IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned On Briefs October 26, 2010

DARRELL LAMAR FRITTS v. DAVID SEXTON, WARDEN

Appeal from the Criminal Court for Monroe County

No. 10135 Carroll Ross, Judge

No. E2010-01260-CCA-R3-HC - Filed February 23, 2011

A Monroe County jury convicted Petitioner of second degree murder. State v. Darrell Fritts,

No. 132, 1992 WL 236152, at *1 (Tenn. Crim. App., at Knoxville, Sept. 25, 1992), perm.

app. dismissed, (Tenn. Feb. 1, 1993). Petitioner was unsuccessful on appeal. Id. at *10.

Petitioner subsequently filed a petition for post-conviction relief that was denied. Darrell

Fritts v. State, No. 03C01-9803-CR-00116, 1999 WL 604430, at *1 (Tenn. Crim. App., at

Knoxville, Aug. 12, 1999). On appeal, this Court upheld the post-conviction court’s denial

of the petition. Petitioner subsequently filed two petitions for writ of habeas corpus relief

in the Monroe County Court. The first writ was dismissed because it was filed in Monroe

County as opposed to the Johnson County Court which is the closest court in distance. With

regard to the second writ, the State filed a motion to dismiss based upon the fact that the

issues had already been determined by this Court on appeal from the denial of the postconviction petition and that ineffective assistance of counsel at trial is not a cognizable issue

for habeas corpus. The habeas corpus court granted the motion. Petitioner appeals the

dismissal of both writs. The appeals have been consolidated in this Court. After a thorough

review of the record, we conclude that the dismissal of the writs was correct. Therefore, we

affirm the dismissals by the habeas corpus court.

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

JERRY L. SMITH,J., delivered the opinion of the court, in which JOHN EVERETTWILLIAMS and

NORMA MCGEE OGLE, JJ., joined.

Darrell Lamar Fritts, Pro Se, Mountain City, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney

General; and Jerry N. Estes, District Attorney General, for the appellee, State of Tennessee.
OPINION

Factual Background

The Monroe County Grand Jury indicted Petitioner for first degree murder and

conspiracy to commit first degree murder. Darrell Fritts, 1992 WL 236152, at *1. Petitioner

was convicted of second degree murder as a lesser included offense and acquitted of the

conspiracy charge. Id. On appeal, this Court affirmed his conviction. Id. at *10. Petitioner

subsequently filed a petition for post-conviction relief. This petition was denied by the postconviction court. Darrell Fritts, 1999 WL 604430, at *1. The denial of the petition was

upheld on appeal. Id.

On April 9, 2010, Petitioner filed a petition for writ of habeas corpus relief in case

number 10135 in the Monroe County Court. On April 19, 2010, the habeas corpus court filed

an order dismissing the writ of habeas corpus based upon the fact that Petitioner did not file

his petition for writ of habeas corpus relief in the Johnson County Court, which is the most

convenient court in point of distance, and did not state a valid reason for his failure to file

in the Johnson County Court. The habeas corpus court specifically stated;

In his writ, the defendant states that the Johnson County court, which

is the Court most convenient in point of distance, should not hear this matter

because that court has an “over-congested docket.”

This Court does not find that to be a sufficient reason to cause this

matter to be heard in this Court rather than the Johnson County Court.

Petitioner filed a timely notice of appeal from the dismissal of his petition in case

10135.

Subsequently, on May 24, 2010, Petitioner filed a second application for writ of

habeas corpus relief in case number 10194 in the Monroe County Court. The State filed a

motion to dismiss on July 1, 2010, based upon the fact that the issues raised by Petitioner,

that “(1) he was erroneously sentenced under the 1989 Sentencing Act, and (2) he was

afforded the ineffective assistance of counsel regarding his sentencing,” were raised and

addressed in Petitioner’s prior petition for post-conviction relief. See Darrell Fritts, 1999

WL 604430, at *1. On July 1, 2010, the habeas corpus court granted the motion. Petitioner

filed a timely notice of appeal.

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On August 5, 2010, this Court granted Petitioner’s motion to consolidate these cases

on appeal.

ANALYSIS

The determination of whether to grant habeas corpus relief is a question of law. See

Hickman v. State, 153 S.W.3d 16, 19 (Tenn. 2004). As such, we will review the habeas

corpus court’s findings de novo without a presumption of correctness. Id. Moreover, it is

the petitioner’s burden to demonstrate, by a preponderance of the evidence, “that the sentence

is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

Article I, section 15 of the Tennessee Constitution guarantees an accused the right to

seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A writ of

habeas corpus is available only when it appears on the face of the judgment or the record that

the convicting court was without jurisdiction to convict or sentence the defendant or that the

defendant is still imprisoned despite the expiration of his sentence. Archer v. State, 851

S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). In other

words, habeas corpus relief may be sought only when the judgment is void, not merely

voidable. See Taylor, 995 S.W.2d at 83. “A void judgment ‘is one in which the judgment

is facially invalid because the court lacked jurisdiction or authority to render the judgment

or because the defendant's sentence has expired.’ We have recognized that a sentence

imposed in direct contravention of a statute, for example, is void and illegal.” Stephenson

v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (quoting Taylor, 955 S.W.2d at 83).

However, if after a review of the habeas petitioner’s filings, the habeas corpus court

determines that the petitioner would not be entitled to relief, then the petition may be

summarily dismissed. T.C.A. § 29-21-109; State ex rel. Byrd v. Bomar, 381 S.W.2d 280

(Tenn. 1964). Further, a habeas corpus court may summarily dismiss a petition for writ of

habeas corpus without the appointment of a lawyer and without an evidentiary hearing if

there is nothing on the face of the judgment to indicate that the convictions addressed therein

are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

The procedural requirements for habeas corpus relief are mandatory and must be

scrupulously followed. Summers v. State, 212 S.W.3d 251, 260 (Tenn. 2007); Hickman, 153

S.W.3d at 19-20; Archer, 851 S.W.2d at 165. A habeas corpus court “properly may choose

to summarily dismiss a petition for failing to comply with the statutory procedural

requirements.” Summers, 212 S.W.3d at 260; see also Hickman, 153 S.W.3d at 21.

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Case # 10135

In case number 10135 the habeas corpus court dismissed the writ because the Monroe

County Court was not the most convenient court in terms of distance to Petitioner. An

application for habeas corpus relief “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.” T.C.A. § 29-21-105. The court most convenient in point

of distance to Petitioner was the Johnson County Court. We agree with the habeas corpus

court that a conclusory statement alleging an “over-congested docket” is not a sufficient

reason for the failure to file the writ in the Johnson County Court. Therefore, we affirm the

dismissal of the writ of habeas corpus in case number 10135.

Case # 10194

In case number 10194, the habeas corpus court dismissed the writ because the issues

raised by Petitioner in his writ have been previously determined in his post-conviction

petition and appeal to this Court. Petitioner argues that he was incorrectly sentenced because

the trial court did not consider his sentence under both the 1982 and 1989 sentencing acts as

required by State v. Pearson, 858 S.W.2d 879 (Tenn. 1993), and that he was afforded

ineffective assistance of counsel. In Petitioner’s post-conviction petition he argued that his

ex post facto rights were violated by his sentencing and that he should have been granted a

new sentencing hearing based upon Pearson. The post-conviction court denied his petition.

Darrell Fritts, 1999 WL 604430, at *1. On appeal, this Court went through an analysis of

what his sentence would have been under both the 1982 and 1989 sentencing acts and

determined that he received the lesser of the sentences. Id. at *2. Therefore, this issue in

Petitioner’s case has been previously determined.

Under the “law of the case” doctrine, issues which have been previously determined

on appeal cannot be reconsidered. Memphis Publ’g. Co. v. Tennessee Petroleum, 975

S.W.2d 303, 306 (Tenn. 1998). “This rule promotes the finality and efficiency of the judicial

process, avoids indefinite relitigation of the same issue, fosters consistent results in the same

litigation, and assures the obedience of lower courts to the decisions of appellate courts.

Ladd [v. Honda Motor Co., Ltd.], 939 S.W.2d [83,] 90 [Tenn. Ct. App.1996) ].” Memphis

Publ’g. Co., 975 S.W.2d at 306.

Petitioner also argues he should be granted habeas corpus relief because he was

afforded ineffective assistance of counsel at trial. However, claims of ineffective assistance

of counsel are not cognizable grounds for habeas corpus relief. Passarella, 891 S.W.2d at

627.

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Therefore, the habeas corpus court properly granted the State’s motion to dismiss

Petitioner’s writ of habeas corpus.

CONCLUSION

For the foregoing reasons, we affirm the dismissals of the writs of habeas corpus.

___________________________________

JERRY L. SMITH, JUDGE

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