# FILED May 19, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUARY SESS ION, 1999

JONATHA N STEPHENSON, ) C.C.A. NO. 03C01-9807- CR-00255 ) Appe llant, ) ) JOHNSON COUNTY V. ) ) HOWARD CARLTON,WARDEN, ) HON. LY NN W. BROWN,JUDGE and STATE OF TENNESSE E, ) ) Appellee. ) (HABEAS CORPUS)

FOR THE APPELLANT : FOR THE APPELLEE : JON ATHAN STEP HEN SON , pro se JOHN KNOX WALKUP Northeast Corr

ection Complex #140145 Attorney General& Reporter P.O. Box 5000 Mountain City , TN 37683 ELLEN H. POLLACK Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 JOE C. CR UM LEY, J R. Distri ct Attorney General 114 Alf Taylor

Road Johnson City, TN 37601

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Petiti oner, Jonathan S tephe nson , appe als from the dis miss al of his petiti on for habeas corpus relief. Peti tioner was t ried and c onvicted in 1990 for conspiracyto com mit first degree murder and for the fir st degree murder of

his wife. He was originally senten ced to death . Petitioner’s convictions w ere aff ir me d on appe al, but the deat h sentence was reversed and thecase was remanded to the t rial court for resen tencing. State v. Stephenson , 87 8 S.W.2 d 530(Ten n. 1 994) . On October6, 1994, Petitioner was r esentenced to l ife wit hout parole f or the fi rst degree murder convicti on and to six ty (60) y

ears for cons pi racy to com mit the murd er. While Petiti onerdid file a petiti on for post- convicti on relief , he later requested i t be dismissed. In this pe tition for h abea s corp us relie f filed in 1998, Petit ioner rai ses the following i ssues: 1) The trial court e rre d in fai ling to suppress the confession taken from Petition er in tha t it was take n involunta rily and in violatio n of both the Tennessee and United States’ constituti ons; 2) The trialcourt erre d in failing to d ismiss ind ictmen ts which were multiplici tous; 3) The trial court erred in failing to order disco ve ry of t he notes of investi gators of t he State; 4) The trialcourt err ed in orderi ng counsel for Petiti onerat tri al to give m emo s from his file ov er to the State a s Jen cks m aterial; 5) The trial cou rt erred in failin g to or der the State to discl ose whether they inte nded to try Petitioner a s a principal or acc essory; 6) The trialcourt err ed in f ailing to order a mistrial aft er improper and prejudicial op ening argum ent by the State p rosecutor; 7) The trialcourt err ed during prel iminary char ges when it referred to quotes f rom the Bible; 8) The trial court er red in calli ng jurors back in after the verdict had been re ndered for ques tioning reg arding th e verdict;-3- 9) The trialcourt err ed in fai ling to charge the j ury on a ll l es ser included offenses; 10) The tri al cou rt er red i n all owing a St ate’s wi tness to quote from and refer to the writ

ten statement

of Petit ioner’s co-def enda nt, Ralph Thom pson, without a llowing cross-exa mination by the Petitioner; 11) Petition er did n ot rece ive the e ffective a ssista nce o f coun sel; 12) The trial cou rt violate d the P etitione r’s due process ri ghts by sentencing Petiti one r in excess of the order on r

emand by the Tenn essee Supre me C ourt; 13) The prosecutor a llowed the alleged victim’s family to s et Petition er’s pun i shment by which Petitioner woul d receive on a plea bargain; 14) The court err

ed in knowingl y, wil lfully and with careless disreg ard allowing the State’ s witness to perjure hi mself; and 15) The trialco urt permit ted testi mony that the Pet itioner took and clear l y stated th at he fail ed a lie detector test to be presented as evidence to the jury. In an order, the tri al court dismisse d the petition on gro unds that no ne of the abo ve issues were “groun ds for habea s corpus relief.” We affirm the judgment of the trial court.

It is a w ell-e stablis hed p rinciple of law th at the re med y of hab eas c orpus is limitedin its nature a nd sco pe. Archer v. State , 851 S.W.2d 157, 164 (Ten n. 1993); Pass arella v. State , 891 S.W.2d 619, 626 (Tenn. Cr im. App. 1994). Habeas corpus relief is avail able only when “it appear s upon the face of

the judgment or

the record of the proceedi ngs upon which thejudgment is r endered” that

the convicting cou rt
was without j urisdic

tion or autho rity to sente nce a defen dant, o r that the defen dant’s sentence had exp ired. Archer , 851 S.W .2d at 164 . A peti tioner b ears the burden of establi shing that by a pr eponderance of t he evidence th e judgm ent he attack s is void or that

the term of

imprison ment h as expire d. Pass arella , 891 S.W.2d at 627. Moreover, where a judgmentis not vo id, but is merely voi dable, such j udgment may-4-

not be collaterally attacked in a suit for habeas c or pus relief. Id . The Petition er’s pleading in t he case su b judice fails to make allegat ions eit her regardi ng a lack of jurisdi ction by the Cocke County Criminal Court or that hi s sentence has expired.

As the State correctly no tes with in it s brief t o this cour

t, thi s habeas corpus p etiti on m ay not be consi dered by thi s court as a post-convict ion peti tion under Tennessee Code Annota te d se ction 40-30-205(c). A post-convict ion peti tion may not be used to relitigate issues which have p reviou sly bee n dete rmine d on a ppea l. Tenn. Code Ann. § 40-30-206(h) . Petit ioner himsel f concedes that the majorit

y of his issues have p reviou sly bee n con sidere d on a ppea l. In add ition, the applic able statute of

limitationswould b ar cons ideration o f the plead ing as a p etition for po stconviction relief.

Petition er’s convictions we re affi rmed on May 9, 1994, and t he rehearing denied on June 20, 1994. He wasresentenced by the tri al court on October 6, 1994. There is nothing in the reco rd to indi cate that Petiti oner appealed hi s resentenci ng. This peti t ion wa s filed a pprox imate ly four (4 ) years past th e Sup reme Cour t’s decision to affirm his conviction and reve rse his de ath sente nce a nd the trial cou rt’s resentencin g of the Petitioner. The Post-Convict ion Procedure Act of 1995 stated thata petiti on for post- convicti on relief must have been fi led “wit hin one (1) year of the date of the final action o f the highe st appe llate court to which an appealis taken,
or if no appeal is taken withi n one (1) year of the dateon which the j udgmen t beca me final, or consider ation of s uch petit ion shallbe barred.” Tenn. Code Ann. § 40-30-202(a).As Petiti oner would have had t hree (3) years under t he prior Pos tConvicti on Proce dure Act d uri ng whi ch tofil e his post -con vic

tio n pet iti on (Te nnesse e Code Annotated section 40- 30-102 (Repealed May 10, 1995)), he had one(1) year-5-

from May 10 , 1 995, to file a claim under t he new provisi ons of secti on 40-30-202. Carter v. State , 952 S .W .2d 41 7, 419 (Ten n. 199 7). Th e availa b le time peri od allowed to Petitio ner to file his pe titio n had long si nce e xpired when he filed his petition for h abeas corpus relief.

We affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JERRY L. SMITH, Judge

___________________________________ L. T. LAFFERTY, Senior Judge