Jefferies v. Bowlin & State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED FEBRUARY 1998 SESSION August 14, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

HILTON G. JEFFERIES, ) ) No. 03C01-9708-CC-00345 Appe llant, ) ) Bledso e Cou nty vs. ) ) Honorable Thomas W. Graham ) Judge JAMES A. BOWLEN, WARDEN ) AND STATE OF TENNESSEE, ) (Habeas Corpus) ) Appellee. )

FOR THE APPELLANT: FOR THE APPELLEE:

PRO SE JOHN KNOX WALKUP Attorney General & Reporter

MICH AEL J . FAHE Y, II Assistant Attorney General Cordell Hull Bldg., Second Floor 425 Fifth Avenu e, North Nashville, TN 37243-0490

JAMES MICHAEL TAYLOR District Attorney General

JAME S W . POP E, III Assistant District Attorney 265 Third Avenue, Suite 300 Dayton, TN 37321

OPINION FILED:____________________

AFFIRMED

WILLIAM B. ACREE, JR. SPECIAL JUDGE

OPINION

The appe llant, Hilto n Gle n Jeffe ries, ap peals as of rig ht the tria l court’s dismiss al of his pe tition for writ of ha beas c orpus. W e affirm the trial court.

The appellant was convicted of Aggravated Rape in 1987 and received a sentence of 40 years. His conviction was affirmed by the Court of the Criminal Appeals in 1989. The only issue raised by the appellant in his direct appeal was that the sentence was excessive. See State v. Jefferies, (Tenn.Crim.App. 1989, LEXIS 3 8).

The appellant later filed a petition for post conviction relief claiming ineffective counsel. The trial court dismissed the petition, and the dismissal was affirmed by the Court of Criminal Appeals. See Jefferies v. S tate, (No. 01C01- 9502-CC -00044, T enn.Crim .App., filed July 6, 1995 , at Nashville).

In the present petition, the appellant raises several issues. He complains of (1) an improper sentence; (2) trial irregularities; (3) ineffective assistance of counsel; and (4) errors in the indictment

As a gene ral rule, the remed y of habeas c orpus is limited to ca ses where the judgm ent is void o r the term of impriso nmen t has exp ired. Passarella v. State, 891 S.W.2d 619, 626 (Tenn.Crim.App. 1994). The appellant does not claim in his petition that the judgment is void or that the term of imprisonment has expired. Therefore, the dismissal was proper. In addition, there are other reasons why the dismissal of the petition should be affirmed.

The first issue presented for review is that the appellant’s sentence was improper and excessive. The appellant contends that his classification as a multiple offender was incorrect. This issue was decided adversely to the appellan t on direct a ppeal. A habea s corpu s proce eding m ay not be emplo yed to raise and relitigate issu es dec ided an d dispos ed of in a d irect appe al. Long v. State, 510 S.W.2d 83, 87 (S.Ct. 1974). Furthermore, there is no appellate review of a sente nce in a h abeas corpus procee ding. Lowe v. S tate, (No. 02-C-01-9309- CR-001 98 Tenn .Crim.App ., filed October 19, 19 94, at Jackso n).

Appellant’s second issue concerns trial irregularities. He contends (1) he and th e victim were c oach ed at tria l and a cted u nder d uress ; (2) a jur or sho uld have be en disqu alified; and (3) the trial judg e was g uilty of misco nduct. A

petition for writ of habeas corpus may not be used to review or correct errors of law or fa ct com mitted by the tr ial judg e in the exercis e of its jur isdictio n, and it canno t be used as a sub stitute for an appea l. State v. Henderson, 640 S.W.2d 56, 57 (Tenn.Crim.App. 1982). These issues should have been raised on direct appeal and may not be raised by habeas corpus.

In the third iss ue, he co ntends that his trial co unsel w as ineffec tive. Specifically, appellant states that his counsel (1) failed to present a video tape of the victim recanting her testimony and (2) he instructed the appellant to lie at perpetra tor mee tings and advised him to rep eat this inform ation wh ile at trial. A claim of in effective co unsel m ay not be litigated in a h abeas corpus procee ding. Pass arella, 891 S.W.2d, at 628. In addition, this issue was raised by the appellan t in his petition fo r post-co nviction relief a nd was decided adverse ly to him. It may not be relitigated again.

In the final issue, the appellant complains of errors in the indictment. He contends his name was misspelled in the indictment, the indictment was inconsistent in that rape was listed as the charge on one page and aggravated rape on the other , and that th e indictm ent did no t allege a c ulpable m ental state . The indictm ent is not in the record , and, therefore, we can not determ ine whether the ap pellan t’s factu al asse rtions a re corr ect. Ho weve r, even if they are , this issue is without m erit. The missp elling of the appellant’s n ame or a typograp hical error in the indictm ent will not re nder the indictme nt void. Furthermore, defenses or objections based on defects in the indictment must be raised by motion prior to trial. Rule 12 (b)(2) TRCrP. The contention that the indictm ent did not alle ge a c ulpab le me ntal sta te is ba sed u pon th is Cou rt’s decision in State v. Rog er Da le Hill, (No. O1C01-9508-CC-00267 (Tenn.Crim.App.), filed June 20, 1996, at Nashville). This decision was reversed by the Supreme Court in State v. Hill, 954 S.W .2d 725 (Te nn.1997).

For these reasons, the trial court’s dismissal of the petitions for writ of habeas corpus is affirmed.

___________________________________ WILLIAM B. ACREE, JR., SPECIAL JUDGE

CONCUR:

___________________________________ JERRY L. SMITH, JUDGE

____________________________________ THOMAS T. WOODALL, JUDGE