State v. Syvessle Redmond ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MARCH 1997 SESSION
SYVESSLE REDMOND, * C.C.A. # 02C01-9603-CR-00105
Appellant, * SHELBY COUNTY
VS. * Hon. Bernie Weinman, Judge
STATE OF TENNESSEE, * (Post-Conviction)
Appellee. *
For Appellant: For Appellee:
Syvessle Redmond Charles W. Burson
Pro Se Attorney General & Reporter
No. 121145
Northwest Correctional Center Clinton J. Morgan
Route 1, P.O. Box 660 Assistant Attorney General
Tiptonville, TN 38079 450 James Robertson Parkway
Nashville, TN 37243-0493
Reginald Henderson
Asst. District Attorney General
Criminal Justice Center
Third Floor
201 Poplar
Memphis, TN 38103
OPINION FILED:_____________________
AFFIRMED
PER CURIAM
OPINION
The petitioner, Syvessle Redmond, appeals the trial court's denial of
his petition for post-conviction relief. The issue presented for review is whether the
trial court correctly dismissed the petition without an evidentiary hearing on the basis
that it was barred by the statute of limitations. We affirm the judgment of the trial
court.
The petitioner pled guilty in 1988 to second degree murder and
received a Range II sentence of thirty-five years. No prior appeals or post-
conviction petitions have been filed. This petition, seeking either post-conviction or
habeas corpus relief, was filed on December 7, 1995. It alleges that the petitioner
received ineffective assistance of counsel and that his guilty plea was involuntary.
The trial court dismissed the petition as being time-barred. On appeal, the petitioner
raises the additional arguments that the evidence was insufficient to sustain his
conviction and that his sentence was excessive.
Effective May 10, 1995, the new Post-Conviction Procedure Act
replaced the prior act in its entirety. See 1995 Tenn. Pub. Act 207, §§ 1 and 3.
Because this petition was filed in December of 1995, the new act applies. The most
recent legislation replaced a three-year with a one-year limitation:
(a) ...[A] person in custody under a sentence of a court of
this state must petition for post-conviction relief under
this part within one (1) year of the date of the final action
of the highest state appellate court to which an appeal is
taken or, if no appeal is taken, within one (1) year of the
date on which the judgment became final, or
consideration of such petition shall be barred. The
statute of limitations shall not be tolled for any reason....
(b) No court shall have jurisdiction to consider a petition
filed after such time unless:
(1) The claim in the petition is based upon a final
ruling of an appellate court establishing a constitutional
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right that was not recognized as existing at the time of
trial, if retrospective application of that right is required.
Such petition must be filed within one (1) year of the
ruling of the highest state appellate court or the United
States [S]upreme [C]ourt establishing a constitutional
right that was not recognized as existing at the time of
trial;
(2) The claim in the petition is based upon new
scientific evidence establishing that such petitioner is
actually innocent of the offense or offenses for which the
petitioner was convicted; or
(3) The claim asserted in the petition seeks relief
from a sentence that was enhanced because of a
previous conviction and such conviction in the case in
which the claim is asserted was not a guilty plea with an
agreed sentence, and the previous conviction has
subsequently been held to be invalid, in which case the
petition must be filed within one (1) year of the finality of
the ruling holding the previous conviction to be invalid.
Tenn. Code Ann. § 40-30-202 (Supp. 1996).
Because the conviction in this case became final in 1988, this petition
appears to have been barred not only by the current one-year statute of limitations
but also the former three-year statute. Moreover, the grounds raised in the petition
and on appeal do not appear to fall within any of the exceptions set out in Tenn.
Code Ann. § 40-30-202(b)(1), (2), or (3) (Supp. 1996).
In Arnold Carter v. State, No. 03C01-9509-CC-00270 (Tenn. Crim.
App., at Knoxville, July 11, 1996), appeal granted, (Tenn., Dec. 2, 1996), a panel of
this court, by a two-to-one margin, ruled that the literal terms of the new statute
created a one-year window, starting on May 10, 1995, during which post-conviction
petitions may be filed, notwithstanding the date of the judgment:
This act shall take effect upon becoming a law, the public
welfare requiring it and shall govern all petitions for post-
conviction relief filed after this date, and any motions
which may be filed after this date to reopen petitions for
post-conviction relief which were concluded prior to the
effective date of this act. Notwithstanding any other
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provision of this act to the contrary, any person having a
ground for relief recognized under this act shall have at
least one (1) year from the effective date of this act to file
a petition or a motion to reopen under this act.
1995 Tenn. Pub. Act 207, § 3 (emphasis added).
This majority found no ambiguities in the terminology of the statute
despite the reasonable argument by the dissent to the contrary. In Carter, our
supreme court granted the state's application for permission to appeal. While no
decision has yet been filed, other panels of this court have adopted the dissenting
view in Carter and have held that the new act did not create a new one-year filing
period. See, e.g., Ronald Albert Brummitt v. State, No. 03C01-9512-CC-00415
(Tenn. Crim. App., at Knoxville, Mar. 11, 1997); Jimmy Earl Lofton v. State, No.
02C01-9603-CR-00073 (Tenn. Crim. App., at Jackson, Mar. 7, 1997); Roy Barnett v.
State, No. 03C01-9512-CV-00394 (Tenn. Crim. App., at Knoxville, Feb. 20, 1997);
Stephen Koprowski v. State, No. 03C01-9511-CC-00365 (Tenn. Crim. App., at
Knoxville, Jan. 28, 1997); Johnny L. Butler v. State, No. 02C01-9509-CR-00289
(Tenn. Crim. App., at Jackson, Dec. 2, 1996). A majority of this panel now adheres
to the holding in these subsequent cases. Thus, treating the petition as one for
post-conviction relief, this claim is barred by the statute of limitations.
We also note the petitioner sought habeas corpus relief. The habeas
corpus remedy in this state is limited. The writ may be granted only where a
petitioner has established 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 v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell,
443 S.W.2d 839 (Tenn. Crim. App. 1969). If, however, a petitioner attempts to set
aside a conviction because of the abridgement of a constitutional right, the petitioner
must use the Post-Conviction Procedure Act. Luttrell v. State, 644 S.W.2d 4084
(Tenn. Crim. App. 1982).
While there is a statute of limitations upon actions for post-conviction
relief, habeas corpus has no statutory period of limitations. A petitioner may not,
however, file a habeas corpus action as a means of circumventing the statute of
limitations contained in the Post-Conviction Procedure Act. See Potts v. State, 833
S.W.2d 60, 62 (Tenn. 1992).
Habeas corpus relief is available in this state only when it appears on
the face of the judgment or the record that the trial court was without jurisdiction to
convict or sentence the defendant or that the sentence of imprisonment has
otherwise expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts, 833
S.W.2d at 62.
This action seeks to set aside the prior convictions based upon the
sufficiency of the evidence, the excessiveness of the sentence, the involuntariness
of the guilty plea, and ineffectiveness of counsel. We do not view these arguments
as attacks upon a void judgment. See Passarella v. State, 891 S.W.2d 619, 627-28
(Tenn. Crim. App. 1994). The writ of habeas corpus is available only upon an
expiration of the sentence or a showing of deficiency on the face of the judgment.
Neither has been shown here.
Because the petition is filed beyond the statute of limitations for
seeking post-conviction relief and does not assert a basis for habeas corpus relief,
the judgment is affirmed.
PER CURIAM
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Joe B. Jones, Presiding Judge
Gary R. Wade, Judge
Curwood Witt, Judge
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