IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 10, 2024

STATE OF TENNESSEE v. DAVID ANTHONY AVERY

Appeal from the Criminal Court for Davidson County

No. 2006-C-2451 Cheryl A. Blackburn, Judge

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No. M2024-00651-CCA-R3-CD

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Petitioner, David Anthony Avery, filed a motion pursuant to Tennessee Rule of Criminal 

Procedure 36.1 claiming that his sentences were illegal because his criminal case was a 

civil matter, that the United States District Court had original jurisdiction over all civil 

cases, and that the trial court did not have jurisdiction to impose the sentences. We 

determine that the motion failed to state a colorable claim and affirm summary dismissal 

of the motion by the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and JOHN W. CAMPBELL, SR., JJ., joined.

David Anthony Avery, Henning, Tennessee, pro se.

Jonathan Skrmetti, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant 

Attorney General; Glenn R. Funk, District Attorney General; and Megan King, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

Procedural History

Petitioner and two co-defendants, Frederick Avery and Iris Avery, were indicted on 

two counts of especially aggravated robbery and two counts of attempted first degree 

murder. State v. Avery, No. M2008-01809-CCA-R3-CD, 2009 WL 4724430, at *1 (Tenn. 

09/16/2024
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Crim. App. Dec. 10, 2009), perm. app. denied (Tenn. Apr. 23, 2010).

1

 Co-Defendant Iris 

Avery entered a guilty plea, and a jury found Petitioner and Frederick Avery guilty of one 

count each of aggravated robbery, especially aggravated robbery, reckless endangerment, 

and attempted second degree murder. Id. The trial court sentenced Petitioner as a Range 

I standard offender to twelve years for aggravated robbery, twenty-five years for especially 

aggravated robbery, twelve years for attempted second degree murder, and eleven months 

and twenty-nine days for reckless endangerment. Id. at *14. The trial court aligned the 

three felony sentences consecutively, for a total effective sentence of forty-nine years. Id. 

at *16. In the direct appeal, this court concluded that the trial court did not err in 

determining the length of Petitioner’s sentences or in aligning the sentences consecutively

and affirmed the judgments of the trial court. Id. at *15, 17.

Petitioner filed a petition for post-conviction relief, claiming ineffective assistance 

of trial and appellate counsel, which was denied by the post-conviction court. This court 

affirmed the denial. Avery v. State, No. M2011-02625-CCA-R3-PC, 2012 WL 6570737, 

at *1 (Tenn. Crim. App. Dec. 17, 2012), perm. app. denied (Tenn. Mar. 20, 2013). 

Petitioner next filed a petition for writ of habeas corpus, which the trial court denied.

This court granted the State’s motion to dismiss the appeal. Avery v. Taylor, No. E2013-

02096-CCA-R3-HC (Tenn. Crim. App. Dec. 19, 2013) (Order).

Petitioner then filed a “Motion for Relief Affidavit in the Nature of a Writ of Quo 

Warranto” seeking to have his judgments set aside, immediate release, and damages in the 

amount of $333,333,333.33. The motion was dismissed by the trial court, and the dismissal 

was affirmed by the Tennessee Court of Appeals. Avery v. Blackburn, No. M2021-01482-

COA-R3-CV, 2022 WL 3905089, at *1 (Tenn. Ct. App. Aug. 31, 2022), perm. app. denied 

(Tenn. Nov. 16, 2022).

In 2023, Petitioner filed a Tennessee Rule of Criminal Procedure 36.1 motion to 

correct an illegal sentence, arguing that the trial court misapplied enhancement factors and 

improperly imposed consecutive sentences. The trial court denied relief, and Petitioner

appealed. This court dismissed the appeal as untimely. State v. Avery, No. M2023-01582-

CCA-R3-CD (Tenn. Crim. App. Dec. 13, 2023) (Order). 

 

1 Petitioner’s Rule 11 application for permission to appeal was denied on April 23, 2010. Frederick 

Avery’s Rule 11 application for permission to appeal was dismissed as untimely on February 26, 2010; a 

second application for permission to appeal was denied on February 16, 2012.
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Current Rule 36.1 Motion

Petitioner filed another Rule 36.1 motion, claiming that his sentence was illegal 

because the trial court did not have jurisdiction to impose the sentence. Petitioner, who 

inexplicably referred to the State as “trust company” and to himself as “trust property,” 

claimed that, pursuant to Rule 2 of the Federal Rules of Civil Procedure, there was only 

“one form of action – the civil action” and that “the [United States] district courts have 

original jurisdiction of all civil actions.” The trial court summarily denied the motion, 

finding that the federal law Petitioner cited did not apply to criminal proceedings in 

Tennessee and that there was “no jurisdictional issue in this case.”

Petitioner appealed.

Analysis

On appeal, Petitioner raises the same baseless claim that he raised in the Rule 36.1

motion: that his sentences were illegal because the trial court “did not have jurisdiction 

over the claims in the civil action between the [State] (trust company) and [Petitioner] (trust 

property).” The State argues that the trial court properly dismissed the Rule 36.1 motion 

because it failed to state a colorable claim. We agree with the State.

Rule 36.1 provides “a mechanism for the defendant or the State to seek to correct 

an illegal sentence.” State v. Wooden, 478 S.W.3d 585, 591 (Tenn. 2015). For Rule 36.1

purposes, “an illegal sentence is one that is not authorized by the applicable statutes or that 

directly contravenes an applicable statute.” Tenn. R. Crim. P. 36.1(a)(2). Rule 36.1 “does

not provide an avenue for seeking the reversal of convictions.” State v. Wilson, No. E2013-

02354-CCA-R3-CD, 2014 WL 1285622, at *2 (Tenn. Crim. App. Mar. 31, 2014) (emphasis 

in original). 

“If the [trial] court determines that the motion fails to state a colorable claim, it shall 

enter an order summarily denying the motion.” Tenn. R. Crim. P. 36.1(b)(2). A colorable 

claim is “a claim that, if taken as true and viewed in the light most favorable to the moving 

party, would entitle the moving party to relief under Rule 36.1.” Wooden, 478 S.W.3d 585

at 593. Whether a Rule 36.1 motion states a colorable claim for correction of an illegal 

sentence is a question of law, which we review de novo. 

We agree with the State’s argument that Petitioner “is profoundly mistaken about 

the nature of the proceedings against him.” Tennessee Code Annotated section 40-14-

301(3) defines “criminal case” to mean “the trial of any criminal offense which is 

punishable by confinement in the state penitentiary and any proceeding for the writ of 

habeas corpus wherein the unlawful confinement is alleged to be in a state, county or 
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municipal institution[.]” The criminal offenses for which Petitioner was convicted were 

punishable by confinement in the Tennessee Department of Correction. This was a 

criminal case, and Petitioner’s claim that it was somehow a civil case is preposterous and 

utterly absurd.

Pursuant to Tennessee Code Annotated section 40-1-108, “[t]he circuit and criminal 

courts have original jurisdiction of all criminal matters not exclusively conferred by law 

on some other tribunal.” Petitioner has not presented any evidence or case law, probably 

because none exist, to suggest that the trial of his criminal charges were “exclusively 

conferred by law on some other tribunal.” See State v. Prewitt, No. W2016-01516-CCAR3-CD, 2017 WL 1103047, at *3 (Tenn. Crim. App. Mar. 24, 2017). 

“Subject matter jurisdiction involves a court’s lawful authority to adjudicate a 

controversy brought before it.” Chapman v. DaVita, Inc., 380 S.W.3d 710, 712 (Tenn. 

2012). Petitioner was indicted by the Davidson County Grand Jury and was tried by the 

Criminal Court for Davidson County, which had subject matter jurisdiction over crimes 

occurring in Davidson County.

Conclusion

Petitioner’s Rule 36.1 motion failed to state a colorable claim for relief. We affirm 

the judgment of the trial court. 

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ROBERT L. HOLLOWAY, JR., JUDGE