Billy Joe Russell, Jr., AKA Joe Billy Russell, Jr., AKA Craig C. Scott v. State of Tennessee ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs June 21, 2016
BILLY JOE RUSSELL, JR., AKA JOE BILLY RUSSELL, JR., AKA
CRAIG C. SCOTT v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2001-I-316 Steve R. Dozier, Judge
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No. M2015-02318-CCA-R3-PC – Filed October 13, 2016
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The petitioner, Billy Joe Russell, Jr., a.k.a. Joe Billy Russell, Jr., a.k.a. Craig C. Scott,
appeals the post-conviction court’s denial of his petition for relief. On appeal, the
petitioner asserts that his petition is timely because it falls within one year of certain
federal opinions which establish a constitutional right requiring retroactive application.
After a thorough review of the record, we affirm the dismissal of the petition in
accordance with Rule 20, Rules of the Court of Criminal Appeals.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
Pursuant to Rule 20, Rules of the Court of Criminal Appeals
JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and TIMOTHY L. EASTER, JJ., joined.
Joe Billy Russell, Jr., Butner, North Carolina, pro se.
Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior
Counsel; Glenn Funk, District Attorney General; and J. Wesley King, Assistant District
Attorney General, for the Appellee, State of Tennessee.
MEMORANDUM OPINION
On April 16, 2001, the petitioner pled guilty to one count of theft of property
valued at $1,000 or more but less than $10,000, a Class D felony, and one count of felony
evading arrest, a Class E felony. The petitioner received a two-year sentence for each
conviction, to be served concurrently. On September 10, 2015, the petitioner filed a
petition for post-conviction relief listing three separate convictions that the petitioner
wished to challenge. The subject of the current appeal is the 2001 conviction for Class E
felony evading arrest in Case No. 2001-I-316.
The petition also challenged a 2002 conviction for evading arrest in a motor
vehicle with risk of death or injury to a third party (Case No. 2002-I-1192) and a 1994
conviction for possession of a Schedule II controlled substance. The 2002 conviction for
Class D felony evading arrest was separately considered and dismissed by the trial court
for failure to file within the limitations period, and it was the subject of a separate appeal
before this court. See Joe Billy Russell, Jr., v. State, No. M2015-02101-CCA-R3-PC,
2016 WL 4472861 (Tenn. Crim. App. Aug. 22, 2016).
The petitioner requests relief on two grounds. First, the petitioner asserts that his
conviction for Class E felony evading arrest in a motor vehicle is unconstitutional
because the statute under which he was convicted is void for vagueness. The petitioner
avers that the decision of the United States Supreme Court in Johnson v. United States,
135 S. Ct. 2551 (2015) renders the Tennessee statute unconstitutionally vague. The
petitioner also challenges his evading arrest conviction, as well as the drug convictions,
asserting that the sentences were imposed in violation of Blakely v. Washington, 542 U.S.
296 (2004) and Peugh v. United States, 133 S. Ct. 2072 (2013).
The post-conviction court found that the petition was time-barred, and it dismissed
the petition summarily. The petitioner appeals.
ANALYSIS
On appeal, the petitioner argues that Johnson requires retroactive application and
renders Tennessee Code Annotated sections 39-13-102 and 39-16-603 unconstitutionally
vague. In particular, the petitioner contends that the statutory language in the evading
arrest statute involving “risk of death or injury” to third parties violates due process. He
also argues that the statute is also unconstitutionally vague because the crime is graded as
a misdemeanor or a Class D or E felony based on the circumstances of commission.
The post-conviction court dismissed the petition because it found the petition
untimely. A post-conviction petition must be brought within one year of the date the
judgment becomes final or within one year of the final action on any appeal. T.C.A. §
40-30-102(a). Failure to file within the limitations period bars relief and removes the
case from the court’s jurisdiction. T.C.A. § 40-30-102(b). The petition in this case was
filed over one year after the convictions became final.
The petitioner’s briefs and arguments are nearly identical to those raised in Joe
Billy Russell, Jr., v. State, 2016 WL 4472861. We conclude that the claims at issue in
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this appeal are governed by the legal principles articulated in that opinion. See id. at *2-
4. Moreover, we note that here, the petitioner challenges a Class E felony conviction,
which does not involve any risk assessment as addressed by Johnson, 135 S. Ct. 2551.
See T.C.A. § 39-16-603(b)(3) (evading arrest with a motor vehicle is a Class E felony
“unless the flight or attempt to elude creates a risk of death or injury to innocent
bystanders or other third parties, in which case a violation of subsection (b) is a Class D
felony”).
Accordingly, the petition does not present a colorable claim that the conviction is
void. We conclude that the post-conviction court did not err in dismissing the petition.
When an opinion would have no precedential value, the Court of Criminal
Appeals may affirm the judgment or action of the trial court by memorandum opinion
when the judgment is rendered or the action taken in a proceeding without a jury and
such judgment or action is not a determination of guilt, and the evidence does not
preponderate against the finding of the trial judge. See Tenn. Ct. Crim. App. R. 20. We
conclude that this case satisfies the criteria of Rule 20. The judgment of the trial court is
affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.
CONCLUSION
Because the petitioner did not present a colorable claim for relief, the dismissal is
affirmed.
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JOHN EVERETT WILLIAMS, JUDGE
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