IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

ERIC DEWAYNE MCLEMORE v. STATE OF TENNESSEE

Appeal from the Criminal Court for Hamilton County

No. 277570 Barry A. Steelman, Judge

No. E2010-02488-CCA-R3-HC - Filed July 21, 2011

The Petitioner, Eric Dewayne McLemore, appeals from the habeas corpus court’s order

denying his petition. The State has filed a motion requesting that this court affirm the habeas

corpus court’s order pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

Following our review, we grant the State’s motion and affirm the order of the habeas corpus

court.

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

Pursuant to Rule 20, Rules of the Court of Criminal Appeals.

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., and NORMA MCGEE OGLE, JJ., joined.

Eric Dewayne McLemore, Mountain City, Tennessee, Pro se.

Robert E. Cooper, Attorney General and Reporter, and Sophia S. Lee, Assistant Attorney

General.

MEMORANDUM OPINION

The Petitioner pled guilty to three counts of aggravated robbery, a Class B felony,

with the manner of service left to the discretion of the trial court. Following a sentencing

hearing, the Petitioner was given an effective sentence of 24 years in the Tennessee

Department of Correction. His sentences were affirmed on direct appeal by this court. State

v. Eric DeWayne McLemore, No. 03C01-9802-CR-00056, 1999 WL 301489 (Tenn. Crim.

App. May 14, 1999), perm. app. denied (Tenn. Nov. 22, 1999). The Petitioner never filed

a petition for post-conviction relief. However, the Petitioner filed a petition for a writ of

habeas corpus on November 4, 2004, in which he argued that his sentences were void
because he received consecutive and concurrentsentences. The November 2004 petition was

apparently dismissed on December 13, 2004. The Petitioner did not appeal this dismissal.

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The Petitioner filed a motion to re-open a petition for post-conviction relief on August

21, 2010. The Petitioner was incarcerated in Johnson County, but the motion was filed in the

county in which he was convicted, Hamilton County. The habeas corpus court treated the

motion as a petition for a writ of habeas corpus, reasoning that the Petitioner had never filed

a petition for post-conviction relief, that the time for filing such a petition had passed, and

that the claims of sentence illegality contained in the motion were generally appropriate for

habeas corpus review. The court then summarily dismissed the petition, determining that the

petition was filed in the wrong county and that the issues had been previously determined.

This appeal followed.

ANALYSIS

The Petitioner initially contends that the habeas corpus court “erred in misconstruing

[his] attempt to re-structure hissentence in compliance with the 1989 Sentencing Reform Act

under which he is sentenced[] as an attempt to either overcome the conviction[] or to prove

that his judgment is ‘voidable.’” The State responds that the habeas corpus court properly

treated the motion as a second petition for habeas corpus relief because the time for the filing

of a petition for post-conviction relief had passed. The State further responds that his motion

was properly dismissed because it was filed in the wrong county and because his claims had

been previously determined.

Summary dismissal was appropriate regardless of whether the court treated the motion

as a petition for post-conviction relief or as a petition for a writ of habeas corpus. We agree

with the court and the State that the time for the filing of a petition for post-conviction relief

had passed and that such a petition would have been untimely. Tennessee’s Post-Conviction

Procedure Act provides that a claim for post-conviction relief must be filed “within one (1)

year of the date of the final action of the highest state appellate court to which 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. § 40-30-102(a) (2006).

A trial court must dismiss any petition not filed within the limitations period. Tenn. Code

Ann. § 40-30-106(b). This court affirmed the Petitioner’s convictions on May 14, 1999, and

his application for permission to appeal to the supreme court was denied on November 22,

1999. Other than a habeas corpus petition that was filed and denied in 2004, the Petitioner

sought no further relief from his convictions until the instant motion was filed in 2010.

Therefore, even if the court had treated the motion as a petition for post-conviction relief, the

The Petitioner provided an incomplete copy of the habeas corpus court’s order. 

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petition was untimely and would have been summarily dismissed. Additionally, the court

could have simply denied the motion to re-open because the Petitioner had never actually

filed a petition for post-conviction relief.

Furthermore, the failure to file a petition for a writ of habeas corpus in the county of

incarceration, absent a sufficient reason for not doing so, was a proper basis for the dismissal

of the petition. Tenn. Code Ann. § 29-21-105. The petition was filed in Hamilton County,

the county of conviction, and not Johnson County, the county where the Petitioner was

incarcerated. The Petitioner did not provide any reasons as to why he filed his documents

in the convicting county as opposed to filing the documents in the county of his incarceration.

Consequently, summary dismissal was appropriate because the Petitioner failed to comply

with the statutory requirements for filing a petition for a writ of habeas corpus.

CONCLUSION

In consideration of the foregoing and the record as a whole, we grant the State’s

motion for an affirmance pursuant to Rule 20 of the Court of Criminal Appeals and affirm

the order of the habeas corpus court.

___________________________________ 

D. KELLY THOMAS, JR., JUDGE

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