days after its entry.

(B) Competency -

(1) The standard for determining competency of a petitioner to withdraw a post- conviction petition and waive further post-conviction relief under this section is: whether the petitioner possesses the present capacity to appreciate the petitioner’s position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether the petitioner is suffering from a mental disease, disorder, or defect which may substantially affect the petitioner’s capacity.
(2) A petitioner is presumed competent to withdraw a post-conviction petition and waive post-conviction relief; however, if a genuine issue regarding the petitioner’s present competency arises during the hearing provided for in (A), supra, the trial court shall enter an order appointing at least one, but no more than two, mental health professionals from lists submitted by the State and counsel for the petitioner. The order shall direct that the petitioner be evaluated by the appointed mental health professionals to determine the petitioner’s competency and that the appointed mental health professionals file written evaluations with the trial court within ten days of the appointment unless good cause is shown for later filing. Upon filing, the trial court clerk shall forward a copy of the written evaluations to counsel for the petitioner and to the State.
(3) If a genuine issue regarding the petitioner’s present competency exists after the filing of evaluations by the appointed mental health professionals, the trial court shall hold a separate hearing on the record, allowing the introduction of testimony, exhibits and evidence, to determine the petitioner’s competency. After the hearing, the trial court shall file detailed written findings of fact regarding the court’s competency determination, which shall be included in the court’s order granting or denying withdrawal of the petition.

(C) Appeal- Whenever a trial court determines that the petitioner is competent to withdraw the petition, the order of the trial court finding the petitioner competent and dismissing the petition may be appealed under T.R.A.P. 3. If the trial court has granted a motion for dismissal of post-conviction counsel, post-conviction counsel shall nonetheless have standing to appeal the sole question of whether the petitioner was competent to withdraw the petition. The issue of competency will be reviewed as an issue of fact and the trial court’s finding will be presumed correct, unless the evidence in the record preponderates against it.[Amended by order filed November 21, 2002.]

Sec. 11. Citation

These rules may be cited as Tenn. Sup. Ct. R. 28, § _____.

[Adopted by order entered November 17, 1995; amended by order entered July 1, 1996; and by order filed October 28, 1996; and by order filed November 21, 2002.]

APPENDIX A. FORM PETITION

The following form petition shall be available without cost to a prisoner in the prisons and other places of detention and shall also be available without cost to any potential petitioner in the office of the clerk of court for any court of record with criminal jurisdiction. The standard form, together with Tenn. Code Ann. § 40-30-202(c), is designed to achieve early finality in post-conviction proceedings through one comprehensive petition and one full and fair hearing at which all grounds for challenging the validity of a conviction or sentence will be considered.

READ THESE INSTRUCTIONS CAREFULLY BEFORE PREPARING THE PETITION

(1) This petition must be legibly handwritten or typewritten. It must be signed by petitioner under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction of petitioner for perjury. All questions must be answered completely in the proper space on the form or on additional sheets submitted with the form. This form may be obtained at the place of confinement or from any clerk of a court of record with criminal jurisdiction.

(2) No citation of authorities need be furnished. If briefs or arguments are submitted, they should be submitted in the form of a separate memorandum and not as part of this form.

(3) A separate petition must be filed for each judgment you seek to challenge. If you seek to challenge judgments entered in different trials or guilty plea proceedings, either in the same county or in different counties, you must file separate petitions.

(4) YOU MUST INCLUDE IN THIS PETITION ALL GROUNDS FOR RELIEF. FAILURE TO INCLUDE A GROUND FOR RELIEF IN THIS PETITION WILL RESULT IN YOUR BEING PERMANENTLY BARRED FROM PRESENTING IT IN A FUTURE PETITION OR PROCEEDING.

(5) YOU MUST INCLUDE ALL FACTS SUPPORTING EACH GROUND FOR RELIEF. YOU MUST BE AS SPECIFIC AS POSSIBLE AS TO THE FACTS.

(6) Complete all applicable items in the petition. When the petition is fully completed, the ORIGINAL must be mailed to the appropriate clerk of court.

(7) You must comply with these instructions in order to have your petition promptly considered.

(8) REMEMBER, A PETITIONER IS ENTITLED TO FILE ONLY ONE PETITION PER CASE.

IN THE _________ COURT OF

_ COUNTY, TENNESSEE AT _

____________ )

PETITIONER (FULL NAME) )

)

) CASE NO. _______

VS. )

) (POST-CONVICTION)

)

STATE OF TENNESSEE )

PETITION FOR RELIEF FROM CONVICTION OR SENTENCE

Mailing Address of Petitioner _____________________

(including zip code) _____________________

_____________________

Place of Confinement ________________

Dep't of Corrections Number ______________

NOTICE: BEFORE COMPLETING THIS FORM, READ CAREFULLY THE ACCOMPANYING INSTRUCTIONS.

1. Name and location (city and county) of court which entered the judgment of conviction or sentence challenged

_____________________

2. Date of judgment of conviction _____________________

3. Case Number _____________________

4. Length of sentence _____________________

5. Offense Convicted of _______________________________________________________________

6. What was your plea? (Check One)

(a) Guilty _____

(b) Not Guilty _____

(d) Not guilty and not guilty by reason of mental disease or defect _____

(e) Nolo contendere _____

(f) None _____

If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, specify.

(a) guilty plea counts: _____________________

(b) not guilty counts: _____________________

7. Kind of trial: (Check One)

(a) Jury _____ (b) Judge only _____

8. Did you testify at the trial?

Yes _____ No _____

9. Did you appeal from the judgment of conviction?

Yes _____ No _____

10. If you did appeal, answer the following:

(a) As to the state court to which you first appealed, give the following information:

(1) Name of court __________________________________________

(2) Result __________________________________________

(3) Date of result __________________________________________

(4) Grounds raised on appeal __________________________________________________________
(Attach additional sheets if necessary)

(b) If you appealed to any other court, then as to the second court to which you appealed, give the following information:

(1) Name of court __________________________________________

(2) Result __________________________________________

(3) Date of result __________________________________________

(4) Grounds raised on appeal __________________________________________
(Attach additional sheets if necessary)

(c) If you appealed to any other court, then as to the third court to which you appealed, give the following information:

(1) Name of court __________________________________________

(2) Result __________________________________________

(3) Date of result __________________________________________

(4) Grounds raised on appeal __________________________________________
(Attach additional sheets if necessary)

11. If more than one (1) year has passed since the date of final action on your direct appeal by the state appellate courts, state why the statute of limitations should not bar your claim.

____________________________________________________________________________________

12. Other than a direct appeal from the judgment(s) of conviction and sentence, have you previously filed any petitions, applications, or motions with respect to the judgment(s) in any state or federal court?

Yes _____ No _____

13. If your answer to Question 12 was Yes, then give the following information in regard to the first such petition, application, or motion you filed:

(a) (1) Name of court _____________________
(2) Nature of proceeding _____________________
(3) Grounds raised _______________________________________________________________
______________________________________________________________________________
(Attach additional sheets if necessary)
(4) Did you receive an evidentiary hearing on your petition, application or motion?

Yes _____ No _____

(5) Result _____________________

(6) Date of result _____________________

(b) As to any second petition, application, or motion, give same information:

(1) Name of court _____________________

(2) Nature of proceeding _____________________

(3) Grounds raised _________________________________________________________________
(Attach additional sheets if necessary)
(4) Did you receive an evidentiary hearing on your petition, application, or motion?

Yes _____ No _____

(5) Result _____________________

(6) Date of result _____________________

(1) First petition, etc. Yes _____ No _____

(2) Second petition, etc. Yes _____ No _____

(d) If you did not appeal when you lost on any petition, application, or motion, explain briefly why you did not appeal: ____________________________________________________________________________________

14. If you did not raise the grounds you raised here in your original prosecution and on your appeal from that prosecution, explain why your claim in this case has not been waived for failure to raise it on appeal. If the claim was raised, explain why your claim is not previously determined.

_______________________________________________________________

15. If you have previously filed a petition, application, or motion with respect to the judgment(s) in any court, explain why your claim in this case has not been waived for failure to raise it in that prior proceeding. If the claim was raised, explain why your claim is not previously determined.

_______________________________________________________________

16. Specify every ground on which you claim that you are being held unlawfully, by placing a check mark on the appropriate line(s) below and providing the required information or by attaching separate pages.

INCLUDE ALL FACTS WHICH SUPPORT THE GROUNDS YOU CLAIM.

GROUNDS OF PETITION

Listed below are possible grounds for relief. Consider the ground(s) that apply in your case, and follow the instruction under the ground(s):

_____ (1) Conviction was based on unlawfully induced guilty plea or guilty plea involuntarily entered without understanding of the nature and consequences of the plea.

_____ (2) Conviction was based on use of coerced confession.

_____ (3) Conviction was based on use of evidence gained pursuant to an unconstitutional search and seizure.

_____ (4) Conviction was based on use of evidence obtained pursuant to an unlawful arrest.

_____ (5) Conviction was based on a violation of the privilege against self incrimination.

_____ (6) Conviction was based on the unconstitutional failure of the prosecution to disclose to defendant evidence favorable to defendant.

_____ (7) Conviction was based on a violation of the protection against double jeopardy.

_____ (8) Conviction was based on action of a grand or petit jury that was unconstitutionally selected and impaneled.

_____ (9) Denial of effective assistance of counsel.

_____ (10) Newly discovered evidence.

_____ (11) Illegal evidence.

_____ (12) Other grounds.

THE LIST ABOVE DOES NOT INCLUDE A COMPLETE LIST OF ALL CONSTITUTIONAL VIOLATIONS. YOU MAY ADD ANY OTHERS YOU DEEM APPROPRIATE. ATTACH A SEPARATE SHEET OF PAPER LISTING EACH CONSTITUTIONAL VIOLATION THAT YOU CLAIM, WHETHER OR NOT IT IS LISTED ABOVE. UNDER EACH CLAIMED VIOLATION YOU CLAIM, LIST EACH AND EVERY FACT YOU FEEL SUPPORTS THIS GROUND. EXPLAIN IN DETAIL HOW YOU ARE PREJUDICED BY THE VIOLATION AND WHY YOU ARE ENTITLED TO RELIEF. BE SPECIFIC.

IMPORTANT NOTICE REGARDING ADDITIONAL PETITIONS: TENN. CODE ANN. § 40-30-202(c) LIMITS YOU TO ONLY ONE PETITION. TENN. CODE ANN. § 40-30-202(c) PROVIDES:

This chapter contemplates the filing of only one (1) petition for post-conviction relief. In no event may more than one (1) petition for post-conviction relief be filed attacking a single judgment. If a prior petition has been filed which was resolved on the merits by a court of competent jurisdiction, any second or subsequent petition shall be summarily dismissed.

17. Do you have any petition or appeal now pending in any court, either state or federal, as to the judgment under attack?

Yes _____ No _____

18. Give the name and address, if known, of each attorney who represented you at the following stages of the case that resulted in the judgment under attack:

(a) At preliminary hearing __________________________________________

(b) At arraignment and plea __________________________________________

(d) At sentencing __________________________________________

(e) On appeal __________________________________________

(f) In any post-conviction proceeding ___________________________________________________________

(g) On appeal from adverse ruling in a post-conviction proceeding
__________________________________________

19. Are you currently represented by counsel?

Yes _____ No _____

(a) If Yes, give name and address, if known, of the attorney representing you.

_______________________________________________________________

(b) If No, do you wish to have an attorney appointed?

Yes _____ No _____

If Yes, give name and address of attorney(s).
____________________________________________________________________________________

____________________________________________________________________________________

20. In the judgment you are attacking, were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at the same time?

Yes _____ No _____

21. Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack?

Yes _____ No _____

(a) If so, give name and location of court which imposed sentence to be served in the future: _____________________

(b) And give date and length of sentence to be served in the future:
_____________________

(c) Have you filed, or do you contemplate filing, any petition attacking the judgment which imposed the sentence to be served in the future?

Yes _____ No _____

22. What date is this petition being given to prison authorities for mailing? ___________

Wherefore, petitioner prays that the court grant petitioner relief to which petitioner may be entitled in this proceeding.

PETITIONER'S VERIFICATION UNDER OATH
SUBJECT TO PENALTY FOR PERJURY

I swear (or affirm) under penalty of perjury that the foregoing is true and correct. Executed on _________.

(Date)

_____________

Signature of Petitioner

SWORN TO AND SUBSCRIBED before me this the _____ day of _________, 20___.

_____________________

Notary Public

My commission expires: _____________________

APPENDIX B. AFFIDAVIT OF INDIGENCY

I, _________, do solemnly swear (or affirm) that because of my poverty, I am not able to bear the expenses of the action which I am about to commence. I further swear (or affirm) that, to the best of my knowledge, I am justly entitled to the relief sought.

_____________________

Petitioner

APPENDIX C. CERTIFICATION OF COUNSEL

CERTIFICATE

I, _________________, certify that I have thoroughly investi-

(Appointed or retained counsel)

gated the possible constitutional violations alleged by petitioner, including all those in paragraph 16 petitioner's possible constitutional claims, including all those in paragraph 15 of the form petition set forth in Appendix A and any other ground that petitioner may have for relief. I have discussed other possible constitutional grounds with petitioner. I have raised all non-frivolous constitutional grounds warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law which petitioner has. I am aware that any ground not raised shall be forever barred by application of Tenn. Code Ann. § 40-30-206(g), and have explained this to petitioner.

_____________________

Counsel for Petitioner

_____________________

Board of Professional Responsibility Number

APPENDIX D. FORM MOTION TO REOPEN

The following form petition shall be available without cost to a prisoner in the prisons and other places of detention and shall also be available without cost to any potential petitioner in the office of the clerk of court for any court of record with criminal jurisdiction. The Post-Conviction Procedure Act contemplates the filing of only one (1) petition for post-conviction relief. A motion to reopen should be filed only under the limited circumstances set out in Tenn. Code Ann. § 40-30-217.

READ THESE INSTRUCTIONS CAREFULLY BEFORE PREPARING THE PETITION

(1) This petition must be legibly handwritten or typewritten and must be signed by petitioner under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered completely in the proper space on the form or on additional sheets submitted with the form. This form may be obtained at the place of confinement corrections institution where you are confined or from any clerk of a court of record with criminal jurisdiction.

(2) No citation of authorities need be furnished. If briefs or arguments are submitted, they should be submitted in the form of a separate memorandum and not as part of this form.

(3) A separate petition must be filed for each judgment you seek to challenge. Only the judgments entered in a single trial or guilty plea proceeding may be challenged in a particular petition. If you seek to challenge judgments entered in different trials or guilty plea proceedings, either in the same county or in different counties, you must file separate petitions.

(4) YOU MUST INCLUDE IN THIS PETITION ALL GROUNDS FOR RELIEF. FAILURE TO INCLUDE A GROUND FOR RELIEF IN THIS PETITION WILL RESULT IN YOUR BEING BARRED FROM PRESENTING IT IN A FUTURE PETITION.

(5) YOU MUST INCLUDE ALL FACTS SUPPORTING EACH GROUND FOR RELIEF. YOU MUST BE AS SPECIFIC AS POSSIBLE AS TO THE FACTS.

(6) Complete all applicable items in the petition. When the petition is fully completed, the ORIGINAL must be mailed to the appropriate clerk of court.

(7) You must comply with these instructions in order to have your petition promptly considered.

(8) REMEMBER, A PETITIONER IS ENTITLED TO FILE ONLY ONE PETITION PER CASE.

IN THE __ COURT OF _ COUNTY, TENNESSEE
AT _______

___________ )

PETITIONER (FULL NAME) )

)

VS. ) CASE NO. _________

)

) (POST-CONVICTION)

STATE OF TENNESSEE )

MOTION TO REOPEN POST-CONVICTION PETITION

Mailing Address of Petitioner _____________________

(including zip code) _____________________

_____________________

Place of Confinement _____________

Department of Corrections Number _________

NOTICE: BEFORE COMPLETING THIS FORM, CAREFULLY READ THE ACCOMPANYING INSTRUCTIONS.

1. Name and location (city and county) of court which entered the judgment of conviction or sentence under attack ____________________________________________________________________________________

2. Date of judgment of conviction _____________________

3. Case Number _____________________

4. Length of sentence _____________________

5. Offense convicted of ________________________________________________________________

6. What was your plea? (Check one)

(a) Guilty _____

(b) Not Guilty _____

(d) Not guilty and not guilty by reason of mental disease or defect _____

(e) Nolo contendere _____

(f) None _____

If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, specify:

(a) Guilty plea counts: _____________________

(b) Not guilty plea counts: _____________________

7. Give the following information in regard to the post-conviction proceeding(s) you seek to reopen at this time:

(a) _____________________

(1) Name and location of post-conviction trial court _____________________

(2) Grounds raised __________________________________________________________________

______________________________________________________________

(attach additional sheets if necessary)

(3) Did you receive an evidentiary hearing on your petition, application or motion?

Yes _____ No _____

(4) Result _____________________

(5) Date of result _____________________

(b) Did you appeal to any appellate court the result of the action taken on that petition?

Yes _____ No _____

_____________________ __________________________________________

8. What grounds exist under Tenn. Code Ann. § 40-30-217 to justify reopening the first post-conviction petition? Check all that apply.

_____ (a) A state or federal appellate court has issued a final ruling establishing a constitutional right that was not recognized as existing at the time of trial but now is required to be recognized and applied in your case.
(1) What was the name and style of the case establishing the constitutional right?
_____________________
(2) On what date was that opinion or ruling filed?
_____________________
(3) If more than one (1) year has passed since the appellate court ruled establishing this new constitutional right, state why the one year statute of limitations should not bar you claim.
____________________________________________________________________________________
(4) Attach a separate sheet of paper listing each constitutional right that you claim that was not recognized as existing at the time of your trial but is now required to be recognized and applied in your case. Include all facts of your case which support your claim that this right now entitles you to relief. Specify how you were prejudiced.

_____ (b) There exists new scientific evidence that establishes that you are actually innocent of the offense or offenses for which you were convicted.

(1) What is the scientific evidence consist of ? _______________________________________________________________

(2) On what date did the scientific evidence come into existence?
_____________________

(3) How and when did you become aware of the existence of this evidence? _______________________________________________________________

(4) How does the evidence establish your actual innocence?
_______________________________________________________________

_____ (c) The sentence in this case was enhanced because of a prior conviction has subsequently been held to be invalid.
(1) Name and location of court which entered the judgment of the prior conviction. _____________________
_____________________
(2) Case number of prior case. _____________________

(3) Name and location of court that held the prior conviction invalid. _______________________________________

(4) Date the conviction held invalid. __________________________________________

(5) Describe how the prior conviction was used to enhance the sentence you are now attacking. _____________________
_______________________________________________________________

(6) If more than one (1) year has passed since the date the prior conviction was set aside, state why the one year statute of limitations should not bar your claim. ______________________________________________________________________

9. Do you have any petition or appeal now pending in any court, either state or federal, as to the judgment under attack?

Yes _____ No _____

10. Give the name(s) and address(es), if known, of each attorney who represented you on your petition for post-conviction relief.

(a) In any post-conviction proceeding _______________________________________________________________

(b) On appeal from adverse ruling in a post-conviction proceeding
_______________________________________________________________

11. Are you currently represented by counsel?

Yes _____ No _____

If Yes, give name and address, if known, of the attorney representing you.
_______________________________________________________________

If No, do

RULES OF THE SUPREME COURT OF THE STATE OF TENNESSEE(Rules 25-End)

APPENDIX A. FORM PETITION

READ THESE INSTRUCTIONS CAREFULLY BEFORE PREPARING THE PETITION

IN THE _________ COURT OF

___________ COUNTY, TENNESSEE AT ___________

PETITION FOR RELIEF FROM CONVICTION OR SENTENCE

GROUNDS OF PETITION

PETITIONER'S VERIFICATION UNDER OATH SUBJECT TO PENALTY FOR PERJURY

APPENDIX B. AFFIDAVIT OF INDIGENCY

APPENDIX C. CERTIFICATION OF COUNSEL

CERTIFICATE

APPENDIX D. FORM MOTION TO REOPEN

READ THESE INSTRUCTIONS CAREFULLY BEFORE PREPARING THE PETITION

IN THE ______ COURT OF _________ COUNTY, TENNESSEE AT ___________

MOTION TO REOPEN POST-CONVICTION PETITION

RULES OF THE SUPREME COURT OF THE
STATE OF TENNESSEE
(Rules 25-End)

_ COUNTY, TENNESSEE AT _

PETITIONER'S VERIFICATION UNDER OATH
SUBJECT TO PENALTY FOR PERJURY

IN THE __ COURT OF _ COUNTY, TENNESSEE
AT _______