Antwain Tapaige Sales v. State of Tennessee ( 2021 )

05/19/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 31, 2021
ANTWAIN TAPAIGE SALES v. STATE OF TENNESSEE
Appeal from the Criminal Court for Morgan County
No. 2020-CR-105 Jeffery Hill Wicks, Judge
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No. E2020-01471-CCA-R3-HC
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Petitioner, Antwain Tapaige Sales, filed a petition for writ of habeas corpus seeking relief
from his convictions for second degree murder and attempted second degree murder. The
trial court summarily dismissed the petition. Petitioner appealed. Because the notice of
appeal was untimely, we dismiss the appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J. and ROBERT L. HOLLOWAY, JR., J., joined.
Antwain Tapaige Sales, Wartburg, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; and Edwin Alan Grover, Jr.,
Assistant Attorney General, for the appellee, State of Tennessee.
OPINION
Petitioner pled guilty to second degree murder and attempted second degree murder
in 2007 in Bedford County. About four years later, Petitioner sought post-conviction relief.
The petition was dismissed as untimely. On appeal to this Court, the dismissal of the post-
conviction petition was affirmed. Antwain Tapaige Sales v. State, No. M2011-02001-
CCA-R3-PC, 2011 WL 4479283, at *1 (Tenn. Crim. App. Sept. 27, 2012), perm. app.
denied (Tenn. Jan. 14, 2013).
In 2012, Petitioner filed a petition for writ of habeas corpus. Documents in the
technical record indicate that an order was prepared dismissing the petition. However, the
order appearing in the technical record is not stamped filed by the trial court or signed by
the trial judge.1
In 2014, Petitioner sought federal habeas relief. This petition was dismissed by the
federal district court. Antwain T. Sales v. Sharon Taylor, Warden, 2015 WL 4487833, at
*5.
Next, Petitioner again sought habeas relief in state court in June of 2020. In the
petition, he argued that the trial court clerk did not sign the indictment and judgments, the
trial court lacked jurisdiction, and the judgments underlying his convictions were void.
The State filed a motion to dismiss. Despite Petitioner’s claim that he did not receive the
motion, the certificate of service indicates that the motion was mailed to the address listed
by Petitioner on the petition for post-conviction relief. The trial court dismissed the petition
summarily on August 20, 2020. Petitioner filed several motions to reconsider the dismissal
and a notice that he was transferred to a different prison. Petitioner filed a notice of appeal
on October 22, 2020.
Analysis
On appeal, Petitioner insists that the trial court improperly denied his request for
habeas relief. The State insists that the appeal should be dismissed because it was untimely
and Petitioner has failed to establish that the timeliness should be waived. Moreover, the
State insists that the petition is procedurally deficient and fails to state a cognizable claim
for habeas relief.
“Ordinarily, a habeas corpus court’s judgment becomes final thirty days after the
entry of the judgment unless a notice of appeal is filed.” State v. Carl T. Jones, M2011-
00878-CCA-R3-CD, 2011 WL 5573579, at *1 (Tenn. Crim. App. Nov. 15, 2011) (citing
Tenn. R. App. P. 4(a)), perm. app. denied (Tenn. Apr. 11, 2012). Under Tennessee Rule
of Appellate Procedure 4(a), the notice of appeal must be filed “within 30 days after the
date of entry of the judgment appealed from.” However, Rule 4(a) also states that “in all
criminal cases the ‘notice of appeal’ document is not jurisdictional and the filing of such
document may be waived in the interest of justice.” A petitioner bears the responsibility
to properly perfect his appeal or to demonstrate that the “interests of justice” merit waiver
of an untimely filed notice of appeal. Carl T. Jones, 2011 WL 5573579, at *1 (citing Tenn.
R. App. P. 4(a)).
1
The opinion from the Federal District Court claims that this petition was summarily dismissed on
April 27, 2012. Antwain T. Sales v. Sharon Taylor, Warden, No. 4:14-CV-58-HSM-SKL, 2015 WL
4487833, at *1 (E.D. Tenn. July 23, 2015).
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In this case, the habeas corpus court entered its judgment on August 20, 2020.
Petitioner did not file his notice of appeal until October 22, 2020. Thus, Petitioner’s notice
of appeal was filed more than 30 days after the entry of the judgment of the habeas corpus
court. Petitioner’s notice of appeal was untimely, and he has not requested a waiver nor
has he offered any explanation as to why this Court should excuse the untimely filing.
Rather, Petitioner ignored the timeliness of the notice of appeal in his reply brief, instead
arguing that this Court somehow sanctioned the timeliness of the notice of appeal by ruling
on several motions filed by Petitioner in this Court and that the State’s argument that the
notice of appeal was untimely is waived because the State raised it for the first time in its
brief. Petitioner even acknowledges in his reply brief that he has yet to present any basis
upon which this Court may find that the “interests of justice” merit a waiver of the untimely
filed notice of appeal. See State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App.
2007) (“If this [C]ourt were to summarily grant a waiver whenever confronted with
untimely notices, the thirty-day requirement of Tennessee Rule of Appellate Procedure 4(a)
would be rendered a legal fiction.”). Moreover, the multiple “motions to reconsider”
following the dismissal of the petition for habeas corpus relief did not toll the 30-day filing
deadline for the notice of appeal. State v. Lock, 839 S.W.2d 436, 440 (Tenn. Crim. App.
1992). The notice of appeal is untimely. Accordingly, the appeal is dismissed.
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TIMOTHY L. EASTER, JUDGE
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