40-30-110 - Hearing. - Tennessee Statutes

40-30-110. Hearing.

(a)  The petitioner shall appear and give testimony at the evidentiary hearing if the petition raises substantial questions of fact as to events in which the petitioner participated, unless the petitioner is incarcerated out of state, in which case the trial judge may permit the introduction of an affidavit or deposition of the petitioner and shall permit the state adequate time to file any affidavits or depositions in response the state may wish.

(b)  (1)  If the petitioner is imprisoned, the warden shall arrange for transportation of the petitioner to and from the court upon proper orders issued by the trial judge.

     (2)  The sheriff of the county where the proceeding is pending shall have the authority to receive and transport the petitioner to and from the penitentiary and the court, if the court so orders or if for any reason the warden is unable to transport the petitioner. The sheriff shall be entitled to the same costs allowed for the transportation of prisoners as is provided in criminal cases upon the presentation of the account certified by the judge and district attorney general.

(c)  Proof upon the petitioner's claim or claims for relief shall be limited to evidence of the allegations of fact in the petition.

(d)  All evidentiary hearings shall be recorded.

(e)  The Tennessee Rules of Evidence shall apply except as otherwise required in this part.

(f)  The petitioner shall have the burden of proving the allegations of fact by clear and convincing evidence. There is a rebuttable presumption that a ground for relief not raised before a court of competent jurisdiction in which the ground could have been presented is waived.

[Acts 1995, ch. 207, § 1; T.C.A. § 40-30-210.]