Thomas Hebron v. State of Tennessee

• Court: Court of Criminal Appeals of Tennessee
• Decided: February 5, 1996
• Docket: 01CO1-9510-CC-00349
• Status: Published

Opinion

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).

2 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