FILED

May 19, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY SESSION, 1999

JONATHAN STEPHENSON, ) C.C.A. NO. 03C01-9807-CR-00255 

)

Appellant, )

) JOHNSON COUNTY

V. ) 

)

HOWARD CARLTON, WARDEN, ) HON. LYNN W. BROWN, JUDGE

and STATE OF TENNESSEE, )

)

Appellee. ) (HABEAS CORPUS)

FOR THE APPELLANT: FOR THE APPELLEE:

JONATHAN STEPHENSON, pro se JOHN KNOX WALKUP 

Northeast Correction Complex #140145 Attorney General & Reporter

P.O. Box 5000 

Mountain City, TN 37683 ELLEN H. POLLACK

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

JOE C. CRUMLEY, JR. 

District Attorney General

114 Alf Taylor Road 

Johnson City, TN 37601 

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Petitioner, Jonathan Stephenson, appeals from the dismissal of his

petition for habeas corpus relief. Petitioner was tried and convicted in 1990 for

conspiracy to commit first degree murder and for the first degree murder of his wife.

He was originally sentenced to death. Petitioner’s convictions were affirmed on

appeal, but the death sentence was reversed and the case was remanded to the trial

court for resentencing. State v. Stephenson, 878 S.W.2d 530 (Tenn. 1994). On

October 6, 1994, Petitioner was resentenced to life without parole for the first degree

murder conviction and to sixty (60) years for conspiracy to commit the murder.

While Petitioner did file a petition for post-conviction relief, he later requested it be

dismissed. In this petition for habeas corpus relief filed in 1998, Petitioner raises the

following issues:

1) The trial court erred in failing to suppress the confession taken

from Petitioner in that it was taken involuntarily and in violation of both

the Tennessee and United States’ constitutions;

2) The trial court erred in failing to dismiss indictments which were

multiplicitous;

3) The trial court erred in failing to order discovery of the notes of

investigators of the State;

4) The trial court erred in ordering counsel for Petitioner at trial to

give memos from his file over to the State as Jencks material;

5) The trial court erred in failing to order the State to disclose

whether they intended to try Petitioner as a principal or accessory;

6) The trial court erred in failing to order a mistrial after improper

and prejudicial opening argum ent by the State prosecutor;

7) The trial court erred during preliminary charges when it referred

to quotes from the Bible;

8) The trial court erred in calling jurors back in after the verdict had

been rendered for questioning regarding the verdict;
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9) The trial court erred in failing to charge the jury on all lesser

included offenses;

10) The trial court erred in allowing a State’s witness to quote from

and refer to the written statement of Petitioner’s co-defendant, Ralph

Thompson, without allowing cross-examination by the Petitioner;

11) Petitioner did not receive the effective assistance of counsel;

12) The trial court violated the Petitioner’s due process rights by

sentencing Petitioner in excess of the order on remand by the

Tennessee Supreme Court;

13) The prosecutor allowed the alleged victim’s family to set

Petitioner’s punishment by which Petitioner would receive on a plea

bargain;

14) The court erred in knowingly, willfully and with careless disregard

allowing the State’s witness to perjure himself; and

15) The trial court permitted testimony that the Petitioner took and

clearly stated that he failed a lie detector test to be presented as

evidence to the jury.

In an order, the trial court dismissed the petition on grounds that none of the above

issues were “grounds for habeas corpus relief.” We affirm the judgment of the trial

court.

It is a well-established principle of law that the remedy of habeas corpus is

limited in its nature and scope. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993);

Passarella v. State, 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994). Habeas corpus

relief is available only when “it appears upon the face of the judgment or the record

of the proceedings upon which the judgment is rendered” that the convicting court

was without jurisdiction or authority to sentence a defendant, or that the defendant’s

sentence had expired. Archer, 851 S.W .2d at 164. A petitioner bears the burden

of establishing that by a preponderance of the evidence the judgment he attacks is

void or that the term of imprisonment has expired. Passarella, 891 S.W.2d at 627.

Moreover, where a judgment is not void, but is merely voidable, such judgment may
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not be collaterally attacked in a suit for habeas corpus relief. Id. The Petitioner’s

pleading in the case sub judice fails to make allegations either regarding a lack of

jurisdiction by the Cocke County Criminal Court or that his sentence has expired.

As the State correctly notes within its brief to this court, this habeas corpus

petition may not be considered by this court as a post-conviction petition under

Tennessee Code Annotated section 40-30-205(c). A post-conviction petition may

not be used to relitigate issues which have previously been determined on appeal.

Tenn. Code Ann. § 40-30-206(h). Petitioner himself concedes that the majority of

his issues have previously been considered on appeal. In addition, the applicable

statute of limitations would bar consideration of the pleading as a petition for postconviction relief.

Petitioner’s convictions were affirmed on May 9, 1994, and the rehearing

denied on June 20, 1994. He was resentenced by the trial court on October 6, 1994.

There is nothing in the record to indicate that Petitioner appealed his resentencing.

This petition was filed approximately four (4) years past the Supreme Court’s

decision to affirm his conviction and reverse his death sentence and the trial court’s

resentencing of the Petitioner. The Post-Conviction Procedure Act of 1995 stated

that a petition for post-conviction relief must have been filed “within one (1) year of

the date of the final action of the highest 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, or consideration of such petition shall be barred.” Tenn. Code Ann.

§ 40-30-202(a). As Petitioner would have had three (3) years under the prior PostConviction Procedure Act during which to file his post-conviction petition (Tennessee

Code Annotated section 40-30-102 (Repealed May 10, 1995)), he had one (1) year
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from May 10, 1995, to file a claim under the new provisions of section 40-30-202.

Carter v. State, 952 S.W.2d 417, 419 (Tenn. 1997). The available time period

allowed to Petitioner to file his petition had long since expired when he filed his

petition for habeas corpus relief. 

We affirm the judgment of the trial court.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JERRY L. SMITH, Judge

___________________________________

L. T. LAFFERTY, Senior Judge