IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED
AT NASHVILLE
July 11, 1997
FEBRUARY 1997 SESSION
Cecil W. Crowson
Appellate Court Clerk
HENRY B. WAGGONER, * C.C.A. # 01C01-9604-CC-00142
*
Appellant, * HICKMAN COUNTY
VS. *
* Hon. Donald P. Harris, Judge
STATE OF TENNESSEE, *
* (Habeas Corpus)
Appellee. *
*
For Appellant: For Appellee:
Henry B. Waggoner Charles W. Burson
Pro Se Attorney General & Reporter
DeBerry Special Needs Facility
7575 Cockrill Bend Ind. Road William David Bridgers
Nashville, TN 37243 Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
(on appeal)
Robin L. Harris
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
OPINION FILED:
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The petitioner appeals the trial court's denial of his petition for writ of
habeas corpus. There was no evidentiary hearing. The single issue presented for
review is whether the dismissal was appropriate.
We affirm the judgment of the trial court.
The petitioner was convicted of second degree murder in 1976 and
sentenced to a term of one hundred ninety-nine years. This court affirmed the
conviction. Hawkins and Waggoner v. State, 555 S.W.2d 876 (Tenn. Crim. App.
1977). The petitioner filed this petition for writ of habeas corpus in December of
1995. The trial court dismissed the petition for habeas corpus relief on January 13,
1996, holding that the facts alleged in the petition, taken as true, would not entitle
the petitioner to habeas corpus relief. The state filed a motion to dismiss two weeks
after the ruling.
The petitioner first claims he "has been seriously prejudiced" because
the state's motion to dismiss had been added to the record without any opportunity
for his response. Next, the petitioner contends there were two constitutional
violations: ineffective assistance of counsel and an unconstitutional jury instruction
on "reasonable doubt." Lastly, he complains that he has no constitutional remedy
now that his post-conviction statute of limitations has expired.
Initially, the late filing of the state's response has no bearing on the
merits of the petition. Moreover, habeas corpus relief in this state 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
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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). The denial of a
constitutional right makes a judgment voidable and not void, "unless the face of the
record established that the trial court did not have jurisdiction." Passarella v. State,
891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). A post-conviction petition would
have been the only possible alternative for relief.
Finally, Tennessee Code Annotated section 29-21-109 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.
When a trial court reviews a petition for habeas corpus relief and assumes all the
facts the petitioner alleges are true, if there is still no ground for state habeas corpus
relief under the statute, it is correct for the court to dismiss the petition. See Byrd v.
Bomar, 381 S.W.2d 280, 283 (Tenn. 1964). This procedure does not violate the
petitioner's right to due process even if no state remedy is available.
Accordingly, the judgment is affirmed.
Gary R. Wade, Judge
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CONCUR:
David G. Hayes, Judge
Curwood Witt, Jr., Judge
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