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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FEBRUARY 2000 SESSION

FILED
March 14, 2000

Cecil Crowson, Jr. Appellate Court Clerk RUDY WENDELL MYERS, Appellant, vs. ) ) ) ) ) ) ) ) ) ) C.C.A. No. M1999-00498-CCA-R3-PC Franklin County Hon. J. Curtis Smith, Judge (Post-Conviction: Murder - first degree, Assault with intent to murder, Armed robbery)

STATE OF TENNESSEE, Appellee.

FOR THE APPELLANT: RUDY WENDELL MYERS (pro se) Rt. 4, Box 600 Pikeville, TN 37367

FOR THE APPELLEE: PAUL G. SUMMERS Attorney General & Reporter MARVIN E. CLEMENTS, JR. Asst. Attorney General 425 Fifth Ave. North Nashville, TN 37243-0493 JAMES M. TAYLOR District Attorney General STEVEN M. BLOUNT Asst. District Attorney General 1002 West Main St. Decherd, TN 37324

OPINION FILED:________________

AFFIRMED JAMES CURWOOD WITT, JR., JUDGE

OPINION The defendant, Rudy Wendell Myers, appeals from the dismissal of his third post-conviction petition by the Franklin County Circuit Court. In 1984 the defendant pleaded guilty to felony murder, assault with intent to commit first degree murder with bodily injury occurring to the victim, and armed robbery. He was sentenced to consecutive life sentences for each of the offenses. He did not directly appeal his convictions. In 1989 this court affirmed the denial of his first post-conviction petition. See State v. Rudy Wendell Myers, Franklin County No. 88116-III (Tenn. Crim. App., Nashville, June 29, 1989), perm app. denied (Tenn. 1989) (Myers I). In 1992 the petitioner filed a second post-conviction petition which was subsequently summarily dismissed for being time-barred. See Rudy Wendell Myers v. State, No. 01C01-9308-CC-00270 (Tenn. Crim. App.,Jackson, Jan. 20, 1994), perm app. denied (Tenn. 1994) (Myers II). In 1999 the petitioner filed this, his third post-conviction petition, in which he states a number of grievances, including involuntary and incompetent guilty plea, approximately 30 claims of ineffective assistance of counsel, defective indictment, unconstitutionality of proscriptive criminal statutes, the state's failure to disclose exculpatory evidence, systematic exclusion of females and black persons from the grand jury, judicial bias, prejudicial pretrial publicity, and excessive sentences. He claims that the statute of limitations is tolled on these post-conviction claims because of his mental impairment. He now appeals the trial court's summary dismissal of his petition. Following a review of the record and the briefs of the parties, we affirm the trial court's judgment.

This case began in 1983 when the petitioner and his co-defendant, Kevin Watley, attacked Majorie Fults as she returned home from her family store one evening. The two masked men bound and gagged Ms. Fults and waited for her husband, Chester Fults, and her son, Ricky Fults, who were on their way home. Mr. Fults entered his home, followed by his son. As Ricky Fults passed through the 2

door, someone told him to "halt," and he was struck in the back. He was then shot in the arm. As he slumped over, he saw his father shot with a shotgun and one of the attackers going through his father's belongings. He passed out, and when he awoke, the attackers were gone, along with the car his mother had been driving.

Nine days after the murder, the petitioner contacted the police and confessed to the offenses. He led the police to the location where the money and guns were hidden. He was indicted for first degree murder of Mr. Fults, felony murder of Mr. Fults, assault with intent to commit first degree murder with bodily injury to Ricky Fults, assault with intent to commit first degree murder with a deadly weapon to Mrs. Fults, and armed robbery of Mrs. Fults. A few weeks before his codefendant's trial the petitioner wrote a letter to the local paper in which he stated that he had converted his religion, that he wanted to get right with his God, and that he wanted to tell young people about the horrors of drugs. He essentially confessed in the letter.

In exchange for the state not seeking the death penalty, the petitioner agreed to testify at his co-defendant's trial and to plead guilty to the charges for felony murder, assault with intent to murder Ricky Fults, and armed robbery. He also agreed to consecutive life sentences for these offenses.

In the petitioner's first post-conviction proceeding (Myers I), he alleged ineffective assistance of counsel in that he claimed his counsel did not communicate with him, did not pursue the defense of insanity or diminished capacity, and did not explain the meaning of consecutive sentences. After an evidentiary hearing, the Myers I post-conviction court found that the petitioner's trial counsel exhaustively investigated and prepared the case and examined the

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possibility of a defense based upon insanity, mental incompetency, or mental health limitations. The Myers I court denied the petition.

In the case at bar, the trial court dismissed the petitioner's postconviction petition without holding an evidentiary hearing. The trial court found that the petition was filed outside the statute of limitations.

The petition alleges that Myers "has never been competent in this cause to raise any of his claims for relief, nor was Petitioner psychologically sound at the time of his convictions and sentences." The petition further alleges that he has a "history of psychological illness, and a proper investigation would reveal this." The petitioner says he suffers from "psychological and neurological brain damage" and that both he and his family have a history of mental illness.

The petition alleges that Myers has sustained numerous head injuries, has a childhood history of abusing inhalants, experiences "radical mood and delusional disorders, . . . extreme depression, . . . loss of memory, an inability to recall even recent events, . . . [and] has difficulty with thinking abstractly." The petition further alleges that upon motion of his trial counsel before he pleaded guilty, the trial court ordered a physical and mental examination and that this examination did not meet the standard of care for a forensic evaluation. A letter documenting the results of the court-ordered examination are attached to the petition as an exhibit. Also attached to the petition is a report of an evaluation, performed in 1996 by the petitioner's expert, which concludes that the previous letter, which was addressed to the trial court, "does not meet the standard of care for a psychological assessment pertinent to mental state at the time the crime was committed." The petition alleges that the evaluation of the first letter is new evidence which was not previously raised and was not capable of being "discovered by a lay person such 4

as [the petitioner]." The petition makes only passing reference to petitioner's first post-conviction petition and claims that it "illustrates the confusion and misunderstanding Petitioner had regarding his pleas and the resulting sentences."

A trial court's initial review of a post-conviction petition is pursuant to Code section 40-30-206, which provides that the trial court shall consider the factual allegations to be true in determining whether the petition shall be dismissed. See Tenn. Code Ann.

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