State v. Ali ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1998 SESSION
June 12, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
MOHAMED F. ALI )
) NO. 03C01-9704-CR-00163
Appellant )
) JOHNSON COUNTY
v. )
) HON. LYNN BROWN
STATE OF TENNESSEE )
) (Habeas Corpus)
Appellee. )
)
For the Appellant: For the Appellee:
Mohamed F. Ali, pro se John Knox Walkup
N.E.C.C. 226333 Attorney General & Reporter
P.O. Box 5000
Mountain City, TN. 37683 Michael J. Fahey, II
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN. 37243
David E. Crockett
District Attorney General
Route 19, Box 99
Johnson City, TN. 37601
OPINION FILED:______________________
AFFIRMED
WILLIAM M. BARKER, JUDGE
OPINION
The appellant, Mohamed F. Ali, appeals the Johnson County Criminal Court’s
dismissal of his pro se petition for a writ of habeas corpus. We affirm the judgment of
the trial court.
The appellant was originally convicted by a jury of rape and attempting to bribe
a witness and was sentenced to a consecutive term of fifteen (15) years. In his direct
appeal, this Court affirmed appellant’s convictions, but vacated the sentences for
further proceedings. See State v. Mohamed F. Ali, No. 03C01-9405-CR-00171 (Tenn.
Crim. App. at Knoxville, Sept. 26, 1996), perm. app. denied (Tenn. June 2, 1997). We
remanded the case to the trial court for a determination of whether the appellant had
affirmatively waived his right to counsel in the post-trial proceedings. If no such
finding could be made from the record, then a new sentencing hearing was to be
conducted. See separate op. at 5-6.
Thereafter, the appellant filed an application for permission to appeal in our
state supreme court. That application was still pending on March 7, 1997, when
appellant filed his pro se petition for a writ of habeas corpus. Appellant contended
that he was entitled to habeas corpus relief based upon two grounds: (1) his
sentences had expired pursuant to this Court’s decision on direct appeal; and (2) his
convictions and sentences were void as a result of the alleged denial of his right to
counsel at the sentencing hearing. The trial court summarily dismissed appellant’s
petition upon finding that his application for permission to appeal was still pending
before the supreme court and that any denial of his right to counsel was not a
cognizable claim for habeas corpus.
On appeal, the appellant challenges the trial court’s dismissal of his petition
and reasserts the above grounds for relief. He further contends that habeas corpus is
appropriate due to the alleged denial of his right to counsel at the hearing on his
motion for a new trial.
2
Initially, we note that the appellant was seeking permission to appeal in our
supreme court when he filed his habeas corpus petition. It is well established that a
petition for a writ of habeas corpus or a petition under the Post Conviction Procedure
Act, complaining of a conviction and sentence, cannot be maintained while a direct
appeal of the same conviction and sentence is being prosecuted. See Crain v. State,
451 S.W.2d 695, 696 (Tenn. Crim. App. 1969), perm. app. denied (Tenn. 1970);
Hunter v. State, 443 S.W.2d 532 (Tenn. Crim. App. 1969), perm. app. denied (Tenn.
1969). Habeas corpus may not be used as a substitute for or to serve the purpose of
an appeal. See State ex rel. Dawson v. Bomar, 354 S.W.2d 763, 766 (Tenn. 1962),
cert. denied. 370 U.S. 962 (1962).
In both the habeas corpus petition and the application for permission to appeal,
the appellant alleged that he was denied the right to counsel during the post-trial
hearings. That simultaneous pursuit of relief from the same convictions and
sentences was improper and the habeas corpus petition was properly dismissed.
Nevertheless, even if addressed on the merits, appellant’s petition for a writ of
habeas corpus must fail. A criminal defendant is not entitled to a writ of habeas
corpus unless he or she proves by a preponderance of the evidence that the judgment
is void or the term of imprisonment has expired. See State ex rel. Jordan v. Bomar,
398 S.W.2d 724, 726 (Tenn. 1965); State ex rel. Kuntz v. Bomar, 381 S.W.2d 290,
291 (Tenn. 1964). Trial courts may summarily dismiss a petition for a writ of habeas
corpus if the petition fails to state a cognizable claim on its face. See Tenn. Code
Ann. § 29-21-109 (Supp. 1994).
In this case, appellant contended that his sentences had expired pursuant to
this Court’s opinion in the direct appeal and that his sentences were void from the
alleged denial of his right to counsel at the sentencing hearing. The trial court
dismissed appellant’s petition upon finding that the “cause fails to state a claim upon
which relief can be granted.” We find nothing to disturb the trial court’s decision. The
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record reflects that appellant’s application for permission to appeal was pending when
he filed his habeas corpus petition. Therefore, at that time, this Court’s decision in the
direct appeal was stayed pending final disposition by the high court. Tenn. R. App. P.
42(b). Appellant’s sentences were not expired.1
Moreover, the trial court correctly ruled that any infringement of appellant’s right
to counsel was not cognizable by habeas corpus. This Court has previously held that
a claim alleging ineffective assistance of counsel may render a judgment voidable, but
not void, unless the face of the record establishes that the trial court did not have
jurisdiction of the defendant, the convicted offense, or the authority to render the
judgment. See Passarella v. State, 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994),
perm. app. denied (Tenn. 1994). Similarly, a denial of the right to counsel under the
Sixth Amendment to the United States Constitution and Article I, section 9 of our state
constitution would make the judgment voidable, not void.
Based upon the foregoing, we conclude that the trial court properly dismissed
appellant’s pro se petition for a writ of habeas corpus. The judgment of the trial court
is affirmed.
____________________________
WILLIAM M. BARKER, JUDGE
CONCUR:
_____________________________
JOSEPH M. TIPTON, JUDGE
_____________________________
J. CURWOOD WITT, JR., JUDGE
1
The s uprem e court d enied ap pellant’s ap plication for p erm ission to ap peal on J une 2, 19 97. In
that regard, the opinion of this Court in the direct appeal became final and the case should be addressed
by the trial cour t consiste nt with that op inion. See State v. Irick, 906 S.W .2d 440, 443 (Tenn. 1995 );
Tenn . R. App. P . 43(c).
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