David H. Johnson v. Steve Upton, Warden ( 2022 )


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  •                                                                                             08/09/2022
    IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE
    Assigned on Briefs June 21, 2022
    DAVID H. JOHNSON v. STEVE UPTON, WARDEN
    Appeal from the Circuit Court for Trousdale County
    No. 2021-CV-4904 Michael Wayne Collins, Judge
    ___________________________________
    No. M2021-01164-CCA-R3-HC
    ___________________________________
    The Petitioner, David H. Johnson, appeals the denial of his petition for habeas corpus
    relief. He maintains that the trial court did not have jurisdiction over his case because the
    superseding indictment was returned after the expiration of the statute of limitations for
    aggravated rape. The habeas court summarily denied the petition because the record failed
    to establish that the judgment was void. After review, we affirm the habeas court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
    ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JAMES CURWOOD
    WITT, JR. and J. ROSS DYER, JJ., joined.
    David Hugo Johnson, Hartsville, Tennessee, Pro Se.
    Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
    Attorney General; Jason L. Lawson, District Attorney General, for the appellee, State of
    Tennessee.
    OPINION
    I. Procedural Background
    On February 12, 2015, a Shelby County grand jury issued a “John Doe” indictment,
    number 15-00747, alleging that “John Doe” committed aggravated rape between February
    12 and February 15, 2000. The indictment was based upon a DNA profile. The DNA
    profile was later linked to the Petitioner and, on January 21, 2016, a Shelby County grand
    jury returned a superseding indictment, number 16-00393, naming the Petitioner.
    On October 12, 2018, a Shelby County jury convicted the Petitioner of aggravated
    rape, and the trial court sentenced the Petitioner to serve twenty-five years in the Tennessee
    Department of Correction. The Petitioner appealed his conviction, asserting that he was
    entitled to dismissal of the case because he was not timely indicted and that the State failed
    to establish the chain of custody of the DNA evidence. State v. David Johnson, No.
    W2019-01133-CCA-R3-CD, 
    2022 WL 1134776
    , at *1 (Tenn. Crim. App., at Jackson,
    April 18, 2022), Tenn. R. App. P. 11 application filed (May 31, 2022).
    On May 24, 2021, before resolution of his direct appeal, the Petitioner, pro se, filed
    a “Memorandum of Facts and Law in Support of Writ of Habeas Corpus Relief for
    Petitioner David H. Johnson, Pro Se.” The petition claimed that the trial court was without
    jurisdiction to convict him because he was indicted outside the statute of limitations based
    upon the date of the superseding indictment, January 21, 2016. On August 21, 2021, the
    Petitioner then filed a motion to enter default judgment pursuant to Tennessee Rule of Civil
    Procedure 55.01. The court treated the “Memorandum” as a habeas corpus petition and
    denied relief after finding that the trial court had jurisdiction and that the judgment was not
    facially void. On October 1, 2021, while his direct appeal was still pending before this
    court, the Petitioner filed this appeal of the denial of his habeas corpus petition.
    On March 18, 2022, before this current appeal was docketed, this court issued its
    opinion on the Petitioner’s direct appeal, which addressed the issue of the indictment that
    was raised both in the direct appeal and the habeas corpus petition. Our opinion
    summarized the issue and our conclusion as follows:
    [The Defendant] argues that prosecution was barred because it was not begun
    in the statutory limitations period and that even if the “John Doe” indictment
    was timely returned, the superseding indictment failed to plead tolling facts.
    The State responds that the prosecution was properly commenced prior to the
    expiration of the statute of limitations through the filing of the “John Doe”
    indictment.
    Prosecution of a felony offense is barred unless it is begun within the
    statutory limitations period. T.C.A. § 40-2-101. The limitations period
    serves to protect against delay and the use of stale evidence and serves as an
    incentive to efficient prosecution. State v. Burdick, 
    395 S.W.3d 120
    , 124
    (Tenn. 2012). A statute of limitations is not jurisdictional but may be waived
    so long as the waiver is knowingly and voluntarily entered. State v. Pearson,
    
    858 S.W.2d 879
    , 887 (Tenn. 1993). Although the right to timely prosecution
    is not a fundamental right, it is nevertheless “substantial.” 
    Id.
     “To determine
    whether a knowing and voluntary waiver of the statute of limitations exists,
    the court utilized ‘the same standard applied in determining whether there
    has been an effective waiver as to fundamental rights.’” State v. Shell, 
    512 S.W.3d 267
    , 274 (Tenn. Crim. App. 2016) (quoting Pearson, 
    858 S.W.2d at 887
    ). The relinquishment of the right to a timely prosecution may not be
    2
    presumed from a silent record. Pearson, 
    858 S.W.2d at 887
    . Here, we agree
    with the [Petitioner] that the record does not indicate that he waived his right
    to indictment within the limitations period.
    The prosecution for a Class A felony offense must be begun within
    fifteen years. T.C.A. § 40-2-101(b)(1) (1998); T.C.A. § 39-13-502(b) (2000)
    (classifying aggravated rape as a Class A felony). “A prosecution is . . .
    commenced, within the meaning of this chapter, by finding an indictment or
    presentment or the issuing of a warrant identifying the offender by a
    deoxyribonucleic acid (DNA) profile.” T.C.A. § 40-2-104 (2013); see 2013
    Tennessee Laws Pub. Ch. 205 § 2 (noting that the amendment related to
    indictment by DNA profile “shall apply to the commencement for any
    offense, regardless of when committed” so long as the limitations period has
    not expired).
    A superseding indictment is one obtained without dismissal of the
    prior indictment, and the prosecution has the broad discretion to seek a
    superseding indictment so long as jeopardy has not attached. State v. Harris,
    
    33 S.W.3d 767
    , 771 (Tenn. 2000). “Thus, the State may obtain a superseding
    indictment at any time prior to trial without dismissing the pending
    indictment and may then select the indictment under which to proceed at
    trial.” 
    Id.
    So long as a timely indictment is pending and the charges are neither
    broadened nor substantially amended, the superseding indictment may be
    filed after the statute of limitations has run. State v. Lawson, 
    291 S.W.3d 864
    , 872 (Tenn. 2009). “Further, the subsequent indictment need not include
    ‘commencing facts’ to establish that the prosecution was timely and initiated
    by other of the statutory methods.” 
    Id.
     The [Petitioner]’s argument that “the
    original indictment must be specifically pled as a ‘tolling fact’ to justify the
    issuance of a time-barred indictment” is contrary to law. When an indictment
    has been timely issued, a superseding indictment need not allege facts
    showing that the prosecution was commenced within the limitations period.
    State v. Nielsen, 
    44 S.W.3d 496
    , 499-500 (Tenn. 2001) (distinguishing State
    v. Comstock, 
    326 S.W.2d 669
     (Tenn. 1959), relied on by the [Petitioner] here,
    on the basis that the timely filed indictment in Comstock had been quashed);
    State v. Messamore, 
    937 S.W.2d 916
    , 919 (Tenn. 1996) (the State was not
    required to plead tolling facts when prosecution was timely commenced by
    means other than the indictments, which were returned after the limitations
    period).
    3
    Because “a DNA profile exclusively identifies an accused with nearly
    irrefutable precision,” the inclusion of a DNA profile on a “John Doe”
    warrant is sufficient to identify a defendant with reasonable certainty as
    required by constitution and statute. Burdick, 395 S.W.3d at 128 (citing U.S.
    Const. amend. IV; Tenn. Const. art. I, § 7; T.C.A. § 40-6-208; Tenn. R. Crim.
    P. 4(c)(1)(B)). Accordingly, “[a] criminal prosecution is commenced if,
    within the statute of limitations for a particular offense, a warrant is issued
    identifying the defendant by gender and his or her unique DNA profile.
    Furthermore, a superseding indictment in the defendant’s proper name
    provides the requisite notice of the charge.” Id. at 130.
    . . . .
    Here, the “John Doe” indictment, listing the [Petitioner]’s genetic
    profile and naming the victim and date, was returned on February 12, 2015,
    within the fifteen-year statutory limitations period.           A superseding
    indictment was returned in 2016, after the [Petitioner] was identified by
    name. The trial court found on remand that the “John Doe” indictment had
    been continuously in the possession of the trial court clerk after it was issued.
    The court further found, consistent with the testimony of the ADA, that after
    the [Petitioner] was identified as the perpetrator through his DNA, the
    indictment was superseded by the 2016 indictment which named the
    [Petitioner]. The [Petitioner] was timely indicted and is not entitled to relief.
    David Johnson, 
    2022 WL 1134776
    , at *8-10.
    II. Analysis
    On appeal, the Petitioner asserts that the trial court did not have jurisdiction over his
    case and that the habeas court improperly denied his petition without requiring the State to
    file a response, holding an evidentiary hearing, and making findings of fact.
    Article I, section 15 of the Tennessee Constitution guarantees the right to seek
    habeas corpus relief. See Faulkner v. State, 
    226 S.W.3d 358
    , 361 (Tenn. 2007). Although
    the right is guaranteed in the Tennessee Constitution, the right is governed by statute.
    T.C.A. §§ 29-21-101, -130 (2012). The determination of whether habeas corpus relief
    should be granted is a question of law and is accordingly given de novo review with no
    presumption of correctness given to the findings and conclusions of the court below. Smith
    v. Lewis, 
    202 S.W.3d 124
    , 127 (Tenn. 2006) (citation omitted); Hart v. State, 
    21 S.W.3d 901
    , 903 (Tenn. 2000).
    4
    Although there is no statutory limit preventing a habeas corpus petition, the grounds
    upon which relief can be granted are very narrow. Taylor v. State, 
    995 S.W.2d 78
    , 83
    (Tenn. 1999). The grounds upon which a habeas corpus petition can be based are as
    follows: (1) a claim there was a void judgment which was facially invalid because the
    convicting court was without jurisdiction or authority to sentence the petitioner; or (2) a
    claim the petitioner’s sentence has expired. Stephenson v. Carlton, 
    28 S.W.3d 910
    , 911
    (Tenn. 2000) (citing Archer v. State, 
    851 S.W.2d 157
    , 164 (Tenn. 1993)). “An illegal
    sentence, one whose imposition directly contravenes a statute, is considered void and may
    be set aside at any time.” May v. Carlton, 
    245 S.W.3d 340
    , 344 (Tenn. 2008) (citing State
    v. Burkhart, 
    566 S.W.2d 871
    , 873 (Tenn. 1978)). In contrast, a voidable judgment or
    sentence is “one which is facially valid and requires the introduction of proof beyond the
    face of the record or judgment to establish its invalidity.” Taylor, 
    995 S.W.2d at 83
    (citations omitted); see State v. Ritchie, 
    20 S.W.3d 624
    , 633 (Tenn. 2000).
    The petitioner bears the burden of showing, by a preponderance of the evidence,
    that the conviction is void or that the prison term has expired. Wyatt v. State, 
    24 S.W.3d 319
    ,322 (Tenn. 2000). Relief will only be granted when “it appears upon the face of the
    judgment or the record of the proceedings upon which the judgment is rendered” that the
    trial court was without jurisdiction to sentence the petitioner or that the sentence is expired.
    Archer v. State, 
    851 S.W.2d 157
    , 164 (Tenn. 1993). Furthermore, the procedural
    requirements for habeas corpus relief are mandatory and must be scrupulously followed.
    Archer v. State, 
    851 S.W.2d 157
    , 165. A habeas court may dismiss a petition for habeas
    corpus relief that fails to comply with these procedural requirements. Hickman v. State,
    
    153 S.W.3d 16
    , 21 (Tenn. 2004).
    It is also permissible for a habeas court to summarily dismiss a petition of habeas
    corpus without the appointment of a lawyer and without an evidentiary hearing if there is
    nothing on the face of the judgment to indicate that the convictions addressed therein are
    void. See Passarella v. State, 
    891 S.W.2d 619
    , 627 (Tenn. Crim. App. 1994), superseded
    by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC-00266, 
    1998 WL 104492
    , at *1 n. 2 (Tenn. Crim. App., at Jackson, Mar.11, 1998).; Rodney Buford v. State,
    No. M1999-00487-CCA-R3-PC, 
    2000 WL 1131867
    , at *2 (Tenn. Crim. App., at Nashville,
    July 28, 2000), perm. app. denied (Tenn. Jan. 16, 2001).
    The Petitioner asserts that the trial court did not have jurisdiction because the statute
    of limitations for the February 2000 aggravated rape had expired when the superseding
    indictment was issued on January 21, 2016. As this court explained in the Petitioner’s
    direct appeal, the Petitioner was timely indicted in February 2015. Habeas corpus
    “proceedings may not be employed to raise and relitigate or review questions decided and
    disposed of in a direct appeal from a conviction.” Gant v. State, 
    507 S.W.2d 133
    , 137
    5
    (Tenn. Crim. App. 1973) (citations omitted). Accordingly, we conclude that the
    Petitioner’s argument is without merit and that this issue has already been fully litigated. .
    The Petitioner also asserts that the habeas court improperly denied his petition
    without requiring the State to respond first, making findings of fact, or conducting an
    evidentiary hearing. As stated earlier, when a petition for writ of habeas corpus does not
    demonstrate that the judgment is void, the habeas court may properly dismiss the petition
    without a hearing. T.C.A. §29-21-103. As such, the habeas court was not required to make
    findings of fact pursuant to Tennessee Rule of Civil Procedure 52.01, hold a hearing, or
    require the State to respond. The Petitioner is not entitled to relief.
    Accordingly, we conclude that this court has previously determined the issue of
    timeliness of the indictment and that the Petitioner has not shown by a preponderance of
    the evidence that his judgment is void or that his sentence has expired.
    III. Conclusion
    For the foregoing reasons, the judgment of the habeas court is affirmed.
    ____________________________________
    ROBERT W. WEDEMEYER, JUDGE
    6