1 Since the Tennessee Sup reme C ourt den ied p erm ission to app eal “c onc urrin g in re sults on ly,” we cite to th is

opini on only as i t is “relevant to a

. . . ha beas corpus act ion involvi ng the same defendant.” See Tenn. Sup. Ct. R. 4(F )(2), (3 ). 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on

Briefs M ay 15, 2002 JOHN C. TOMLINSON v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Davidson County

No. 83-W-185 Steve R. Dozier, Judge

No. M2001-02152-CCA-R3-CO - Filed June 28, 2002

The petitioner appeals the trial court's denial of the appointment of counse

l and the d

ismissal of

his petition for writ of habeas corpus. For many and varied re asons, we affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and J AMES C URWOOD W ITT , J R ., JJ., joined. John C. Tomlinson, Mountain City, Tennessee, Pro Se

. Michael E. Moore , Solicitor Genera l; David H . Fin dle y, Assista nt Attorne

y Gener al; Victo r S. Johnson, III, Dis trict Atto rney Ge neral; a nd Jon P. Seaborg, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION PROCEDURAL BACKGROUND
We glean the

following

procedu ral infor mation fr om the technical r

ecord a nd this court ’s opi nion in John C. Tomlinson v. Howard Carlton, Warden, and State of Tennessee , C .C.A. No

. 03C01-9610-CR-00389, 1997 Tenn . Crim. App . LEXIS 98 3 (Tenn. Crim. App. Oct. 2, 1997), perm. to app. den ied, conc urring in re sults only (Tenn. 1998) (dismissing the petitioner’s first habe a s corpus action). 1-2-

In April of 1983, the petitioner was conv icted i n Davidson County Criminal Court of aggravated

kidnapping and two counts of robbery with a deadly weapon. In December of 1983, the petitioner was convicted in W

ilson County

Criminal Court of

aggravated rape and armed r obbery. The petitioner’s effective sentence f or these crimes was 65 years. The petitioner filed a habeas corpus claim in Johnson County, the county of his incarceration, in 1996, apparently attack ing all of his convictions; it was denied by the trial court. This court affirmed the denial of the petition on October 2, 1997. See John C. Tomlinson , supra . On July 13, 2001, the petitioner filed a habeas corpus petition in Davidson County attacking his Davidson County convictions, which is the subject of this appeal. The sworn petition indicates it is the first appl ication for writ of habeas corpus, makes no ref erence to the prior habeas corpus procee ding, and

makes no r

efere nce to his Wilson Coun

ty convic tions. The

petition a

lleged: The [p]etitioner is illegally restrained. . . . The judgment . . . is illegal, n

ull and void. The [c] ourt had n o jurisdic tion or au thority to find the [p]etitioner guilty or to impose sentence i n the manner utilized. The [c]ourt fai l ed to prepare and enter a judgment of conviction per the mandates of the Tennessee Code Annotated, § 40- 35-209(e) [40-43- 209(e)] , Rules of t he Tenne ssee Supr

eme Co urt , Rule 17, and the Tennessee Rules of Criminal Procedure, Rule 32(e). The indictment in the caus e was invalid a nd faile d to invest jurisdiction of the subject matter as thecharging instrument was not signed by the District Attorney General. Other than the facts alleged above, no spec ific facts were alleged in support of the petition. The trial court entered an order dismissing the petition, finding:

The petition fails to state how the convicting cou r t lacked j urisdiction to sentence the petitioner. No facts are listed, and n o legal authority

is cited. I n terms of the claim that the judgments were invalid, the Court has reviewed the judgme

nts found i n the Court f

ile and finds that

they are in compliance with Tenn. Code Ann. § 40-35- 209(e) (1982), the version of the Criminal Sentencing Refor m Act in existence at the time of the petitioner’s conviction[s]. Regarding the claim about the indictment

not being signed by the district attorney, this issue wasaddress ed in the a ppeal of the dismiss al of the petitioner’s last petition for writ of habeas corpus.

. . . .-3- The court wo uld furthernote that contrar y to his sworn affida vit, this is obviously not the petitioner’s “first application for a writ of habeas corpus.” We agree with all findings and conclusions of the trial court.

HABEAS CORPUS A. Standard of Review
Article I, § 15 of the Tennessee Constitution guarantees the right to see k habeas corpus relief. Tenn. Code Ann. §§ 29-21-101 et seq. codifie s the appl icable p rocedur es for se eking a

writ. While there is no statutory time limit in which to file for habeas corpus relief, Tennessee law provides very narrow grounds upon which such relief may be granted. McLaney

v. Bell , 59 S.W.3d 90, 92 (Tenn. 2001). A habeas corpus petition may be used only to contest void judg ments wh ich are fa cially invalid bec ause (1) the c onvicting court wa s without ju

risdictio n or autho

rity to sentence a def

endant; or (2) defendant’s sentence has expired. Archer v. State , 851 S.W.2d 157, 164 (Tenn. 1993). When the petition does not demonstrate that the judgment is void, the

trial cou rt may dismiss it without a hearing. Dixon v. Holland , 70 S.W.3d 33, 36 (Tenn. 2002); Tenn. Code Ann. § 29-21-109. B. Analysis Initially, we note “[t]he application should be made to the court or judge mos t convenient in point of distance to the appl icant, unless a sufficient reason be given in the petition for not applying t

o such court or judge.” Tenn. Code Ann. § 29-21-105. Petitioner alleges no reason for no tfiling in the county o f his inca rcera tion. Since

the petiti oner is imp

risoned i n Mo untain City , Tennessee, he should have filed his petition in Johnson County. See Lewis v. Metropolitan General Sessions Co urt of Na shville , 949 S.W.2d 696, 700 (Tenn. Crim. App. 1996). The petitioner

contends the judgments of conviction were not entered “per the manda tes” of the Code, Tennessee Supreme Court Rule 17, and Tennessee Rules of Criminal Procedure 32(e). He does not allege any specific deficiency a nd did not attach copies of t he actual judgments of conviction. See Tenn. Code Ann. § 29-21-107(b)(2) (requiring the application for the writ to attach a copy of th

e cause of the re straint) . Although petitio n er did attach a document from the clerk’s office summarizing the convictions, copies of the actual judgments were not attache d. The tria l court, taking judicial notice of the court file, noted the judgments were in compliance with the law. Moreover, the statut

e requir es that the

applica tion for th

e writ specify tha

t “it is the

first application for the writ, or, i f a previous ap plication has been made, a copy of the petition and procee dings thereon

shall be p

roduced , or satisf

actory r easons be given for the failu re so to do. ” Tenn. Code An n. § 29-21-10 7(b)(4). The fact that a prior petition, also addre ssing the subject conviction s, may have b een file d in a diff erent c ounty doe s not relie ve a petitioner fr

om this-4-

require ment. This is especially true herewhere one of the grounds was specifically addressed in the prior habeas corpus action. Here, as noted by the tr ial court, petitioner

falsely a lleged in his sworn petition that it wa s his first application and made no reference to his previous petition. The mandates of the habeas corpus statutes must be “scrupulously” followed. Archer , 851 S.W.2d at 165. Additionally, the peti tioner alleged his judgments are void because the district attorney general failed to sign the indictments. As noted by the trial court, we addressed the exact issue in the appeal of petitioner’s prior habeas corpus a ction and concluded the claim was without merit. See John C. Tomlinson , supra at * 6-7. Principles of res judic ata dictate

the issue not be relitigated. See Antonio L. Sweatt

v. State , No. M1999-01300-CCA-R3-PC, 2000 Tenn. Crim. App. LEXIS 216, at *4 (Tenn. Crim. App. Mar. 6, 2000, at Nashville), perm. to app. denied (Tenn. 2000). The trial court properly denied the petitioner another “bite at the a pple.” The petitioner primarily contends he, due h is status a s an indige

nt, was, and continues to be, entitled to appointment of counsel. Thereis no federal or state constitutional right to assistance of appointed counsel i n a habeas corpus proceeding. See Coleman v. Thompson , 501 U.S. 722, 755, 111 S. Ct. 2546, 1 15 L. Ed. 2 d 640 (199 1); State ex rel. Hall v. Meadows , 215 Tenn. 668, 389 S.W.2d 256, 260 (1965). However, a trial c ourt has a statutory duty to app oint couns el, but onl y “if necessary.” Tenn. Code Ann. § 40-14-204. Although Rule 13, section 1(d)( 4) of the Rules of the Supreme Court of Tennessee provides for the appointment of counsel in habeas corpus pr oceedin gs, we do not int erpret

the rule as requi ring the a ppointmen

t of couns el simply because a petition is filed. A habeas corpus petition may be dismissed without a hearing, and without appointment of counsel, unless it

alleges facts tha

t would justify relief. State ex rel. Edmondson v. Henderson , 220 Tenn. 605, 421 S.W .2d 635, 63 6-37 (196 7); William A. Ransom v. Kevin Meyers, Warden, a n d Stateof Tennessee , C.C.A. No. 01C01-9708-CC-00328, 1998 Tenn. Crim. App. LEXIS 1108, at *9- 10 (Tenn. Crim. App. Oct. 23, 1998, at Nashville), perm. to app. denied (Tenn. 1999). For these reasons we affi

rm the judg ment of the

trial cou rt.

___________________________________ JOE G. RILEY, JUDGE