Hickman v. State

• Decision Date: 22 September 2004
• Docket Number: No. E2002-01916-SC-R11-PC.,E2002-01916-SC-R11-PC.
• Citation: 153 S.W.3d 16
• Parties: Roger L. HICKMAN v. STATE of Tennessee.
• Court: Tennessee Supreme Court

153 S.W.3d 16

Roger L. HICKMAN v. STATE of Tennessee.

No. E2002-01916-SC-R11-PC.

Supreme Court of Tennessee.

May 5, 2004 Session.

September 22, 2004.

Douglas A. Trant, Knoxville, for the appellant, Roger L. Hickman.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Gordon W. Smith, Associate Solicitor General; Randall E. Nichols, District Attorney General; and Zane M. Scarlett, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FRANK F. DROWOTA, III, C.J., delivered the opinion of the court, in which E. RILEY ANDERSON, ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

We granted Roger L. Hickman permission to appeal to consider whether the trial court and Court of Criminal Appeals erred in dismissing his habeas corpus petition. Hickman's petition, prepared with the aid of counsel, alleged that his 1986 misdemeanor conviction, for which he received a ten-day suspended sentence, is void because the judgment does not affirmatively indicate that Hickman was represented by counsel or that he waived his right to counsel. We hold that the trial court and Court of Criminal Appeals properly dismissed the petition. The petition failed to comply with the prescribed statutory form, failed to allege that Hickman is "imprisoned or restrained of his liberty," as required by Tennessee Code Annotated section 29-21-101 (2000), and failed to allege grounds for habeas corpus relief. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

I. Facts and Procedural History

On June 6, 1986, the petitioner, Roger L. Hickman, pleaded guilty in the Knox County General Sessions Court to possession of marijuana and received a ten-day suspended sentence and a fifty dollar fine. The certified copy of the judgment does not indicate whether Hickman was represented by counsel or waived his right to counsel that day.

Almost sixteen years later, on February 25, 2002, Hickman, by and through counsel, filed a habeas corpus petition in the Knox County Criminal Court challenging the validity of his 1986 conviction. Hickman's petition asserted that the 1986 conviction was void because the judgment did not affirmatively recite whether Hickman was represented by counsel or waived counsel. The petition sought to set aside the 1986 conviction "so [that] it may not be considered in a case in U.S. District Court." Finding that the grounds alleged, if true, rendered the conviction voidable, not void, the trial court dismissed the habeas corpus petition. Alternatively, the trial court concluded that, if treated as a petition for post-conviction relief, the petition was time-barred by the statute of limitations.

Hickman appealed, and in a split decision, the Court of Criminal Appeals affirmed the trial court's judgment. Emphasizing that the ten-day suspended sentence on the 1986 conviction had expired long before the habeas corpus petition was filed, the majority concluded that Hickman was not "imprisoned or restrained of his liberty" and therefore was not entitled to habeas corpus relief. The majority also pointed out that Hickman's petition failed to comply with the statutory form and failed to provide statutorily mandated information. See Tenn.Code Ann. § 29-21-107 (2000). Finally, in a footnote, the majority indicated that if the defendant is presently in federal custody, as he alleged in another case attacking his 1986 conviction, then he is barred from obtaining habeas corpus relief by Tennessee Code Annotated section 29-21-102, which provides that "[p]ersons committed or detained by virtue of process issued by a court of the United States, or a judge thereof ... are not entitled to the benefits of this writ."

We granted the defendant's application for permission to appeal and now affirm the judgment of the lower courts dismissing the habeas corpus petition.

II. Standard of Review

The determination of whether habeas corpus relief should be granted is a question of law. McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn.2001). Accordingly, our review is de novo with no presumption of correctness accorded to the courts below. Id.

III. Analysis

In Tennessee, two distinct procedural avenues are available to collaterally attack a final judgment in a criminal case — habeas corpus and post-conviction petitions. Taylor v. State, 995 S.W.2d 78, 83 (Tenn.1999); Potts v. State, 833 S.W.2d 60, 62 (Tenn.1992). The right to seek habeas corpus relief is guaranteed by article I, section 15 of the Tennessee Constitution.¹ The procedures governing habeas corpus petitions are codified at Tennessee Code Annotated sections 29-21-101 through 29-21-130. This Court has previously acknowledged that "the procedural provisions of the habeas corpus statutes are mandatory and must be followed scrupulously." Archer v. State, 851 S.W.2d 157, 165 (Tenn.1993) (citing Bateman v. Smith, 183 Tenn. 541, 194 S.W.2d 336, 337 (1946)). Although there is no habeas corpus statute of limitations, the grounds upon which habeas corpus relief will be granted are narrow. Dixon v. Holland, 70 S.W.3d 33, 36 (Tenn.2002); See State v. Ritchie, 20 S.W.3d 624, 630 (Tenn.2000); Archer, 851 S.W.2d at 164. Habeas corpus relief is proper only if the petition establishes that the challenged judgment is void, as opposed to merely voidable. Taylor, 995 S.W.2d at 83; Potts, 833 S.W.2d at 62. A judgment is void "only when `[i]t appears upon the face of the judgment or the record of the proceedings upon which the judgment is rendered' that a convicting court was without jurisdiction or authority to sentence a defendant, or that a defendant's sentence of imprisonment or other restraint has expired." Ritchie, 20 S.W.3d at 630 (quoting Archer, 851 S.W.2d at 164) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37, 1868 WL 2122 (1868)). Furthermore, a sentence "imposed in direct contravention of a statute ... is void and illegal." Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn.2000). When the habeas corpus petition fails to demonstrate that the judgment is void, a trial court may properly dismiss the petition without a hearing. Tenn.Code Ann. § 29-21-109 (2000); Dixon, 70 S.W.3d at 36.

A petition for post-conviction relief is the procedural avenue for attacking voidable judgments. Taylor, 995 S.W.2d at 83; State v. McClintock, 732 S.W.2d 268, 272 (Tenn.1987). Recognizing the narrow scope of habeas corpus relief, in 1967 the Tennessee General Assembly enacted the Post-Conviction Procedures Act.² Post-conviction petitioners, unlike habeas corpus petitioners, may challenge convictions or sentences that are either void or voidable because of the abridgment of constitutional rights. Tenn.Code Ann. § 40-30-103 (2003); Taylor, 995 S.W.2d at 83; Potts, 833 S.W.2d at 62. "A voidable conviction 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 (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn.1998); Archer, 851 S.W.2d at 161-64). A one-year statute of limitations applies to post-conviction petitions. Tenn.Code Ann. § 40-30-102 (2003). Having briefly reviewed these distinct procedural avenues, we will address the issues raised in this appeal.

A. Procedural Requirements for Petition for Writ of Habeas Corpus

Tennessee Code Annotated section 29-21-107(a) provides that habeas corpus petitions must be signed and verified by affidavit. This statute further requires the petition to state:

(1) That the person in whose behalf the writ is sought, is illegally restrained of liberty, and the person by whom and place where restrained, mentioning the name of such person, if known, and, if unknown, describing the person with as much particularity as practicable;

(2) The cause or pretense of such restraint according to the best information of the applicant, and if it be by virtue of any legal process, a copy thereof shall be annexed, or a satisfactory reason given for its absence;

(3) That the legality of the restraint has not already been adjudged upon a prior proceeding of the same character, to the best of the applicant's knowledge and belief; and

(4) That it is first application for the writ, or, if a previous application has been made, a copy of the petition and proceedings thereon shall be produced, or satisfactory reasons be given for the failure so to do.

Tenn.Code Ann. § 29-21-107(b) (2000). Hickman's petition failed to comply with this statute. The petition, prepared and filed by counsel on Hickman's behalf, states in its entirety as follows:

Comes the Petitioner, Roger L. Hickman, by and through counsel, Douglas A. Trant, to petition for a writ of habeas corpus concerning his conviction in the Knox County Sessions Court for Knox County, Tennessee in case number 72333 G wherein he was convicted of simple possession of marijuana. A certified copy of the conviction is attached and is void on its face because the conviction does not state that he had counsel nor did he waive counsel. Waiver of the constitutional right of counsel cannot be presumed from a silent record. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) and Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980).

As the Court of Criminal Appeals noted, Hickman's petition was not verified by affidavit, failed to name the restraining authority and the place of restraint, failed to state whether the legality of the restraint had been previously adjudicated, and failed to state whether previous applications for the writ had been made. However, the State did not move to dismiss the petition for failure to comply with Code section 107, nor did the trial court dismiss the petition for procedural noncompliance.

As previously explained, the procedural requirements of the habeas corpus statutes "are mandatory and must be followed scrupulously." Archer, 851 S.W.2d at 165; Bateman, 194...