Jefferies v. Bowlin & State ( 1998 )

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