Bobby Carl Floyd v. State ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE July 28, 1999
Cecil Crowson, Jr.
APRIL 1999 SESSION Appellate C ourt
Clerk
BOBBY CARL FLOYD, * C.C.A. NO. 03C01-9811-CC-00399
APPELLANT, * SEVIER COUNTY
VS. * Hon. Ben W. Hooper II, Judge
STATE OF TENNESSEE, * (Habeas Corpus)
APPELLEE. *
For Appellant: For Appellee:
Bobby Carl Floyd, pro se John Knox Walkup
FCI Manchester / 12666-074 Attorney General and Reporter
P.O. Box 4000 450 James Robertson Parkway
Manchester, KY 40962 Nashville, TN 37243-0493
Todd R. Kelley
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North, 2nd Floor
Nashville, TN 37243-0493
Charles E. Atchley, Jr.
Assistant District Attorney General
Sevier County Courthouse
Sevierville, TN 37862
OPINION FILED: ____________________
AFFIRMED
NORMA MCGEE OGLE, JUDGE
OPINION
On April 17, 1997, the petitioner, Bobby Carl Floyd, filed pro se a
“Petition For Writ of Habeas Corpus” in the Circuit Court of Sevier County. On July
9, 1997, the petitioner filed an amendment to his petition. On August 19, 1998, the
trial court dismissed the petition, finding no cognizable ground for relief. Following a
review of the record, we affirm the judgment of the trial court.
The petitioner has alleged that, on April 4, 1989, he pled guilty to
felony jail escape and disposing of mortgage property over one hundred dollars. 1
The petitioner also alleged that, on December 14, 1982, he pled guilty in a case he
identifies as Warrant No. 42353-48-18. 2 Additionally, the petitioner alleged that, on
February 7, 1991, he pled guilty to simple possession of cocaine. 3
In his petition and on appeal, the petitioner argues that he received
ineffective assistance of counsel and that the convictions resulting from the
aforementioned guilty pleas are void because he did not knowingly and voluntarily
plead guilty. In its order dismissing the petition for a writ of habeas corpus, the trial
court found that the petition was in fact a petition for post-conviction relief which had
4
not been timely filed.
1
With respect to these cases, this court has no record of the judgment of conviction or the
sentences imposed by the trial court. However, the Advisement of Rights forms, W aiver of Jury Trial
form s, an d Gu ilty Plea form s sign ed by t he pe titione r, are includ ed in th e rec ord o n app eal.
2
With respect to this case, this court has no record of the judgment of conviction, the
indictm ent, the off ense c harged in the indictm ent, or the s entenc e impo sed by the trial court.
3
Also with respect to this case, this court has no record of the judgment of conviction, the
indictm ent, or the s entenc e impo sed by the trial court.
4
We note that the trial court observed that had the petition been a petition for writ of habeas
corp us, it w ould h ave b een dism isse d for being filed in the w rong coun ty. Con trary to the tria l cour t’s
observ ation, whe n an out- of-state re sident se eks ha beas c orpus re lief from Tenn essee conviction , a
court of th e coun ty of original con viction has jurisdiction to rule upon the petition. Churc h v. State , 987
S.W .2d 8 55, 8 57 (T enn . Crim . App . 199 8). T he pe titione r was incar cera ted in fede ral pris on in
Kentucky, thus his petition was correctly filed in Sevier County, his apparent county of original
conviction .
2
The remedy of the writ of habeas corpus is limited to relief from void
and not merely voidable judgments. Archer v. State, 851 S.W.2d 157, 163 (Tenn.
1993); Passarella v. State, 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994); Donald v.
State, No. 01C01-9710-CR-00481, 1998 WL 468646, at *1 (Tenn. Crim. App. at
Nashville, August 12, 1998), perm. to appeal denied, (Tenn. 1999). In other words,
it must appear upon the face of the judgment or the record of the proceedings upon
which the judgment is rendered that a court was without jurisdiction or authority to
convict or sentence a defendant, or that a defendant’s sentence of imprisonment
has expired. Archer, 851 S.W.2d at 164; Ritchie v. State, No. 03C01-9601-CC-
00029, 1998 WL 855517, at *2 (Tenn. Crim. App. at Knoxville, December 10, 1998).
Additionally, if a claim would necessarily involve investigation beyond the face of the
judgment or the record of the proceedings, the claim will not be cognizable in
habeas corpus proceedings . See e.g., Martin v. State, No 02C01-9804-CC-00101,
1998 WL 467098, at *1 (Tenn. Crim. App. at Jackson, August 12, 1998).
Furthermore, we have previously observed that ineffective assistance
of counsel is not a cognizable basis for habeas corpus relief. McCaslin v. State, No.
01C01-9611-CC-00480, 1998 WL 44919, at *1 (Tenn. Crim. App. at Nashville),
perm. to appeal denied, (Tenn. 1998); State v. Harris, No. 01C01-9309-CR-00304,
1994 WL 630504, at *1 (Tenn. Crim. App. at Nashville, November 10, 1994). See
also Wooden v. State, No. 03C01-9303-CR-0069, 1993 WL 313643, at *2 (Tenn.
Crim. App. at Knoxville, August 13, 1993)( the petitioner’s complaint that the guilty
plea judgment was constitutionally deficient because of ineffective assistance of
counsel, even if true, would make the judgment merely voidable and not void).
Likewise, challenges to the voluntary or knowing nature of a guilty plea can be made
3
only by a petition for post-conviction relief. Archer, 851 S.W.2d at 164. Based upon
the foregoing, we agree with the trial court that the petitioner has failed to allege any
ground for relief cognizable in habeas corpus proceedings.
Additionally, the procedural provisions pertaining to habeas corpus
relief are mandatory and must be scrupulously followed. Archer, 851 S.W.2d at 165
(Tenn. 1993). We note that the petitioner did not attach the judgments of conviction
in his case to his petition for habeas corpus relief, as required by Tenn. Code Ann. §
29-21-107(b)(2) (1997). A trial court may dismiss a petition for failure to comply with
this requirement. State ex rel. Wood v. Johnson, 393 S.W.2d 135, 136 (Tenn.
1965).
Treating the petition as one for post-conviction relief, the trial court
found that the petition had been filed beyond the applicable one year statute of
limitations. A trial court is not bound by the title of a pleading, but has discretion to
treat the pleading according to the relief sought. Norton v. Everhart, 895 S.W.2d
317, 319 (Tenn. 1995). When a pleading framed as a habeas corpus petition
requests relief that can only be granted under post-conviction law, a court has
discretion to treat a petition for habeas corpus relief as a petition for post-conviction
relief. Tenn. Code Ann. § 40-30-205(c) (1997).
We agree with the trial court that the applicable statute of limitations
has expired. 5 At the time of petitioner’s convictions, a petition for post-conviction
5
We note that the petitioner has made no specific factual allegations regarding the case
identified as Warrant No. 42353-48-18 and the guilty plea entered on February 7, 1991. The petitioner
shall include allegations of fact supporting each claim for relief set forth in the petition. Tenn. Code
Ann . § 40 -30- 204 (e) (1 997 ). Ne verth eles s, as state d belo w, the petitio ner’s post -con viction claim s
4
relief had to be filed within three years of the date of the final action of the highest
state appellate court to which an appeal is taken. Tenn. Code Ann. § 40-30-102
(Repl. May 10, 1995). Moreover, petitions already time-barred under the former
act’s three year statute of limitations are not revived by the one year statute of
limitations in the new act. Carter v. State, 952 S.W.2d 417, 420 (Tenn. 1997).
According to the petitioner, his dates of conviction are April 6, 1989, December 14,
1982, and February 7, 1991. The instant petition was filed on April 17, 1997 and
amended on July 9, 1997.
Accordingly, the judgment of the trial court is affirmed.
__________________________________
Norma McGee Ogle, Judge
CONCUR:
______________________________
Jerry L. Smith, Judge
_______________________________
Joe G. Riley, Judge
have be en filed be yond the o ne year sta tute of lim itations and mus t be dism issed.
5