The Post-Conviction Procedure Act was adopted by the Tennessee General Assembly in 1967 upon the 1

recommendations of the Tennessee Law Revision Commission. The purposes of the act, in recognition of the need for

an adequate procedure for the consideration of constitutional claims, are as follows:

(a) To provide a post-conviction process at least as broad in scope as existing federal statutes under

which claims of violation of constitutional right asserted by persons convicted by the state courts of

Tennessee are determined in federal courts under the federal habeas corpus statutes.

(b) To provide a procedure in such cases that is swift and simple and easily invoked.

(continued...)

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

June 4, 2008 Session

TERRANCE N. CARTER v. RICKEY BELL 

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Davidson County

No. 3766 Monte Watkins, Judge

No. M2006-01363-SC-R11-HC - Filed February 27, 2009

GARY R. WADE, J., dissenting.

I respectfully dissent. In my view, our legislature has granted trial courts with broad statutory

authority to transfer claims filed in the wrong jurisdiction under the remedial provisions found in

Tennessee Code Annotated section 16-1-116 (Supp. 2008). Moreover, this Court has traditionally

encouraged the disposition of colorable claims on the merits rather than on procedural grounds. In

consequence, I would reverse the judgment of the Court ofCriminal Appeals and remand to the trial

court for a transfer of the claim to the court having jurisdiction under the Post-Conviction Procedure

Act.

Background

The relevant facts are as stated by the majority. On August 29, 2005, the Petitioner was

convicted of possession of less than 0.5 grams of cocaine with intent to sell. The trial court imposed

a seven year sentence. Nine months later, the Petitioner, while incarcerated in Davidson County,

filed a pro se petition for writ of habeas corpus in the Davidson County Criminal Court. The

Petitioner contended that he had been illegally sentenced to seven years, when, as a Range I offender

for a class C felony, he only qualified for a term of between three and six years. See State v.

Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978). He further alleged that his guilty plea was “not

knowingly and voluntarily entered,” a claim of constitutional violation subject to review under the

Post-Conviction Procedure Act of 1967. Tenn. Code Ann. § 40-30-103 (2003); see, e.g., Howell 1
(...continued) 1

(c) To provide for full fact hearings to resolve disputed factual issues, and for compilation of a record

to enable federal courts to determine the sufficiency of those hearings.

(d) To provide for decisions supported by opinions, fact findings and conclusions of law, which

disclose the grounds of decision and resolution of disputed facts.

Gary L. Anderson, Post-Conviction Relief in Tennessee–Fourteen Years of Judicial Administration Under the

Post-Conviction Procedure Act, 48 Tenn. L. Rev. 605, 609-10 (1981) (quoting F. Dennis, A Post-Conviction Procedure

Act for Tennessee (First Draft) § 102(2) (Tenn. State Archives)).

 In Anderson v. State, No. M2004-02116-CCA-R3-HC, 2006 WL 739885 (Tenn. Crim. App. Mar. 23, 2006), 2

the Court of Criminal Appeals considered the propriety of a pro se petition for writ of habeas corpus relief filed in Wayne

County, the place of the petitioner Manny T. Anderson’s imprisonment. Anderson alleged that he had not knowingly

and voluntarily entered a plea which corresponded to the judgment of conviction. After concluding that Anderson was

not entitled to habeas corpus relief, Judge David G. Hayes, writing for the Court of Criminal Appeals, confirmed that

habeas corpus relief was not appropriate but remanded the proceeding to Wayne County to transfer the petition to

Davidson County Criminal Court, the county of conviction, for consideration as a colorable claim for post-conviction

(continued...)

-2-

v. State, 185 S.W.3d 319, 330-37 (Tenn. 2006) (considering challenge to knowing and voluntary

nature of plea in post-conviction proceedings). He specifically asked the trial court to “promptly

remand [the] case to the Criminal Court of Maury County [the place of his conviction] . . . for

appropriate disposition.”

On June 8, 2006, the trial court summarily dismissed the petition, finding that the Petitioner

had failed to establish that his conviction or sentence was “void or illegal,” grounds for habeas

corpus relief. See Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005). The trial court did not,

however, address the Petitioner’srequest to remand the case to theCriminalCourt of Maury County.

Afterward, the Petitioner filed a timely appeal, but he did not file a separate post-conviction petition

in Maury County Criminal Court within the one year statute of limitations. Tenn. Code Ann. § 40-

30-102(a) (2003). The Court of Criminal Appeals affirmed the denial of habeas corpus relief and

further held that the Davidson County Criminal Court lacked the statutory authority to transfer the

constitutional claim to the Maury County Criminal Court, which had exclusive jurisdiction over any

alleged grounds for post-conviction relief. 

 Analysis

Habeas Corpus and Post-Conviction

The statutory provisions governing habeas corpus relief and post-conviction relief in

Tennessee are two “separate and distinct” procedures. Summers v. State, 212 S.W.3d 251, 261

(Tenn. 2007). “Any person imprisoned or restrained of liberty, under any pretense whatsoever . . .

may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and restraint.”

Tenn. Code Ann. § 29-21-101 (2000). An application for writ of habeas corpus “should be made

to the court or judge most convenient in point of distance to the applicant, unless a sufficient reason

be given in the petition for not applying to such court or judge.” Tenn. Code Ann. § 29-21-105

(2000). In most instances, this court is in the county where the petitioner is incarcerated. 

2
(...continued) 2

relief:

Notwithstanding this holding, we are constrained to note that “[a] petition for habeas corpus may be

treated as a petition under [the Post-Conviction Procedure Act] when the relief and procedure

authorized by [the Act] appear adequate and appropriate . . . .” T.C.A. § 40-30-105(c). In considering

whether a post-conviction petition states a colorable claim for relief, the post-conviction court is to

take the facts alleged as true. See T.C.A. § 40-30-106(f) (2003).

Anderson, 2006 WL 739885, at *3.

 The petition must be filed “within one (1) year of the date of the final action of the highest state appellate court

3

to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became final

. . . .” Tenn. Code Ann. § 40-30-102(a) (2006). The one year statute of limitations in post-conviction cases is subject

to certain exceptions, none of which are relevant in the present case. See Tenn. Code Ann. § 40-30-102(b). 

 “[I]t must be borne in mind that they were not prepared by counsel, but by a layman unlearned in the law. The 4

allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers, and the

test is whether it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would

(continued...)

-3-

A trial court may grant a writ of habeas corpus “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 . . . or that a . . . sentence of imprisonment or

other restraint has expired.” State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000) (quoting Archer v.

State, 851 S.W.2d 157, 164 (Tenn. 1993)). The burden is on the petitioner to establish by a

preponderance of the evidence that the challenged judgment is void or that a term of imprisonment

has expired. State ex rel. Kuntz v. Bomar, 381 S.W.2d 290, 291-92 (Tenn. 1964). If the petition

fails on its face to state a colorable claim for a writ of habeas corpus, the trial court may then

summarily dismiss the petition. Tenn. Code Ann. § 29-21-109 (2000); Summers, 212 S.W.3d at

260. 

In contrast, a petitioner may seek relief under the Post-Conviction Procedure Act “when the

conviction or sentence is void or voidable because of the abridgment of any right guaranteed by the

Constitution of Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103.

“A post-conviction proceeding is commenced by filing, with the clerk of the court in which the

conviction occurred, a written petition naming the state as the respondent.” Tenn. Code Ann. § 40-

30-104(a) (2006).

3

A pro se petition in a post-conviction case is “held to less stringent standards than formal

pleadings drafted by lawyers, and the test is whetherit appears beyond doubt that the [petitioner] can

prove no set of facts in support of his claim which would entitle him to relief.” Swanson v. State,

749 S.W.2d 731, 734 (Tenn. 1988) (quoting Baxter v. Rose, 523 S.W.2d 930, 939 (Tenn. 1975)).

Although a pro se litigant generally must adhere to the same procedural rules as one represented by

counsel, this Court has previously ruled that a “pro se petition cannot be held to the standards of a

petition drafted by a lawyer.” Id. at 735. Moreover, the trial court has the discretionary authority 4
(...continued) 4

entitle him to relief.” Baxter, 523 S.W.2d at 939.

 Our intermediate courts have addressed (and reached conflicting results) in similar cases. See Anderson, 2006 5

WL 739885, at *3 (affirming the Wayne County Circuit Court’s denial of habeas corpus relief but directing the court

to transfer the case to the Davidson County Criminal Court for docketing as a post-conviction matter). But see State v.

Darden, No. W2001-01833-CCA-R3-CD, 2002 WL 1482798, at *2 (Tenn. Crim. App. Feb. 12, 2002) (holding that the

Lake County Court did not have jurisdiction over post-conviction issues and was without authority to transfer those issues

to Robertson County); Smith v. Hesson, 63 S.W.3d 725, 728 (Tenn. Ct. App. 2001) (finding no authority to transfer).

These decisions, however, did not include any consideration of the terms of Tennessee Code Annotated section 16-1-116.

-4-

to treat a petition for habeas corpus relief as one for post-conviction relief. Tenn. Code Ann. § 40-

30-105(c) (2006). 

Transfer of Cases

These principles are the backdrop for the question of first impression posed in this case:

whether a trial court should transfer grounds for post-conviction relief contained in a pro se petition

for habeas corpus to the court having proper jurisdiction. I would have answered in the affirmative. 5

In Norton v. Everhart, 895 S.W.2d 317 (Tenn. 1995), the petitioner filed a pro se petition

for a writ of habeas corpus in the Morgan County Criminal Court seeking review of a parole

revocation decision. The trial court dismissed the petition, finding that the petitioner did not allege

any possible grounds for habeas corpus relief. The Court of Criminal Appeals, which applied the

relaxed standard applicable to pro se proceedings, reversed, concluding that the trial court had the

inherent power to transfer the habeas corpus petition to Davidson County for review as a petition for

certiorari. Id. at 318. After granting an application by the State for permission to appeal, this Court

reinstated the judgment of dismissal, holding “that a court lacking subject matter jurisdiction over

a case has no authority to transfer it, unless that authority is specifically conferred by statute, rule,

or constitutional provision.” Id. at 319. Importantly, however, Justice Frank Drowota, writing for

a unanimous court, also observed that “both judicial economy and our . . . policy of disposing of

cases on the merits, rather than for technical reasons, would be better served by the adoption of a rule

allowing courts without subject matter jurisdiction to transfer the case to any proper court.” Id. at 320

(emphasis added). Based upon a desire to facilitate the consideration of claims on their substance

rather than their form, or lack thereof, this Court “invite[d] the legislature to enact a broad transfer

statute.” Id.

Shortly after the decision in Norton, the Tennessee General Assembly enacted a broad,

remedial transfer provision. The statute, effective on May 23, 2000, provides as follows:

Notwithstanding any other provision of law or rule of court to the contrary, when an

original civil action, an appeal from the judgment of a court of general sessions, or

a petition for review of a final decision in a contested case under the Uniform

Administrative Procedures Act, compiled in title 4, chapter 5, is filed in a state or

county court of record or a general sessions court and such court determines that it
 A 1994 computer search performed by the Harvard Law Review estimated that the U.S. Supreme Court had

6

referred to dictionaries in more than six hundred cases. Note, Looking it Up: Dictionaries and Statutory Interpretation,

107 Harv. L. Rev. 1437, 1437 (1994). The Court did so recently in its consideration of litigation to which a metropolitan

government of this state was a party, Crawford v. Metro. Gov’t of Nashville and Davidson County, Tenn., 129 S. Ct. 846,

850 (2009). The Court, charged with defining the term “oppose” as it is used in section 2000e-3(a) of chapter 42 of the

U.S. Code, concluded that “‘oppose,’ being left undefined by the statute, carries its ordinary meaning” and looked to

dictionaries for its answer. Id.

-5-

lacks jurisdiction, the court shall, if it is in the interest of justice, transfer such action

or appeal to any other such court in which the action or appeal could have been

brought at the time it was originally filed. Upon such a transfer, the action or appeal

shall proceed as if it had been originally filed in the court to which it is transferred

on the date upon which it was actually filed in the court from which it was

transferred.

Tenn. Code Ann. § 16-1-116 (emphasis added).

The question in this instance is whether this statute governs in these circumstances. I believe

that it does, whether by the plain meaning of the words or by the historical context of the legislation.

If that is so, the trial court had the duty to transfer the post-conviction claim in the interests of justice.

Plain Meaning of Section 16-1-116

 Well-defined precepts apply to questions of statutory interpretation. Our chief concern is

to carry out legislative intent without broadening or restricting the statute beyond its intended scope.

Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). When a statute is clear,

we apply the plain meaning without complicating the task. Eastman Chem. Co. v. Johnson, 151

S.W.3d 503, 507 (Tenn. 2004). Our obligation is simply to enforce the written language. Abels ex

rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 102 (Tenn. 2006). It is only when a statute is

ambiguous that courts may reference the broader statutory scheme, the history of the legislation, or

other sources. Parks v. Tenn. Mun. League Risk Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998).

When attempting to ascertain the plain meaning of a statutory text, courts will often rely on

dictionaries for widely-accepted definitions of individual words and terms. See, e.g., State v. 6

Meeks, 262 S.W.3d 710, 719-20 (Tenn. 2008) (interpreting Tenn. R. App. P. 3(c)(1)); Walker v.

Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d 301, 309 (Tenn. 2008) (interpreting Tenn. Code Ann.

§ 47-18-109(a)(1)); State v. Edmondson, 231 S.W.3d 925, 927-28 (Tenn. 2007) (interpreting Tenn.

Code Ann. § 39-13-404); State v. Pickett, 211 S.W.3d 696, 705 (Tenn. 2007) (interpreting Tenn.

Code Ann. § 39-17-1003(a)). Recently, this Court specifically identified Black’s Law Dictionary

as an authoritative informational source. Edmondson, 231 S.W.3d at 928 (“When the Legislature

does not provide a specific definition for a statutory term, this Court may look to other sources,

including Black’s Law Dictionary, for guidance.”). Although reliance on dictionaries does not

absolve us of our duty to consider the “statutory context in which the words are used, the underlying

facts, the legislative history, and prior judicial decisions” when construing a statute as a whole,

Waldschmidt v. Reassure Am. Life Ins. Co., 271 S.W.3d 173, 176 n.2 (Tenn. 2008), a dictionary
-6-

may be an invaluable tool for determining the plain meaning of individual terms, such as “original

civil action.” 

At the time the General Assembly enacted section 16-1-116 in 2000, the latest edition of

Black’s Law Dictionary provided the following definition of “civil action”: “[a]n action brought to

enforce, redress, or protect a private or civil right; a noncriminal litigation.” Black’s Law Dictionary

30 (7th ed. 1999). A “private right” was defined as “[a] personal right, as opposed to a right of the

public or the state.” Id. at 1323. A “civil right,” on the other hand, was defined as follows:

1. The individual rights of personal liberty guaranteed by the Bill of Rights and by

the 13th, 14th, 15th, and 19th Amendments, as well as by legislation such as the

Voting Rights Act. C Civil rights include esp. the right to vote, the right of due

process, and the right of equal protection under the law.

2. CIVIL LIBERTY

Id. at 240. The synonym “civil liberty” was defined as “[f]reedom from undue governmental

interference or restraint.” Id. at 239.

By the use of this definition, a petition containing a claim of constitutional abridgement

qualifies as “[a]n action brought to enforce, redress, or protect a private or civil right.” In this

instance, the Petitioner, who sought to protect his “individual rights of personal liberty guaranteed

by the Bill of Rights” and his “[f]reedom from undue governmental interference or restraint,”

claimed his action was to protect a civil right guaranteed by the United States Constitution.

Although the dictionary definition of “civil action” included only “non-criminal litigation,”

and a claim under the Post-Conviction Procedure Act is an attack upon a criminal conviction or

sentence, Black’s Law Dictionary limited the definition of “criminal proceeding” to a determination

of “a person’s guilt or innocence [or] a convicted person’s punishment,” or “a criminal hearing or

trial.” Id. at 1221. Here, the Petitioner did not seek to establish his guilt or innocence or to set his

punishment; instead, he presented a collateral challenge to the constitutionality of his earlier

conviction, a proceeding this Court has previously described as not strictly criminal in nature. See

Watkins v. State, 903 S.W.2d 302, 305 (Tenn. 1995) (“A post-conviction proceeding is a hybrid

affair . . . which is considered under civil rules of procedure.”). Tennessee Code Annotated section

16-5-108(a)(2) (1994) grants the Court of Criminal Appeals appellate jurisdiction in post-conviction

cases as cases “instituted with reference to or arising out of a criminal case.” There is no

contradiction, however, in holding that a post-conviction claim is a civil action, but one instituted

“with reference to or arising out of” litigation that qualified as criminal in nature. At most, the

language used creates some ambiguity as to whether a post-conviction petition qualifies as a “civil

action.”

If a post-conviction action fits the plain meaning of “civil action,” it must only fall outside

the meaning of “original civil action” if it is not “original.” The term “original” in its most natural

meaning refers to any jurisdiction which is not appellate. See Black’s Law Dictionary at 856
 Prior to adoption of Supreme Court Rule 28, however, the rules of civil procedure were generally deemed 7

applicable to post-conviction proceedings. Watkins, 903 S.W.2d at 305.

-7-

(defining “original jurisdiction”). A post-conviction claim is a new, collateral challenge to an earlier

judgment, not an appeal. Edwards v. State, 269 S.W.3d 915, 919-20 (Tenn. 2008) (“Indeed,

recognizing the limited nature of Tennessee’s habeas corpus procedure, the Legislature enacted the

Post-Conviction Procedure Act to provide a collateral procedure that allows state courts to consider

and to remedy a broader range of claims.”).

In consequence, I cannot concur with the majority’s conclusion that “original civil action”

unambiguously excludes actions for post-conviction relief. It is my opinion that the term includes

actions for post-conviction and habeas corpus relief – both of which are actions by private

individuals to enforce their personal civil rights. If, however, the phrase qualifies as ambiguous, or

if there is reason to think that the General Assembly intended to employ a definition other than its

plain meaning, it is our duty to ascertain intent by consideration of the legislative history of a statute.

Context of Section 16-1-116

 Section 16-1-116 was enacted against a background of prior judicial decisions considering

the appropriate application of procedural rules to litigation involving both civil and criminal

elements. Neither the rules of criminal procedure nor the rules of civil procedure apply to postconviction proceedings, except as specifically provided by statute or Supreme Court Rule. See Tenn.

Sup. Ct. R. 28 § 3(B). This Court has previously addressed the nature of post-conviction 7

proceedings:

The procedural characteristics of the post-conviction remedy should be appropriate

to the purposes of the remedy. While the post-conviction proceeding is separate from

the original prosecution proceeding, the post-conviction stage is an extension of the

original proceeding and should be related to it insofar as feasible.

Post-conviction review has become an established part of the criminal process. In

formulating a rule we recognize that the post-conviction proceeding is procedurally

separate and apart from the original criminal prosecution. It may be initiated by a

petition for habeas corpus. It seeks not to convict, but to set aside a conviction which

is void or voidable because of the abridgement of constitutional rights . . . . The

procedure by which a criminal conviction maybe set aside is civil in nature, therefore

it is tried under the Rules of Civil Procedure and less stringent evidentiary rules

apply. If the petitioner is unsuccessful in his application his criminal status is

retained.

Watkins, 903 S.W.2d at 305 (quoting ABA Standards for Criminal Justice, Standard 22-1.2) (2nd

Ed.) (internal citation omitted) (emphasis added).
 The specific holding in Watkins regarding the tolling of the post-conviction statute of limitations has been 8

superseded by a statutory amendment. See Seals v. State, 23 S.W.3d 272, 275-76 (Tenn. 2000).

 One observer has criticized the courts that have implemented the Post-Conviction Procedure Act for their 9

tendency to place “unnecessary judicial restrictions on the availability of post-conviction relief.” Anderson, 48 Tenn.

L. Rev. at 662.

-8-

By the application of these principles, we previously determined that Tennessee Code

Annotated section 28-1-106 (1980), which tolled the statute of limitationsin “civil causes of action”

for mental incompetency, applied to post-conviction cases. Watkins, 903 S.W.2d at 305. While

8

confirming “the fundamental nature of the rights litigated within the post-conviction process and the

important function this process serves within our criminal justice system,” the Court in Watkins

chose not to “quibble” as to whether the proceeding would be classified as civil or criminal. Id. at

304-05. Quoting Smith v.Bennett, 365 U.S. 708, 712 (1961), this Court ruled that “[t]he availability

of a procedure to regain liberty lost through criminal process cannot be made contingent upon a

choice of labels.” Watkins, 903 S.W.2d at 305. Thus, when the General Assembly enacted section

16-1-116, it did so in the historical perspective that caviling distinctions between “civil” and

“criminal” should not frustrate procedural recourse.

Statutory context, like our earlier precedents, supports the applicability of 16-1-116 to postconviction and habeas corpus actions. Significantly, section 16-1-116 does not exclude either habeas

corpus or post-conviction cases. Moreover, that the statute was enacted after our decision in Norton,

without specific exclusion, implies that transfers of petitions for lack of jurisdiction met with

legislative approval. See State v. Powers, 101 S.W.3d 383, 394 (Tenn. 2003) (stating that the

legislature is presumed to know existing law when legislation is enacted). Similarly, there is no

specific provision in the habeas corpus statutory scheme that either allows or prohibits the transfer

of a habeas corpus case to the court of conviction for further proceedings under the Post-Conviction

Procedure Act. In the absence of specific statutory guidance, the general provisions of section 16-1-

116 should control. 

In my view, section 16-1-116 clearly vests the trial courts with the authority to transfer a

post-conviction claim from one county, which has no jurisdiction, to another, which does. Had the

trial court, in this instance, exercised that authority, the post-conviction procedure would have been

available to the Petitioner under Tennessee Code Annotated section 40-30-102(a). In the context of

due process, a ruling on the merits is always preferable to the procedural bar, even if the results are

equally unfavorable. 

9

Our admonition in Watkins is applicable here: “The availability of a procedure to regain

liberty lost through criminal process cannot be made contingent upon a choice of labels.” 903

S.W.2d at 305 (quoting Smith, 365 U.S. at 712). Because I believe that the trial court had the

statutory authority to transfer the case to the court of conviction for proceedings under the PostConviction Procedure Act, I would reverse and remand for transfer to the Criminal Court of Maury

County. 
-9-

______________________________

GARY R. WADE, JUSTICE