Thomas Hebron v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
JUNE SESSION, 1996 FILED
December 5, 1996
Cecil W. Crowson
THOMAS HEBRON, )
Appellate Court Clerk
) No. 01CO1-9510-CC-00349
Appellant )
) HICKMAN COUNTY
vs. )
) Hon. Cornelia A. Clark, Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee )
For the Appellant: For the Appellee:
Greg W. Eichelman Charles W. Burson
District Public Defender Attorney General and Reporter
Larry D. Drolsum Cyril V. Fraser
Asst. Public Defender Assistant Attorney General
P. O. Box 68 Criminal Justice Division
Franklin, TN 37065 450 James Robertson Parkway
Nashville, TN 37243-0493
Joseph D. Baugh, Jr.
District Attorney General
Ronald Davis
Asst. District Attorney General
P. O. Box 937
Franklin, Tn 37065
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Thomas Hebron, appeals the dismissal by the trial court of
his “Petition for Habeas Corpus/Petition for Post-Conviction Relief.” The
appellant is currently serving a sentence of life imprisonment pursuant to a
conviction on August 24, 1984, for first degree murder. On November 21, 1985,
this court affirmed his conviction. State v. Hebron, No, 84-231-III (Tenn. Crim.
App. at Nashville), perm. to appeal denied, (Tenn. 1986). In 1987, the appellant
unsuccessfully sought federal habeas corpus relief. Subsequently, on March 6,
1989, he filed his first petition for post-conviction relief, alleging ineffective
assistance of counsel. Following appointment of counsel and an evidentiary
hearing, the trial court dismissed the petition. Finally, on February 22, 1994, the
appellant filed the instant pro se petition, alleging an erroneous jury instruction
on premeditation and deliberation, in violation of the supreme court’s opinion in
State v. Brown, 836 S.W.2d 530 (Tenn. 1992). On March 15, 1994, the trial
court appointed counsel to represent the appellant and, on May 18, 1995,
conducted a hearing. At the hearing, the trial court treated the petition as one
seeking post-conviction relief. Tenn. Code Ann. § 40-30-108 (1990). The trial
court then concluded that the petition was barred by the applicable statute of
limitations, Tenn. Code Ann. § 40-30-102 (1990), and, moreover, failed to state a
ground for relief of constitutional magnitude, Tenn. Code Ann. § 40-30-105
(1990).
We agree. The appellant’s petition, properly treated as a petition for post-
conviction relief,1 is barred by the statute of limitations. Additionally, the supreme
court’s holding in Brown does not implicate a constitutional right. Accordingly,
1
The appellant does not challenge in his brief the trial court’s refusal to entertain the
appellant’s “Petition for Habeas Corpus ... Relief.” In any event, we agree with the State that the
appellant’s petition does not allege either a void judgm ent or an illegal confinem ent. See Archer v.
State, 851 S.W .2d 157, 164 (Tenn. 1993); Passarella v. State, 891 S.W .2d 619, 627 (Tenn. Crim .
App. 1994).
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this court has repeatedly held that Brown may not be used as a basis for relief
within the post-conviction context. See Lofton v. State, 898 S.W.2d 246, 249-
250 (Tenn. Crim. App. 1994), perm. to appeal denied, (Tenn. 1995); State v.
Harris, No. 03C01-9311-CR-00381 (Tenn. Crim. App. at Knoxville, February 28,
1996); Tune v. State, No. 01C01-9412-CC-00423 (Tenn. Crim. App. at Nashville,
October 31, 1995), perm. to appeal denied, (Tenn. 1996); Peters v. State, No.
03C01-9409-CR-00331 (Tenn. Crim. App. at Knoxville, October 30, 1995), perm.
to appeal denied, (Tenn. 1996); State v. Slate, No. 03C01-9201-CR-00014
(Tenn. Crim. App. at Knoxville), perm. to appeal denied, concurring in results
only, (Tenn. 1994). Moreover, this court has previously held that Brown is not to
be applied retroactively. Lofton, 898 S.W.2d at 249-250; Harris, No. 03C01-
9311-CR-00381; Tune, No. 01C01-9412-CC-00423; Peters, No. 03C01-9409-
CR-00331.
The trial court properly dismissed the appellant’s petition. See Tenn.
Code Ann. § 40-30-109(a)(1) (1990)(“[w]hen the petition has been competently
drafted and all pleadings, files and records of the case which are before the court
conclusively show that the [appellant] is entitled to no relief, the court may order
the petition dismissed”). We affirm the judgment of the trial court.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
_____________________________
JOHN H. PEAY, Judge
_____________________________
WILLIAM M. BARKER, Judge
3