David H. Johnson v. Steve Upton, Warden

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
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No. M2021-01164-CCA-R3-HC
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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
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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).
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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).
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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
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(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.
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ROBERT W. WEDEMEYER, JUDGE
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