FILED

May 19, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE 

 FEBRUARY 1997 SESSION

WILLIAM L. CHURCH, )

)

Appellant, ) No. 03C01-9604-CR-00144

 )

) Hamilton County

v. ) 

) Honorable Douglas A. Meyer, Judge 

)

STATE OF TENNESSEE, ) (Post-Conviction)

) 

Appellee. )

For the Appellant: For the Appellee:

Ardena J. Garth Charles W. Burson

District Public Defender Attorney General of Tennessee

 and and

Donna Robinson Miller Elizabeth T. Ryan

Assistant Public Defender Assistant Attorney General of Tennessee 

701 Cherry Street, Suite 300 450 James Robertson Parkway

Chattanooga, TN 37402 Nashville, TN 37243-0493

William H. Cox

District Attorney General

600 Market Street, Suite 310

Chattanooga, TN 37492

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton

Judge
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O P I N I O N

The petitioner, William L. Church, appeals as of right from the Hamilton

County Criminal Court’s dismissal of his petition for both a writ of habeas corpus and

post-conviction relief. The petitioner contends the following:

(1) the trial court erred (a) in holding that the post-conviction

petition was time-barred and (b) in raising the issue of the

statute of limitations on its own; and

(2) the trial court erred in holding that it lacked habeas corpus

jurisdiction because the petitioner is imprisoned in another

state.

Although we agree that the trial court had jurisdiction of the petitioner’s habeas corpus

action, we affirm the dismissal. 

The petitioner attacks a 1980 passing a forged check conviction and four

1981 aggravated assault convictions, all entered upon pleas of guilty. These same five

convictions were contested in prior, consolidated post-conviction/habeas corpus

petitions. After an evidentiary hearing, including personal affidavits submitted by the

petitioner, the petitioner was denied any relief. The denial was affirmed on appeal. 

William L. Church v. State, No. 03C01-9207-CR-00242, Hamilton County (Tenn. Crim.

App. July 15, 1993), app. denied (Tenn. Oct. 4, 1993).

In the present case, the pro se petition filed September 18, 1995, again

alleges various infirmities in the guilty plea process that were considered and resolved

in the prior post-conviction case. It also alleges that his counsel in that prior case was

ineffective for not filing certain allegations and not presenting witnesses and

documentation. Finally, the petition questions whether the petitioner is the person who

pled guilty and was convicted of the offenses as shown in the guilty plea transcripts and

documents generated during his first post-conviction case. 
3

The trial court held that it did not have jurisdiction to hear the petition for

writ of habeas corpus because the petitioner was not in the state of Tennessee. As for

post-conviction relief, the trial court held that the petition was time-barred.

I. Post-Conviction

The petitioner argues that he is not time-barred from obtaining postconviction relief and that the trial court could not dismiss his petition as time-barred

when the state had not raised the statute of limitations in defense to the petition. 

However, we believe that the trial court’s actions are justified under the 1995 PostConviction Procedures Act. 

The petitioner’s convictions occurred in 1980 and 1981. Pursuant to the

former Post-Conviction Procedures Act, the petitioner was required to file a postconviction petition by July 1, 1989. See T.C.A. § 40-30-102 (1990) (repealed 1995);

State v. Abston, 749 S.W.2d 487 (Tenn. Crim. App. 1988). Thus, the present petition

was not timely filed under the former act. 

The petitioner contends, though, that the 1995 Post-Conviction

Procedures Act that replaced the former act provided a window of opportunity within

which post-conviction petitioners could file a petition based upon previously existing

grounds. He notes that his petition was filed during that time. However, our supreme

court has construed the provisions of the 1995 act as not allowing the filing of a petition

upon grounds that were already time-barred when the 1995 act became effective. See

Carter v. State, 952 S.W.2d 417, 420 (Tenn. 1997). Thus, the 1995 act did not provide

an opportunity for the petitioner to file a post-conviction petition regarding his 1981

convictions. 
4

As for the trial court’s dismissing the petition as time-barred without the

issue being raised by the state, we view the 1995 act to call for such a procedure. 

Pursuant to T.C.A. § 40-30-206, the trial court was required to conduct a preliminary

review of the petition. If it appeared from the face of the petition that it was not timely

filed, the trial court was to dismiss the action. T.C.A. § 40-30-206(b). It did. No action

by the state was required at that time. Moreover, nothing in the Post-Conviction

Procedures Act prevents the trial court from noticing such a bar to a petition upon its

own motion. Compare Handley v. State, 889 S.W.2d 223, 224 (Tenn. Crim. App. 1994)

(trial court could notice the application of the statute of limitations under the former

Post-Conviction Act without it being raised by the state). Thus, the dismissal of the

post-conviction claims was appropriate. 

II. Habeas Corpus

The petitioner contends that the trial court had jurisdiction of his habeas

corpus case. He relies upon Lewis v. Metropolitan General Sessions Court for

Nashville, et al., 949 S.W.2d 696 (Tenn. Crim. App. 1996), in which this court indicated

that an out-of-state prisoner may be able to prosecute a habeas corpus case in

Tennessee regarding a void conviction. The state acknowledges that under Lewis, the

trial court “might” have had jurisdiction, but it argues that the petition did not state

grounds for habeas corpus relief. 

We believe that an out-of-state prisoner may seek habeas corpus relief in

Tennessee from a Tennessee conviction. “Any person imprisoned or restrained of his

liberty, under any pretense whatsoever, except [those held under federal authority],

may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment

and restraint.” T.C.A. § 29-21-101. The restraint need not involve imprisonment. In

State ex rel. Dillehay v. White, 217 Tenn. 524, 527-28, 398 S.W.2d 737, 738 (1966),

our supreme court allowed a habeas corpus action to test the legality of an order
5

requiring the indigent petitioner to be placed in jail to work out the court costs. Even

though the petitioner was not in jail, having made bail, the trial court concluded that she

was still restricted in her liberty pending the appeal. In State v. McCraw, 551 S.W.2d

692, 694 (Tenn. 1997), a post-conviction case, our supreme court considered the loss

of the right to vote because of a felony conviction to be a “restraint on liberty.” It also

quoted from United States Supreme Court cases relative to federal habeas corpus

being allowed as long as any collateral legal consequence flows from a conviction, such

as, loss of citizenship, enhancement of future criminal punishment, and evidentiary

impeachment of character. Id.; see Carafas v. LaVallee, 391 U.S. 234, 237, 88 S. Ct.

1556, 1559 (1968) and Sibron v. New York, 392 U.S. 40, 57, 88 S. Ct. 1889, 1900

(1965). Thus, the fact that the petitioner is not physically in custody in Tennessee is

irrelevant if he is otherwise restrained of his liberty by virtue of his Tennessee

convictions. 

Pursuant to T.C.A. § 29-21-105, a petition for habeas corpus relief must

be filed in the court “most convenient in point of distance to the applicant” unless

sufficient reason is given for applying to another court. For a Tennessee prisoner, this

means the presumptive venue is in the county of incarceration. However, for a person

in custody in another state who is attacking a Tennessee judgment of conviction as

being void, the most fitting forum would normally be the county in which the conviction

was received. This is what has occurred in the present case. 

We acknowledge that in Archer v. State, 851 S.W.2d 157, 165 (Tenn.

1993), our supreme court questioned whether an out-of-state prisoner has access to

habeas corpus relief in Tennessee “since the writ, if issued, could not be directed to a

Tennessee official.” However, given the fact that the gravamen of the habeas corpus

complaint relates to a criminal conviction being void, then the Tennessee official

responsible for imposition of the judgment of conviction may be an appropriate party. 
6

For instance, this court ordered the grant of habeas corpus relief from a constitutionally

void condition of probation contained in a judgment of conviction with the writ issuing

against the court that imposed the judgment. See Leonard v. Criminal Court of

Davidson County, Tennessee, Division III, 804 S.W.2d 891 (Tenn. Crim. App. 1990). 

Thus, we conclude that when an out-of-state prisoner seeks habeas corpus relief from

a Tennessee conviction as a void restraint on his or her liberty, a court of the county of

the original conviction has jurisdiction to rule upon the prisoner’s petition. 

As previously noted, though, the state contends that the petitioner does

not allege that his convictions are void. The petitioner’s pro se petition does not

expressly state that the convictions are void. It alleges that he is not the person who

pled guilty and was convicted as shown in the guilty plea hearing transcripts and

records previously provided to him. In his brief on appeal, the petitioner’s position is 

presented as follows:

For purposes of appellate review of a dismissal of a

petition at the pleading stage, an appellate court “must accept

that alleged as true, unless clearly contrary to what has already

been adjudicated.” Swanson v. State, 749 S.W.2d 731, 735

(Tenn. 1988), quoting Skinner v. State, 472 S.W.2d 903, 904

(Tenn. Crim. App. 1971). Petitioner has sworn and it has

never been controverted that he is not the individual who

entered the pleas to the charges which are the subject of the

instant case but rather his actual cases were confused with the

instant cases resulting in a miscarriage of justice. Accordingly,

Petitioner’s convictions would be fully void for want of personal

jurisdiction rather than voidable. Pursuant to Tenn. Code Ann.

§ 29-21-101 a Writ of Habeas Corpus is the proper remedy for

any person illegally imprisoned or restrained of his liberty. If

Petitioner’s actual convictions were confused with another’s

convictions and he is not the person who pled guilty to the

underlying convictions in this case, then the writ filed by him

was clearly the only appropriate way for him to proceed and

the Trial Court should have permitted same. 

The state’s brief does not address this argument. 

We do not believe that the allegations in the petition merit the issuance of

a writ or further hearing, particularly when viewed in the context of his previous litigation
7

on these convictions. We start by noting that the petition does not allege that the

petitioner was not, in fact and law, convicted in Hamilton County of forgery and four

counts of aggravated assault upon his pleas of guilt. Rather, it alleges that the guilty

plea hearing transcript reflects that the petitioner was not the person pleading guilty

because the transcript shows the presence of an attorney who the petitioner claims only

represented him at the preliminary hearing, not in criminal court. However, the petition

also alleges circumstances that inherently indicate that the petitioner had counsel and

pled guilty pursuant to a plea bargain. 

Moreover, the petitioner’s sworn affidavits submitted as evidence in his

former post-conviction cases acknowledge these convictions upon guilty pleas. In one

affidavit, he states in part:

3. I was sentenced for the offenses of aggravated

assault on Indictment Nos. 145706, 145707, 145708, and

145709. My sentences were pronounced on May 4, 1981.

The terms of my sentences are confinement in the Workhouse

for not less than two (2) years nor more than two (2) years to

run consecutive to the sentence for Indictment No. 142996. 

. . .

5. The guilty pleas which I entered were not knowing

and voluntary, in that I was under extreme stress and duress

because I had undergone a lengthy and highly publicized trial

several months earlier, and because the plea agreement was

entered into due to promises, coercion, and duress from the

prosecution and my attorney. 

. . .

8. The evidence was insufficient to support the

convictions of felonious assault since I acted in self-defense

and since hands, feet and a pool cue are not deadly weapons

within the meaning of the statute. 

The other affidavit acknowledges his 1980 guilty plea and sentencing for passing a

forged check and, likewise, alleges the petitioner’s innocence of the crime because he

signed his own name to the back of the check and did not intend to commit a criminal

act. 
8

We do not have to ignore the claims made and the position taken by the

petitioner in his former collateral attacks upon the same convictions at issue in this

case. In fact, we may take judicial notice of the court records and actions thereon in the

earlier attack upon these convictions. In the former proceeding, the petitioner was

found to have entered knowing and voluntary guilty pleas to four aggravated assault

charges on May 7, 1981, and to a charge of passing a forged check on November 18,

1980. The indictment numbers relative to those convictions are the same ones that are

contained in the present case. Thus, the convictions in question have been previously

adjudicated to belong to the petitioner. 

Thus, contrary to the petitioner’s brief, the petitioner himself, by sworn

affidavit, has controverted any claim that he is not the person who entered the pleas in

the cases he attacks. In this respect, it is also significant that the petitioner does not

allege that he now has eight aggravated assault and two passing forged check

convictions upon guilty pleas out of Hamilton County on his record. In sum, the

petitioner’s allegations in his petition, viewed in the context of his past litigation on these

same convictions, do not lead to the conclusion that the convictions about which he

complains are void. Therefore, we conclude that from the showing of the petitioner, he

would not be entitled to relief and a writ was properly refused without a hearing. See

T.C.A. § 29-21-109; Russell v. State ex rel. Willis, 222 Tenn. 491, 437 S.W.2d 529

(1969).
9

In consideration of the foregoing, the judgment of the trial court is

affirmed.

_____________________________

Joseph M. Tipton, Judge 

CONCUR:

_________________________

Jerry L. Smith, Judge 

_________________________

Thomas T. Woodall, Judge