# FILED
May 19, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE FEBRUARY 1997 SESSION

WILLIAM L. CHURCH, ) ) Appellant, ) No. 03C01-9604-CR-00144

) ) Hamilton County v. ) ) Honorable Douglas A. M eyer, 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 Gener al of Tennessee 701 Cherry Street, Suit e 300 450 James Robertson Parkwa y 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 Judge2 O P I N I O N
The petitioner, William L. Church, appeals as of right from the Hamilton County Criminal Cour

t’s dismissal of his petit ion for both a writ of habeas co rpus and post-conviction relief. The pe titioner conte nds the followin g:

(1) the trial court erred ( a) in holding that the post -conv i ction petition was time-barred an d (b) in raising the i ssue of the statute of limitations on its o wn; and (2) the trial court erred i n holding that it lacked habeas corpus jurisdiction because the pet itioner is imprisoned i n another state. Although we agree that the trial court had juri sdiction of the petitioner’s habeas corpus action, we affirm the dismiss al.
The petitioner attacks a 1980 pass ing a forged check conv iction and four 1981 aggra vated ass ault convi ctions, a ll entere d upon pl eas of gu ilty. Thes e same f ive convictions were contested in prior, consol idated post-conviction/ habeas corpus petitions. After an evidenti ary hearing, inclu ding personal affidavits s ubmitted by the petitioner, the petitioner w as denied any relief. The denial was affirmed on appeal. William L. Church v. State , No. 03C01-9207-CR-00 242, Hamilto n County (T enn. 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 i nfirmities in the guilty plea process that were considered and resolved in the prior post-conv

iction case. It also all eges that his counsel in that prior case was ineffective for not filing cer tain allegations and not pr esenting witnesses and documentation. Finally, the petition questions w hether the petitioner is the person who pled guilty and wa

s convicted of the offenses as show n in the guilty plea t ranscripts and documents generated during hi s first post-convicti on case.3 The trial court held that it did not have jurisdic

tion to hear the petition for writ of habeas corpus becaus e the petitioner was not i n the state of Tennessee. As for post-conviction reli ef, the trial court held that the petition was time-bar red.

I

. Post-Conviction The petitioner argues that he i s not time-barred from obtainingpostconviction 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 de fense to the petition. However, we bel ieve that the trial cour t’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 P rocedures Act, the petitioner was required to fil e a postconviction petition by

July 1, 1989. SeeT.C.A. § 40-30-102 (1990) (repealed 1995); State v. Abston , 749 S.W.2d 487 (Tenn. Crim. App. 1988). Thus, the pr esent petition was not timely filed unde r the former act.

The petitioner contends, though, that the 1995 Post-Convict ion Procedures Act that replaced the former act provided a window of opportun ity within which post-convic

tion petitioners could file a petition based upon previou sly existing grounds. H e notes that h is petition was filed d uring that

time. How

ever, our supreme court has construed the prov isions of the 1995 act as not all owing the filing of a peti tion upon grounds that were al ready time-barred w hen 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 petiti oner to file a post-convic tion 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 w

as to dismiss the action. T.C .A. § 40-30-206(b). It did. No action by the state was req uired at that time. Moreov er, nothing in the Post-C onviction Procedures Act prevents the trial court from notici ng 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 noti ce the application of the statute of l imitations under the former Post-Conviction Act w

ithout it being raised by the state). Thus, the dismiss al of the post-conviction clai ms was appropriate.
II. Habeas Corpus The petitioner contends that the tr ial court had jurisdic

tion of his habeas corpus case. He relies upon Lewis v. Metropol itan General Sessions Cour t for Nashville, et al. , 949 S.W.2d 696 (Tenn. Crim. App. 1996), in w hich this court indicated that an out-of-state prisoner may be able to prosecute a ha beas 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 rel ief.

We believe that an out-of-sta te prisoner may seek habeas corpus relief in Tennessee from a Tennessee con viction. “Any person imprisoned or restrained of his liberty, under any p retense whatsoever, ex cept [those held under federal author ity], may prosecute a writ

of habeas corpus to inquire i nto the cause of such imprisonment and restraint.” T.C.A. § 29- 21-101. The restraint need not i nvolve imprisonment. I n State ex rel. Dilleh ay v. White , 217 Tenn. 524, 527-28, 398 S.W .2d 737, 738 (1966), our supreme court allow ed a habeas corpus action to test the legality of an order5

requiring the indig ent petitioner to be placed in jail to work out the c ourt costs. Even though the petitioner was not in jail, having

made bail, the trial court concluded that she was still restri cted in her liberty pe nding 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 C ourt cases relative t

o federal habeas corpus being allowed as long as any collateral legal consequence flows from a conviction, such as, loss of citizenship, enhancement of fut ure 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 ph ysically in custody in Tennessee is irrelevant if he is othe rwise restrained of hi s liberty by v irtue of his Tennessee convictions.
Pursuant to T.C.A. § 29-21-105, a petition for ha beas 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 prisone r, this means the presumptive venue i s in the county of incarcer ation. However, for a

person in custody in another sta te who is attacking a Tennessee judgment of convicti on as being void, the most fitti ng forum would normally be the county in whic

h the conviction was received. This is what has occurred i n the present case.

We acknowledge that in Archer v. State , 851 S.W.2d 157, 165 (Tenn. 1993), our supreme court ques tioned whether an out-of-stat e prisoner has access to habeas corpus relief in Tennessee “ since the writ, if is

sued, could not be directed to a Tennessee official.” Howev er, given the fact that the gravamen of the habeas corpus complaint relates to a cri minal 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 f rom a constitutionally void condition of probation c ontained in a judgment of convi ction with the wr it issuing against the court that impos ed the judgment. See Leonard v. Criminal C ourt of Davidson County, Tenness ee, Division III , 804 S.W.2d 891 (Tenn. Crim. App. 1990). Thus, we conclude that wh en an out-of-state prisoner seek s habeas corpus relief from a Tennessee conviction as a v oid restraint on his or her liberty, a court of the county of the original convic

tion has jurisdiction t

o 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 v

oid. It alleges that he i s not the person who pled guilty and wa

s convicted as shown

in the guilty plea he

aring transcripts and records previously provided to him. In his brief on appeal, the petitioner’s position is presented as follows:

For purpose

s of a ppe llate r

eview of a dism issal o

f a petition at the pleading stage, anappellate court “must accept that alleged as true, unless clearlycontrary 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 swor n and it has never been con trove rted that he is not the individual who entered the pleas tothe charges which are the subject of the instantcase but rather his actual cases were confused wi th the instantcases resulting in a miscarriage of justice. Accordin gly, Petitioner’s convictions would be fully void for want of personal jurisdiction rather than voidable. Pursuant toTenn. Code Ann. § 29-21-101 a Writ of Habeas Corpus is the pr oper remedy for any person illegally

imprisoned or restrained of his liber

ty. I f Pet itio ner’s actual convictions were confused with another’s conv ictions and he is not the person who pled guilty to the un derlying convictions in this case, then the writ file d by hi m wa s clearly the only appropriate way for hi m to proceed a n d the Trial Court should hav e permitted same. The state’s brief does not address this argument.

We do not believe that the allegations i n the petition merit the iss uance of a writ or further heari ng, particularly when viewed in the context of his previous litigation7

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 forger y and four counts of aggravated assa ult upon his pleas of guilt. Rather, it alleges that the guilty plea hearing transcri pt reflects that the petitioner was not the person pleadin g guilty because the transcript shows the presence of an attorney who the petitione r claims only represented him at the prelimi nary hearing, not in c riminal court. How ever, the petition also alleges circumst

ances that inherently ind icate that the petitioner had c ounsel and pled guilty pursuant to a plea bargain.

Moreover, the petitioner’s sworn affidavits submitted as evidence in his former post-conviction c ases acknowledge these c onvictions upon guilt

y pleas. In one affidavit, he states in part:

3. I was s entenced for the offenses of aggravated assault on Indictment Nos. 145706, 145707, 145708, and 145709. My sentenc es we re pronounced on May 4, 1981. The terms of my sentences are confinement in the W orkhouse fornot less than two (2) years nor more than two (2) y ears to run consecutive to the sent ence for Indictment No. 142996.

. . . 5. The guilty pl eas which I entered wer e not knowing and voluntary, in that I was under extreme str ess and duress because I had undergone a lengthy and highly

publicized trial several months earlier, and because the plea agreement w as entered into due to promis es, coercion, and duress from th e prosecution and my attorney

.

. . . 8. The evidence was insufficient to support the convictions

of felonious assault since I acted in self-def ense and since hands, feet and a pool cue are not deadly weapons within the meaning of the sta tute. The other af fidavit acknowled ges his 1980 guilty ple a and sentenci ng for passing a forged check and, likewise, alleges the petiti oner’s innocence of the crime bec ause he signed his own name to the back of the check and did not intend t o commit a criminal act.8 We do not have to ignore the claims made and th e position taken by the petitioner in his former collateral attacks upon the same con victions 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 co nvictions. In the former pr oceeding, the petitioner w as 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 for ged 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 bee n previously adjudicated to belong to the pet itioner.

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 th e pleas in the cases he attacks. In this respect, it is also si gnificant that the petitioner does not allege that he now has eight aggravated assault and two passing forged check convictions upon guil

ty pleas out of Hamilton Count y on his record. In s um, the petitioner’s allegations in his petition, viewed in the context of his past litigation on these same convictions, do not l ead to the conclusion that the con victions about whic

h he complains are void. Therefor e, we conclude that from the show ing of the petitioner, he would not be entitled to r elief 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