Huston Foley Lloyd, Jr. v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 9, 2016

HUSTON FOLEY LLOYD, JR. v. STATE OF TENNESSEE

Appeal from the Criminal Court for Putnam County

No. 08-0812 John Wootten, Jr., by Interchange, Judge

No. M2015-00295-CCA-R3-PC – Filed March 15, 2016

The petitioner, Huston Foley Lloyd, Jr., appeals the summary dismissal of his petition for

post-conviction relief, and the State concedes that summary dismissal was improper.

Because the petitioner stated a colorable claim for post-conviction relief, the post-

conviction court erred by summarily dismissing the petition. Accordingly, the judgment

of the post-conviction court is reversed, and the case is remanded for an evidentiary

hearing on the petitioner’s claims.

Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed and Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ALAN E.

GLENN and ROBERT L. HOLLOWAY, JR., JJ., joined.

Huston Foley Lloyd, Jr., Tiptonville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant

Attorney General; Randall A. York, District Attorney General; and Gary McKenzie,

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

On July 2, 2009, the petitioner pleaded guilty to two counts of first degree

murder for the deaths of Kimberly Wyatt and her four-year-old daughter, Sarah Elizabeth

Wyatt, in exchange for consecutive sentences of life without the possibility of parole. A

written stipulation of fact exhibited to the guilty plea submission hearing provides:

On June 3, 2006, the [petitioner] followed Kimberly

Wyatt and her two minor daughters to the Lantana Church of

Christ in Crossville, Cumberland County, Tennessee. Upon

arrival at Lantana Church of Christ, Kimberly Wyatt

attempted to place her daughters into a vehicle being driven

by Mr. Alex Bosland. As she was attempting to get her

daughters into the vehicle, the [petitioner] arrived, exited his

vehicle and walked to the front of the vehicles being driven

by Alex Bosland and Kimberly Wyatt, and then fired the first

pistol shot striking Sarah Elizabeth Wyatt (age 4) in the neck

and then fired eight shots into the body of Kimberly Wyatt

with premeditation and with the intent to kill Kimberly

Wyatt. The [petitioner] returned to his car, made a telephone

call and then returned, shooting an additional round into the

head of Kimberly Wyatt constituting the act of First Degree

Murder. Kimberly Wyatt was shot a total of nine times and

Sarah Wyatt was shot a total of two times. It is admitted and

stipulated by the [petitioner] that the [petitioner] did

unlawfully kill Kimberly Wyatt, and that he acted

intentionally and with premeditation. It is further admitted

that the [petitioner] killed Sarah Elizabeth Wyatt while

perpetrating the intentional and premeditated murder of

Kimberly Wyatt by shooting Sarah Elizabeth Wyatt twice,

constituting the act of felony murder.

On June 4, 2010, the petitioner filed a timely petition for post-conviction

relief, alleging, among other things, that he was denied the effective assistance of counsel

and that his guilty pleas were not knowingly and voluntarily entered. On June 21, 2010,

the post-conviction court entered an order, finding that the petitioner had failed to satisfy

the statutory requirement that he state a factual basis in support of his claims and giving

the petitioner 15 days within which to file an amended petition. The petitioner filed an

amended petition on June 28, 2010. On July 9, 2010, the post-conviction court entered a

preliminary order, finding that the petitioner had presented a colorable claim for post-

conviction relief and appointing attorney Samuel Harris to represent the indigent

petitioner.

After the petitioner complained about the quality of his representation and

filed a complaint with the Tennessee Board of Professional Responsibility, Mr. Harris

successfully moved to withdraw from the petitioner’s case in May 2011. The post-

conviction court then appointed Douglas K. Dennis, Jr., to represent the petitioner. In

July 2013, Mr. Dennis moved to withdraw from the petitioner’s case, citing a

fundamental breakdown in the attorney-client relationship. The post-conviction court

allowed Mr. Dennis to withdraw and appointed John B. Nisbet to represent the petitioner

in his stead.

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On May 1, 2014, the trial court set an evidentiary hearing for July 25, 2014.

Eleven days later, the petitioner filed a motion seeking to waive his right to counsel and

to proceed pro se. The court conducted a hearing on the petitioner’s motion on June 2,

2014, and concluded “that the petitioner understood what he was requesting and that he

was capable of representing himself and also that he was acting voluntarily of his own

free will and was not under the influence of alcohol or drugs.” The court ordered that the

petitioner would be allowed to proceed pro se. The post-conviction court gave the

petitioner until July 18, 2014, to file an amended petition for post-conviction relief and

stated that after July 18, 2014, the court would “set this matter for a full hearing on the”

petition.

On July 17, 2014, the petitioner tendered his amended petition for post-

conviction relief to prison authorities for mailing. In August 2014, the petitioner filed a

motion for discovery and moved ex parte for funds to hire an investigator. On September

12, 2014, the State filed a response to the petitioner’s ex parte motion for funds to hire an

investigator, asking that the petitioner’s request be denied. The State also filed a

response to the petitioner’s amended petition for post-conviction relief.

On November 5, 2014, Judge Leon C. Burns, who had, until that point,

been presiding over the petitioner’s case, filed an order detailing the procedural history of

the case and noting that he had since retired from the bench. The court ordered that the

case “be placed on the active docket to be reset for a hearing before another judge.” One

week later, the petitioner filed a second request for discovery. On December 2, 2014,

13th Judicial District Presiding Judge Amy V. Hollars entered an order transferring the

petitioner’s case to 15th Judicial District Judge John D. Wootten, Jr., who agreed to hear

the case by interchange because all the judges in the 13th Judicial District had recused

themselves. On December 23, 2014, the petitioner filed a motion seeking recusal of all

the judges in the 13th Judicial District and expressing his displeasure that Judge Hollars

had selected a judge to preside over his case rather than allowing the selection to be made

by the Chief Justice of the Tennessee Supreme Court.

On January 29, 2015, the post-conviction court entered an order denying

post-conviction relief without a hearing on the petition. The order of dismissal provided:

Upon review of the petition, this Court observes that

the essential complaint is one of ineffective assistance of

counsel. However, the underlying case resulted in a guilty

plea. This court has reviewed the exhaustive guilty plea

conducted by the trial judge. . . . The petitioner essentially

wants to undo the plea. Although he alleges ineffective

assistance of counsel, upon review of the record there are but

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scant evidentiary allegations relating to ineffective assistance.

The petition itself is replete with conclusions and

restatements of general principles of law; and therefore, does

not conform to the post-conviction statute.

The court also examined the petitioner’s claims and concluded that each lacked merit.

The court also found

upon review of the petition, the allied papers, the stipulation

of fact entered on the date that the plea was approved by the

trial judge, and the transcript of that proceeding, and the

record that this petition does not conform to the requirements

of the Post-Conviction Act under T.C.A. § 40-30-101 et seq.

This Court further finds that this petition is not a colorable

claim inasmuch as it fails to meet the statutory test upon

examination of the pertinent parts of the record.

Following the denial of his petition, the petitioner filed a timely notice of

appeal. In this appeal, the pro se petitioner complains that Judge Hollars was without

jurisdiction to appoint Judge Wootten to preside over his case and that the post-

conviction court erred by denying his petition without benefit of a hearing on his claims

of ineffective assistance of counsel and prosecutorial misconduct. The State concedes

that the court erred by denying post-conviction relief without holding a hearing on the

petitioner’s colorable claims, noting that Judge Burns had already performed the statutory

preliminary review required by Code section 40-30-106, had concluded that the petitioner

had stated a colorable claim for post-conviction relief, and had entered a preliminary

order in accordance with Code section 40-30-107.

Post-conviction relief is available only “when the conviction or sentence is

void or voidable because of the abridgment of any right guaranteed by the Constitution of

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. Petitions for

post-conviction relief must comply with certain statutory rules:

(c) The petition for post-conviction relief shall be limited to

the assertion of claims for relief from the judgment or

judgments entered in a single trial or proceeding. If the

petitioner desires to obtain relief from judgments entered in

separate trials or proceedings, the petitioner must file separate

petitions.

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(d) The petitioner shall include all claims known to the

petitioner for granting post-conviction relief and shall verify

under oath that all the claims are included.

(e) The petitioner shall include allegations of fact supporting

each claim for relief set forth in the petition and allegations of

fact explaining why each ground for relief was not previously

presented in any earlier proceeding. The petition and any

amended petition shall be verified under oath. Affidavits,

records or other evidence available to the petitioner

supporting the allegations of the petition may be attached to

it.

(f) The petitioner shall provide the name of any attorney

licensed to practice law who drafts or has given assistance or

advice regarding drafting the petition for post-conviction

relief.

(g) Amendments to the petition shall conform substantially to

the form for original petitions, except that matters alleged in

the original petition need not be repeated.

Id. § 40-30-104(c)-(f). Although the petition as originally filed in this case did not

comply with these rules, the post-conviction court allowed the petitioner 15 days to

correct his errors, and the petitioner did so by filing an amended petition. The

petitioner’s second amended petition also complies with these statutory prerequisites.

After the petitioner filed his first amended petition for post-conviction

relief, the post-conviction court “examine[d] it together with all the files, records,

transcripts, and correspondence relating to the judgment under attack, and enter[ed] an

order in accordance with this section or § 40-30-107.” Id. § 40-30-106(a). The

preliminary order filed by Judge Burns contained a finding that the petitioner had stated a

colorable claim for post-conviction relief and appointed counsel to represent the

petitioner. Although the petitioner was later permitted to proceed pro se, the record is

clear that Judge Burns contemplated holding an evidentiary hearing on his petition for

post-conviction relief.

Certainly, the post-conviction court may dismiss a post-conviction petition

if it fails to state a colorable claim for relief. Id. § 40-30-106(f). “A colorable claim is a

claim, in a petition for post-conviction relief, that, if taken as true, in the light most

favorable to the petitioner, would entitle petitioner to relief under the Post-Conviction

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Procedure Act.” Tenn. Sup. Ct. R. 28, § 2(H). Here, the petitioner claimed that he was

deprived of the effective assistance of counsel and that his guilty pleas were not

knowingly and voluntarily entered. Specifically, he asserted that his counsel failed to

investigate defenses associated with the petitioner’s alleged mental deficiencies and the

medications he was taking to address those maladies, that counsel performed deficiently

by advising the petitioner to plead guilty, that counsel should not have enlisted the

petitioner’s wife and children to coerce him to plead guilty, that counsel failed to

adequately explain the elements of the charged offenses prior to the petitioner’s pleading

guilty, and that these errors resulted in his entering unknowing and involuntary pleas.

Additionally, the petitioner claimed that he was taking medications at the time he

rendered his plea that affected his ability to understand the proceeding. Any of these

claims, if taken as true, would entitle the petitioner to post-conviction relief. The post-

conviction court concluded that, based upon its review of the record, the petitioner’s

claims were without merit. The merit of the petitioner’s claims, however, could not have

been appropriately assessed without evidence that obviously would not be in the record

of the proceedings. The purpose of an evidentiary hearing is to allow the post-conviction

petitioner to present evidence in support of the factual allegations made in his petition.

Because the record establishes that the petitioner stated colorable claims for

post-conviction relief, the judgment of the post-conviction court must be reversed and the

case remanded for an evidentiary hearing on his petition at which the petitioner must be

afforded the opportunity to call witnesses and present evidence in support of his

allegations.

The petitioner also contends that once Judge Hollars recused herself, she

was without authority to ask Judge Wootten to preside by interchange. We agree.

Supreme Court Rule 10B provides, as is pertinent here, as follows:

A judge who recuses himself or herself, whether on the

Court’s own initiative or on motion of a party, shall not

participate in selecting his or her successor, absent the

agreement of all parties. With the agreement of all parties to

the case, the judge may seek an interchange in accordance

with Tenn. Sup. Ct. R. 11, § VII(c)(1). Otherwise, the

presiding judge of the court shall effect an interchange in

accordance with Tenn. Sup. Ct. R. 11, § VII(c)(2) or (3). If

an interchange cannot be effected, or if the presiding judge is

the recused judge, the presiding judge shall request the

designation of a judge by the Chief Justice, pursuant to Tenn.

Sup. Ct. R. 11, § VII(c)(4).

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Tenn. Sup. Ct. Rule 10B, § 1.04 (emphasis added). Because Judge Hollars had recused

herself, Rule 10B required that she ask the Chief Justice to designate a judge to preside

over the petitioner’s case. Upon remand, therefore, the presiding judge of the 13th

Judicial District shall request designation of a judge to preside over the petitioner’s case.

Accordingly, the judgment of the post-conviction court is reversed, and the

case is remanded for the designation of a judge to preside over the petitioner’s case and

for an evidentiary hearing on the petition for post-conviction relief.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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