IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST 1996 SESSION
JEROME SYDNEY BARRETT, * C.C.A. # 02C01-9508-CC-00233
*
Appellant, * LAKE COUNTY
VS. *
* Hon. Joe G. Riley, Jr., Judge
STATE OF TENNESSEE,
Appellee.
*
*
*
(Habeas Corpus) FILED
* March 26, 2008
Cecil Crowson, Jr.
Appellate Court Clerk
For Appellant: For Appellee:
Jerome Sydney Barrett Charles W. Burson
Pro Se Attorney General & Reporter
Lake County Regional Correctional
Facility Ellen H. Pollack
Rt. 1, Box 330 Assistant Attorney General
Tiptonville, TN 38079 Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
C. Phillip Bivens
District Attorney General
P.O. Drawer E
Dyersburg, TN 38024
OPINION FILED:
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The petitioner appeals the trial court's denial of his petition for a writ of
habeas corpus. There was no evidentiary hearing. While the petitioner submits an
extensive brief outlining a number of issues, we have summarized his claims as
follows:
(1) whether the trial court erred when it determined
that sentence reform legislation adopted in 1979 and
1989 did not apply to petitioner's sentence;
(2) whether the subsequent sentence reform acts
deny petitioner equal protection under the law and due
process of the law;
(3) whether the petitioner's sentence is cruel and
unusual punishment;
(4) whether the trial court erred by not appointing
counsel to represent the petitioner during this habeas
corpus proceeding;
(5) whether the trial court erred by not allowing the
petitioner an evidentiary hearing on this petition; and
(6) whether the trial court erred by determining that it
did not have jurisdiction to alter the petitioner's sentence
in a habeas corpus proceeding.
We affirm the judgment of the trial court.
The record does not include the original judgment. The pleadings
indicate the petitioner was convicted of rape in 1976 and sentenced to a term of
sixty years. In 1979 and then again in 1989, our state legislature changed the
statute which governed the sentence for the offense. The petitioner filed this
petition for writ of habeas corpus in June of 1995. The trial court denied the petition
without an evidentiary hearing, holding that it had no jurisdiction to modify the
sentence and ruling that the petitioner was not entitled to habeas corpus relief.
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Initially, we must point out that habeas corpus is limited in scope. The
writ of habeas corpus, codified at Tenn. Code Ann. §§ 29-21-101 to -130, will issue
only in the case of a void judgment or to free a prisoner held in custody after his
term of imprisonment has expired. State ex rel. Hall v. Meadows, 389 S.W.2d 256,
259 (Tenn. 1965). Unlike the post-conviction petition, the purpose of a habeas
corpus petition is to contest void, and not merely voidable, judgments. See State
ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968). "A petitioner
cannot collaterally attack a facially valid conviction in a habeas corpus proceeding."
Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). Habeas corpus actions may,
however, be brought to contest an illegal confinement at any time while the
petitioner is incarcerated. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).
I
The petitioner asserts that he is being held beyond the expiration date
of his sentence. He argues that the 1989 Criminal Sentencing Reform Act repealed
the law applicable at the time of his sentence and thus, mandates a resentencing
within the 1989 guidelines. He asserts that under the new guidelines he would be
entitled to immediate release.
We cannot agree. The language of Tenn. Code Ann. § 40-35-117(c)
is clear: "For all persons who committed crimes prior to July 1, 1982, prior law shall
apply and remain in full force and effect in every respect, including, but not limited
to, sentencing, parole and probation." In State ex rel. Stewart v. McWherter, 857
S.W.2d 875 (Tenn. Crim. App. 1992), this court held that the "1989 Sentencing Act
provides that it applies only to those offenders who are sentenced after its effective
date" on November 1, 1989. Id. at 876. While the 1989 Act benefitted some
offenders who committed their crimes between 1982 and 1989 and were sentenced
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after its effective date, it does not apply to the petitioner. See Tenn. Code Ann. §
40-35-117(b). The Criminal Sentencing Reform Act of 1989, by its express
language, did "not affect rights and duties that matured, penalties that were
incurred, or proceedings that were begun before its effective date." 1989 Tenn.
Pub. Acts ch. 591, § 115. Those persons who had been convicted of crimes prior to
July 1, 1982, such as the petitioner, remained under the "prior law ... in every
respect, including, but not limited to, sentencing, parole and probation." Tenn. Code
Ann. § 40-35-117(c).
In the alternative, the petitioner argues that Tenn. Code Ann. § 39-
114 (1975), which has been repealed and replaced by § 39-1-105 (1982) and later
§ 39-11-112 (1989), would require the state to reduce his sentence. The petitioner
claims that § 39-114 must be applied because it was the statute in force both at the
time of the offense and his sentence:
39-114. Repealed or amended laws--Application in
prosecution for offense--Whenever any penal statute
or penal legislative act of the state is repealed or
amended by a subsequent legislative act, any offense,
as defined by such statute or act being repealed or
amended, committed while such statute or act was in full
force and effect shall be prosecuted under such act or
statute in effect at the time of the commission of the
offense. In the event the subsequent act provides for a
lesser penalty, any punishment imposed shall be in
accordance with the subsequent act.
(emphasis added). The petitioner claims the definition of "prosecution" includes the
total period during which he is serving his sentence under the prior law; he asserts
that any favorable changes in the sentencing statute must be applied to his
sentence.
We cannot agree. The term "prosecution" does not include the
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enforcement of the sentence. Section 39-114, Tenn. Code Ann., applies only in
cases where the accused is to be tried under the substantive law in effect at the
time of the offense and a new statute, calling for a lesser punishment, is enacted
before the imposition of the sentence. Here the petitioner was sentenced some
three years before the first change in the rape statute in 1979 and thirteen years
before the second in 1989.
II and III
The petitioner claims that his lengthier sentence denies equal
protection under the law and due process of the law. Article 11, section 8 of the
Tennessee Constitution prohibits legislation providing favorable treatment to any
individual or class of individuals. The Fourteenth Amendment to the United States
Constitution is closely akin to our state's constitutional provision. See Marion
County, Tenn., River Transp. Co. v. Stokes, 117 S.W.2d 740 (Tenn. 1938). All
persons similarly situated must be treated alike. The legislature may, however, treat
a class of persons differently so long as the classification has a reasonable
relationship to a legitimate state interest.
In State ex rel. Bobby L. Crum v. Ned McWherter, et al., our court applied this
"rational basis" test in similar circumstances:
[T]here is a legitimate state interest at stake in not
allowing the reopening of a virtual [P]andora's box of all
cases involving sentences imposed before November 1,
1989, but which are presently being served by
confinement, parole or probation.
Society has a strong interest in preserving the
finality of criminal litigation resulting in a conviction and
sentence which were valid at the time of their imposition.
The wholesale unsettling of final judgments of conviction
and sentence which would occur if the 1989 Act were
applicable as the petitioner claims is a price the
legislature was justified in not paying when it provided
that the Act would not apply to previously sentenced
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offenders.
No. 02C01-9108-CC-0018 slip op. at 4 (Tenn. Crim. App., at Jackson, May 13,
1992).
While we do not find any reason to apply a more stringent
constitutional standard, this particular statute would also pass constitutional muster
under a strict scrutiny test. Applying a strict scrutiny test would not automatically
invalidate the legislation. If a compelling state interest can be shown, legislation can
survive a strict scrutiny test even though a fundamental right is involved or a
"suspect class" and other persons are not treated equally. Doe v. Norris, 751
S.W.2d 834, 841 (Tenn. 1988).
Although there were other reasons, the 1989 Act was primarily
developed to relieve prison overcrowding. By applying the reforms to current and
future cases, the legislature was able to reduce, or at least better control, prison
populations. See State ex rel. Stewart, 857 S.W.2d at 877. The avoidance of the
time and expense associated with any resentencing procedure for previously
convicted and sentenced prison inmates is, standing alone, a compelling reason to
justify different treatment. Thus, we find neither equal protection nor class legislation
violations under even the most stringent test possible.
In a related argument, the petitioner asserts that the passage of the
1989 Act impliedly declared the prior sentencing range, eight years to life, to be
cruel, unusual, and disparate. We disagree. The Eighth Amendment prohibits
sentences disproportionately severe when compared to the crime committed. Just
because a penalty is reduced by new legislation does not mean, however, that the
sentence under the prior law was disproportionate.
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The petitioner has not cited any authority to support his claim that his
sixty-year sentence is disproportionate for the offense of rape. In State v. Gann,
733 S.W.2d 113 (Tenn. Crim. App. 1987), this court held a sentence of ninety-nine
years for aggravated rape was not cruel and unusual punishment. The legislature
may limit a new sentencing enactment to prospective application without
determining that the old sentencing structure was a violation of the Eighth
Amendment. That is the very case here. We do not find the prior sentence
constitutionally infirm.
IV and V
The petitioner also claims that the trial court erred when it declined to
appoint counsel to represent the petitioner for this proceeding and failed to afford an
evidentiary hearing.
This court has previously held as follows:
[There is no requirement] that counsel should be
appointed in all cases requesting the writ of habeas
corpus before dismissal of incompetent petitions. While
it is true that Tennessee Code Annotated Section 40-14-
204 allows the appointment of counsel "if necessary" in
habeas corpus proceedings, there is no constitutional
right to counsel in a habeas corpus proceeding.
Elmer Lester Fritts v. State, No. 02C01-9210-CC-00243 slip op. at 3 (Tenn. Crim.
App., at Jackson, Sept 22, 1993)(citations omitted). "It is elementary that a habeas
corpus petition may be dismissed without a hearing, and without the appointment of
counsel for a hearing, unless it alleges facts showing the denial of state or federal
constitutional rights or some fatal jurisdictional fault." State ex rel. Edmondson v.
Henderson, 421 S.W.2d 635, 636-37 (Tenn. 1967). See also State ex rel. Wood v.
Johnson, 393 S.W.2d 135 (Tenn. 1965); State ex rel. Hall v. Meadows, 389 S.W.2d
256 (Tenn. 1965); Bland v. State, 451 S.W.2d 699 (Tenn. Crim. App. 1969); State
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ex rel. Goss v. Heer, 413 S.W.2d 688 (Tenn. 1967); Horace Jones v. Raney, No.
02C01-9402-CC-00021 (Tenn. Crim. App., at Jackson, June 21, 1995).
First, the petitioner has no absolute right to counsel. Nothing in this
record demonstrates that one was "necessary" with the meaning of the statute.
Secondly, there is no mandatory right to a hearing and the trial court is not required
to hear proof unless the petitioner raises a colorable claim in his petition. See State
ex rel. Byrd v. Bomar, 381 S.W.2d 280 (Tenn. 1964). Section 29-21-109, Tenn.
Code Ann., provides as follows:
If, from the showing of the petitioner, the plaintiff would
not be entitled to any relief, the writ may be refused, the
reasons for such refusal being briefly endorsed upon the
petition, or appended thereto.
The trial court followed the statutory procedure. None of the
petitioner's claims, even if factually accurate, would have established that the
conviction was void or his sentence had expired.
VI
In the alternative, the petitioner seeks some form of equitable relief by
having the trial court modify or correct his sentence. He argues he is entitled to this
relief because of the constitutional deprivations, namely class legislation and denial
of equal protection of the laws. See 42 U.S.C. § 1983. The trial court held that it
had no jurisdiction to modify the sentence. We must agree with the trial court; the
petitioner is simply not entitled to relief no matter what the procedure. The only
relief available under the state writ of habeas corpus is release from custody. Tenn.
Code Ann. § 29-21-122(a). "No statutory provision is made for passing on the
validity of the judgment other than to release or detain. Ussery v. Avery, 432
S.W.2d 656, 658 (Tenn. 1968). Accordingly, the trial court could not resentence the
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defendant. Neither declaratory judgment nor other equitable remedies may be used
to challenge the fact or duration of imprisonment.
In this state, one who is restrained of his liberty may inquire into the
cause of his imprisonment through the remedy of habeas corpus. Tenn. Code Ann.
§ 29-21-101. If his conviction or sentence is void or voidable because of an
abridgment of any right guarded by the Tennessee Constitution or the United States
Constitution he may seek relief under the Post-Conviction Procedure Act. Tenn.
Code Ann. § 40-30-202. Except in limited circumstances under the Uniform
Administrative Procedure Act and writ of certiorari, these two remedies are the
exclusive means by which a prisoner may obtain relief from confinement.
In the federal courts, the remedies of declaratory judgment, injunctive
relief, civil rights remedies, and mandamus cannot be used by a prisoner to
challenge the length of his sentence. See Preiser v. Rodriguez, 411 U.S. 475
(1973). Habeas corpus is the only federal remedy:
The broad language of § 1983 . . . is not
conclusive of the issue before us. The statute is a
general one, and, despite the literal applicability of its
terms, the question remains whether the specific federal
habeas corpus statute, explicitly and historically designed
to provide the means for a state prisoner to attack the
validity of his confinement, must be understood to be the
exclusive remedy available in a situation ... where it so
clearly applies.
Id. at 489.
Similarly, state courts should limit the procedural avenues available to
challenge confinement to those specifically designed to do so. See Williams v.
Davis, 386 So.2d 415, 417 (Ala. 1980). In our view, habeas corpus and petitions
filed pursuant to the Post-Conviction Procedure Act have such a design. As such,
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they are the exclusive state remedies for relief.
Accordingly, the judgment is affirmed.
Gary R. Wade, Judge
CONCUR:
William M. Barker, Judge
Jerry L. Smith, Judge
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