Opinion
C.C.A. No. 01C01-9505-CC-00126.
February 1, 1996.
Appeal from Hickman Circuit No. 95-5012C, Hon. Cornelia A. Clark, Judge.
CHARLES A. NORRIS, Pro Se.
CHARLES W. BURSON, Attorney General and Reporter, Nashville, AMY L. TARKINGTON, Assistant Attorney General, Nashville.
AFFIRMED
Charles A. Norris ("petitioner") appeals from an order entered in the Criminal Court for Hickman County denying his petition for a writ of habeas corpus. On appeal, petitioner presents one issue for review: whether the trial court erred in dismissing his petition for writ of habeas corpus. We find no error and affirm.
On May 21, 1983, petitioner was convicted of first degree murder and armed robbery in the Criminal Court for Davidson County. He was sentenced to concurrent sentences of life and sixty (60) years, respectively. Petitioner's conviction was affirmed by this court and the supreme court denied permission to appeal. State v. Norris, 684 S.W.2d 650 (Tenn.Crim.App. 1984).
Subsequently, petitioner filed a petition for post-conviction relief alleging ineffective assistance of counsel. The trial court dismissed the petition. On appeal, this court affirmed the trial court and the supreme court denied permission to appeal. Norris v. State, No. 01-C-01-9002-CR00029, 1990 WL 160956 (Tenn.Crim.App. Oct. 25, 1990).
The petition in the case under consideration was filed on January 21, 1995 in the Criminal Court of Hickman County. The sole ground for relief sought dealt with the jury instruction in his 1983 trial wherein "reasonable doubt" was defined to include the term "moral certainty." Specifically, the jury instruction complained of reads as follows:
Reasonable doubt is that doubt engendered by an investigation of all the proof in the case and an inability, after such investigation, to let the mind rest easily as to the certainty of guilt. Reasonable doubt does not mean a captious, possible, or imaginary doubt. Absolute certainty of guilt is not demanded by the law to convict of any criminal charge, but moral certainty is required as to every proposition of proof requisite to constitute the offense.
Petitioner contends that based upon the authority of Cage v. Louisiana, 498 U.S. 39, 40-41 (1990), the use of the term "moral certainty" suggests a higher degree of doubt is required for acquittal than the degree in the "beyond a reasonable doubt" standard as set out in In re Winship, 397 U.S. 358, 361 (1970). Petitioner concludes that the erroneous jury instruction set forth above violates his right to due process and rendered his 1983 conviction and sentence void.
In dismissing the petition, the trial court found that the instructions given in petitioner's case, while using the words "moral certainty," sufficiently described the degree of doubt necessary for acquittal and did not violate the conclusion reached in Cage. The trial court also held that petitioner's argument based on Cage had been rejected by our supreme court in the consideration of a virtually identical jury instruction in State v. Nichols, 877 S.W.2d 722, 734 (Tenn. 1994). Once again petitioner contends that the allegedly erroneous jury instruction renders his conviction void.
In this state the remedy of habeas corpus is limited in its nature and scope. See, e.g., Luttrell v. State, 644 S.W.2d 408, 409 (Tenn.Crim.App. 1982). This court in Luttrell held that the scope of review by habeas corpus is narrower than federal habeas corpus proceedings. The availability of habeas corpus relief was spelled out clearly in Archer v. State, 851 S.W.2d 157 (Tenn. 1993):
Habeas corpus relief is available in Tennessee only when `it appears on 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 resaint has expired.
Id. at 164. Habeas corpus relief is only available for void judgments, not merely voidable ones. Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992).
Petitioner contends that the writ of habeas corpus is the proper basis for seeking relief because the jury instruction he complains of defining reasonable doubt rendered his conviction and sentence void. However, the complaint made by the petitioner is not one that would render the trial court judgment void, but, rather, voidable. In Thornton v. Raney, No. 02C01-9302-CC-00025, 1994 WL 25827 (Tenn.Crim.App. Jan. 26, 1994), this court held that erroneous jury instructions do not meet any of the requirements for habeas corpus relief, id. at *1, and that the proper method for collaterally attacking the judgment for constitutional deprivations is by a petition for post-conviction relief. Id.
Because petitioner sought relief inappropriately in the form of a petition for a writ of habeas corpus, the trial court at its discretion could have treated the petition as one for post-conviction relief. T.C.A. § 40-30-108 (1990). The trial could not have, however, exercised this discretion inasmuch as T.C.A. § 40-30-103(a) requires that a petition for post-conviction relief be brought in the county of conviction, which in this case was Davidson County, not Hickman County. In addition, as the petition for writ of habeas corpus was filed well beyond the three-year statute of limitations as provided in T.C.A. § 40-30-102, the trial court was barred from considering it as a petition for post-conviction relief. See Voss v. Raney, No. 02C01-9501-00022, 1995 WL 454034, at *2 (Tenn.Crim.App. Aug. 2, 1995).
The statute herein involved was repealed by an updated version of the Post-Conviction Procedure Act. The new act only governs petitions for post-conviction relief filed after May 10, 1995. T.C.A. § 40-30-201 (Supp. 1995) (compiler's notes). We cite the old code section in as much as this petition was filed before May 10, 1995.
The judgment of the trial court is affirmed.
_______________________________________ TOMLIN, Sr.J.
_____________________________________ WADE, J. (CONCURS)
_____________________________________ WELLES, J. (CONCURS)