### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE May 2000 Session
DWIGHT SEATON v. STATE OF TENNES SEE
Direct Appeal from the Circuit Court for Sevier County No. 96-313-I Ben W. Hooper, II, Judge

No. E1999-01312-CCA-R3-CD August 21, 2000

This appeal arises from the trial court’s denial of the petitioner's pro se application for habeas corpus relief, based on his claim thathis 1988 guilty plea to a state aggravated assault charge was invalid. The petitioner was subsequently convicted in federal court of being a f elon in pos session of a firearm, and the federal sentence was en hanced using the s

tate conviction ba

sed on the alleged

ly invalid guilty plea. The trial court analyzed the petition as a post-conviction petition, a petition for writ of habeas corpus, and as a petition for writ of error coram nob

is, based on the va

rious arguments of the petitioner, a

nd denied relief

under any of thes

e vehicles. After a careful review of the record, we affirm the trial court's denial of the petitioner's request for relief. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

A LAN E. G LENN , J., delivered the opinion of the court, in which T HOMAS T. W OODALL and J OHN E VERETT W ILLIAM S , JJ., joined. Dwight Seaton, Estill, South Carolina, Pro Se.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General; Al C. Schmutzer, Jr., District Attorney General; and Steven R. Hawkins, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

On December 6, 198 8, the petitioner, Dwight Seaton, ple

d guilty in the Sevier

County Ci rc uit Courtto a charge of aggravated assault. On October 31, 1995, the United States District Court for the Eastern District of Tennessee, sitting at Knoxville, used this conviction to enhance his sentence for being an armed felon in violation of 18 U.S.C. § 922(g)(1). On March 26, 1996, the petitioner filed a federal habe

as corpus applica

tion in the Sevier Cou

nty Circuit Court,

in which he claimed that the state assault conviction was invalid and should no t have been u sed to enhance the federal sentence. The petitioner al leged that he was

not informed at the

time of his 1988 guilty plea that the conviction could

be used as an enhancement factor in future

proceedings, in e

ffect, claiming t

hat his1 We will l ikewise ana

lyze the pe

titi on as a reques

t for habeas corpus

relief , a post- convicti

on petiti on, and as a petition fo r writ of erro r coram nobis.
-2- guilty plea was notknowingly or voluntarily entered. He claims that his attorney was not aware of the fact that the state conviction could be used for enhanceme

nt purposes and fa

iled to so advise him.

The trial court dismissed Seaton’s petition on Nov ember 23, 1999. Giving the pro se petitioner substantial leewa

y in his characte

rization of his

request for relief, the trial court treated the request as a petition for post-conviction relief, a writ of habeas corpus, and a writ of error coram nobis in determining if the petitioner was entitled to an y relief. The court denied relief after determining that: (1) the petit ioner was not entit

led to habeas re lief, and federal prisoners were excluded from state courts pursuant to Tennessee Code Annotated § 29-21-102; (2) the three-year statute of limitations had run on a post-conviction petition; and (3) a writ of error coram nobis was likewise not the proper vehicle for the p etitio ner to obtain relie f. The petitioner

appealed to this court. Based upon our review of the record, we affirm the dismissal of the petitioner’s request for relief. 1
Habeas Corpus Relief

It is well-establ ished i n Tennessee that the remedy provid

ed by a writ of hab

eas corpus is limited in scope and may only be invoked where the jud gment is vo id or the petitioner’s term of imprisonment has expired. State v. Ritchie , 20 S.W.3d 624 (Tenn. 2000); State v. Davenport , 980 S.W.2d 407, 409 (Tenn. Cri m. App. 1998); Passarella v. State , 891 S.W.2d 619, 626 (Tenn. Crim. App.), perm
. app
. denied , (Tenn. 1994) . A void , as oppo sed to a voidable, judgment has been definedby our supreme co urt as “one in whic

h the judgment is fa

cially invalid because t

he court did nothave the statutory authority to render such judgment.” Dykes v. Compton , 978 S.W.2d 528, 529 (Tenn. 1998); see also Taylor v. State , 995 S.W.2d 78, 83 (Tenn. 1999). The judgment of a court of general jurisdi ction is conclusive and presumed to be valid, and such a judgment can only be impeached

if the record affirmatively shows that the rendering court was without personal or subject matter jurisdiction. Archer v. State , 851 S.W.2d 157, 162 (Tenn. 1993) ; Passarella , 891 S.W.2d at 626

. Thus, habeas cor

pus relief is ava

ilable only when “ ‘it

appears upon the face of the judgement
or the record of the proceedings upon which the judgement is rendered’ that a convicting court was wit houtjurisdiction or authority to sentence a defendant, or that a defendant’s sentenc e o f imprisonment . . . has expired.” Archer , 851 S.W.2d at 164 (citation omitted).

To obtain habeas corpus relief, the petitioner must show by a preponderance of the evidence that his conviction is voi

d and not merely voidable. See Davenport , 980 S.W.2d at 409; Passarella , 891 S.W.2d at 627. Consequently, a pe titioner cannot c

ollaterally

attack a facially valid judgment of the tria l court in a petition for habeas corpus relief. Archer , 851 S.W.2d at 162. The proper
mea ns of challenging a facially valid judgment based on a constitutional violation is throug h a petition for post-conviction relief. Lewi s v. Metropolitan Ge n. Sessions Court for

Nashville , 949 S.W.2d 696, 699 (Tenn. Crim. App. 1996), perm
. app
. denied , (Tenn. 1997); Fredrick v. State , 906 S.W.2d 927, 929 (Tenn. Crim. App. 1993).2 We note that, by his own admission on the federal habeas appli cation, the peti

tioner di d not appeal t

he state convicti on. Thus, he do es not get the bene fit of waiting until the ruling o f the highest appellate court to s tart t he running of the statute of limitations. Tenn. Code An n. § 40-30-201(a) (1990 & Supp. 1995 ).
-3- Upon reviewi ng the record, we conclude that the trial court was correct in denying the petitioner habeas relief. The petitioner has not alleged that the state court was without jurisdiction
or authority to convict him in 1988 based on the guilty plea. Therefore, the petitioner has not shown that his state conviction is void, as required to obtain habeas relief.
Post-Conviction Relief

Because the petitioner fil

ed his pro se petition on March 26, 1996, it is governed by the 1995 Post-Conviction Procedur e Act . Tenn. Code Ann. § 40-30-201 et. seq. (1990 & Supp. 1995). On app eal, we are bound by the trial court’s findings of fact unless the record preponderates agai ns t those findings. State v. Keith , 978 S.W.2d 861, 864 (Tenn. 1998).

Tennessee Code Annotated § 40-30-210(f) (1997) requires that a post-conviction petitioner prove by “clear and convincing evidence” his allegations regarding constitutional claims. Claims of “deficient performance by counsel and possible prejudice to the defense are mixed questions of law and fact,” mean

ing that the revie

w is de novo

. Statev. Burns , 6 S.W.3d 453, 461 (Tenn. 1999) (citing Goad v. State , 938 S.W.2d 363 (Tenn. 1996)).
First, we note that a post -convicti on petiti on was the proper vehicle for the p

etitioner to challenge a constitutionally defective guilty plea and subsequent conviction. Although the 1995 Act requires that a post-conviction petition must be filed within one year of the date on which the state court judgment became f

inal, there is an e

xcepti on i n the Act. 2 The 1986 version of the PostConviction Act that was in effect at the time of petitioner’s 1988 conviction had a three-year sta

tute of limitations, and, if the petitioner’s post-conviction petition w as not time- barred when the new statute of limitations took effect, he would still have had one year from Ma y 10, 1995, to file hi

s petition under the 1995 Act. Tenn. Code Ann. § 40-30-102 ( 1982 & Supp. 1988); Te nn. Pub. Act, Ch. 207, § 3. Unfortunately for the petitioner, his post-convictio n petition was not fi

led until some
seven years and three months after the entry of his conviction on the state charge; thus, the three-year statute of limitations under the 1986 Act had long expired. As the trial court found, the statute of limitations began to run on December 6, 1988, a nd petitioner’s ri ght to file his petitio

n for postconviction relief

was extinguished three years after his conviction on December 6, 1991. He failed to file within

that time frame, and his petition is time-barred. Thus, we agree with the trial court that relief was not available to the petitioner pursuant to the Post-Conviction Procedure Act because the petitioner’s app

lication was not fi

led within the appli

cable statute of

limitations.-4- Writ of Error Co

ram Nobis

A petition for writ of error coram nobis is used to challenge a court’s judgment and, like a post-conviction petition, is subject to a one-year sta

tute of limitations. Van Tran v. State , 6 S.W.3d 257, 264 (Tenn. 1999).

The petitioner’s

writ was not filed w

ithinthat time period and wa

s properly dismissed by the trial court. In addition, a petition for w rit of error coram nobis is not the proper means for this

petitioner to obtain relief, as the relief afforded by such a writ is very narrow and is only appropriate when an issue was not addre ssed or cou ld not be addressed, because it was somehow hidden from the trial court. Tenn. Code Ann. § 40-26- 105 (1990); Newsome v. State , 995 S.W.2d 129, 133 (Tenn. Crim. App. 1998), perm
. app
. denied , (Tenn. 1999). No such allegations have been made in this case, and, even if the statute of limitations had not expired, the petitioner has no cognizable claim for relief under a writ of error coram nobis.

In his appellate brie

f, th e pe titioner has claim ed, for the first t

ime, that a writ of a

udita querela should issue as to his

conviction. This is a

common law writ

affording “relief to a

judgment debtor against a judgment

or execution bec

ause of some defe

nse or discharge arising subsequent to the rendition of the judgment or the issue of the execution.” United States v. Fonseca-Martinez , 36 F.3d 62, 64 (9 th Cir. 1994) (quoting 11 Wright and Miller, Federal Practice and Procedure , § 2867 at 235 (1973)). See also Black’s Law Dictionary 131 (6 th ed. 1 990) (The writ lies to allow a defendant “to obtain relief against the consequences of the judgment on account of some matter of defense or discharge arising since its r endition and which could not be taken advantage of otherwise.”). Apparently, this writ is utilized, upon occasion, in t

he federal cou

rts in an attempt to v

acate an allegedly unfa

ir conviction. How

ever, as stated i

n Fonseca-Martinez , 36 F.3d at 65, no federal appell a te court has utilized a writ of audita querela “to vacate an otherwise valid conviction for solelyequitable reaso

ns.” Initially, as t

o the petitioner’s

claim that the w rit should issue as to his conviction, we note that he fa iled to present this

claim to the trial court and cannot now raise it for the first t ime on appeal. See State v. Matthews , 805 S.W.2d 776, 781 (Tenn. Crim. App.), perm
. app
. denied (Tenn. 1990). Additionally, his appellate brief, in contravention o f Rule 27, Tennessee Rules of Appellate Procedure, and Rule 10(b), Rules of the Tennessee Co

urt of Criminal Appe

als, contains no citations to appropriate authorities in support of this argument. Accordingly, the argument has been waived. However, even if we were to co nsider his arg ument on the merits, to whatever extent this writ is still viable in Tennessee, the petition er has failed to p resent a claim entitling him

to relief. He simply has not demonstrated any post-judgment o

ccurrence, wh

ich would entitle him to issuance of this writ.-5- CONCLUSION

Based upon the foregoing authorities and reasoning, we affirm the order of the trial cour t denying relief to the petitioner.

___________________________________ ALAN E. GLENN, JUDGE