Opinion
No. M2008-01664-CCA-R3-PC.
Filed May 4, 2009.
Direct Appeal from the Circuit Court for Franklin County; No. 8782; J. Curtis Smith, Judge.
Judgment of the Franklin County Circuit Court Affirmed Pursuant to Rule 20 of the Tennessee Court of Criminal Appeals.
Corey Adams Kennerly, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney General, J. Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney General, for the appellee, State of Tennessee.
Thomas T. Woodall, J., delivered the opinion of the court, in which Jerry L. Smith and Robert W. Wedemeyer, JJ., joined.
MEMORANDUM OPINION
Petitioner, Corey Adams Kennerly, appeals the trial court's dismissal of his petition for post-conviction relief. The State has filed a motion pursuant to Rule 20, Rules of the Court of Criminal Appeals of Tennessee, for this Court to affirm the judgment of the trial court by memorandum opinion. We grant the motion and affirm the judgment of the trial court.
Petitioner was originally charged with felony murder, aggravated rape, and especially aggravated robbery. On October 28, 1996, he pled guilty to felony murder and especially aggravated robbery. The trial court imposed a life sentence for felony murder and a concurrent twenty-year sentence for aggravated robbery. Petitioner filed a timely petition for post-conviction relief, which was dismissed by the trial court. This Court affirmed the dismissal. See Corey Adams Kennerly v. State, No. 01C01-9806-CC-00252, 1999 WL 270357 (Tenn.Crim.App., at Nashville, Apr. 29, 1999), perm. app. denied (Tenn. Sept. 20, 1999). Thereafter, petitioner filed a petition for writ of habeas corpus alleging that his conviction for especially aggravated robbery was void because the indictment, guilty plea form, and the judgment lacked the signature of the trial court clerk. He also alleged that the indictment did not list the name of the State of Tennessee. The trial court dismissed the petition, and this Court affirmed the dismissal. See Corey A. Kennerly v. Myers, No. M2003-02270-CCA-R3-HC, 2004 WL 508496 (Tenn.Crim.App., at Nashville, Mar. 16, 2004), perm. to appeal denied (Tenn. Aug. 30, 2004). On August 9, 2001, petitioner filed a petition for DNA analysis, which he moved to voluntarily dismiss after he was advised that the analysis was unfavorable. The trial court ruled that the voluntary dismissal of the petition was not authorized by the Post-Conviction DNA Analysis Act of 2001 and dismissed the petition upon its merits. This Court affirmed the dismissal. Corey Kennerly v. State, No. M2003-00489-CCA-R3-PC, 2004 WL 2544659 (Tenn.Crim.App., Nov. 5, 2004). Petitioner filed a second petition for writ of habeas corpus alleging that the indictment for felony murder was void because it failed to meet the statutory requirements. The trial court again dismissed the petition, and this Court affirmed the dismissal. See Corey Adams Kennerly v. State, No. M2006-00813-CCA-R3-HC, 2006 WL 3837233 (Tenn.Crim.App., Dec. 21, 2006).
On April 17, 2008, petitioner filed a pro se petition for post-conviction relief alleging that his conviction for first degree murder is void because the indictment included the mental elements of "knowingly" and "recklessly" rather than just "recklessly." The trial court denied the petition, finding that it was barred by the one-year statute of limitations. The court also held that the petition should not be considered as a habeas corpus petition because the indictment was not defective or deficient such as to deprive the trial court of jurisdiction.
Pursuant to Tennessee Code Annotated section 40-30-102(a), a person in custody under a sentence of a court of this state must petition for post-conviction relief within one year of the date of the final action of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within one year of the date on which the judgment becomes final. The statute emphasizes that "[t]ime is of the essence of the right to file a petition for post-conviction relief or motion to reopen established by this chapter, and the one-year limitations period is an element of the right to file such an action and is a condition upon its exercise." T.C.A. § 40-30-102(a).
Additionally, Tennessee Code Annotated section 40-30-102(b), provides that the trial court does not have jurisdiction to consider a petition for post-conviction relief if it was filed outside the one-year statute of limitations unless (1) the claim in the petition is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial, if retrospective application of that right is required; (2) the claim in the petition is based upon new scientific evidence establishing that such petitioner is actually innocent of the offense or offenses for which the petitioner was convicted; or (3) the claim in the petition seeks relief from a sentence that was enhanced because of a previous conviction and such conviction in the case in which the claim is asserted was not a guilty plea with an agreed sentenced, and the previous conviction has subsequently been held to be invalid. T.C.A. § 40-30-102(b).
In the present case, Petitioner filed his post-conviction petition more than eleven years after he was convicted. He does not assert, nor has he shown the applicability of any of the exceptions to toll the statue of limitations for post-conviction relief. Moreover, this is Petitioner's second petition for post-conviction relief. Our post-conviction statute provides that only one petition for post-conviction relief may be filed attacking a single judgment.See T.C.A. § 40-30-1029(c). The statute further provides that if a prior petition has been filed which was resolved on the merits by a court of competent jurisdiction, a second petition shall be summarily dismissed. See Id. Therefore, the trial court properly dismissed Petitioner's post-conviction petition.
Petitioner argues on appeal that the trial court "lacked subject matter jurisdiction" to treat his petition as a request for habeas corpus relief rather than as a petition for post-conviction relief. This assertion by Petitioner is a claim without a consequence. In its order, the trial court explicitly stated that it had reviewed the petitionboth as a petition for post-conviction relief and as a petition for habeas corpus relief, and ultimately dismissed the petition. Thus, giving Petitioner at least the arguable "benefit of the doubt" to consider the petition as one for habeas corpus relief as a possible means to grant relief, was not prejudicial to Petitioner, and did not result in any disposition other than the result if it had only been considered as a petition for post-conviction relief.
Upon review of this matter, this Court concludes that no error of law requiring a reversal of the judgment of the trial court is apparent on the record.
CONCLUSION
Accordingly, the judgment of the trial court is affirmed.