Summary
In Roger L. Hickman v. State, No. E2002-01916-CCA-R3-PC, 2003 WL 22970966, at *3 (Tenn. Crim. App., Knoxville, Dec. 18, 2003), the majority held that "[b]ecause the record establishes that the Appellant's 1986 sentence has expired and he is no longer in actual or constructive custody, we conclude that the Appellant is not `imprisoned or restrained of his liberty,' as required by the habeas corpus statute.
Summary of this case from Hickman v. StateOpinion
No. E2002-01916-CCA-R3-PC.
March 18, 2003 Session.
December 18, 2003.
Direct Appeal from the Criminal Court for Knox County; No. 74318; Ray L. Jenkins, Judge.
Affirmed.
Douglas A. Trant, Knoxville, Tennessee, for the Appellant, Roger L. Hickman.
Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E. Williams, II, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Zane M. Scarlett, Assistant District Attorney General, for the Appellee, State of Tennessee.
David G. Hayes, J., delivered the opinion of the court, in which Thomas T. Woodall, J., joined; John Everett Williams, J., dissenting.
OPINION
The Appellant, Roger L. Hickman, appeals the dismissal of his petition for writ of habeas corpus collaterally attacking a 1986 misdemeanor conviction. We affirm dismissal of the petition upon grounds that (1) there is no showing that Hickman is currently "imprisoned or restrained of his liberty," as required by Tennessee Code Annotated Section 29-21-101, and (2) the petition fails to comply with the statutory requirements.
Factual Background
In 1986, the Appellant pled guilty to simple possession of marijuana in the Knox County General Sessions Court and received a $50.00 fine and a ten-day suspended sentence. In February, 2002, the Appellant filed a petition for writ of habeas corpus in the Knox County Criminal Court alleging that his 1986 conviction was void because it resulted from an uncounseled guilty plea. At an evidentiary hearing on this issue, the proof established that no attorney of record was noted on the 1986 warrant/judgment form and the judgment did not reflect that the Appellant waived his right to counsel. The trial court dismissed the petition upon grounds that the judgment was voidable as opposed to void upon its face, thus, warranting no relief. This appeal followed.
We find it unnecessary to review the trial court's ruling supporting dismissal of the petition in view of our decision in this case.
ANALYSIS
The remedy of habeas corpus, which finds its origin in the common law, is guaranteed by the Constitution of Tennessee. TENN. CONST. ART. 1, § 15; Ricks v. State, 882 S.W.2d 387, 390 (Tenn.Crim.App. 1994). Its central purpose has been to test the legality of detention. The remedy of habeas corpus is limited in scope, as well as relief, and is available only to contest a void judgment or a sentence that has expired. Archer v. State, 851 S.W.2d 157, 161-162, 64 (Tenn. 1993).
Tennessee Code Annotated Section 29-21-101 sets out when habeas corpus relief is available:
Any person imprisoned or restrained of his liberty, under any pretense whatsoever, except [those held under federal authority] may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment and restraint.
Tenn. Code Ann. § 29-21-101. The term "restrained of his liberty" has been extended to include constructive custody, as well as actual physical custody. State ex rel. Dillehay v. White, 398 S.W.2d 737, 738 (Tenn. 1966) (holding that a defendant released upon her own recognizance could nevertheless pursue a habeas corpus claim under the principle of "constructive confinement" because she was subject to immediate incarceration should her appeal be dismissed). The concept of constructive custody is applicable only in those situations where the petitioner may later lose his or her liberty and be eventually incarcerated under the challenged conviction. Accordingly, in addition to those "imprisoned," habeas corpus relief has been extended to a prisoner on parole, probation, or other form of release.
In this case, we have concluded that the Appellant has presented a cognizable habeas corpus claim, i.e., that his 1986 misdemeanor conviction is presumptively void. Because the Appellant is not in actual or constructive custody, as his sentence has long expired, the question remains whether we must further extend the phrase "imprisoned or restrained of his liberty" to our Appellant. Although we are unable to find any appellate decisions directly on point in Tennessee, we find the following decisions persuasive. In Maleng v. Cook, 490 U.S. 488, 492, 109 S.Ct. 1923, 1926 (1989), the Supreme Court, in construing the "in custody" provision of the federal habeas corpus statute, held:
While acknowledging the variation in scope and remedy of the federal habeas corpus statute and this state's statute, we nonetheless are reminded that both have their origins in the common law and both issue only "for the purpose of inquiring into the cause of restraint of liberty." 28 U.S.C.S. § 2241, History; Ancillary Laws and Directives (2003).
The question presented by this case is whether a habeas petitioner remains `in custody' under a conviction after the sentence imposed for it has fully expired, merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted. We hold that he does not. While we have very liberally construed the `in custody' requirement for purposes of federal habeas, we have never extended it to the situation where a habeas petitioner suffers no present restraint from a conviction. Since almost all states have habitual offender statutes, . . . a contrary ruling would mean that a petitioner whose sentence has completely expired could nonetheless challenge the conviction for which it was imposed at any time on federal habeas. This would read the `in custody' requirement out of the statute and be contrary to the clear implication of the opinion in Carafas v. LaVallee, [ 391 U.S. 234, 238, 88 S.Ct. 1556, 1560 (1968) (holding that the federal habeas corpus statute required that the habeas petitioner be "in custody" as a result of the conviction or sentence under attack at the time his petition was filed)].
Maleng v. Cook, 490 U.S. at 492, 109 S.Ct. at 1926. "We have never held, . . ., that a habeas petitioner may be `in custody' under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed." Id. at 491, 1925.
In John Mock v. Warden, No. CV000003127 (Conn.Super.Ct. at Rockland, Feb. 18, 2003), the Superior Court of Connecticut, when confronted with an issue virtually identical to the issue presented before us, observed,
there is no fixed statute of limitations for the filing of a petition for the writ of habeas corpus. Notwithstanding this lack of a fixed statute of limitations, there is a key prerequisite to the filing of a habeas corpus petition that is the functual equivalent of a statute of limitations. In order for the court to grant a writ of habeas corpus, the petitioner must be `illegally confined or deprived of his liberty,' at the time that the petition is filed.
John Mock, No. CV000003127 at *3-4.
Consistent with these holdings and the common law history of the writ are the following reported appellate decisions of this state. Our supreme court has held that the only relief that can be given a prisoner in a state habeas corpus proceeding is release or discharge from custody. Ussery v. Avery, 432 S.W.2d 656, 658 (Tenn. 1968); Taylor v. Morgan, 909 S.W.2d 17, 20 (Tenn.Crim.App. 1995). The purpose of the writ of habeas corpus is to test the legality of the imprisonment or restraint of one who is being illegally detained. State v. Warren, 740 S.W.2d 427, 428 (Tenn.Crim.App. 1986). In Ussery v. Avery, 432 S.W.2d at 658, the court denied habeas corpus relief, even though the judgment was potentially void, because imprisonment resulted from a conviction other than that challenged in the petition. A fortiori, habeas relief is available only to a petitioner contesting the validity of the judgment under which he is confined. Id.; see also Warren, 740 S.W.2d at 428.
In the dissent, our colleague Judge Williams, cites Church v. State, 987 S.W.2d 855 (Tenn.Crim.App. 1998) for a contra position. In Church, a panel of this court affirmed the dismissal of a habeas corpus petition, concluding that the petition failed to state a cognizable claim for habeas corpus relief. Id. at 858. The holding in Church does not address the issue presented in this case. Moreover, we are constrained to note that, under the dissent's position, there would never be any finality in a judgment of conviction in a criminal case.
Moreover, we conclude that the Tennessee habeas corpus statutes clearly contemplate that the habeas petitioner must be in either actual or constructive custody of the sentence being challenged at the time the petition is filed. See, e.g., Tenn. Code Ann. § 29-21-110 (requiring that the writ be directed to the sheriff or other person having custody of or restraining the person on whose behalf the application is made and commanding the restraining authority to have the body of such person before the court at the time and place specified); Tenn. Code Ann. § 29-21-122 (providing that if legal cause for detention is not shown, the petitioner shall be discharged, otherwise, the petitioner shall be remanded to custody). We are constrained to note that the term "imprisoned or restrained of liberty" for purposes of habeas corpus relief is not co-extensive with the term "person in custody" contained in Tennessee Code Annotated Section 40-30-102 of our Post-Conviction Procedures Act. The post-conviction term "in custody" has long been construed to mean that a petitioner may collaterally attack a conviction, even when that sentence is served and the petitioner is no longer on any form of release, if there is a possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction. Ellison v. State, 549 S.W.2d 691, 694 (Tenn.Crim.App. 1976); see also State v. McCraw, 551 S.W.2d 692, 694 (Tenn. 1977). Indeed, post-conviction proceedings are routinely utilized to collaterally challenge a void or voidable conviction, where that conviction is being used to enhance a second or subsequent sentence. Again, the term "restrained of liberty" for habeas corpus purposes requires either actual or constructive custody, while the term "in custody" for post-conviction purposes does not.
Because the record establishes that the Appellant's 1986 sentence has expired and he is no longer in actual or constructive custody, we conclude that the Appellant is not "imprisoned or restrained of his liberty," as required by the habeas corpus statute. Accordingly, the issue of whether he may prosecute the writ of habeas corpus is moot. State ex rel. Nelson v. Sims, 583 S.W.2d 302, 303 (Tenn. 1976) (holding that habeas corpus proceeding was rendered moot after petitioner was no longer subject to actual or constructive confinement of a "peace warrant"); see also State ex rel. Lewis v. State, 347 S.W.2d 47, 48 (Tenn. 1961); Johnson v. State, No. W2001-02373-CCA-R3CD (Tenn.Crim.App. at Jackson, Aug.7, 2002); Jones v. State, No. 01C01-9711-CR-00548 (Tenn.Crim.App. at Nashville, Dec. 11, 1998).
Finally, we observe that the petition woefully fails to comply with the statutory provisions, which require specific facts to be included in the application for the writ. In this case, the petitioner (1) fails to name the restraining authority and place of restraint, (2) fails to state whether the legality of the restraint has or has not been previously adjudicated, and (3) fails to state whether or not previous applications have been made. Tenn. Code Ann. § 29-21-107(b)(1)(3), (4). In addition, the petition is not verified by affidavit, as required by Tennessee Code Annotated Section 29-21-107(a). Compliance with the statutory requirements of Tennessee Code Annotated Section 29-27-107 is mandatory and must be scrupulously followed. State ex rel. Kuntz v. Bomar, 381 S.W.2d 290, 291 (Tenn. 1964) ; Bateman v. Smith, 194 S.W.2d 336, 337 (Tenn. 1946).
Indeed, the records of this court indicate that the Appellant has filed a second challenge to this same Knox County General Sessions conviction, which is captioned, "Petition For Relief From Conviction or Sentence." This petition was also dismissed at the trial level and is on appeal to this court. Interestingly, this petition states that the petitioner is currently confined in a North Carolina federal correctional facility under sentence imposed by the United States District Court for the Middle District of Florida. Assuming this allegation is true, the Appellant would again be ineligible for habeas corpus relief in Tennessee. See Tenn. Code Ann. § 29-21-102 (persons 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).
CONCLUSION
Based upon the foregoing reasons, we affirm the trial court's dismissal of the Appellant's application for the writ of habeas corpus.
I differ with the majority opinion in two major areas. First, the majority finds it unnecessary to reach the question of whether a judgment of conviction that is silent as to whether a defendant had counsel or waived his right to counsel is voidable or void. For reasons hereafter contained, I conclude such a judgment of conviction is facially invalid or void.
Second, the majority does not accept that the use of a prior conviction to enhance subsequent punishment acts as a "restraint on liberty." The majority construes the statutory language "imprisoned or restrained of his liberty, under any pretense whatsoever" to require actual or constructive confinement in a prison or jail. I disagree.
My reading of the case law convinces me that the Post-Conviction Procedure Act is the authorized route for attacking a facially valid final judgment. It is equally clear to me that only facially invalid judgments are subject to collateral attack by writ of habeas corpus. It would appear important to first determine if the habeas corpus petition sets out a claim that the judgment of conviction is facially valid and, therefore, voidable or the judgment of conviction is facially invalid or void.
As the majority opinion correctly states, the instant judgment of conviction resulted from an uncounseled guilty plea and no waiver of his right to counsel appeared upon the General Sessions judgment. I conclude that even though this misdemeanor conviction carried only a suspended sentence, it is void unless counseled or counsel is waived and such appears upon the judgment of conviction or the record. Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 152 L.Ed.2d 888 (2002); State v. McClintock, 732 S.W.2d 268, 273 (Tenn. 1987); State v. Tansil, 72 S.W.3d 665, 667 (Tenn.Crim.App. 2001).
In McClintock, our supreme court recognized that the authorized route for attacking a facially valid, final judgment of conviction is by the Post-Conviction Procedure Act. 732 S.W.2d at 272.
The instant case, however, deals with a "facially invalid" judgment of conviction for want of counsel or waiver of counsel. In this regard, the supreme court stated in McClintock:
In [Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980)]the record affirmatively revealed that the defendant had neither been represented by counsel nor waived his right to counsel. 100 S.Ct. at 1585. Such a conviction is void on its face for the purposes of recidivist provisions upon subsequent convictions. As Justice Marshall stated in his concurring opinion:
"An uncounseled conviction does not become more reliable merely because the accused has been validly convicted of a subsequent offense. For this reason, a conviction which is invalid for purposes of imposing a sentence of imprisonment for the offense itself remains invalid for purposes of increasing a term of imprisonment for a subsequent conviction under a repeat offender statute."
732 S.W.2d at 273 (quoting Baldasar, 100 S.Ct. at 1588).
I fail to see how a judgment of conviction so deprived of minimum constitutional protection as to be apparent on its face as void, miraculously heals itself of such serious infirmities with the passage of time.
I acknowledge that Tennessee may be unique in this area, but I feel that McClintock requires that the judgment of conviction contain a notation of counsel or waiver of counsel. The supreme court inMcClintock stated:
In particular, General Sessions Courts are required by the Rules of Criminal Procedure to preserve a sufficient record of their proceedings in criminal cases to permit effective review.
Furthermore, T.C.A. § 8-14-107 explicitly prohibits entry of a guilty plea unless the right to counsel has been waived and the waiver reduced to writing. See also Rules 5 and 44, T.R.Cr.P. Every court is required to make adequate personal inquiry of defendants to assure the validity of all necessary waivers. This is not only required by the Constitutions of this State and the United States but is imposed upon courts by numerous statutory provisions and rules of procedure. See, e.g., T.C.A. §§ 8-14-106, 40-14-102, 40-14-103, 40-14-202; Rules 5, 11, and 44, T.R.Cr.P. Not only does Rule 1, T.R.Cr.P., distinctly ennumerate when those rules govern procedures in General Sessions Courts and impose the requirements of the rules on those courts as rigorously as on other courts exercising criminal jurisdiction, but Rule 54(a), T.R.Cr.P., reiterates that "[t]hese rules apply to all criminal proceedings in all courts of record. . . . They shall apply in General Sessions Courts . . . to the extent specified in Rule 1 or when the context clearly so indicates. . . ."
The majority's bright line rule of requiring actual or constructive confinement is beguiling in its simplicity. No habeas corpus is allowed after a sentence has expired. If the majority is correct, then the next time we review a petition for habeas corpus, we should first see whether it was filed after the sentence has expired and, if so, deny relief or convert it to a petition for post-conviction relief which has a one-year statute of limitations. Ray v. State, 489 S.W.2d 849 (Tenn.Crim.App. 1972). The majority, as noted earlier, makes no distinction on whether the judgment is facially valid or facially invalid.
The majority, I feel, too narrowly construes the language "imprisoned or restrained of his liberty" to require actual or constructive confinement in a prison or jail. This ignores the many aspects a conviction has on a person's liberty. Long after the threat of confinement, a conviction may affect a defendant's liberty; for example, the right to vote, the right of gun ownership, placement on the sex registry, and enhancement of punishment in subsequent convictions. This Court recognized in Church v. State, 987 S.W.2d 855 (Tenn.Crim.App. 1998), that an out-of-state person may seek habeas corpus relief in Tennessee from a Tennessee conviction, even though not a prisoner in Tennessee. This Court went on to recognize the effects a judgment of conviction may have on a person long after confinement, when it stated:
We believe that an out-of-state person may seek habeas corpus relief in Tennessee from a Tennessee conviction even though not a prisoner in Tennessee. Any person imprisoned or restrained of his liberty, under any pretense whatsoever, except, [those held under Federal authority], may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment and restraint." T.C.A. § 29-21-101. The restraint need not involve imprisonment. In State ex rel. Dillehay v. White, 217 Tenn. 524, 527-28, 398 S.W.2d 737, 738 (1966), our supreme court allowed a habeas corpus action to test the legality of an order requiring the indigent petitioner to be placed in jail to work out the court costs. Even though the petitioner was not in jail, having made bail, the trial court concluded that she was still restricted in her liberty pending the appeal. In State v. McCraw, 551 S.W.2d 692, 694 (Tenn. 1997), a post-conviction case, our supreme court considered the loss of the right to vote because of a felony conviction to be a "restraint on liberty." It also quoted from United States Supreme Court cases relative to federal habeas corpus being allowed so long as any collateral legal consequences flow from a conviction, such as, loss of citizenship, the enhancement of future criminal punishment, and evidently impeachment of character. Id.; see Carafas v. LaVallee, 391 U.S. 234, 237, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (1968) and Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889, 1900, 20 L.Ed.2d 917 (1965). Thus, the fact that the petitioner is not physically in custody in Tennessee is irrelevant if he is otherwise restrained of his liberty by virtue of his Tennessee convictions.
Id. at 857.
Our supreme court stated in Potts v. State, 833 S.W.2d 60, 62 n. 15 (Tenn. 1992), that "[c]hallenges to void convictions and expired terms of imprisonment survive beyond the time prescribed in § 40-30-102, and the Great Writ cannot be defeated by conversion to post-convictions proceedings pursuant to § 40-30-108 and subsequent dismissal because of the § 40-30-102 time bar." Habeas corpus has no statutory time limitations; even after the post-conviction petition is dismissed as untimely, the petitioner may assert in a petition for writ of habeas corpus that his conviction is void or that he is being wrongfully confined beyond his term of imprisonment.
The majority concludes that the judgment of conviction in the instant case is "presumptively void." I call it "facially invalid." If this is a void judgment, then how may it be attacked, if not by habeas corpus, and in what period of time must it be filed? Surely not within ten days before the ramifications are manifested. In balancing the need for finality, that interest should yield when it is apparent on its face that the judgment of conviction is void. The need for finality should prevail when balanced with a facially valid judgment. I conclude that the only method of attacking this defendant's facially invalid judgment is by habeas corpus and, because that conviction has collateral legal consequences which act as a restraint on the defendant's liberty, it is timely filed.
I agree with the majority that the statutory requirements for filing this petition of habeas corpus were not met. However, I deem this issue waived by the State because of its failure to raise it at trial and on appeal.