The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
October 5, 1999
MAY 1999 SESSION Cecil Crowson, Jr.
Appellate Court Clerk
LUCY KILLEBREW, * C.C.A. # 03C01-9809-CR-00320
Appellant, * SULLIVAN COUNTY
VS. * Honorable Lynn W . Brown, Judge
STATE OF TENNESSEE, * (Post-Conviction--First Degree Murder)
Appellee. *
FOR THE APPELLANT: FOR THE APPELLEE:
LUCY KILLEBREW MICHAEL E. MOORE
Pro Se Solicitor General
SNF-7A, #117005
7575 Cockrill Bend Ind. Road ELLEN H. POLLACK
Nashville, TN 37209-1057 Assistant Attorney General
425 Fifth Avenue North
Nashville, TN 37243
H. GREELEY WELLS, JR.
District Attorney General
BARRY P. STAUBUS
Assistant District Attorney
140 Blountville Bypass
Blountville, TN 37617-0526
OPINION FILED: _______________
DISMISSED
JOHN EVERETT WILLIAMS,
Judge
OPINION
The petitioner, Lucy Killebrew, appeals from the Sullivan County Criminal
Court’s denial of her motion to reopen her 1989 post-conviction relief petition.
We conclude that the petitioner did not comply with the requirements of
Tennessee Code Annotated § 40-30-217(c) in pursuing an appeal from the
denial of her motion to reopen. Therefore, this appeal is not properly before this
Court and we dismiss this appeal.
PROCEDURAL HISTORY
The petitioner was found guilty by a Sullivan County jury on April 10,
1987, of First Degree Murder. She received a sentence of life in prison. Her
conviction was affirmed on direct appeal. See State v. Killebrew, 760 S.W.2d
228, 231, n.10 (Tenn. Crim. App. 1988). Subsequently, she filed a petition for
post-conviction relief in 1989. The trial court denied her petition for post-
conviction relief and a panel of this Court affirmed the trial court’s denial. See
Lucy Killebrew v. State, No. 941 (Tenn. Crim. App. filed January 11, 1991, at
Knoxville). Later, the petitioner pursued habeas corpus relief. See Killebrew v.
Bernhardt, 72 F. 3d 129 (6th Cir. 1995) (unpublished table decision).
The petitioner filed this motion to reopen her 1989 post-conviction relief
petition in the Sullivan County Criminal Court on August 14, 1998. The Motion to
Reopen was filed as a verified petition but lacked any supporting documents or
affidavits. The Sullivan County Criminal Court denied and dismissed the
petitioner’s Motion to Reopen by Order entered August 28, 1998. On September
14, 1998, the petitioner filed a “Notice of Appeal” containing the following
language:
Respectfully, the petitioner, Lucy Killebrew, hereby gives Notice of
Appeal of this Court’s Order, dated September 1, 1998, received by
her on September 3, 1998, denying her Motion to reopen a post-
conviction petition, appealed to the Tennessee Court of Criminal
Appeals at Knoxville.
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Later the petitioner filed a pro se brief with this Court submitting the
following issues for review:
(1) Whether or not the trial court abused its discretion by dismissing
the Motion to Reopen when the ground alleged recent discovery
of scientific, exculpatory evidence of the appellant’s actual
innocence, that was withheld by the prosecution at trial;
(2) Whether or not the trial court abused its discretion by dismissing
the Motion to Reopen when the ground alleged actual
innocence of the appellant without appointment of counsel and
holding of an evidentiary hearing to allow appellant the chance
to offer evidence of a constitutional claim.
ANALYSIS
Tennessee Code Annotated § 40-30-217 explains “Motion to Reopen” as
created by the Post-Conviction Procedure Act of 1995. Tennessee Code
Annotated § 40-30-217(c) sets forth the proper procedure for appealing the
denial of a motion to reopen a prior petition for post-conviction relief to this Court.
It provides as follows:
(1) If the motions is denied, the petitioner shall have ten (10) days
to file an application in the Court of Criminal Appeals seeking
permission to appeal. The application shall be accompanied by
copies of all documents filed by both parties in trial court and
the order denying the motion. The state shall have ten (10)
days to respond.
This provision does not provide for an appeal as of right pursuant to Rule
3 of the Tennessee rules of Appellate Procedure from the denial of a Motion to
Reopen. An appeal as of right “does not require permission of the trial or
appellate court as a prerequisite to taking an appeal.” Tenn. R. App. P. 3(d). By
the explicit provision of Tennessee Code Annotated § 40-30-217(c), however, an
appeal to this Court from a denial of a motion to reopen requires that the
petitioner seek permission to appeal. This was not done in the case at bar. The
petitioner merely filed a Notice of Appeal with the clerk of the trial court as if she
were appealing pursuant to Rule 3 of the Tennessee Rules of Appellate
Procedure. See Tenn. R. App. P. 3(c). The entire language of the petitioner’s
notice of appeal is set out above.
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This petitioner did not file an application with this Court seeking
permission to appeal, did not include copies of all the documents filed by both
parties in the trial court, and did not include the order denying the motion. The
petitioner’s failure to comply with the requirements of Tennessee Code
Annotated § 40-30-217(c) in pursuing this appeal leads us to conclude that this
appeal is not properly before this Court.
CONCLUSION
In accordance with the above, we must dismiss this appeal.
________________________________
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
________________________________
JAMES CURWOOD WITT, JR., Judge
________________________________
ALAN E. GLENN, Judge
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