Mitchell v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
DECEMBER SESSION, 1997 FILED
January 12, 1998
Cecil Crowson, Jr.
EARL THOMAS MITCHELL, JR.,) Appellate C ourt Clerk
) No. 03C01-9704-CR-00125
Appellant )
) JOHNSON COUNTY
vs. )
) Hon. LYNN BROWN, Judge
HOWARD CARLTON, Warden, )
and STATE OF TENNESSEE, )
) (Writ of Habeas Corpus)
Appellee )
For the Appellant: For the Appellee:
Earl Thomas Mitchell, Jr., Pro Se John Knox Walkup
T.D.OC. #106783 Attorney General and Reporter
N.E.C.C.
Post Office Box 5000 Peter M. Coughlan
Mountain City, TN 37683-5000 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Earl Thomas Mitchell, Jr., appeals the denial of his petition for
the writ of habeas corpus. Upon review, we affirm the judgment of the trial court.
On February 5, 1985, the appellant pled guilty to one count of burglary and
five counts of concealing stolen property for which he received an effective sentence
of five years.1 The appellant did not appeal these convictions. He is currently
confined at the Northeast Correctional Center located in Johnson County. On
January 2, 1997, the appellant filed a pro se petition for writ of habeas corpus. The
petition alleges that the evidence was insufficient to convict him of these offenses,
that the five counts in the indictment were improperly presented to the grand jury,
that the respective counts of the indictment fail to state an offense, and that trial
counsel was ineffective. The Johnson County Criminal Court dismissed the
appellant’s petition.
The trial court determined that the appellant’s petition failed to state a
cognizable ground for habeas corpus relief. 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).
Moreover, it is well established law in this state that the writ of habeas corpus may
not be used as a substitute for, or in lieu of an appeal. State v. Bomar, 368 S.W.2d
748, 749 (Tenn. 1963). 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
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The appellant’s petition states that, following his guilty pleas, he escaped and remained
on escape status for ten years.
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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.
Only one of the appellant’s claims alleges a void conviction, i.e., the indictments are
fatally defective because they do not state an offense. However, the appellant fails
to explain the basis of his claim. Moreover, from a review of the various counts in
the indictment, it is clear that a statutory offense has been stated. Thus, the trial
court correctly concluded that the petition failed to state a cognizable claim for
habeas corpus relief. Notwithstanding this conclusion, the trial court noted that the
appellant’s claim of ineffective assistance of counsel is cognizable as a post-
conviction claim, see Tenn. Code Ann. § 40-30-205(c) (1996 Supp.). However, the
court correctly concluded that a post-conviction claim is nonetheless time-barred as
the petition was filed outside the applicable three year statute of limitations period.
Tenn Code Ann. § 40-30-102 (1990) (repealed 1995).
The appellant also argues that the trial court erred by dismissing his petition
without the appointment of counsel. A petition for writ of habeas corpus relief may
be summarily dismissed by the trial court without appointment of counsel, without an
evidentiary hearing, and without the opportunity to amend the petition, if, from the
face of the petition, the reviewing court finds nothing to indicate that the appellant’s
challenged convictions might be void. See Tenn. Code Ann. § 29-21-101, -109
(1980); see also Villaneuva v. Carlton, No. 03C01-9611-CR-00425 (Tenn. Crim.
App. at Knoxville, Oct. 3, 1997). We conclude that the trial court properly followed
the provisions of Tenn. Code Ann. § 29-21-101 et seq. in summarily dismissing the
petition.
For the foregoing reasons, we affirm the trial court’s summary dismissal of
the appellant’s application for the writ of habeas corpus.
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____________________________________
DAVID G. HAYES, Judge
CONCUR:
________________________________
DAVID H. WELLES, Judge
________________________________
THOMAS T. W OODALL, Judge
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