Cyril v. Fraser

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
JUNE SESSION, 1996 FILED
September 13, 1996
Cecil W. Crowson
FRANK GLENN HALL, )
Appellate Court Clerk
) No. 01C01-9510-CC-00352
Appellant )
) HICKMAN COUNTY
vs. )
) Hon. Cornelia A. Clark, Judge
DAVID MILLS, WARDEN, and )
STATE OF TENNESSEE, ) (Habeas Corpus)
)
Appellees )
For the Appellant: For the Appellee:
Frank Glenn Hall, Pro Se Charles W. Burson
Turney Center Ind. Prison Attorney General and Reporter
Route No. 1
Only, TN 37140-9709
Cyril V. Fraser
Assistant Attorney General
Criminal Justice Division
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 37065-0619
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Frank Glenn Hall, appeals as of right from the Hickman
County Circuit Court's denial of his application for writ of habeas corpus.1 He is
currently confined at the Turney Center facility of the Department of Correction
where he is serving a fifty year sentence for ten armed robbery convictions. The
appellant's convictions, resulting from a jury verdict in Rutherford County, were
affirmed by this court on appeal. State v. Frank Glenn Hall, No. 88-186-III,
(Tenn. Crim. App. at Nashville, Feb. 9, 1989). In February, 1992, the appellant
petitioned for post-conviction relief claiming ineffectiveness of trial counsel. The
Rutherford County Criminal Court denied the appellant's claim for post-conviction
relief. This dismissal was affirmed by this court. Frank Glenn Hall v. State, No.
01C01-9205-CC-00157 (Tenn. Crim. App., Sept. 8, 1992). A motion to
reconsider was filed, but was denied by this court as being "too late to entertain."
On August 25, 1993, the appellant sought an application for extraordinary appeal
pursuant to Rule 10, Tenn. R. App. P. This court denied the appellant's request
on September 22, 1993. Almost two years later, on July 14, 1995, the appellant
filed the instant petition for writ of habeas corpus. The Hickman County Circuit
Court dismissed the appellant's petition, finding that it failed to state a cognizable
claim for habeas corpus relief. The appellant now contests this dismissal.
The appellant contends that his convictions are void for two reasons (1)
the trial court's instruction on the definition of "reasonable doubt" was erroneous,
and (2) he received ineffective assistance of appellate counsel. The trial court
dismissed the appellant's petition for habeas corpus relief finding these grounds
1
This case originally styled, State of Tennessee, ex rel, Frank Glenn Hall
vs. David Mills, Warden, was initially filed in the Court of Appeals, Middle
Section. It was properly transferred to the Court of Criminal Appeals and the
caption has been restyled to correctly reflect the nature of the proceedings.
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insufficient to void the appellant's convictions.
In Tennessee, habeas corpus relief is only available when a conviction is
void because the convicting court was without jurisdiction or authority to
sentence a defendant, or that a defendant's sentence has expired and he is
being illegally restrained. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).
In distinguishing habeas corpus relief from post-conviction relief, this court in
Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994), held that:
If the court rendering a judgment has jurisdiction of the person, the
subject-matter, and has the authority to make the challenged
judgment, the judgment is voidable, not void; and the judgment
may not be collaterally attacked in a suit for habeas corpus relief.
Conversely, if the face of the record reveals that the court did not have
personal and subject matter jurisdiction, or the authority to make the
challenged judgment, the judgment is void.
Initially, we note that an allegation of an erroneous jury instruction will not
sustain an action for habeas corpus relief. See Voss v. Raney, No. 02C01-
9501-CC-00022 (Tenn. Crim. App. at Jackson, Aug. 2, 1995), perm. to appeal
denied, (Tenn. Nov. 20, 1995); Thornton v. Raney, No. 02C01-9302-CC-0025
(Tenn. Crim. App. at Jackson, January 26, 1994), perm. to appeal denied, (Tenn.
May 23, 1994). Furthermore, our courts have consistently upheld the challenged
reasonable doubt instruction as constitutionally valid. See, e.g., State v.
Nichols, 877 S.W.2d 722, 734 (Tenn. 1994), cert denied, __U.S. __, 115 S.Ct.
909 (1995); Pettyjohn v. State, 885 S.W.2d 364 (Tenn. Crim. App.), perm. to
app. denied, (Tenn. 1994); State v. Beckham, No. 02C01-9405-CR-00107
(Tenn. Crim. App. at Jackson, Sept. 27, 1995); State v. Voaden, No. 01C01-
9305-CC-00151 (Tenn. Crim. App. at Nashville, Dec. 22, 1994), perm. to appeal
denied, (Tenn. May 1, 1995). Accordingly, this issue is without merit.
Concerning the appellant's second issue, alleging ineffective assistance of
appellant counsel, the trial court found (1) lack of subject matter jurisdiction in
that the petition was not filed in the county of conviction and (2) it is time barred.
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We agree with these findings. Tenn. Code Ann. § 40-30-103(a) (1994 Supp.)
(repealed 1995) requires that a petition for post-conviction relief be brought in the
county of conviction. The petition was filed in Hickman County, however, the
appellant's conviction originates in Rutherford County. Thus, the trial court did
not have subject matter jurisdiction over the petition. Moreover, the record
establishes that the appellant's judgments of conviction became final on
February 9, 1989. The appellant's claim, although cognizable for post-conviction
purposes, is nonetheless time barred as it was filed outside the applicable three
year statute of limitations period. Tenn. Code Ann. § 40-30-102 (1990)
(repealed 1995). Additionally, this issue is waived because it could have been
presented in the appellant's first petition for post-conviction relief filed in 1992.
See Tenn. Code Ann. § 40-30-111 (1990) (repealed 1995); Tenn. Code Ann. §
40-30-112 (1990) (repealed 1995). Accordingly, this issue is also without merit.
For the foregoing reasons, the judgment of the trial court dismissing the
appellant's application for writ of habeas corpus is affirmed.
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____________________________________
DAVID G. HAYES, Judge
CONCUR:
____________________________________
JOHN H. PEAY, Judge
____________________________________
WILLIAM M. BARKER, Judge
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