IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 10, 2021

GAI D. KUOT v. STATE OF TENNESSEE

Appeal from the Circuit Court for Wayne County

No. 16919 Christopher V. Sockwell, Chancellor

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No. M2021-00197-CCA-R3-HC

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Gai D. Kuot, Petitioner, filed a petition for writ of habeas corpus (the “petition”) claiming

that his convictions are void because the indictment was defective, the capias was unsigned,

and the trial court did not have subject matter jurisdiction. The trial court summarily 

dismissed the petition. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and J. ROSS DYER, JJ., joined.

Gai D. Kuot, Clifton, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant 

Attorney General; Brent A. Cooper, District Attorney General, for the appellee, State of 

Tennessee.

OPINION

Procedural Background

In 2012, a Davidson County jury convicted Petitioner of premeditated first degree 

murder, first degree felony murder, and especially aggravated robbery. The trial court 

sentenced Petitioner to an effective term of life imprisonment. This court affirmed the 

judgments of the trial court. State v. Gai D. Kuot, No. M2012-01884-CCA-R3-CD, 2013 

WL 4539020 at *1 (Tenn. Crim. App. Aug. 26, 2013), perm. app. denied (Tenn. Dec. 11, 

2013.) 

12/13/2021
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On November 6, 2020, Petitioner filed a petition for writ of habeas corpus claiming 

that he was being illegally and unlawfully imprisoned and restrained of his liberty as a 

result of the convictions in this case. The trial court found that Petitioner had failed to 

show that his sentence had expired and entered an order dismissing the petition. Petitioner 

timely appealed.

Analysis

On appeal, Petitioner alleges that his convictions are void because his indictment: 

(1) was undated, (2) did not include a case number, (3) did not show a foreperson’s 

signature, (4) did not reflect a “True Bill,” and (5) was not signed by the District Attorney.

Petitioner also claims on appeal that his convictions are void because the capias was 

unsigned and because the trial court did not have subject matter jurisdiction at trial. 

Habeas Corpus Relief

Habeas corpus relief may only be granted in limited circumstances. Edwards v. 

State, 269 S.W.3d 915, 920 (Tenn. 2008). Unlike petitions for post-conviction relief, “the 

purpose of the habeas corpus petition is to contest void and not merely voidable 

judgments.” Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel. Newsome 

v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968)). 

Habeas corpus relief is available in Tennessee only when “it 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. 

Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (quoting State v. Galloway, 45 Tenn. 

(5 Cold.) 326, 336-37 (1868)). A petitioner bears the burden of establishing by a 

preponderance of the evidence that a judgment is void or that the confinement is illegal. 

Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). A habeas corpus petition may be 

summarily dismissed without a hearing when the petition “fails to demonstrate that the 

judgment is void.” Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004) (citing Tenn. Code 

Ann. § 29-21-109). “Whether habeas corpus relief should be granted is a question of 

law[,]” which we review de novo. Edwards, 269 S.W.3d at 919.
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Alleged Defects in the Indictment

Petitioner attached to the petition a copy of an indictment mailed to him by the 

Custodian of the Records of the Office of District Attorney in response to his “Request for 

Records.” Petitioner is correct that the copy of the indictment mailed to him in response 

to the “Request for Records” was defective because it was undated, did not include a case 

number, did not show a foreperson’s signature, did not reflect a “True Bill,” and was not 

signed by the District Attorney. Petitioner’s claim that the indictment was void based on 

these defects is without merit for a number of reasons. 

First, the original indictment was not defective. This court “may take judicial notice 

of the record of [Petitioner’s] direct appeal to this Court.” Helton v. State, 530 S.W.2d 

781, 783 (Tenn. Crim. App. 1975). The technical record in Petitioner’s direct appeal 

includes the original indictment that was filed in the Criminal Court of Davidson County 

on June 11, 2010. See the technical record, Volume I, pages 1-5, Gai D. Kuot, 2013 WL 

4539020 at *1. The filed indictment was witnessed by the prosecutor before the Davidson 

County Grand Jury, was signed by the foreperson of the Grand Jury on June 11, 2010, 

shows the case number “2010-B-1529,” has a check mark in the box for “A True Bill,” and 

was signed by the District Attorney General for the Twentieth Judicial District. 

Second, even if the alleged defects in the indictment had been true, they would not 

render the judgment void because they would not show that the trial court was without 

jurisdiction or authority to sentence Petitioner or that Petitioner’s sentence of imprisonment 

or other restraint had expired. 

Third, even if the alleged defects in the indictment had been true, by failing to object 

pretrial, Petitioner waived any objection to the indictment’s being undated, not including a 

case number, not showing a foreperson’s signature, not reflecting a “True Bill,” and not 

being signed by the District Attorney. See Tenn. R. Crim. P. 12(b)(2), (f) . 

Alleged Defects in the Capias

Petitioner attached a copy of a capias also mailed to him by the Custodian of the 

Records of the Office of District Attorney in response to a “Request for Records.” That 

copy of the capias was unsigned. Although the record from Petitioner’s direct appeal does 

not contain a capias, it does contain a “Memorandum of Law in Support of Motion to 

Dismiss” filed by Petitioner on December 8, 2011, stating that Petitioner “was indicted on 

June 11, 2010,” “was arrested on June 14, 2010,” and “has been continuously incarcerated 

since the date of his arrest.” A clerk shall issue a capias or a criminal summons after a 

grand jury returns an indictment for a defendant “(1) who is not in actual custody; (2) who 
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has not been released on recognizance or bail; or (3) whose bail has been declared forfeit.” 

Tenn. R. Crim. P. 9(a). A capias is an “intermediate process having the sole purpose of 

securing the presence of the defendant.” Moore v. State, 578 S.W.2d 78, 81 (Tenn. 1979). 

Even if Petitioner’s claim that the capias was void were true and his arrest were 

illegal, that would not entitle him to habeas corpus relief. See Russell Leaks v. Bruce 

Westbrooks, Warden, No. M2014-02324-CCA-R3-HC, 2015 WL 8481926, at *2 (Tenn. 

Crim. App. Dec. 10, 2015). “It has long been established in this jurisdiction that there is 

no constitutional immunity from an unlawful arrest.” State v. Dulsworth, 781 S.W.2d 277, 

282 (Tenn. Crim. App. 1989). “The fact that an accused has been unlawfully arrested only 

becomes relevant when evidence tainted by the arrest is sought to be introduced by the 

State.” Id. at 282-83. “When no evidence emanates from an illegal arrest, the arrest is 

essentially inconsequential in the criminal justice arena.” State v. Lindsey A. Ochab, No. 

M2015-02290-CCA-R3-CD, 2016 WL 6247429, at *4 (Tenn. Crim. App. Oct. 26, 2016).

Jurisdiction

Petitioner also claims on appeal that his convictions are void because the trial court 

did not have subject matter jurisdiction. Generally, defenses and objections based on a 

defective indictment must be raised prior to trial or they are waived. Tenn. R. Crim. P. 

12(b)(2), (f). However, a court may hear a claim that the indictment fails to show 

jurisdiction in the court “at any stage of the proceedings, including in a habeas corpus 

petition.” Wyatt, 24 S.W.3d at323. 

The indictment in Count 1 of this case alleged that Petitioner “on or about the 21st 

day of April, 2010, in Davidson County, Tennessee, and before the finding of the 

indictment, unlawfully, intentionally, and with premeditation did kill Malith Dut Ador 

Wiek, in violation of Tennessee Code Annotated §39-13-202.” The indictment in Count 2 

alleges that Petitioner “on or about the 21st day of April, 2010, in Davidson County, 

Tennessee, and before the finding of the indictment, did kill Malith Dut Ador Wiek, during 

the perpetration of or attempt to perpetrate a theft in violation of Tennessee Code 

Annotated §39-13-202.” The indictment in Count 3 alleges that Petitioner “on or about the 

21st day of April, 2010, in Davidson County, Tennessee, and before the finding of the 

indictment, intentionally or knowingly did take from the person of Malith Dut Ador Wiek 

certain property; to wit: an automobile or other personal property, by violence or putting 

Malith Dut Ador Wiek in fear, the robbery accomplished with a deadly weapon and Malith 

Dut Ador Wiek, suffered serious bodily injury, in violation of Tennessee Code Annotated 

§39-13-403.”
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‘“Lack of jurisdiction’ refers to subject matter jurisdiction[,]” i.e., “a court’s 

authority to adjudicate a dispute brought before it.” State v. Nixon, 977 S.W.2d 119, 120 

(Tenn. Crim. App. 1997); Freeman v. CSX Transp., Inc., 359 S.W.3d 171, 176 (Tenn. Ct.

App. 2010). “Subject matter jurisdiction involves the nature of the cause of action and the 

relief sought and can only be conferred on a court by legislative or constitutional act.” State 

v. Yoreck, 133 S.W.3d 606, 612 (Tenn. 2004). “The circuit and criminal courts have 

original jurisdiction of all criminal matters not exclusively conferred by law on some other 

tribunal.” Tenn. Code Ann. § 40-1-108 (2011). Petitioner’s case was tried before the 

Davidson County Criminal Court, which had subject matter jurisdiction over crimes 

occurring within Davidson County.

Conclusion

Petitioner failed to state a cognizable claim for habeas corpus relief, and we affirm 

the summary dismissal of the petition.

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ROBERT L. HOLLOWAY, JR., JUDGE