Hubert J. Robbins v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MARCH 1999 SESSION
May 5, 1999
Cecil Crowson, Jr.
HUBERT J. ROBBINS, ) Appellate C ourt Clerk
C.C.A. 03C01-9808-CR-00285
) MORGAN COUNTY CIRCUIT
)
Appellant, ) Hon. E. Eugene Eblen, Judge
)
vs. ) (HABEAS CORPUS)
) No. 8503
DAVID G. MILLS, Warden, )
)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
HUBERT J. ROBBINS, pro se PAUL G. SUMMERS
P.O. Box 1000 Attorney General & Reporter
Petros, TN 37845
ELLEN H. POLLACK
Assistant Attorney General
425 Fifth Avenue North
2nd Floor, Cordell Hull Bldg.
Nashville, TN 37243
J. SCOTT McCLUEN
District Attorney General
FRANK A. HARVEY
Assistant District Attorney
P.O. Box 703
Kingston, TN 37763
OPINION FILED:_______________
AFFIRMED
CORNELIA A. CLARK
Special Judge
OPINION
The appellant, Hubert J. Robbins, an inmate at Brushy Mountain State
Prison, appeals the Morgan County Circuit Court’s summary dismissal of his
pro se petition for writ of habeas corpus. The trial court granted the state’s
motions to dismiss the petition without the appointment of counsel or an
evidentiary hearing. Upon review, we affirm the judgment of the trial court.
On February 19, 1985, while represented by two appointed counsel,
defendant entered pleas of guilty to first degree felony murder, assault with
intent to commit first degree murder with serious bodily injury, armed robbery,
and concealing stolen property. He was sentenced to serve three life
sentences and one five-year sentence. Two of the life sentences were to be
served concurrent to one another and were consecutive to the third life
sentence. The five-year sentence also was concurrent. No appeal was taken.
Soon thereafter appellant filed a petition for post-conviction relief. In
November 1986 this court affirmed the trial court’s denial of the post-conviction
petition. See Hubert J. Robbins v. State, Sevier County, No. 74 (Tenn. Crim.
App., November 13, 1986).
The instant petition for writ of habeas corpus was filed May 28, 1998.
The instant petition asserts five general issues:
1. involuntariness of the 1985 guilty pleas;
2. erroneous sentencing because of failure to consider proper
mitigating factors;
3. failure to conduct a competency hearing to determine appellant’s
sanity;
4. ineffective assistance of counsel; and
5. violation of double jeopardy principles by erroneous conviction of
both armed robbery and assault with intent to commit first degree
murder.
2
The state’s motions1 to dismiss were granted by order entered July 24, 1998.
It has long been established that the remedy of habeas corpus is limited in scope
as well as relief. Archer v. State, 851 S.W.2d 157, 161-62 (Tenn. 1993); Passarella v.
State, 891 S.W.2d 619, 626 (Tenn. Crim. App.), per. app. denied (Tenn. 1994). In
criminal cases, this remedy is available only if (1) the original judgment of conviction
is void or (2) the sentence has expired. Passarella, 891 S.W. 2d at 626. If the petition
fails to establish one of these grounds for relief, the trial court may dismiss the action
without an evidentiary hearing. Id. at 628. In this case the judgments of conviction are
not void on their faces and have not expired.
The grounds for relief asserted here are cognizable, if at all, in a post-conviction
action, not an action for habeas corpus. Such a petition would have to be filed in the
county where the judgment of conviction was entered. Tenn. Code Ann. §40-30-
204(a). Judgment in this case was rendered in Sevier County, and this petition was
filed in Morgan County. Accordingly, the trial court did not err by failing to treat the
application as one for post-conviction relief.
Furthermore, the statute of limitations for filing a petition for post-conviction
relief has expired. Tenn. Code Ann. §40-30-202(a). Defendant pled guilty in 1985.
He had three years from July 1, 1986 to file a petition for post-conviction relief. Tenn.
Code Ann. §40-30-102 (repealed 1995). He did not file the present petition until May
1998. His petition is time-barred.
Finally, because appellant has previously filed a petition for post-conviction
relief, his claims have been previously determined or waived. Tenn. Code Ann. §40-
30-206(g) and (h). He makes no allegation that would entitle him to reopen his original
petition under Tenn. Code Ann. §40-30-217. He is not entitled to relief.
Accordingly, the judgment of the trial court dismissing the petition is affirmed.
___________________________
CORNELIA A. CLARK
SPECIAL JUDGE
1
Motions to dismiss were filed by the District Attorney General on June 10, 1998, and
by the Attorney General on June 24, 1998.
3
CONCUR:
____________________________
GARY R. WADE
JUDGE
____________________________
NORMA M. OGLE
JUDGE
4
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
MARCH 1999 SESSION
HUBERT J. ROBBINS, ) C.C.A. 03C01-9808-CR-00285
) MORGAN COUNTY CIRCUIT
)
Appellant, ) Hon. E. Eugene Eblen, Judge
)
vs. ) (HABEAS CORPUS)
) No. 8503
DAVID G. MILLS, Warden, )
)
Appellee. )
JUDGMENT
Came the appellant, Hubert J. Robbins, pro se and also came the
attorney general on behalf of the State, and this case was heard on the record
on appeal from the Circuit Court of Morgan County; and upon consideration
thereof, this court is of the opinion that there is no reversible error in the
judgment of the trial court.
Our opinion is hereby incorporated in this judgment as if set out
verbatim.
It is, therefore, ordered and adjudged by this court that the judgment of
the trial court is AFFIRMED, and the case is remanded to the Circuit Court of
Morgan County for execution of the judgment of that court and for collection of
costs accrued below.
It appears that the appellant is indigent. Costs of this appeal will be
paid by the State of Tennessee.
PER CURIAM
Gary R. Wade, Judge
Norma M. Ogle, Judge
Cornelia A. Clark, Special Judge