# FILED

May 5, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINAL APPEA LS OF TENNESSEE AT KNOXVILLE MARCH 1 999 SESSION

HUBERT J. ROBBINS, ) C.C.A. 03C01-9808 -CR-00285 ) MORGAN CO UNTY CIRC UIT ) Appella nt, ) Hon. E. Eugene Eblen, Ju dge ) vs. ) (HABEAS CORPUS) ) No. 8503 DAVID G. MILLS, Warden , ) ) Appellee. )

FOR THE APPELLANT : FOR THE APPELLEE : HUBERT J. ROBBINS, p ro se PAUL G. SUMMERS P.O. Box 1000 Attorney General & Reporter Petros, TN 37845 ELLEN H. POLLACK Assistant A

ttorney General 425 Fifth A

venue Nor

th 2nd Floor, Cordell Hull Bldg. Nashville, TN 37243 J. SCOTT McCLUEN District Attorney

General FRANK A. HA

RVEY Assista nt Dist rict Att orney P.O. Box 703 Kingston, TN 37763 OPINION FILED:______________

_ AFFIRMED

CORNELIA A. CLARK Special JudgeOPINION The appellant, Hubert J. Robbins , an inmate at Brushy Mountai n State Prison, appeals the Morgan County Circuit Court’s summary dismissal of his pro se petition for writ of habeas corpus. The trial court granted the state’s motions to dismiss the petiti on without the appointment of counsel or an evidentiary hearing . Upon review, w e affirm the judgment of the trial cour t. On February 19, 1985, while represented by two appointed counsel, defendant entered pleas of guilty to first degree felony murd er, assault with intent to commit f irst degre e murder with seriou s bodily in jury, arme d robbery, and conc

ealing stolen propert

y. He w as sente nced to s

erve th ree life sentences and one five-year sentence. Two of the life sentences were to be served concur rent to o ne anothe r and w ere cons ecutiv e to the t hird life sentence. The five-year s entence also was concurr ent. No appeal was taken. Soon thereafter appellant filed a petition for post-conviction relief. In November 1986 this court affir med the trial court’s denia l of the post-conviction petition. See Hubert J. Robbins v. S tate , Sevier C

ounty, No. 74 (Tenn. Cri m. App., November 13, 1986). The instant petition for wri t of habeas corpus was filed M ay 28, 1998. The instant petition asserts five general issues: 1. involuntariness of the 1985 guilty pleas; 2. erroneous sentencing because of failure to conside r proper mitigating factors; 3. failure to conduct a competency hearing to determine app ellant’s sanity; 4. ineffective assistance of counsel ; and 5. violation of double jeopardy principles by err

oneous conviction of both armed robbery and assault with intent to commit fir st degree murder.

21 Motions to dismiss w ere filed by the Distri ct Attorney General on Jun e 10, 1998, and by the Attorney General on June 24, 1998. 3 The state’s motions 1 to dismiss were granted by order entered July 24, 1998. It has long been established that the remedy of habeas corpus is limited in scope as well as relief. Archer v. State , 851 S.W. 2d 157, 161 -62 (Tenn. 1993) ; Passarella v. State , 891 S.W. 2d 619, 626 (Tenn. Crim. App.), per. app. denied (Tenn. 1994). In criminal cases, this remedy is available only if (1) the original judgment of conviction is void or (2) the sentence has expired. Passarella, 891 S.W. 2d at 626. If the petition fails to establish one of these grounds for relief, the trial court may dismiss the action without an evidentiary hearing. Id . at 628. In this case the judgments of conviction are not void on their faces and have not expired. The grounds for relief asserted here are cognizable, if at all, in a post-conviction action, not an action for habeas corpus. Such a petition would have to be filed in the county where the judgment of conviction was entered. Tenn. Code Ann. §40-30- 204(a). Judgment in this case was rendered in Sevier County, and this petition was filed in Morgan County. Accordingly, the trial court did not err by failing to treat the application as one for post-conviction relief. Furthermore, the statute of limitations for filing a petition for post-conviction relief has expired. Tenn. Code Ann. §40-30-202(a). Defendant pled guilty in 1985. He had three years from July 1, 1986 to file a petition for post-conviction relief. Tenn. Code Ann. §40-30-102 (repealed 1995). He did not file the present petition until May 1998. His petition is time-barred. Finally, because appellant has previously filed a petition for post-conviction relief, his claims have been previously determined or waived. Tenn. Code Ann. §40- 30-206(g) and (h). He makes no allegation that would entitle him to reopen his original petition under Tenn. Code Ann. §40-30-217. He is not entitled to relief. Accordingly, the judgment of the trial court dismissing the petition is affirmed.

___________________________ CORNELIA A. CLARK SPECIAL JUDGECONCUR:

____________________________ GARY R. WADE JUDGE

____________________________ NORMA M. OGLE JUDGE

4

IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT KNOXVILLE MARCH 1999 SESSION HUBERT J. ROBBINS, ) C.C.A. 03C01-9808-CR-00285 ) MORGAN COUNTY CIR CUIT ) Appellant, ) Hon. E. Eugene Eblen, Judge )vs. ) (HABEAS CORPUS) ) No. 8503 DAVID G. MILLS, Warde n, )

) Appellee. )

JUDGMENT Came the appellant, Hubert J. R obbins, pro se and also came the attorney general on behalf of the State, and this case was heard on the record on appeal from the Circuit Cour t of Morgan County; and upon c onsideration thereof, this court is of the opin ion that there is no rev ersible error in the judgment of the trial court. Our opinion is hereby i ncorporated in this judg ment as if set out verbatim. It is, therefore, ordered and adj udged by this court that the judgment of the trial court is AFF IRMED, and the case is r emanded to the Circuit Court of Morgan County for ex

ecution of the judgment of that court an d for collection of costs acc rued belo w. It appears that the appellant is indigent. Costs of this appeal will be paid by the State of Tennessee. PER CURI AM Gary R. Wad e, Judge Norma M. Ogle, Judge Cornelia A. Clark, Special Judge