12/13/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 10, 2021
GAI D. KUOT v. STATE OF TENNESSEE
Appeal from the Circuit Court for Wayne County
No. 16919 Christopher V. Sockwell, Chancellor
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No. M2021-00197-CCA-R3-HC
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Gai D. Kuot, Petitioner, filed a petition for writ of habeas corpus (the “petition”) claiming
that his convictions are void because the indictment was defective, the capias was unsigned,
and the trial court did not have subject matter jurisdiction. The trial court summarily
dismissed the petition. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and J. ROSS DYER, JJ., joined.
Gai D. Kuot, Clifton, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Brent A. Cooper, District Attorney General, for the appellee, State of
Tennessee.
OPINION
Procedural Background
In 2012, a Davidson County jury convicted Petitioner of premeditated first degree
murder, first degree felony murder, and especially aggravated robbery. The trial court
sentenced Petitioner to an effective term of life imprisonment. This court affirmed the
judgments of the trial court. State v. Gai D. Kuot, No. M2012-01884-CCA-R3-CD, 2013
WL 4539020 at *1 (Tenn. Crim. App. Aug. 26, 2013), perm. app. denied (Tenn. Dec. 11,
2013.)
On November 6, 2020, Petitioner filed a petition for writ of habeas corpus claiming
that he was being illegally and unlawfully imprisoned and restrained of his liberty as a
result of the convictions in this case. The trial court found that Petitioner had failed to
show that his sentence had expired and entered an order dismissing the petition. Petitioner
timely appealed.
Analysis
On appeal, Petitioner alleges that his convictions are void because his indictment:
(1) was undated, (2) did not include a case number, (3) did not show a foreperson’s
signature, (4) did not reflect a “True Bill,” and (5) was not signed by the District Attorney.
Petitioner also claims on appeal that his convictions are void because the capias was
unsigned and because the trial court did not have subject matter jurisdiction at trial.
Habeas Corpus Relief
Habeas corpus relief may only be granted in limited circumstances. Edwards v.
State, 269 S.W.3d 915, 920 (Tenn. 2008). Unlike petitions for post-conviction relief, “the
purpose of the habeas corpus petition is to contest void and not merely voidable
judgments.” Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel. Newsome
v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968)).
Habeas corpus relief is available in Tennessee only when “it appears upon
the face of the judgment or the record of the proceedings upon which the
judgment is rendered” that a convicting court was without jurisdiction or
authority to sentence a defendant, or that a defendant’s sentence of
imprisonment or other restraint has expired.
Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (quoting State v. Galloway, 45 Tenn.
(5 Cold.) 326, 336-37 (1868)). A petitioner bears the burden of establishing by a
preponderance of the evidence that a judgment is void or that the confinement is illegal.
Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). A habeas corpus petition may be
summarily dismissed without a hearing when the petition “fails to demonstrate that the
judgment is void.” Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004) (citing Tenn. Code
Ann. § 29-21-109). “Whether habeas corpus relief should be granted is a question of
law[,]” which we review de novo. Edwards, 269 S.W.3d at 919.
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Alleged Defects in the Indictment
Petitioner attached to the petition a copy of an indictment mailed to him by the
Custodian of the Records of the Office of District Attorney in response to his “Request for
Records.” Petitioner is correct that the copy of the indictment mailed to him in response
to the “Request for Records” was defective because it was undated, did not include a case
number, did not show a foreperson’s signature, did not reflect a “True Bill,” and was not
signed by the District Attorney. Petitioner’s claim that the indictment was void based on
these defects is without merit for a number of reasons.
First, the original indictment was not defective. This court “may take judicial notice
of the record of [Petitioner’s] direct appeal to this Court.” Helton v. State, 530 S.W.2d
781, 783 (Tenn. Crim. App. 1975). The technical record in Petitioner’s direct appeal
includes the original indictment that was filed in the Criminal Court of Davidson County
on June 11, 2010. See the technical record, Volume I, pages 1-5, Gai D. Kuot, 2013 WL
4539020 at *1. The filed indictment was witnessed by the prosecutor before the Davidson
County Grand Jury, was signed by the foreperson of the Grand Jury on June 11, 2010,
shows the case number “2010-B-1529,” has a check mark in the box for “A True Bill,” and
was signed by the District Attorney General for the Twentieth Judicial District.
Second, even if the alleged defects in the indictment had been true, they would not
render the judgment void because they would not show that the trial court was without
jurisdiction or authority to sentence Petitioner or that Petitioner’s sentence of imprisonment
or other restraint had expired.
Third, even if the alleged defects in the indictment had been true, by failing to object
pretrial, Petitioner waived any objection to the indictment’s being undated, not including a
case number, not showing a foreperson’s signature, not reflecting a “True Bill,” and not
being signed by the District Attorney. See Tenn. R. Crim. P. 12(b)(2), (f) .
Alleged Defects in the Capias
Petitioner attached a copy of a capias also mailed to him by the Custodian of the
Records of the Office of District Attorney in response to a “Request for Records.” That
copy of the capias was unsigned. Although the record from Petitioner’s direct appeal does
not contain a capias, it does contain a “Memorandum of Law in Support of Motion to
Dismiss” filed by Petitioner on December 8, 2011, stating that Petitioner “was indicted on
June 11, 2010,” “was arrested on June 14, 2010,” and “has been continuously incarcerated
since the date of his arrest.” A clerk shall issue a capias or a criminal summons after a
grand jury returns an indictment for a defendant “(1) who is not in actual custody; (2) who
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has not been released on recognizance or bail; or (3) whose bail has been declared forfeit.”
Tenn. R. Crim. P. 9(a). A capias is an “intermediate process having the sole purpose of
securing the presence of the defendant.” Moore v. State, 578 S.W.2d 78, 81 (Tenn. 1979).
Even if Petitioner’s claim that the capias was void were true and his arrest were
illegal, that would not entitle him to habeas corpus relief. See Russell Leaks v. Bruce
Westbrooks, Warden, No. M2014-02324-CCA-R3-HC, 2015 WL 8481926, at *2 (Tenn.
Crim. App. Dec. 10, 2015). “It has long been established in this jurisdiction that there is
no constitutional immunity from an unlawful arrest.” State v. Dulsworth, 781 S.W.2d 277,
282 (Tenn. Crim. App. 1989). “The fact that an accused has been unlawfully arrested only
becomes relevant when evidence tainted by the arrest is sought to be introduced by the
State.” Id. at 282-83. “When no evidence emanates from an illegal arrest, the arrest is
essentially inconsequential in the criminal justice arena.” State v. Lindsey A. Ochab, No.
M2015-02290-CCA-R3-CD, 2016 WL 6247429, at *4 (Tenn. Crim. App. Oct. 26, 2016).
Jurisdiction
Petitioner also claims on appeal that his convictions are void because the trial court
did not have subject matter jurisdiction. Generally, defenses and objections based on a
defective indictment must be raised prior to trial or they are waived. Tenn. R. Crim. P.
12(b)(2), (f). However, a court may hear a claim that the indictment fails to show
jurisdiction in the court “at any stage of the proceedings, including in a habeas corpus
petition.” Wyatt, 24 S.W.3d at323.
The indictment in Count 1 of this case alleged that Petitioner “on or about the 21st
day of April, 2010, in Davidson County, Tennessee, and before the finding of the
indictment, unlawfully, intentionally, and with premeditation did kill Malith Dut Ador
Wiek, in violation of Tennessee Code Annotated §39-13-202.” The indictment in Count 2
alleges that Petitioner “on or about the 21st day of April, 2010, in Davidson County,
Tennessee, and before the finding of the indictment, did kill Malith Dut Ador Wiek, during
the perpetration of or attempt to perpetrate a theft in violation of Tennessee Code
Annotated §39-13-202.” The indictment in Count 3 alleges that Petitioner “on or about the
21st day of April, 2010, in Davidson County, Tennessee, and before the finding of the
indictment, intentionally or knowingly did take from the person of Malith Dut Ador Wiek
certain property; to wit: an automobile or other personal property, by violence or putting
Malith Dut Ador Wiek in fear, the robbery accomplished with a deadly weapon and Malith
Dut Ador Wiek, suffered serious bodily injury, in violation of Tennessee Code Annotated
§39-13-403.”
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‘“Lack of jurisdiction’ refers to subject matter jurisdiction[,]” i.e., “a court’s
authority to adjudicate a dispute brought before it.” State v. Nixon, 977 S.W.2d 119, 120
(Tenn. Crim. App. 1997); Freeman v. CSX Transp., Inc., 359 S.W.3d 171, 176 (Tenn. Ct.
App. 2010). “Subject matter jurisdiction involves the nature of the cause of action and the
relief sought and can only be conferred on a court by legislative or constitutional act.” State
v. Yoreck, 133 S.W.3d 606, 612 (Tenn. 2004). “The circuit and criminal courts have
original jurisdiction of all criminal matters not exclusively conferred by law on some other
tribunal.” Tenn. Code Ann. § 40-1-108 (2011). Petitioner’s case was tried before the
Davidson County Criminal Court, which had subject matter jurisdiction over crimes
occurring within Davidson County.
Conclusion
Petitioner failed to state a cognizable claim for habeas corpus relief, and we affirm
the summary dismissal of the petition.
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ROBERT L. HOLLOWAY, JR., JUDGE
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