Mardoche Olivier v. State of Tennessee ( 2018 )

01/29/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs January 17, 2018
MARDOCHE OLIVIER v. STATE OF TENNESSEE
Appeal from the Circuit Court for Montgomery County
No. CC17-CR-62 William R. Goodman III, Judge
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No. M2017-01057-CCA-R3-HC
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Defendant, Mardoche Olivier, was indicted for driving on a cancelled, suspended, or
revoked license and violating the vehicle registration law. While that charge was
pending, Defendant filed pro se a petition for habeas corpus relief, which the trial court
summarily denied. After a review of the record, we hold that the trial court correctly
dismissed the motion for lack of jurisdiction. Because the present appeal is frivolous and
because Defendant is abusing the appellate process, we tax the costs to Defendant and
restrict further habeas corpus appeals unless Defendant attaches to his notice of appeal a
copy of a final judgment for the challenged conviction.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.
Mardoche Olivier, Clarksville, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Sophia Lee, Senior Counsel; John
W. Carney, District Attorney General; and Daniel Stephenson, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
On January 5, 2017, Defendant was indicted for driving on a cancelled, suspended,
or revoked license and violating the vehicle registration law. Despite being represented
by counsel, on April 24, 2017, Defendant filed a pro se “Motion for Habeas Corpus”
alleging constitutional violations related to his arrest and bail hearing. The trial court
summarily denied the petition for habeas corpus relief, and Defendant subsequently filed
a pro se notice of appeal.
“The grounds upon which habeas corpus relief will be granted are narrow.”
Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004). In Tennessee, habeas corpus relief is
only available when a conviction is void because the trial court was without jurisdiction
or authority to sentence a defendant or when a defendant remains confined despite the
expiration of his sentence. See Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). It
is well-settled that a defendant may not pursue habeas corpus relief while an original
criminal case or direct appeal is pending involving the same matter of confinement. See
Hankins v. State, 512 S.W.2d 591 (Tenn. Crim. App. 1974). Because Defendant’s
charges are still pending in the trial court, there is no final judgment of conviction
restraining his liberty. See Benson v. State, 153 S.W.3d 27, 31 (Tenn. 2004) (“A
statutory prerequisite for eligibility to seek habeas corpus relief is that the petitioner must
be ‘imprisoned or restrained of liberty’ by the challenged convictions.”). Therefore, the
trial court correctly dismissed Defendant’s petition for habeas corpus relief.
This is the eighth pro se appeal from the denial of a writ of habeas corpus filed by
Defendant while the original criminal case was pending in the trial court. Appeals
docketed under case numbers M2016-02300-CCA-R3-CD, M2017-00158-CCA-R3-CD,
M2017-00159-CCA-R3-CD, and M2017-00162-CCA-R3-CD were all summarily
dismissed by order of this Court for lack of jurisdiction. The appeal in case number
M2017-01058-CCA-R3-HC was summarily dismissed by this Court for an inadequate
record—one that did not include a final judgment—and failure to respond to the State’s
motion to dismiss. In addition to this appeal, Defendant has two other appeals pending
before this Court in case numbers M2017-01056-CCA-R3-HC and M2017-01059-CCA-
R3-HC.
Rule 22(B) of the Rules of the Court of Criminal Appeals states that:
A “frivolous” appeal is not merely one that is likely to be
unsuccessful. It is one that is so readily recognizable as devoid of merit
that there is little, if any, prospect that it can ever succeed. To be frivolous,
an appeal must be so clearly untenable or manifestly insufficient that its
character may be determined by a bare inspection of the record, without
argument or research.
Tenn. Ct. Crim. App. R. 22. We determine from a “bare inspection of the record” that
the instant appeal is “devoid of merit” and “clearly untenable.” The appeal is frivolous
and Defendant is abusing the appellate system by repeatedly filing frivolous appeals.
Therefore, costs are taxed to Defendant. Furthermore, the Appellate Court Clerk shall
not accept for filing any of Defendant’s habeas corpus appeals unless Defendant attaches
to his pleading a copy of a final judgment of conviction. See Jessie D. McDonald v.
State, No. M2005-00205-SC-R10-HC (Tenn. Feb. 3, 2005) (Order) (noting that the
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appellant was abusing the system and directing the Appellate Court Clerk to refuse to
accept any additional filings from the appellant related to that particular matter).
Additionally, on September 29, 2017, Defendant filed a pleading in this Court
entitled both “Extraordinary Appeal of Judge Ross H. Hicks [sic] order on cases listed
above/Recusal of Judge” and “Motion to Appoint Counsel and Recusal of Judge.”
Attached to the pleading is an order of the trial court denying motions filed by Defendant
entitled “Return Counsel or Replace Counsel with Counsel of Choice”; said motions were
struck and sealed by the trial court as “impertinent, offensive and contemptuous” and are
not contained in the record before this Court. To the extent this Court were to treat
Defendant’s pleading as an application for extraordinary appeal pursuant to Tennessee
Rule of Appellate Procedure 10, the application is hereby denied. See Tenn. R. App. P.
10(a) (“An extraordinary appeal may be sought on application and in the discretion of the
appellate court alone. . . .”). To the extent this Court were to treat Defendant’s pleading
as a motion to appoint appellate counsel, the motion is hereby denied as moot.
CONCLUSION
Based on the foregoing, we affirm the trial court’s order dismissing Defendant’s
petition for habeas corpus relief.
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TIMOTHY L. EASTER, JUDGE
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