Miko Burl v. James Fortner, Warden ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs August 3, 2010
MIKO BURL v. JAMES FORTNER, WARDEN
Direct Appeal from the Criminal Court for Shelby County
No. 99-01971-73 W. Otis Higgs, Jr., Judge
No. W2009-02282-CCA-R3-HC - Filed November 18, 2010
The pro se petitioner, Miko Burl, appeals the summary dismissal of his petition for writ of
habeas corpus relief. On February 7, 2000, the petitioner was convicted of especially
aggravated robbery, aggravated assault, and aggravated burglary, for which he was sentenced
to thirty-three years in the Department of Correction. On appeal, he argues that his
conviction for especially aggravated robbery is void because this court vacated his conviction
for aggravated assault on direct appeal. After careful review, we conclude that the summary
dismissal of the petition was proper, and we affirm the judgment from the habeas corpus
court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R. and J.C. M CL IN, JJ., joined.
Miko Burl, Only, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Nicole C. Germain, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
The facts underlying the conviction were summarized by this court on direct appeal
at State v. Miko T. Burl, No. W2000-02074-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 79,
at **2-3 (Tenn. Crim. App. Jan. 28, 2002). On September 22, 1998, the eighty-six-year-old
victim and her daughter-in-law were at the victim’s home in Memphis. The victim heard
someone at the door. Thinking it was her son, she got up to let him in. When she answered
the door, she was met by the petitioner, who held a gun in her face and demanded money.
The victim grabbed the gun, and began to “tussle all over the floor” with the petitioner. The
petitioner threw the victim against a heater, breaking her ribs. He then took $230 from a
pocket of the victim’s clothing and fled the home. During the robbery, the petitioner dropped
a pager. Based upon this fact, the petitioner became a suspect. During the investigation, two
photo lineups were shown to the victim and her daughter-in-law, and both positively
identified the petitioner as the robber.
The petitioner also filed for post-conviction relief, which was denied by both the trial
court and this court on appeal. See Miko T. Burl v. State, No. W2004-00327-CCA-R3-PC,
2004 Tenn. Crim. App. LEXIS 1139 (Tenn. Crim. App. at Jackson, Dec. 23, 2004) and Miko
T. Burl v. State, No. W2005-01640-CCA-R3-PC, 2006 Tenn. Crim. App. LEXIS 905 (Tenn.
Crim. App. at Jackson, Nov. 17, 2006).
Analysis
On appeal, the petitioner argues that his conviction for especially aggravated robbery
is void because his conviction for aggravated assault was vacated on direct appeal.
Specifically, he contends that his conviction for aggravated assault served as an acquittal of
the charge of especially aggravated robbery because aggravated assault is a lesser included
offense of especially aggravated robbery.
Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas
corpus relief. Tennessee Code Annotated section 29-21-101 et seq. codifies the applicable
procedures for seeking a writ. While there is no statutory time limit in which to file for
habeas corpus relief, Tennessee law provides very narrow grounds upon which such relief
may be granted. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A habeas corpus petition
may be used only to contest void judgments which are facially invalid because (1) the
convicting court was without jurisdiction or authority to sentence a petitioner; or (2) a
petitioner’s sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).
Here, the petitioner contends that he should have been acquitted of the especially
aggravated robbery conviction when the jury found him guilty of aggravated assault. The
State argues that the petitioner was not convicted of aggravated assault as a lesser included
offense of especially aggravated robbery because the offenses were charged in separate
indictments and the jury convicted him of each offense separately. The record contains a
transcript from the sentencing hearing in which the trial court calls the case number for each
conviction, but the record does not contain the indictments. Therefore, the favorable ruling
that the petitioner received on direct appeal, which vacated his conviction for aggravated
assault, had no impact on his conviction for especially aggravated robbery. In fact, the
opinion on direct appeal concludes that there was sufficient evidence presented to affirm the
-2-
petitioner’s convictions for both especially aggravated robbery and aggravated burglary
separate from the other vacated conviction. The petitioner has failed to show that the court
was without jurisdiction to impose his sentence or that his sentence has expired; therefore,
he is not entitled to habeas corpus relief.
Conclusion
Based on the foregoing and the record as a whole, we affirm the summary dismissal
of the petition for writ of habeas corpus relief.
_________________________________
JOHN EVERETT WILLIAMS, JUDGE
-3-