IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

DWAYNE R. CROSS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Blount County

Nos. C-10380, C-10542 David Reed Duggan, Judge

No. E2009-02153-CCA-R3-CO - Filed September 29, 2011

The defendant, Dwayne R. Cross, appeals the Blount County Circuit Court’s denial of his

motion to dismiss the indictments in this case, and the State moves this court to affirm the

circuit court’s order summarily via Tennessee Court of Criminal Appeals Rule 20. The

State’s motion is well taken, and accordingly, the circuit court’s order is affirmed pursuant

to Rule 20.

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

Pursuant to Rule 20, Rules of the Court of Criminal Appeals

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M.

TIPTON, P.J., and NORMA MCGEE OGLE, J., joined.

Dwayne R. Cross, appellant, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; and Clark Bryan Thornton, Assistant

Attorney General, for the appellee, State of Tennessee.

MEMORANDUM OPINION

In one of the defendant’s cases, following a jury trial, the trial court entered a

judgment of conviction of rape in 1999. Also, later in 1999, following a guilty plea, the trial

court entered a judgment of conviction of second degree murder. The defendant appealed

his conviction and nine-year sentence in the rape case; this court affirmed the trial court in

that case. See State v. Dewayne R. Cross, No. 03C01-CC-00053 (Tenn. Crim. App.,

Knoxville, Feb. 7, 2000). This court also affirmed the trial court’s denial of the defendant’s

petition for post-conviction relief from the rape conviction. See Dewayne R. Cross v. State,
No. E2006-00375-CCA-R3-PC (Tenn. Crim. App., Knoxville, Sept. 20, 2006). Apparently,

1

no appeal emanated from the murder conviction, and no post-conviction proceeding ensued.

The defendant predicated his 2009 motion to dismiss his indictments upon the

claim that the Blount County Circuit Court systematically excluded African Americans from

the position of grand jury foreperson. The circuit court summarily dismissed the motion.

We deem the defendant’s claim to import only that the convictions are

voidable, not void, and as such, the conviction judgments were final long before the motion

to dismiss was filed. The defendant’s claim of systematic exclusion of African American’s

from the post of grand jury foreperson bespeaks a facet of the Sixth Amendment right to jury

trial. State v. Bell, 745 S.W.2d 858, 860 (Tenn. 1988) (“Selection of a . . . jury from a

representative cross-section of the community is an essential component of the Sixth

Amendment right to a jury trial.”) (citing Taylor v. Louisiana, 419 U.S. 522 (1975)). This

court has consistently held that claims of deprivations of the right to jury trial render the

resulting judgments voidable and not void. See, e.g., Francis L. Sanschargrin v. State, No.

M2005-00304-CCA-R3-HC, slip op. at 2 (Tenn. Crim. App., Nashville, Aug. 11, 2005);

Wayford Demonbruen, Jr. v. State, No. M2004-03037-CCA-R3-HC (Tenn. Crim. App.,

Nashville, June 30, 2005); Robert Howell v. Tony Parker, W2005-00521-CCA-R3-HC,

(Tenn. Crim. App., Jackson, June 27, 2005); see also State v. Neal, 810 S.W.2d 131, 134

(Tenn. 1991) (failure to apprize the defendant of the “full litany of information [concerning

his constitutional privileges] that is required to be communicated” to the accused prior to his

giving up the right to a jury trial “merely renders the related judgment voidable rather than

void”). In the present case, the trial court lost jurisdiction to operate within the original

criminal cases.

Thus, based upon the defendant’s claim, the only theoretical challenge to his

indictments would come in the form of collateral attack. The availability of collateral attack

upon criminal convictions, however, is limited. For instance, relief in the form of a writ of

habeas corpus is not available when the challenged judgment is merely voidable. Archer v.

State, 851 S.W.2d 157, 164 (Tenn. 1993); State ex rel. Newsom v. Henderson, 424 S.W.2d

186, 189 (Tenn. 1968). Collateral attack in the form of a proceeding pursuant to the PostConviction Procedure Act is available when a constitutional deprivation renders a criminal

judgment merely voidable, see T.C.A. § 40-30-103, but procedural impediments within the

Act preclude the claim now under review.

These appellate opinions spell the defendant’s first name “Dewayne.” The motion to dismiss isthe 1

leading process of the case now under review, and in this pro se motion, the defendant spells his first name

“Dwayne.” This usage is the basis for the appellation used in the current style of the case. 

-2-
The defendant exhausted his opportunity to challenge his rape conviction via

a petition for post-conviction relief. See T.C.A. § 40-30-102 (c) (“This part contemplates the

filing of only one (1) petition for post-conviction relief. In no event may more than one (1)

petition for post-conviction relief be filed attacking a single judgment. If a prior petition has

been filed which was resolved on the merits by a court of competent jurisdiction, any second

or subsequent petition shall be summarily dismissed.”). Although a “petitioner may move

to reopen a post-conviction proceeding that has been concluded, under the limited

circumstances set out in [section] 40-30-117,” the defendant’s claim does not state a basis

for reopening his earlier post-conviction petition. As a 2009 post-conviction petition leveled

at the murder conviction, the present action is barred by the one-year statute of limitations.

See id. § 40-30-102(a).

We discern no other avenues for presenting the claim the defendant asserted

in his motion. Accordingly, we affirm the denial of the motion pursuant to Rule 20.

___________________________________

JAMES CURWOOD WITT, JR., JUDGE

-3-