### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE

STA TE OF TEN NES SEE v. RO BER T LEE SM AR TT
Appeal f romthe Circ uit Court for Coff ee C ounty Nos. 2S-208, 2S-211 John W. Rollins , Judge

No. M2005- 00176-CCA -R3-C O - F iled Septem ber 2, 2005

The Petitioner, Robert L ee Sma rt t , ap p eals the tria l court’s de nial of his petition for writ of e rror
cora m nobis whi ch asse rted that ne wly discovere d evidenc e existed that may have r esulted in a differ ent judg ment at trial. Th e S t at e h as filed a motion requesting that this Court affirm the trial court’s de nial of re lief pursua nt to Rul e 20, Rules of the Court of Criminal Appeal s

. W e find the Sta te ’s mot ionha s me ri t. Ac c or din g ly , the mot ion is g rante d an d th e app e a l is a ff ir me d p ur su a nt t o Rul e 20 , Ru le s o f the Cou rt of Cr imi na l A pp e a ls.
Tenn. R. App . P . 3; Judgme nt of th e Trial Court Affirm ed P ursuan t to Rule 20, Rules of th e Co ur t o f Cr im ina l A ppe als

R OB E R T W. W EDEMEYER , J ., delivere d the opinion of the court, in which D AVI D H. W EL L ES , and J ER R Y L. S MI TH , J J , joined.

Robert L ee Smartt, pro se.
Paul G. Summers, Attorney Gene ral a nd Reporter ; Blind Akra wi, Assistant Attorney Gene ral, for the appe llee, State of Te nnessee

.
M EM OR AN DU M OP IN ION

On Octobe r 21, 1991, the P etitioner pl ed guilty to two counts of thef t over $60,000, a nd he

was sentenc ed to e ight y ear s for eac h count, to be serve d concur rently , with probation afte r one y ear of inc arc e ratio n. On No ve mbe r 1, 200 4, the Pe tit ion e r fi le d a p e tit ionfo r w ri t of e rr or c or a m no bis contending that he wa s denied e ffe ctive assistanc e of c ounsel and that his convictions should be set aside be cause neither the trial court nor his attorney informed him that his c onvictions c ould be used to enhanc e future convictions. Specific ally , the Petitioner claimed that his guilty pleas we re ba sed on an unknowing and involuntary waiver of his rig hts, and he did not fully u nderstand the conseque nces of

his plea. On November 15, 2004, the trial court dismissed the Petitioner’s petition, wi tho ut a he ari ng , f

ind ing that it

wa s b arre d b y

the statut e of

lim itatio ns . T he Pe tit ion e r f ile d h is notice of a

ppeal on Nove mber 23, 2004.-2-

On app e a l, the Pe tit ion e r c on te nd s th a t th e tr ia l c ou rt e rr e d in de nying his pe tit ionfo r w ri t of er ror c oram nobis. The S tate conte nds that the petition for writ of e rror coram nobis was filed

ou ts id e th e on e y e ar s ta tut e of lim itatio ns . F urthe r, the State a sse rt s th a t th e Pe tit ion e r f a ile d to alleg e any newly discovere d evidenc e. A p e tit ion fo r writ of err or c or a m no bis re lie f mus t be fi le d w ith in o ne y e ar o f the tim e judgme nt becomes f

inal in the trial court. See Tenn. Code A nn. § 27-7-103. B ased on the rec ord, it is clear that the Petitioner’ s petition was filed seve ral y ear s after the statute of limitations had run. Howeve r, due pr ocess may require that the statute of limitations for filing a petition f or writ of er

ror
cora m n obis be tolled. See Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001). Nothing in the

rec ord implicates any

due proc ess conc erns that would r equire that the statute of l imitations be tolled. We conclude, the ref

ore, that the trial court pr operly denied the r elief soug ht by the Petitioner.

Simi larl y , if we tre a t th e Pe tit ion e r’ s p e tit iona s a pe tit ionfo r p os t- c on vic tio n r e lie f, his claims are time-barr ed. The Petitioner filed his pe tition bey ond that time a llowed by the statute, and none of the exceptions to this time limit apply in this case. See T enn. Code Ann. § 40- 30-102(b)

. Under the Post- C o n v i ct i o n Procedur e Ac t, exceptions to t he statute of limitations are se t forth. These e x ceptions include: (1) claims b as ed upon a ne w rule of constitutional law applicable to a pe tit ion e r’ s c a se ; ( 2) c la ims ba se d u po n n e w s c ie nti fi c e vid e nc e sh ow ing inn oc e nc e ; and (3 ) c la ims based upon se ntence s that were enhanc ed bec ause of a pre vious conv i ct i o n and the pr evious conviction was subse quently found to be illeg al. See Te nn. Code Ann. § 40-30- 102(b)( 1)-( 3) ( 2 0 0 3). The Petitioner has f

ailed to assert an y o f t h es e ex ceptions for tolling the statute. He cites no new constitutional rule , ref

ers to no new scientific evidenc e, and makes no claim t h at an ea rlier conviction h as b ee n overturne d. See Te nn. Code Ann. § 40-30- 106(g ) (2003) . Thus, no g rounds

e xist a s a n e xce pti on to the statut e of lim itatio ns

.
Further, if we treat the Petitioner’s petition as a writ of habea s corpus, the Petitioner is not entitled to relief. The grounds upon which a writ of habeas corpus may be is sued are very narr ow. McL aney v. Be ll, 59 S.W .3d 90, 92 (Tenn. 2001). A writ of ha beas c orpus is available only when it appear s from the fa ce of the judg ment or re cord that either t h e co n v icting c ourt was without jurisdiction to convict or sentenc e the pe titioner, or the petitioner’ s sentence has expired. Arc her v. State, 851 S.W .2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W .2d 60, 62 (Tenn. 1992) . I n other words, habe as cor

pus relief may only be soug ht when the judg ment is void, not m ere ly void ab l e. Tay lor v. State, 995 S.W .2d 78, 83 (Tenn. 1999)

. The pro cedu ral requ ir eme nt s fo r hab eas c orp us rel ief are m and ator

y and mus t be sc ru pu lou sly followed. Hickman v. State, 153 S.W .3d 15, 19-20 (Tenn. 2004); Arc her, 851 S.W .2d at 165. Under Tenne ssee Code A nnotated sec tion 29-21-105, a petition for habea s corpus re lief “should be ma de to the court or judg e most convenie nt in point of dist anceto the applicant, unless a suff icient re ason be g iven in the petition for not apply ing to suc h court or judg e.” T en n.Code Ann. § 29- 21- 105 (2 00 3) . A c c or din g to the re c or d, the Pe tit ion e r is inc arc e rate d a t the F e de ra l I ns tituti on loc a te d in Memphis, Tenne ssee, and he has not provided a rea son as t o why he filed his petition i n a court other-3-

than the court closest in point of distance to him. The P etitioner has failed to follow the proc edura l require ments require d for a habea s corpus pe tition.
Additionally , the Petitioner has failed to set forth any alleg ations that would indicate that the trial court lac ked jurisdiction to convict or sentenc e him or that he is unlawf ully “re strained” for a

se nte nc e that ha s e xpir e d. Th e Pe tit ion e r’ s cla im of a n in vo lun tary ple a is n ot p ro pe rl y

c og niza ble in a habe as cor

pus petition because , if proven, the claim would re nder the judgme nt merely voidable, not void. Further , the Petitioner’s sentenc es have alre ady been se rved, and he is thus not confined beca use of the se ntence s at issue in this case.

Acc ording ly , the State’s motion is hereby g rante d. The judgment of the t rial court is affirmed in a c c or da nc e wi th R ule 20 , Ru le s o f the Cou rt of Cr imi na l A pp e a ls.

___________________________________ ROBERT W. WEDEMEYER, J UDGE