Jimmy L. Smith v. Mike Parris, Warden ( 2017 )

11/30/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs November 7, 2017
JIMMY L. SMITH v. MIKE PARRIS, WARDEN
Appeal from the Circuit Court for Lake County
No. 17-CR-10357 R. Lee Moore, Jr., Judge
___________________________________
No. W2017-00918-CCA-R3-HC
___________________________________
Jimmy L. Smith, the Petitioner, filed a pro se Application for Writ of Habeas Corpus
(“the petition”), claiming that his convictions in Counts 1 through 4 of Case Number
87F1868 are void because the Davidson County District Attorney General only signed
Count 5 of the multi-count indictment. The Petitioner also claimed that his conviction in
Count 2 was void because the judgment failed to state that he had been found guilty by a
jury. The habeas corpus court summarily dismissed the petition. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.
Jimmy L. Smith, Tiptonville, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; and Phil Bivens, District Attorney General, for the appellee, State of
Tennessee.
OPINION
Procedural Background
The Davidson County Grand Jury indicted the Petitioner in September 1987 in
case number 87F1868. The five-count indictment charged the Petitioner in Count 1 with
Aggravated Kidnapping, Count 2 with Aggravated Rape, Counts 3 and 4 with
Aggravated Sexual Battery, and Count 5 with Aggravated Robbery. The indictment was
signed at the bottom of Count 5 by the Davidson County District Attorney General.
Following a jury trial, the Petitioner was convicted of Counts 1 through 4 and ordered to
serve an effective 115-year sentence. The Petitioner was found not guilty of Count 5.
The convictions and sentence were affirmed on appeal. State v. Jimmy L. Smith, No. 88-
177-III, 1989 WL 51613, at *2 (Tenn. Crim. App. May 19, 1989), perm. app. denied
(Tenn. Aug. 14, 1989).
On March 30, 2017, the Petitioner filed what he stated was his fifth application for
writ of habeas corpus, claiming that the judgments in case number 87F1868 were void
because the district attorney general failed to sign each page of the indictment and
because the judgment of conviction for Count 2 failed to state that he was convicted by a
jury.1 Following the summary dismissal of his petition, the Petitioner timely appealed.
Analysis
On appeal, the Petitioner claims that the habeas corpus court erred in holding that
the district attorney general is not required to sign each count of the indictment and that
his judgment in Count 2 was not void. The State avers that the habeas corpus court
properly dismissed the petition because the petition failed to state a cognizable claim.
We agree with the State.
Habeas corpus relief may only be granted in limited circumstances. Edwards v.
State, 269 S.W.3d 915, 920 (Tenn. 2008). Unlike petitions for post-conviction relief,
“the purpose of the habeas corpus petition is to contest void and not merely voidable
judgments.” Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel.
Newsome v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968)). “Habeas corpus relief is
available in Tennessee only when ‘it appears upon the face of the judgment or the record
of the proceedings upon which the judgment is rendered’ that a convicting court was
without jurisdiction or authority to sentence a defendant, or that a defendant’s sentence of
imprisonment or other restraint has expired.” Archer v. State, 851 S.W.2d 157, 164
(Tenn. 1993) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37 (1868)). A
petitioner bears the burden of establishing by a preponderance of the evidence that a
judgment is void or that the confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000). A habeas corpus petition may be summarily dismissed without a hearing
when the petition “fails to demonstrate that the judgment is void.” Hickman v. State, 153
S.W.3d 16, 20 (Tenn. 2004) (citing Tenn. Code Ann. § 29-21-109). “Whether habeas
corpus relief should be granted is a question of law[,]” which we review de novo.
Edwards, 269 S.W.3d at 919.
1
None of the four prior applications were attached to the petition.
-2-
Signing the Indictment
An indictment “must be signed by the proper officer appointed to prosecute on
behalf of the state.” Teas v. State, 26 Tenn. 174, 174 (1846). The signature may be at the
conclusion of the indictment or elsewhere if the signature “show[s] that it is intended to
cover all the counts contained therein[.]” State v. Lockett, 50 Tenn. 274, 275 (1871).
This court has consistently held that signing the last page of a multicount indictment is
sufficient. See, e.g., Timothy R. Bowles v. State, No. M2003-01740-CCA-R3-PC, 2004
WL 1656476, at *4 (Tenn. Crim. App. July 23, 2004) (concluding that the indictment
was not invalid where the district attorney general only signed at the bottom of the last
page of a six-page, six-count indictment), perm. app. denied (Tenn. Dec. 20, 2004);
James L. Feenin v. Kevin Myers, No. M2002-01770-CCA-R3-CO, 2003 WL 1872646, at
*2 (Tenn. Crim. App. Apr. 11, 2003) (concluding that the indictment was not defective
where the district attorney general only signed at the bottom of the last page of a three-
page, three-count indictment), perm. app. denied (Tenn. Oct. 13, 2003).
In 2011, the Petitioner filed a prior application for writ of habeas corpus and
argued that his convictions in Counts 1 through 4 were void because the district attorney
general only signed the last page of the indictment. Jimmy L. Smith v. Henry Steward,
No. W2012-00708-CCA-R3-HC, 2012 WL 4120478, at *1 (Tenn. Crim. App. Sept. 19,
2012), perm. app. denied (Tenn. Feb. 12, 2013). The habeas corpus court summarily
dismissed the petition, and the Petitioner appealed. Id. In affirming the dismissal, this
court held that “while a signature [on the indictment] is required, it is ‘not necessarily
required to be on each count of an indictment.’” Id. at *3 (quoting James E. Martin v.
Howard Carlton, No. 03C01-9807-CR-00253, 1999 WL 360147, at *3 (Tenn. Crim.
App. June 7, 1999))
“‘[U]nder the law of the case doctrine, an appellate court’s decision on an issue of
law is binding in later trials and appeals of the same case if the facts on the second trial or
appeal are substantially the same as the facts in the first trial or appeal.’” State v. Willis,
496 S.W.3d 653, 743 (Tenn. 2016) (quoting Memphis Publ’g Co. v. Tenn. Petroleum
Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998)). We conclude that
the facts supporting the Petitioner’s claim regarding the signing of the indictment are
substantially the same as the facts that this court addressed in the prior appeal and that
this court’s prior ruling is binding in this appeal. Accordingly, the Petitioner’s claim is
barred by the law of the case doctrine. See id. at 743-44. Moreover, the Petitioner’s
claim that a district attorney general must sign each page of an indictment is otherwise
without merit. See Timothy R. Bowles, 2004 WL 1656476, at *4.
-3-
Clerical Error on the Judgment in Count 2
The judgment form used at the time of the Petitioner’s convictions contained a
paragraph, which before the blanks were filled in, provided:
On the _____ day of ___________, 19__, the defendant having (pled
guilty) or (been found guilty) (by jury verdict) or (bench trial) or (entered a
plea of nolo contendere), (to) (of) the offense of
_______________________ committed on (date) __________ the
defendant is convicted of the same ________________________ which (is)
(is not) a felony.
On the judgment forms for Counts 1, 3, and 4, “(pled guilty)” was struck through so that
the judgment read in pertinent part “. . . the defendant having (been found guilty) (by jury
verdict) . . . .” On the judgment form for Count 2, both “(pled guilty)” and “(been found
guilty)” were struck through. This is obviously a clerical error. “Clerical errors ‘arise
simply from a clerical mistake in filling out the uniform judgment document’ and may be
corrected at any time under Tennessee Rule of Criminal Procedure 36.” State v. Wooden,
478 S.W.3d 585, 595 (Tenn. 2015) (quoting Cantrell v. Easterling, 346 S.W.3d 445, 452
(Tenn. 2011)).
Even with the clerical error, the verdict form clearly shows that the Petitioner had
a jury trial and that the offense for which he was convicted in Count 2 was Aggravated
Rape. The clerical error on the verdict form does not void the conviction or strip the trial
court of jurisdiction.
Failure to Attach Prior Applications
The Petitioner has failed to comply with the procedural requirements of Tennessee
Code Annotated section 29-21-107, which provides in pertinent part: “(b) The petition
shall state[] . . . [t]hat it is first application for the writ, or, if a previous application has
been made, a copy of the petition and proceedings thereon shall be produced, or
satisfactory reasons be given for the failure so to do.” Tenn. Code Ann. § 29-21-
107(b)(4). The procedural requirements for the filing of a habeas corpus petition are
mandatory and must be strictly followed. See Archer, 851 S.W.2d at 165.
Concerning his prior petitions, the Petitioner provided the following explanation:
5. [The] Petitioner has filed four previous petitions for habeas
corpus relief. See Order Denying Petition For Writ of Habeas Corpus Filed
May 18, 2015[,] annexed hereto. He states, however, that the basis of the
-4-
present petition is different from any other of the petitions he has filed.
This is the first application of the writ specifically alleging a federal
constitutional claim and the specific state law claims. [The] Petitioner
allege[s] these claims are cognizable Tennessee Habeas Corpus claims.
The Petitioner failed to include copies of the four prior applications for writ of
habeas corpus. The Petitioner’s explanation, quoted above, does not provide a
satisfactory reason for not including the prior applications. The Petitioner’s failure to
comply with the procedural requirements is yet another basis for affirming the habeas
corpus court’s summary dismissal of the petition. Id.; State ex rel. Allen v. Johnson, 394
S.W.2d 652, 653 (1965).
Conclusion
The habeas corpus court properly dismissed the petition for failure to state a
cognizable claim. The judgment of the habeas corpus court is affirmed.
____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
-5-