IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 7, 2018

WILLIS HOLLOWAY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 09-01388 Lee V. Coffee, Judge

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No. W2017-01573-CCA-R3-PC

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The Petitioner, Willis Holloway, was convicted of two counts of aggravated robbery, two 

counts of aggravated kidnapping, and one count of aggravated burglary, and the trial 

court imposed an effective forty-four year sentence in the Tennessee Department of 

Correction. On appeal, this court affirmed the Petitioner’s conviction and sentence. See 

State v. Charles Jackson and Willis Holloway, No. W2010-01133-CCA-R3-CD, 2012

WL 543047, at *1 (Tenn. Crim. App., at Jackson, Feb. 17, 2012), perm. app. denied

(Tenn. June 22, 2012). Subsequently, the Petitioner filed a petition for post-conviction 

relief, and the post-conviction court denied relief. Willis Holloway v. State, No. W2014-

02444-CCA-R3-PC, 2015 WL 6122155, at *1 (Tenn. Crim. App., at Jackson, Oct. 16, 

2015), perm. app. denied (Tenn. March 23, 2016). The Petitioner then filed a “Petition 

for Extraordinary Relief,” the subject of this appeal, asserting: (1) his sentences were 

void for duplicity; (2) his indictments were void because the charges were vague; (3) two 

of the indictments were defective; (4) the trial court constructively amended the 

indictments; and (5) trial and post-conviction counsel were ineffective. The postconviction court, treating the petition as one for post-conviction relief, found that the 

Petitioner’s claims had either been previously determined or waived because the 

Petitioner failed to raise them in his earlier appeals and denied relief. After review, we 

affirm.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JAMES 

CURWOOD WITT, JR. and ROBERT L. HOLLOWAY, JR., JJ., joined.

Willis Holloway, Hartsville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;

Amy P. Weirich, District Attorney General; and Alanda H. Dwyer, Assistant District 

Attorney General, for the appellee, State of Tennessee.

08/16/2018
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OPINION

I. Facts and Procedural History

A Shelby County grand jury indicted the Petitioner and three co-defendants for 

their role in a home invasion. The eighty-five and eighty-three-year-old victims lived in 

a house in Memphis, Tennessee and owned a rental house next door to their home. 

Jackson, 2012 WL 543047, at *1. One of the Petitioner’s co-defendants, Charles 

Jackson, posing as a potential renter, arranged for his sister to view the rental house. Id. 

After the victims had returned from a chemotherapy appointment, the Petitioner and codefendant Jackson arrived at the victims’ house to view the rental property. Id. They 

entered the victims’ house and pointed guns at the victims. Id. They tied the victims up 

with duct tape and ransacked the house. Id. The Petitioner and co-defendant Jackson 

took jewelry, a “pump gun,” $750.00, and a small safe containing $8000.00. Id. Two 

women also participated in the crimes, and those women testified against the Petitioner 

and co-defendant Jackson at their joint trial. Id. at *3-5.

The jury convicted the Petitioner and co-defendant Jackson of two counts of 

aggravated robbery, a Class B felony, two counts of aggravated kidnapping, a Class B 

felony, and one count of aggravated burglary, a Class C felony. Id. at *7. After a 

sentencing hearing, the trial court ordered that the Petitioner serve consecutive sentences 

of ten years for each of the aggravated robbery and aggravated kidnapping convictions 

and four years for the aggravated burglary convictions, for an effective sentence of fortyfour years in the Tennessee Department of Correction. Id.

On appeal, the Petitioner challenged: (1) the trial court’s limit on crossexamination of a co-defendant; (2) admission of a co-defendant’s complete written 

statement into evidence; (3) the trial court’s giving a copy of the statement to each of the 

jurors; (4) the failure to redact the statement; and (5) the sufficiency of the evidence. Id. 

at *1. This court affirmed the trial court’s judgments and sentences. Id.

The Petitioner then filed a petition for post-conviction relief, alleging ineffective 

assistance of counsel at trial and on appeal. After a hearing, the post-conviction court 

denied relief. On appeal, this Court noted that the Petitioner had “abandoned his original 

claims for post-conviction relief and now argue[d] that he should be granted a new trial 

because his trial counsel passed away prior to his post-conviction hearing.” Holloway, 

2015 WL 6122155, at *1. Addressing, the issues raised on appeal, this Court denied 

relief. Id. at *2-3.
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On March 8, 2017, the Petitioner filed a “Petition for Extraordinary Relief,” 

claiming that: (1) the sentences in counts 1, 2, 3, 4, and 5 were duplicitous; (2) counts 1, 

2, 3, 4, and 5 were void for indefiniteness, for failure to inform the Petitioner of the 

nature of the offenses; (3) the indictment was defective because the co-defendants 

pleaded guilty to facilitation of a felony before the Petitioner and co-defendant Jackson 

had been convicted of the underlying felony; (4) the trial court charged the jury 

incorrectly, resulting in a constructive amendment to the indictment; and (5) trial and 

post-conviction counsel were ineffective. The post-conviction court treated the petition 

as a post-conviction petition and made the following findings:

These issues cannot be revisited in this post-conviction proceeding. 

Miller v. State, 54 S.W.3d 743 (Tenn. 2001). A ground for relief was 

considered previously determined “if a court of competent jurisdiction had 

ruled on the merits after a full and fair hearing.” House v. State, 911 

S.W.2d 705 (Tenn. 1995). This issue has been previously determined 

against the Petitioner and is without merit and cannot be addressed in a

subsequent post-conviction hearing. This Court heard and denied a petition 

for post-conviction relief on December 1, 2014. The Court of Criminal 

Appeals affirmed the judgment of the post-conviction court on October 16, 

2015. The Tennessee Supreme Court denied an application for permission 

to appeal on March 23, 2016. This Court denied this exact petition, without 

an evidentiary hearing, on March 27, 2017.

. . . . 

This Court concludes that the Petitioner’s claims are without merit.

The Court finds further that all others issues, for which evidence has not 

been presented at the evidentiary hearing conducted in 2014, have been 

waived. Under the Post-Conviction Act, waiver applies “if the petitioner 

knowingly and understandingly failed to present it for determination in any 

proceeding before a court of competent jurisdiction in which the ground 

could have been presented.” House v. State, 911 S.W.2d 705, 710-11, 713-

14 (Tenn. 1995).

Tennessee Code Annotated section 40-30-106 provides, “The 

petition must contain a clear and specific statement of all grounds upon 

which relief is sought, including full disclosure of the factual basis of those 

grounds.” Tenn. Code Ann. § 40-30-106(d). “Amendments to the petition 

shall conform substantially to the form for original petitions, except that 

matters alleged in the original petition need not be repeated.” Id. § 40-30-

104(g). Therefore, regarding any additional issues of a Sixth Amendment 
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violation, which was not addressed in his petition or by the trial court in its 

order denying relief, the Petitioner has waived this issue by failing to raise 

it in his original or amended petitions.

Tennessee Code Annotated section 40-30-106 provides:

A ground for relief is waived if the petitioner personally or 

through an attorney failed to present it for determination in 

any proceeding before a court of competent jurisdiction in 

which the ground could have been presented unless:

(1) The claim for relief is based upon a constitutional right 

not recognized as existing at the time of trial if either the 

federal or state constitution requires retroactive application of 

that right; or

(2) The failure to present the ground was the result of state 

action in violation of the federal or state constitution.

None of these exceptions applies in this case. This [P]etitioner 

continues to file multiple and frivolous petitions attacking the finality of his 

convictions. As the Court stated in the ruling denying the original petition 

for post-conviction relief, any additional claims for relief which were not 

presented at the evidentiary hearing are waived in the post-conviction

setting. See Randy L. Jones v. State, No. M2005-00765-CCA-R3-PC, 2006 

Tenn. Crim. App. 2006 WL 1626931, at *22 (Tenn. Crim. App., Nashville, 

June 9, 2006), perm. to app denied, (Tenn. Sept. 25, 2006).

It is from this judgment that the Petitioner appeals.

II. Analysis

On appeal, it appears the Petitioner asserts that the trial court improperly 

instructed the jury at trial. The State responds that the trial court properly dismissed the 

petition because the claims had either been previously raised or were waived. The 

Petitioner titles his petition, “Petition for Extraordinary Relief,” and the trial court treated 

it as a post-conviction petition. Regardless of whether we view the case as a petition for 

post-conviction relief or a petition for the writ of habeas corpus, the Petitioner is not 

entitled to relief. 
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Pursuant to Tennessee Code Annotated section 40-30-102(a), a petition for postconviction relief must be filed “within one (1) year of the date of the final action of the 

highest state appellate court to which an appeal is taken or, if no appeal is taken, within 

one (1) year of the date on which the judgment became final.” T.C.A. § 40-30-102(a) 

(2012). In this case, the judgments became final in March 2012. Moreover, section 40-

30-102(c) states that “[i]n no event may more than one (1) petition for post-conviction 

relief be filed attacking a single judgment.” Here, the record indicates that the Petitioner 

filed his first post-conviction petition within the one-year statute of limitations, and it was 

dismissed following an evidentiary hearing. This court affirmed the post-conviction 

court’s judgment. The Petitioner subsequently filed a second petition for post-conviction 

relief on March 8, 2017, well outside the one-year statute of limitations. After 

considering the second post-conviction petition, the post-conviction court summarily 

dismissed it.

Initially, we note that section 40-30-102(c) of the Post-Conviction Procedure Act 

states, “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.” 

We agree with the State that the Petitioner’s first post-conviction petition was resolved on 

its merits and that the lower court acted properly in summarily dismissing his second 

post-conviction petition on that basis. We also agree that the issues the Petitioner seeks 

to raise in his second petition are either waived or previously determined. See T.C.A. § 

40-30-106(g)-(h).

Furthermore, we agree with the State that the Petitioner’s allegations do not fall 

within the limited exceptions for reopening a first post-conviction petition. Tennessee 

Code Annotated section 40-30-117(a) provides:

(a) A petitioner may file a motion in the trial court to reopen the first postconviction petition only if the following applies:

(1) The claim in the motion is based upon a final ruling of an 

appellate court establishing a constitutional right that was not 

recognized as existing at the time of trial, if retrospective application 

of that right is required. The motion must be filed within one (1) 

year of the ruling of the highest state appellate court or the United 

States supreme court establishing a constitutional right that was not 

recognized as existing at the time of trial; or

(2) The claim in the motion is based upon new scientific evidence 

establishing that the petitioner is actually innocent of the offense or 

offenses for which the petitioner was convicted; or
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(3) The claim asserted in the motion seeks relief from a sentence that 

was enhanced because of a previous conviction and the conviction in 

the case in which the claim is asserted was not a guilty plea with an 

agreed sentence, and the previous conviction has subsequently been 

held to be invalid, in which case the motion must be filed within one 

(1) year of the finality of the ruling holding the previous conviction 

to be invalid; and

(4) It appears that the facts underlying the claim, if true, would 

establish by clear and convincing evidence that the petitioner is 

entitled to have the conviction set aside or the sentence reduced.

We conclude that the post-conviction court acted properly in summarily 

dismissing the second post-conviction petition. The Petitioner does not argue that he is 

entitled to a tolling of the one-year statute of limitations for due process concerns. 

Moreover, we conclude that due process tolling is not a legitimate consideration in this 

case. Accordingly, the Petitioner is not entitled to relief.

The post-conviction court did not review the petition as a habeas corpus petition, 

however, even had it done so, the Petitioner has not shown that his judgments are void. 

The grounds upon which a writ of habeas corpus may be issued are very narrow. 

McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). A writ of habeas corpus is available 

only when it appears from the face of the judgment or record that either the convicting 

court was without jurisdiction to convict or sentence the petitioner, or the petitioner’s 

sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 

833 S.W.2d 60, 62 (Tenn. 1992). In other words, habeas corpus relief may only be 

sought when the judgment is void, not merely voidable. Taylor v. State, 995 S.W.2d 78, 

83 (Tenn. 1999). The petitioner has the burden of establishing either a void judgment or 

an illegal confinement by a preponderance of the evidence. Passarella v. State, 891 

S.W.2d 619, 627 (Tenn. Crim. App. 1994).

The Petitioner’s first claim is that the indictments are duplicitous; however, this 

court has repeatedly held, “Duplicity in an indictment does not result in a void 

judgment.” Michael David Russell v. Virginia Lewis, Warden, No. E2005-02644-CCAR3-HC, 2007 WL 2141546, at *2 (Tenn. Crim. App., at Knoxville, July 26, 2007), no 

perm. app. filed (citing Gary Lynn Vernon v. Jim Dickman, Warden, No. M2003-02268-

CCA-R3-HC, 2004 WL 1778480, at *2 (Tenn. Crim. App., at Nashville, Aug. 9, 2004)).

To the extent the Petitioner’s claims about an alleged duplicitous indictment implicate 

double jeopardy concerns, we note that violations of double jeopardy also do not result in 
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void judgments. Id. (citing Raymond Rutter v. State, No. E2003-01386-CCA-R3-PC, 

2004 WL 792066, at *3 (Tenn. Crim. App., at Knoxville, Apr. 7, 2004)).

The Petitioner also asserts that the indictments were so inadequate as to 

insufficiently inform him of the charges against him. We agree with the State that the 

indictments contain the name of the accused, the date of the offense, the actus reus, mens 

rea, and cites the statute defining the charged offense. See Joseph Darryl Gaines v. State, 

No. M2009-00735-CCA-R3-HC, 2009 WL 5125105 (Tenn. Crim. App., at Nashville, 

Dec. 15, 2009) (concluding that the name of the accused, “the dates during which the 

offense occurred, the actus reus, mens rea, and references [to] the statute defining the 

charged offense” were sufficient), perm. app. denied (Tenn. May 12, 2010). We 

conclude that the indictments were sufficient to inform the Petitioner of the charges 

against him. 

The Petitioner next claims that his female co-defendants pleaded guilty to 

facilitation of aggravated robbery when there was not yet a conviction against the 

Petitioner or co-defendant Jackson on the underlying felony charge. The Petitioner, 

however, cannot assert the constitutional rights of another, and his challenge implicates 

the co-defendants’ rights and not his own. See Simmons v. United States, 390 U.S. 377, 

389 (1968).

The Petitioner’s final two claims, likewise, do not establish that his judgments are 

void. The Petitioner asserts that the jury charge impermissibly amended the indictment 

and that he did not receive the effective assistance of counsel. A claim of erroneous jury 

instructions is not a cognizable basis for habeas corpus relief. See, e.g., Bobby A. Davis

v. Howard Carlton, No. E2007-01279-CCA-R3-HC, 2008 WL 299067 (Tenn. Crim.

App., at Knoxville, Nov. 27, 2007), perm. app. denied (Tenn. Apr. 28, 2008). Such 

allegations give rise to a claim of a voidable, not void, judgment. See, e.g., John Haws 

Burrell v. Howard Carlton, No. E2004-01700-CCA-R3-HC, 2005 WL 544732 (Tenn.

Crim. App., at Knoxville, Mar. 8, 2005), perm. app. denied (Tenn. June 20, 2005)

(holding that claim of erroneous jury instructions presented voidable claim which was not 

cognizable in habeas corpus action). Likewise, ineffective assistance of counsel claims, 

even if taken as true, render a judgment voidable, not void. See Luttrell v. State, 644 

S.W.2d 408, 409 (Tenn. Crim. App. 1982); see also Fredrick B. Zonge v. State, No. 

03C01-9903-CR-00094, 1999 WL 1191542, at *1 (Tenn. Crim. App. Dec. 16, 1999)

(stating generally that “[a]lleged violations of constitutional rights are addressed in postconviction, not habeas corpus, proceedings”), perm. app. denied (Tenn. June 26, 2000).

Accordingly, it does not appear “‘upon the face of the judgment . . .’ that [the] 

convicting court was without jurisdiction or authority to sentence [the] defendant . . . .” 

Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (quoting State v. Galloway, 45 Tenn. 
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326, 336-37 (Tenn. 1868)). Moreover, the record contains no indication that Petitioner is 

being wrongfully imprisoned or that his liberty is being illegally restrained on this 

Tennessee conviction. Id.; see Hickman v. State, 153 S.W.3d 16, 22-24 (Tenn. 2004).

III. Conclusion

Based upon the aforementioned reasoning and authorities, we affirm the postconviction court’s judgment. 

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ROBERT W. WEDEMEYER, JUDGE