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Cowan v. State12/15/2003
On May 2, 1991, in response to the petitioner's guilty plea, the Blount County Circuit Court entered a judgment convicting the petitioner of second degree murder and sentencing him to serve 35 years as a multiple offender in the Department of Correction. On October 16, 1992, the petitioner filed a petition for post-conviction relief. On April 12, 1993, the post-conviction court entered an order allowing the petitioner to withdraw his petition. On February 28, 2003, the petitioner moved to reopen his 1992 post-conviction petition.
The motion to reopen alleged that newly discovered evidence that the victim died as a result of medical malpractice would show that he is actually innocent of the homicide. The motion reveals that the petitioner shoved the victim, his three-year-old stepson. The child sustained injuries when he fell as a result of the petitioner's shove. The petitioner claimed that during the course of medical treatment for the child's injuries, the victim lapsed into a coma. The child ultimately died when his family terminated life support measures. Further, the petitioner alleged in his motion to reopen that his trial counsel was aware, and failed to disclose, that medical malpractice resulted in the victim's death. Based upon this claim, he posited that his guilty plea was unknowing, involuntary, and the result of ineffective assistance of counsel. He also alleged that counsel failed to inform him that he would be denied parole upon attaining his release eligibility of 35 percent. Finally, he alleged that the first degree murder indictment by which he was charged was defective because it failed to allege the date of the offense.
On March 7, 2003, the post-conviction court found that the motion "fails to set forth any factual basis that supports reopening the petition pursuant to T.C.A. [section] 40-30-217." The court denied the motion to reopen.
On March 17, 2003, the petitioner filed a notice of appeal.
Tennessee Code Annotated section 40-30-117 provides:
(a) A petitioner may file a motion in the trial court to reopen the first post-conviction petition only if the following applies:
(1) The claim in the motion is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial, if retrospective application of that right is required. Such motion must be filed within one (1) year of the ruling of the highest state appellate court or the United States supreme court establishing a constitutional right that was not recognized as existing at the time of trial; or
(2) The claim in the motion is based upon new scientific evidence establishing that such petitioner is actually innocent of the offense or offenses for which the petitioner was convicted; or
(3) The claim asserted in the motion seeks relief from a sentence that was enhanced because of a previous conviction and such conviction in the case in which the claim is asserted was not a guilty plea with an agreed sentence, and the previous conviction has subsequently been held to be invalid, in which case the motion must be filed within one (1) year of the finality of the ruling holding the previous conviction to be invalid; and
(4) It appears that the facts underlying the claim, if true, would establish by clear and convincing evidence that the petitioner is entitled to have the conviction set aside or the sentence reduced.
(b) The motion must set out the factual basis underlying its claims and must be supported by affidavit. The factual information set out in the affidavit shall be limited to information which, if offered at an evidentiar
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