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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
Assigned on Briefs February 1, 2005 DAVID LACKEY v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Davidson County No. 2000-B-1103 Seth Norman, Judge

No. M2004-00558-CCA-R3-PC - Filed May 31, 2005

The petitioner appeals the summary dismissal of his petition for post-conviction relief, arguing that he should have been appointed post-conviction counsel and given an evidentiary hearing. Following our review, we remand this matter to the post-conviction court to determine whether the petitioner's right to due process of law requires that the petition be considered regardless of its untimeliness. Tenn. R. App. P. 3 Appeal as of Right; Case Remanded to Criminal Court ALAN E. GLENN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ROBERT W. WEDEMEYER , JJ., joined. David Lackey, Only, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION FACTS By separate order, this court has granted the petition for rehearing filed by the petitioner, withdrawn the opinion filed in this matter on March 30, 2005, and directed that it be replaced with this opinion. Based on his participation in the 1998 murder of Nashville resident Billy Wiggins, the petitioner, David Lackey, was convicted by a Davidson County jury of one count of premeditated murder, one count of felony murder during the perpetration of a theft, and one count of misdemeanor theft. After merging the two murder convictions, the trial court sentenced the petitioner to an effective sentence of life imprisonment. This court affirmed the convictions on direct appeal. See

State v. David Allen Lackey, No. M2001-01043-CCA-R3-CD, 2002 WL 31007442, at *1 (Tenn. Crim. App. Sept. 6, 2002). On October 31, 2003, the petitioner filed a post-conviction petition which the post-conviction court found to be "timely" but deficient because it failed "to include any specific grounds and factual bases in support of the allegations in the petition." Accordingly, the petitioner was given thirty days to supplement his pleadings, which he did, filing a timely seven-page amendment to the original petition, again, asking that counsel be appointed. In its written dismissal order, the post-conviction court treated what was styled as an "Amendment to [the original] Petition" as an amended petition, finding that it was deficient because it presented only "[b]are allegations of violations of constitutional rights" and that neither the original nor amended petition was "verified under oath." Accordingly, the petition was denied. Thereafter, the petitioner filed a pro se notice of appeal to this court. ANALYSIS On appeal, the State argued that the petitioner's claims properly were dismissed because they were not verified under oath, thus failing to "state a colorable claim for relief." In our original opinion in this matter, we upheld the dismissal on grounds different than those utilized by the post-conviction court or argued by the State on appeal. We concluded, sua sponte, that the petition was untimely by about three weeks. See Tenn. Code Ann.

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