IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE June 24, 1999
Cecil Crowson, Jr. MARCH 1999 SESSION Appellate C ourt Clerk
JIMMY WAYNE WILSON, * C.C.A. 03C01-9806-CR-00206
Appellant, * SULLIVAN COUNTY
vs. * Hon. Lynn W. Brown, Judge
STATE OF TENNESSEE, * (Petition for Habeas Corpus Relief)
Appellee. *
For Appellant: For Appellee:
Jimmy Wayne Wilson John Knox Walkup MCRCF-BMCX Attorney General and Reporter P.O. Box 2000 425 Fifth Avenue North Wartburg, TN 37887 Nashville, TN 37243-0493
Ellen H. Pollack Assistant Attorney General Criminal Justice Division 425 Fifth Avenue North Nashville, TN 37243-0493
OPINION FILED:
AFFIRMED
NORMA MCGEE OGLE, JUDGE OPINION
The petitioner, Jimmy Wayne Wilson, appeals the summary dismissal
of his petition for a writ of habeas corpus by the Criminal Court for Sullivan County.
On May 26, 1998, the Court dismissed the petition on the basis of the petitioner’s
failure to state a cognizable ground for relief. On appeal, the petitioner asserts that
the trial court erroneously dismissed his petition, because his conviction and
sentence as an habitual criminal are void. Following a thorough review of the
record, we affirm the judgment of the trial court.
Procedural History1
On January 18, 1985, a Sullivan County Grand Jury returned a
presentment, charging the petitioner with one count of rape, occurring on October
12, 1984, and one count of habitual criminality. With respect to the habitual criminal
charge, the State relied upon the following prior convictions of the petitioner:
1. 1971 conviction for assault with intent to commit second degree murder. 2. 1979 conviction for burglary of a motor vehicle. 3. 1980 conviction for perjury. 2
A jury found the petitioner guilty of both counts contained in the presentment and
sentenced the petitioner to life imprisonment. This court affirmed the petitioner’s
convictions and sentence on direct appeal. State v. Wilson, No. 717, 1986 WL
1 In this post-conviction appeal, this court has also reviewed the record in this case on direct appeal. “[C]ourts may take judicial notice of ... court records in an earlier proceeding of the same case and the actions of the court thereon.” Delbridge v. State, 742 S.W.2d 266, 267 (Tenn. 1987). Additionally, the appellate courts are authorized to supplement incomplete records by the terms of Tenn. R. App. P. 24(e) and may also consider the contents of their own court records in their consideration of related cases. 2 The State also relied upon the petitioner’s 1971 conviction for concealing stolen property. However, the Criminal Court of Sullivan County vacated this conviction in post- conviction proceedings. Wilson v. State, No. 909, 1991 WL 87245, at *3 (Tenn. Crim. App. at Knoxville, May 29, 1991).
2 12922 (Tenn. Crim. App. at Knoxville, November 14, 1986), perm. to appeal denied,
(Tenn. 1987 and 1989).
Subsequently, the petitioner flooded the courts with various petitions
for post-conviction and habeas corpus relief. All of these petitions were denied both
by the trial court and, ultimately, by this court on appeal. Wilson, No. 909, 1991 WL
87245; Wilson v. State, No. 970, 1991 WL 99520 (Tenn. Crim. App. at Knoxville,
June 12, 1991); Wilson v. State, No. 03C01-9203-CR-00104, 1992 WL 350809
(Tenn. Crim. App. at Knoxville, December 1, 1992), perm. to appeal denied, (Tenn.
1993); Wilson v. State, No. 03C01-9406-CR-00229, 1995 WL 215241 (Tenn. Crim.
App. at Knoxville), perm. to appeal denied, (Tenn. 1995); Wilson v. State, No.
03C01-9602-CC-00085, 1997 WL 214842 (Tenn. Crim. App. at Knoxville), perm. to
appeal denied, (Tenn. 1997); Wilson v. State, No. 03C01-9604-CC-00142, 1997 WL
459728 (Tenn. Crim. App. at Knoxville, August 12, 1997); Wilson v. State, No.
03C01-9612-CR-00452, 1997 WL 658991 (Tenn. Crim. App. at Knoxville, October
22, 1997), perm. to appeal denied, (Tenn. 1998); Wilson v. State, No. 03C01-9611-
CR-00409, 1997 WL 672644 (Tenn. Crim. App. at Knoxville, October 30, 1997).
The petitioner filed this most recent petition for habeas corpus relief on
April 20, 1998. In his petition and on appeal, the petitioner essentially alleges the
following grounds for relief:
1. “Whether the Trial Court Erred in First Considering Petitioner’s Writ of Habeas Corpus as a Post-Conviction Petition; Then Dismissing the Writ, and Considering it a Writ of Habeas Corpus?”
2. Whether the trial court properly dismissed the petition for a writ of habeas corpus.
A. Whether the trial court’s instructions to the jury in the petitioner’s habitual criminal trial were adequate.
3 B. Whether, in the petitioner’s habitual criminal trial, the trial court should have determined the sufficiency of the predicate convictions prior to submitting them to the jury.
C. Whether the petitioner’s habitual criminal conviction was supported by a sufficient number of prior felony convictions as required by Tenn. Code. Ann. § 39-1-801 (1982).
Analysis
Initially, the procedural provisions of the habeas corpus statute are
mandatory and must be scrupulously followed. Archer v. State, 851 S.W.2d 157,
165 (Tenn. 1993). Tenn. Code. Ann. § 29-21-107(b)(2) (1980) provides that a copy
of any judgment of conviction must be attached to a petition for habeas corpus
relief. Tenn. Code. Ann. § 29-21-107(b)(4) provides that copies of prior petitions for
the writ of habeas corpus must be attached to the current petition. The petitioner
failed to comply with either of these requirements, and this court could affirm the trial
court’s dismissal of the instant petition on this basis alone. See, e.g., State ex rel.
Wood v. Johnson, 393 S.W.2d 135, 136 (Tenn. 1965).
Moreover, Tenn. Code Ann. § 29-21-105 (1980) provides that a
petition for habeas corpus relief should be filed in the court most convenient in point
of distance to the applicant. The record reflects that the petitioner is incarcerated in
Morgan County. Nevertheless, he filed his petition in Sullivan County. Although the
petitioner states that the records pertaining to his case are located in Sullivan
County, we have previously held that this contention does not constitute “sufficient
reason” under Tenn. Code Ann. § 29-21-105 for filing a petition for a writ of habeas
corpus in the court of conviction rather than the court closest to the applicant. See
Muhammad v. State, No. 01C01-9707-CC-00300, 1997 WL 779095, at *1 (Tenn.
4 Crim. App. at Nashville, December 18, 1997). Moreover, although the petitioner
asserts in his petition that potential witnesses are located in Sullivan County, the
petitioner has failed to explain the relevance of any witness’s testimony in these
habeas corpus proceedings. If a claim would necessarily involve investigation
beyond the face of the judgment or the record of the proceedings, the claim will not
be cognizable in habeas corpus proceedings. See, e.g., Martin v. State, No. 02C01-
9804-CC-00101, 1998 WL 467098, at *1 (Tenn. Crim. App. at Jackson, August 12,
1998).
We further note that, in his petition for habeas corpus relief, the
petitioner refers on several occasions to the decision of the post-conviction court in
his first post-conviction proceeding, challenging that court’s findings and
conclusions. The petitioner was entitled to appeal that decision, and did appeal that
decision. This court largely rejected the petitioner’s claims, but remanded his case
for an evidentiary hearing on the issue of ineffective assistance of counsel. Wilson,
No. 909, 1991 WL 87245. Following an evidentiary hearing, the post-conviction
court again denied the petitioner relief. This court affirmed the post-conviction
court’s judgment. Wilson, No. 03C01-9203-CR-104, 1992 WL 350809.
The petitioner, in part, is using the current habeas corpus proceedings
as a vehicle to again challenge the decision of the post-conviction court in his first
post-conviction proceeding. Moreover, the petitioner has previously raised, on direct
appeal and in other collateral proceedings, many of the issues currently before this
court. While we acknowledge that, in contrast to petitions for post-conviction relief,
petitions for habeas corpus relief are not strictly subject to principles of waiver and
previous determination, surely at some point the process that is due a criminal
defendant is done. Thus, this court has applied the principle of res judicata in
5 habeas corpus proceedings. See, e.g., Yates v. Sundquist, No. 01C01-9707-CC-
00299, 1998 WL 299290, at *2 (Tenn. Crim. App. at Nashville), perm. to appeal
denied, (Tenn. 1998).
Notwithstanding these concerns and the petitioner’s procedural
omissions, and to the extent that judicial economy has any vestige of meaning in
these proceedings, we will address all of the issues raised in the current petition in
the completely unfounded hope that we might forestall future habeas corpus
petitions raising these same issues. Upon examination of the petition for habeas
corpus relief and the petitioner’s brief, we conclude that the petitioner has failed to
state any cognizable ground for relief or, if cognizable, any ground that possesses
merit.
First, the petitioner complains that the trial court entered a Preliminary
Order denying the petitioner post-conviction relief prior to addressing the availability
of habeas corpus relief. However, we have previously held that a court is not bound
by the title of a pleading, but has the discretion to treat the pleading according to the
relief sought. Bonds v. State, No. 01C01-9508-CC-00260, 1996 WL 170676, at *2
(Tenn. Crim. App. at Nashville, April 12, 1996)(citing Norton v. Everhart, 895
S.W.2d 317, 319 (Tenn. 1995)). Moreover, Tenn. Code. Ann. § 40-30-205(c) (1997)
provides that a trial court may treat a habeas corpus petition as a petition for post-
conviction relief. As the convicting court, the Sullivan County Criminal Court was the
appropriate venue for post-conviction proceedings. Tenn. Code. Ann. § 40-30-
204(a) (1997). Accordingly, the trial court acted well within the bounds of its
authority in first considering the availability of post-conviction relief and determining
6 that the applicable statute of limitations had long since expired.3
Moreover, the trial court properly dismissed the petition for habeas
corpus relief. The Habeas Corpus Act requires a court to review a petition and
dismiss it unless it alleges a cognizable ground for relief. Tenn. Code Ann. §§ 29-
21-101 to –109 (1980). In other words, a petition for a writ of habeas corpus 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 the face of
the petition does not present a cognizable claim. Mitchell v. Carlton, No. 03C01-
9704-CR-00125, 1998 WL 8505, at *2 (Tenn. Crim. App. at Knoxville, January 12,
1998). See also State ex rel. Byrd v. Bomar, 381 S.W.2d 280, 283 (Ten. 1964).
The remedy of the writ of habeas corpus is limited to relief from void
and not merely voidable judgments. Archer, 851 S.W.2d at 163; Passarella v.
State, 891 S.W.2d 619, 628 (Tenn. Crim. App. 1994); Donald v. State, No. 01C01-
9710-CR-00481, 1998 WL 468646, at *1 (Tenn. Crim. App. at Nashville, August 12,
1998), perm. to appeal denied, (Tenn. 1999). In other words, it must appear upon
the face of the judgment or the record of the proceedings upon which the judgment
is rendered that a court was without jurisdiction or authority to convict or sentence a
defendant, or that a defendant’s sentence of imprisonment has expired. Archer,
851 S.W.2d at 164; Ritchie v. State, No. 03C01-9601-CC-00029, 1998 WL 855517,
at *2 (Tenn. Crim. App. at Knoxville, December 10, 1998). The petitioner has not
3 Contrary to the petitioner’s assertion in his brief, the trial court correctly noted that the statute of limitations applicable in the petitioner’s case was three years. Tenn. Code. Ann. § 40-30-102 (Repealed, May 10, 1995). The petitioner’s conviction became final on May 18, 1989. Accordingly, the statute of limitations expired in his case on May 18, 1992. Effective May 10, 1995, the legislature enacted the Post-Conviction Procedure Act of 1995. The 1995 Act provided a one year statute of limitations for post-conviction petitions. Tenn. Code. Ann. § 4-30-202(a) (1997). However, in Carter v. State, 952 S.W.2d 417, 418 (Tenn. 1997), our supreme court held that the new act did not revive cases in which the applicable statute of limitations had already expired.
7 carried his burden of establishing either a void judgment or an illegal confinement.
Passarella, 891 S.W.2d at 627.
The petitioner asserts in his petition for habeas corpus relief that the
trial court’s instructions to the jury in his habitual criminal trial were inadequate
pursuant to State v. McAfee, 737 S.W.2d 304 (Tenn. Crim. App. 1987). This court
has repeatedly held that a challenge to a jury instruction does not present a claim
for habeas corpus relief. See, e.g., King v. State, No. 01C01-9710-CR-00487, 1998
WL 712345, at *4 (Tenn. Crim. App. at Nashville, October 13, 1998), perm. to
appeal denied, (Tenn. 1999). In any event, this issue is without merit. In McAfee,
737 S.W.2d at 308-309, this court held that the trial court committed reversible error
by merely reading to the jury the habitual criminal statutes, without explaining that
the defendant’s record of criminal convictions must have included three predicate
offenses at the time of the triggering offense. In contrast to the trial court in McAfee,
the trial court in the instant case did not simply read the habitual criminal statutes to
the jury. Rather, the record of the trial court proceedings reflects that the trial court’s
instructions followed the applicable pattern jury instructions. T.P.I. Crim. No. 32.01
(1988). These instructions included the explanation mandated in McAfee.
Additionally, although not entirely clear from the petition for habeas
corpus relief, the petitioner apparently contends that the trial court in his habitual
criminal trial should have ruled upon the sufficiency of his prior convictions under the
habitual criminal statutes, before submitting the convictions to the jury.4 Once again,
the petitioner does not allege that the trial court was without jurisdiction or authority
4 We note that, according to the record, the trial court did rule upon the sufficiency of the prior convictions prior to their submission to the jury. The sole exception was the conviction for concealing stolen property. However, this conviction was subsequently vacated by the Sullivan County Criminal Court and was not necessary to support the petitioner’s habitual criminal conviction.
8 to convict or sentence him, or that his sentence of imprisonment has expired. This
court has previously observed that “[a] petition for habeas corpus relief is an
inappropriate procedure in which to review potential errors of a trial court.” Yates,
No. 01C01-9707-CC-00299, 1998 WL 299290, at *2.
In any case, the petitioner’s assertion is without merit. The petitioner
complains that, in approving the actions of the trial court, the post-conviction court in
his first post-conviction proceeding incorrectly relied upon McMath v. State, 544
S.W.2d 902, 905 (Tenn. Crim. App. 1976). In McMath, 544 S.W.2d at 905, this
court determined that the trial court correctly permitted the jury to hear evidence of a
defendant’s prior convictions before ruling that the convictions qualified as predicate
convictions under the habitual criminal statutes. 5 The petitioner correctly argues that
McMath has been overruled. However, McMath was overruled on an entirely
different issue. See State v. Moore, 751 S.W.2d 464, 466 (Tenn. Crim. App.
1988)(citing State v. Cook, 696 S.W.2d 6, 7-8 (Tenn. 1985)). The narrow overruling
of McMath provides no relief to the petitioner.
The petitioner also contends that he did not possess the requisite
number of prior convictions under the habitual criminal statutes. Initially, we note
that this court has previously held that the petitioner did possess the requisite
number of prior felonies to qualify as an habitual offender. Wilson, No. 970, 1991
WL 87245, at *3; Wilson, No. 717, 1986 WL 12922, at *11. As already noted, at the
5 The post-conviction court actually cited McMath for the closely related proposition that the State was permitted in an habitual criminal trial to introduce evidence of more than the requisite number of convictions because of the possibility that the defense might successfully dispute the validity of some of the convictions in subsequent proceedings. Similarly, on appeal from the post-conviction court’s judgment, this court rejected the proposition that the petitioner’s sentence was constitutionally void, because the trial court subsequently vacated the petitioner’s conviction for concealing stolen property. Wilson, No. 909, 1991 WL 87245, at *3.
9 time of the petitioner’s rape offense, his record included three felonies: felonious
assault, perjury, and burglary. Tenn. Code. Ann. § 39-1-801 provided that, in order
to qualify as an habitual offender, a defendant’s prior criminal record must include at
least three felony convictions, two of which were for offenses enumerated in
specified statutes. The specified statutes included Tenn. Code. Ann. § 40-20-112,
the “infamy statute.” Tenn. Code. Ann. § 40-20-112, at the time of the petitioner’s
commission of rape, provided that the habitual criminal statutes only referred to
crimes designated as infamous prior to May 18, 1981. Tenn. Code. Ann. § 40-20-
112 (1982). Prior to that date, the infamy statute included both burglary and perjury.
Id. Compiler’s Notes; Tenn. Code. Ann. § 40-2712 (1975).
Nevertheless, the petitioner challenges the validity of his burglary and
perjury convictions.6 He first argues that his 1980 perjury conviction lacks a factual
basis and his plea of guilt to perjury was not knowing and voluntary. Our supreme
court has stated that habeas corpus proceedings do not constitute an available
avenue of relief if extrinsic evidence is necessary to demonstrate that predicate
convictions in an habitual criminal prosecution are anything but facially valid.
Burford v. State, 845 S.W.2d 204, 209-210 (Tenn. 1992). Moreover, challenges to
the voluntary and knowing nature of guilty pleas and challenges to a trial court’s
compliance with procedural requirements in accepting guilty pleas are not
cognizable issues in habeas corpus proceedings. Archer, 851 S.W.2d at 164; State
v. Lord, 894 S.W.2d 312, 316 (Tenn. Code. Ann. 1994). See also Ransom v. State,
No. 01C01-9410-CR-00361, 1995 WL 555064, at *2 (Tenn. Crim. App. at Nashville,
1995)(a complaint that a defendant’s guilty pleas to predicate offenses in an habitual
criminal prosecution were invalid rendered the habitual criminal conviction voidable,
6 We note at the outset that, in Wilson, No. 03C01-9604-CC-00142, 1997 WL 459728, at *2, this court concluded that the petitioner’s judgments of conviction in the burglary, perjury, and felonious assault cases are at most voidable, and not void.
10 not void). This claim is without merit.
The petitioner next alleges that he could not have committed perjury,
because he had previously been declared infamous and was not qualified to give
evidence. Even assuming that the petitioner’s allegation would render his perjury
conviction void, this allegation is without merit. In 1953, in Chapter 194 of the Public
Acts of 1953, the legislature amended the infamy statute to remove any
disqualification from testifying because of conviction of an infamous crime. The
petitioner’s perjury offense occurred in 1979. Moreover, even if the petitioner’s
infamous status pre-dated 1953, the supreme court held in Strunk v. State, 348
S.W.2d 339, 343-344 (Tenn. 1957), that the 1953 amendment removed the
disqualification from those convicted of infamous crimes prior to amendment of the
infamy statute.7 Additionally, even prior to the 1953 amendment, the fact that a
defendant had been previously rendered infamous did not constitute a defense to
perjury. Williams v. State, 244 S.W.2d 996, 997 (Tenn. 1951).
The petitioner also alleges that burglary of an automobile does not
constitute a burglary within the meaning of the pre-1981 infamy statute. Once
again, even assuming that this allegation would render the petitioner’s conviction
and sentence void, we addressed and rejected this argument on direct appeal in this
case. We relied upon the supreme court’s decision in Hickson v. State, 270 S.W.2d
313, 314-315 (1954), in which our supreme court concluded that the term “burglary”
in the infamy statute included breaking into a freight car. The court noted that the
offense of breaking into a freight car was contained in § 10914 of the 1932 Code, as
amended by the Acts of 1941. Id. The offense set forth in that statutory provision
7 Gaskin v. Collins, 661 S.W.2d 865 (Tenn. 1983), did not affect the holding in this case, as Gaskin rested upon the state constitutional provision prohibiting retroactive disenfranchisement.
11 also included breaking into an automobile. Thus, the decision in Hickson is
controlling in this case. Nevertheless, the petitioner argues that the supreme court’s
decision is erroneous. We simply conclude that this court is bound by the decisions
of our supreme court. Thompson v. State, 958 S.W.2d 156, 173 (Tenn. Crim. App.),
perm. to appeal denied, (Tenn. 1997).
Finally, the petitioner argues that the infamy statute as it existed prior
to 1981 was unconstitutionally vague. Moreover, the petitioner argues that if the
statute prior to 1981 included burglary of an automobile, the caption of the statute
was unconstitutional. Of course, the challenged statute was only in existence at the
time of the petitioner’s offense and convictions to the extent that the statute was
incorporated into the habitual criminal statutes. Thus, the petitioner is really
challenging the constitutionality of the habitual criminal statutes. If the habitual
criminal statutes were unconstitutional, they would have been void from the date of
enactment, and the trial court would have lacked subject matter jurisdiction to hear
the petitioner’s case. See Capri Adult Cinema v. State, 537 S.W.2d 896, 900 (Tenn.
1976); Herron v. Raney, No. 02C01-9805-CC-00153, 1998 WL 725797, at *1 (Tenn.
Crim. App. at Jackson, October 19, 1998). Thus, this claim would be cognizable in
habeas corpus proceedings. Herron, No. 02C01-9805-CC-00153, 1998 WL
725797, at *1.
However, the petitioner’s claim is without merit. First, the title of the
pre-1981 infamy statute has no bearing upon the petitioner’s case. Again, the
petitioner is effectively challenging the constitutionality of the habitual criminal
statutes. The pre-1981 infamy statute is implicated in the petitioner’s case only to
the extent that the listed offenses were incorporated into the habitual criminal
statutes. Second, the petitioner has no standing to contest the constitutionality of
12 those sections or parts of a statute which do not affect him. State v. Vanzant, 659
S.W.2d 816, 819 (Tenn. Crim. App. 1983); State v. Garrison, No. 03C01-9702-CC-
00047, 1998 WL 103318, at *18 (Tenn. Crim. App. at Knoxville, February 27, 1998),
perm. to appeal granted, (Tenn. 1998). In this case, the only parts of the pre-1981
infamy statute which affected the petitioner were those parts referring to burglary
and perjury. With respect to these parts, the petitioner arguably asserts that the
word “burglary” is unconstitutionally vague.
This court has previously concluded that, to the extent the habitual
criminal statutes relied upon the infamy statute to define triggering offenses, the
statutes provided adequate notice to a defendant of the triggering offense of third
degree burglary. State v. Hodge, No. 6, 1987 WL 13169, at *3 (Tenn. Crim. App. at
Jackson, June 30, 1987). In this case, we similarly conclude that, to the extent the
habitual criminal statutes relied upon the infamy statute to define the predicate
convictions, the petitioner was provided with adequate notice of the predicate
offense of burglary of an automobile. The clarity of a statute required by due
process may be derived from sources other than the statutory language, including
judicial interpretations. State v. Hayes, 899 S.W.2d 175, 181 (Tenn. Crim. App.
1995). As noted earlier, our supreme court in Hickson, 270 S.W.2d at 313, clarified
the meaning of “burglary” as set forth in the pre-1981 infamy statute. This issue is
without merit.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the trial court
dismissing the petition for habeas corpus relief.
13 Norma McGee Ogle, Judge
CONCUR:
Gary R. Wade, Presiding, Judge
Cornelia A. Clark, Special Judge