FILED

September 10, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JUNE SESSION, 1998

TOMMY JOE WALKER, )

) No. 01C01-9707-CR-00297

Appellant )

) DAVIDSON COUNTY

vs. )

) Hon. Walter C. Kurtz, Judge

STATE OF TENNESSEE, )

Ex Rel, Donal Campbell, ) (Writ of Habeas Corpus)

Commissioner of the )

Tennessee Department of )

Corrections and Ricky J. Bell, )

Warden, )

)

Appellee )

For the Appellant: For the Appellee:

Mark E. Stephens John Knox Walkup

Public Defender Attorney General and Reporter

Paula R. Voss Karen M. Yacuzzo

Asst. Public Defender Assistant Attorney General

1209 Euclid Avenue Criminal Justice Division

Knoxville, TN 37921 425 Fifth Avenue North

2d Floor, Cordell Hull Building

Nashville, TN 37243-0493

OPINION FILED: 

AFFIRMED

David G. Hayes

Judge
1

This conviction for voluntary manslaughter, which involved a crime of violence to the

person , see Ten n. Co de Ann. § 39-1 3-20 4(i)(2 ), rem ains , after appe llate re view, the sole

aggrava ting sente ncing circ um stan ce fo und by a jur y in impos ing the dea th penalty in his

subse quent c apital m urder trial. See Walker, 910 S.W.2d at 396, 398.

2

OPINION

The appellant, Tommy Joe Walker, appeals the Davidson County Circuit

Court’s summary dismissal of his application for writ of habeas corpus. Specifically,

the appellant contends that the trial court erred in finding that his 1977 conviction for

voluntary manslaughter was not void. The appellant is currently incarcerated at the

Riverbend Maximum Security Institute in Nashville awaiting execution for an

unrelated murder committed in 1989. See State v. Walker, 910 S.W.2d 381(Tenn.

1995), cert. denied, --U.S.--, 117 S.Ct. 88 (1996). 

On January 4, 1977, pursuant to a negotiated plea agreement, the appellant

entered a guilty plea in the Knox County Criminal Court to one count of voluntary

manslaughter committed while on parole.1 The judgment form entered in

conformance with the plea agreement provides, in parts pertinent to this issue: 

It is, therefore, considered by the Court that the defendant , for the

offense of which he stands convicted, shall undergo confinement in

the penitentiary of the State, at hard labor, for a period of not less than

 4 years nor more than 4 years, from the date of his conviction;

that be rendered infamous, as provided by law, and that the

defendant . . . . pay all the costs of this prosecution, which are

adjudged against him from which 

SENTENCE TO BE SERVED *SEE ATTACHED CERTIFIED COPY

execution may issue. (The defendant’s imprisonment in this case will

begin at the expiration of run concurrently with [his] sentence in case

No. 7545/) & W/7394 *SEE ATTACHED CERTIFIED COPY. 

. . .

The minutes attached to the judgment form further provide:

. . .This sentence to run concurrently . . . with the sentence imposed in

case No. 7545, and thereafter concurrently. . . with the sentence

imposed in case No. 7394, said concurrency beginning July 14, 1976 .

. . . [T]hat is, to be served in so far as it can be concurrent, and the

remainder served thereafter until completion; Provided, further,

however that the judgment in this case shall not limit the authority or

discretion of the Parole Board granted by T.C.A. 40-3620, with respect

to the defendant’s prior cases in which he has been paroled and
2

In essence, the appellant attacks the voluntariness of his guilty plea based upon the

prom ise of con curren t sentenc es. Hab eas co rpus relief is not availab le where it is necess ary to

challeng e a facially valid co nviction with e xtrinsic evid ence. State v. Burford, 845 S.W.2d 204,

205 (Tenn. 1992). The appellant’s allegation that the promise of concurrent sentences induced

his guilty plea is extrinsic evidence.

3

In Henderson, the defen dant co mm itted a robb ery with a dea dly weapo n while on parole . 

Henderson, 419 S.W.2d at 177. Subsequently, the paroled defendant entered into an agreement

where he would plead guilty to simple robbery, the maximum sentence would be five years, and

the sen tence w ould be s erved c oncurr ently with the se ntence being se rved on parole. Id. The

same statute requiring consecutive sentences was in effect at that time and the court’s judgment

was contrary to the statutory mandate. The supreme court held that the defendant’s application

for a writ of h abeas corpus was pro per. Id. at 179. The court held that the defendant was entitled

to withdraw his guilty plea sinc e it was pa rtly based up on con curren t sentenc ing cons iderations . 

Id. at 179. 

3

charged with parole violation; that is, the concurrency aspect of this

sentence is subject to limitation by the Parole Board in its revocation

proceedings. . . .

(emphasis added). 

On April 3, 1997, the appellant filed an application for writ of habeas corpus

alleging that the 1977 judgment entered against him is void because his “plea of

guilt was premised upon the promise of a concurrent sentence,” which the trial court

had no authority to impose.2

 The trial court dismissed the appellant’s application

finding that the appellant’s claim did not constitute a valid claim for habeas relief

because the judgment, from its face, was not void. The appellant, in contesting the

decision of the trial court, asserts that the 1977 judgment form reflects that the

appellant’s sentence was to be served concurrently with two outstanding sentences

for which he was on parole at the time of the present offense. Relying exclusively

upon Henderson v. State ex rel. Lance, 419 S.W.2d 176 (Tenn. 1967),3

 he argues

that this judgment, which is contrary to the statutory mandate of the existing law at

the time, Tenn. Code Ann. § 40-3620 (1978 Supp.), is void on its face as the trial

court was without the authority to impose concurrent sentences. 

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.

 
4Specifically, Tenn. Code Ann. § 40-3620 provides:

If any p rison er be conv icted in this s tate o f a felo ny, comm itted w hile on paro le

from a state pris on or wo rkhou se, he shall serve the remainder of his sentence,

under which he was paroled, or such part of that sentence, as the board may

dete rmine be fore he co mm ences servin g the sentence affixed while o n par ole. If

any prison er while on parole fro m a s tate prison or work house shall com mit a

crime under the laws of another state government or country which, if committed

within this state, would be a felony, and if he shall be convicted of such a crime,

the director of the decision of probation and paroles shall return such a prisoner

through the terms of the interstate compact. The board shall require that he

serve the portion remaining of his maximum term of sentence or such part as the

board may determine. The board at its discretion, may recommend to the

commissioner of correction, the removal of all or any part thereof of the good and

honor time and incentive time accrued on the sentence under which he was

paroled.

(Empha sis added).

4

Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (emphasis added). Because the

record reflects that the judgment of conviction is not void on its face and that the trial

court was clearly vested with jurisdiction to impose the resulting sentence, the

remedy of habeas corpus is not available to the appellant in this case. 

Although we concede the principle of law established by Henderson, the case

presently before this court is distinguishable from the facts before the court in

Henderson. We are unable to discern from the opinion in Henderson whether the

trial court was aware of the defendant’s paroled status, or if such information

appeared on the judgment. See, Bergdorf v. State, No. 01C01-9508-CC-00279

(Tenn. Crim. App. at Nashville, Oct. 8, 1996). In the case before us, there is no

indication that the trial court was aware of the Board of Parole’s determination, in

fact, the judgment is expressly conditioned upon the Board’s future action. From the

record before us, we cannot be certain that the sentences are indeed illegal, and,

therefore, void. See Bergdorf, No. 01C01-9508-CC-00279. The explicit language of

the judgment provides that the concurrent aspect of the sentence is not definite, but

is subject to the determination of the Board of Paroles. As conferred by our

Legislature, only the Board of Pardons and Paroles has the authority to revoke a

parolee from a paroled sentence and determine what portion of the paroled

sentence he is to serve.4 See Tenn. Code Ann. § 40-3620. It is not apparent from

the face of the judgment or from the record on appeal whether the appellant was
5We note that the appellant has failed to provide a complete record on which to base our

review. Specifically, a transcript of the guilty plea hearing is not provided nor is any indication as

to the manner in which the appellant’s 1977 sentence for manslaughter was served. Thus, other

than the question of law currently before this court we have no evidence that the appellant has

been a ggrieved in any ma nner or th at he has not rece ived the be nefit of his p lea barga in. 

6An application for the issuance of a writ of habeas corpus may be summarily dismissed

by a trial court if the application fails to indicate that the pe titioner’s con viction is void. See Tenn.

Code Ann. §§ 29-21-1 01, -109 (1980). If the writ is refuse d base d on the fa ilure of the pe tition to

raise a cognizable claim for relief, any need for a hearing is obviously pretermitted because there

is no justicia ble issue before th e court. See State ex rel. Byrd v. Bomar, 214 Tenn. 476, 381

S.W .2d 280 ( 1963). See gene rally Tenn. Code Ann. §§ 29-21-101 to -130 (1980 and

Supp.1 996). 

7 See Ex parte Patterson, No. 72,866 (Tex. Crim . App. June 10, 1998)(for publication)

(Baird, J., co ncurring ) (citing Rule 9, 28 U.S.C. 224; Lonchar v. Thomas, 517 U.S. 314, 116 S.Ct.

1293 (1996);W alters v. Sc ott, 21 F.3d 683 (5th Cir. 1994 ); Strahan v. Blackburn, 750 F.2d 438,

441 (5th Cir.), cert. denied, 471 U.S. 1138, 10 5 S.Ct. 26 83 (198 5); Falkne r v. State, 586 So.2d 39

(Ala. Crim . App. 199 1), overruled on other grounds, W allace v. Sta te, 666 So.2 d 864 (Ala. C rim.

App. 19 95); In re Stan kewitz, 220 Ca l. Rptr. 382, 7 08 P.2d 1260 (C al. 1985); McC ray v. State, 699

So.2d 1 366 (Fla . 1996); Thom as v. State , 903 P.2d 328 (O kla. Crim . App.), cert. dismissed, 516

U.S. 10 20, 116 S .Ct. 593 (1 995); Flute v. Class, 559 N.W .2d 554 (S.D. 19 97)). 

5

ever revoked from his paroled sentences, and, if he was revoked, as to which part of

the paroled sentences he was required to serve.5 Additionally, the appellant has

presented no evidence to support his allegation that his sentences were, indeed,

served consecutively. Thus, it is not clear on its face that the judgment is void. 

Rather, the judgment merely indicates that the judgment is voidable. Accordingly,

the trial court did not err by summarily dismissing the appellant’s application.6

Additionally, although we acknowledge that our supreme court has rejected

the doctrine of laches to applications for habeas corpus relief, see, e.g., Wills v.

State, 859 S.W.2d 308, 310 (Tenn. 1993) (refusing to apply doctrine of laches in

post-conviction setting); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992) (habeas

corpus has no statutory time limitation); see also Adkins v. State, 911 S.W.2d 334,

342 (Tenn. Crim. App. 1994), perm. to appeal dismissed, (Tenn. 1995), other courts

have applied this equitable doctrine to this area.7 The doctrine of laches is based

upon the maxim that equity aids the vigilant and not those who slumber on their

rights. BLACK’S LAW DICTIONARY 875 (6th ed. 1990). “It is defined as neglect to

assert a right or claim which, taken together with lapse of time and other

circumstances causing prejudice to adverse party, operates as a bar in a court of

equity.” Id. This doctrine could properly be applied to habeas corpus proceedings
6

when the delay in bringing a claim for collateral relief has been unreasonable and

unjustified and the State has been prejudiced in responding to the claim. See Ex

parte Patterson, No. 72,866 (Tex. Crim. App. June 10, 1998) (for publication) (Baird,

J. concurring) (encouraging court to reconsider application of doctrine of laches in

habeas proceedings). Although a void judgment may be attacked at any time,

because convictions must eventually become final, an inmate must not be permitted

to engage in inordinate delays in bringing their claims for relief before the courts

without justification. See Wills, 859 S.W.2d at 312 (O’Brien, J., concurring in part

and dissenting in part); State v. White, No. 1101 (Tenn. Crim. App. at Knoxville, Apr.

21, 1987), perm. to appeal denied, (Tenn. June 29, 1987). See also Ex parte

Patterson, No. 72,866 (Baird, J., concurring). The State has a legitimate interest in

preventing the litigation of stale or fraudulent claims. Wills, 859 S.W.2d at 312

(O’Brien, J. concurring in part and dissenting in part) (quoting Burford v. State, 845

S.W.2d 204, 208 (Tenn. 1992)). 

In 1977, after being indicted for murder, the appellant pled guilty to voluntary

manslaughter and received the benefits of a negotiated four year sentence. This

sentence was served by the appellant without objection. Following expiration of this

sentence, whether served either consecutive or concurrent to a parole violation, the

appellant was released from confinement. Now, twenty-two years later, he

challenges his conviction based upon an error in sentencing which has already been

served. Although he seeks redress for this error, he offers no excuse or reason for

the delay. The record reflects no “procedural trap” or external impediment which

has occasioned the delay. See generally, Crank v. Duckworth, 969 F.2d 363,365

(7th Cir. 1992). Because the remedy sought today was equally available by means

of post-conviction relief twenty-two years ago, we can only assume that it was the

appellant’s decision to forgo any challenge during incarceration and avoid risking a

conviction for murder.
7

 The unwarranted filings of such delayed claims unnecessarily clogs the court

dockets and represents an abuse of the judicial process. As stated by the United

States Supreme Court, “[n]o procedural principle is more familiar to this Court than

that a constitutional right may be forfeited in criminal as well as civil cases by the

failure to make timely assertion of the right.” Michel v. Louisiana, 350 U.S. 91, 99,

76 S.Ct. 158, 163 (1955) (citation omitted). A petitioner must be held to reasonable

diligence in making application for relief and such application should be made within

a reasonable or justifiable time. White, No. 1101. When a prisoner has available

information and facts to present an application for relief and fails to do so, a later

application is indicative of bad faith and should be denied. White, No. 1101. 

For the reasons expressed in this opinion, the trial court’s dismissal of the

appellant’s application for writ of habeas corpus is affirmed.

____________________________________

DAVID G. HAYES, Judge

CONCUR:

________________________________

JOHN H. PEAY, Judge

________________________________

JOSEPH M. TIPTON, Judge