Orlando Malone v. State of Tennessee ( 2017 )

04/17/2017
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 23, 2017 at Knoxville
ORLANDO MALONE v. STATE OF TENNESSEE
Appeal from the Circuit Court for Wayne County
No. 15873 Russell Parkes, Judge
No. M2016-01464-CCA-R3-HC
The petitioner, Orlando Malone, appeals the summary dismissal of his petition for writ of
habeas corpus, which petition challenged his 1999 Bradley County Criminal Court jury
convictions of attempted especially aggravated robbery and aggravated robbery.
Discerning no error, we affirm.
Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Orlando Malone, Clifton, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; and Sophia Lee, Assistant
Attorney General, for the appellee, State of Tennessee.
OPINION
A Bradley County Criminal Court jury convicted the petitioner of “the first
degree felony murder of [Kenneth] Blair, two counts of the attempted especially
aggravated robbery of [Marcus] Williams and [Charles] Massingill, and one count of the
aggravated robbery of [Eric] Binion” following a confrontation that began when Mr.
Williams denied that he had change when the petitioner asked if he had change for a $50
bill. Orlando Malone v. State, No. E2003-02095-CCA-R3-PC, (Tenn. Crim. App.,
Knoxville, June 24, 2004) (Malone II). This court affirmed the petitioner’s convictions
on direct appeal, see State v. Malone, No. E1999-01347-CCA-R3-CD (Tenn. Crim. App.,
Knoxville, May 26, 2000) (Malone I), as well as the denial of his petition for post-
conviction relief, see Malone II.
The petitioner filed unsuccessful petitions for writ of habeas corpus in
Johnson County and Bledsoe County before filing the petition that is the subject of this
appeal, his third petition for writ of habeas corpus. In his petition, the petitioner alleged
deficiencies in those counts of the indictment charging him with especially aggravated
robbery and aggravated robbery. He alleged that those deficiencies led to a fatal variance
at trial that resulted in a violation of double jeopardy principles. He claimed that he was
improperly convicted of more than one offense for what was, essentially, a single
criminal transaction. The habeas corpus court summarily dismissed the petition, finding
that the petitioner failed to comply with the mandatory statutory requirements for filing a
petition for writ of habeas corpus and that the petitioner had failed to state a cognizable
ground for habeas corpus relief.
In this appeal, the petitioner asserts that the habeas corpus court erred by
summarily dismissing his petition.
“The determination of whether habeas corpus relief should be granted is a
question of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v.
State, 21 S.W.3d 901, 903 (Tenn. 2000)). Our review of the habeas corpus court’s
decision is, therefore, “de novo with no presumption of correctness afforded to the
[habeas corpus] court.” Id. (citing Killingsworth v. Ted Russell Ford, Inc., 205 S.W.3d
406, 408 (Tenn. 2006)). The writ of habeas corpus is constitutionally guaranteed, see
U.S. Const. art. 1, § 9, cl. 2; Tenn. Const. art. I, § 15, but has been regulated by statute for
more than a century, see Ussery v. Avery, 432 S.W.2d 656, 657 (Tenn. 1968). Tennessee
Code Annotated section 29-21-101 provides that “[a]ny person imprisoned or restrained
of liberty, under any pretense whatsoever, except in cases specified in § 29-21-102, may
prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and
restraint.” T.C.A. § 29-21-101. Despite the broad wording of the statute, a writ of
habeas corpus may be granted only when the petitioner has established a lack of
jurisdiction for the order of confinement or that he is otherwise entitled to immediate
release because of the expiration of his sentence. See Ussery, 432 S.W.2d at 658; State v.
Galloway, 45 Tenn. (5 Cold.) 326 (1868). The purpose of the state habeas corpus
petition is to contest a void, not merely a voidable, judgment. State ex rel. Newsom v.
Henderson, 424 S.W.2d 186, 189 (Tenn. 1968). A void conviction is one which strikes at
the jurisdictional integrity of the trial court. Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993); see State ex rel. Anglin v. Mitchell, 575 S.W.2d 284, 287 (Tenn. 1979); Passarella
v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).
As the State correctly points out, the petitioner failed to comply with the
statutory requirement that he file with this, his third petition for writ of habeas corpus,
copies of the previous petitions and the “proceedings thereon” and has failed to give
“satisfactory reasons . . . for the failure so to do.” T.C.A. § 29-21-107(b)(4). The
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petitioner appended to his petition a copy of his first petition for writ of habeas corpus,
which was filed in Johnson County, and a copy of the order denying his second petition
for writ of habeas corpus, which was filed in Bledsoe County. He did not provide a copy
of the order disposing of his Johnson County petition or a copy of his Bledsoe County
petition. Summary dismissal would have been appropriate on this basis alone.
Additionally, the petitioner’s claims that there was a fatal variance between
the indictment and the proof at trial and that his being charged with more than one theft-
related offense violated principles of double jeopardy are not cognizable grounds for
habeas corpus relief.
Accordingly, the judgment of the habeas corpus court is affirmed.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
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