        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       Assigned on Briefs September 24, 2013

           CLARENCE D. SCHREANE v. STATE OF TENNESSEE

            Direct Appeal from the Criminal Court for Hamilton County

                         No. 287825       Rebecca Stern, Judge


               No. E2013-01161-CCA-R3-HC - Filed December 2, 2013


The petitioner, Clarence D. Schreane, acting pro se, appeals the Hamilton County Criminal
Court’s summary denial of habeas corpus relief. Upon review, we affirm the judgment of
the habeas corpus court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and R OBERT W. W EDEMEYER, JJ., joined.

Clarence D. Schreane, Lewisburg, Pennsylvania, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Kyle Hixson, Assistant Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       In 2004, the petitioner was convicted by a Hamilton County Criminal Court Jury of
the 1991 first degree premeditated murder and the especially aggravated robbery of Marcus
Charles Edwards. See State v. Clarence David Schreane, No. E2005-00520-CCA-R3-CD,
2006 WL 891394, at *1 (Tenn. Crim. App. at Knoxville, Apr. 5, 2006). The trial court
imposed a total effective sentence of life plus sixty years in the Tennessee Department of
Correction. Id. On direct appeal, the petitioner claimed that the trial court “should have
suppressed his confession because (1) he was not given his Miranda warnings in time, and
(2) he confessed ‘in return for certain concessions and a promise of leniency.’” Id. at *3.
Regarding the alleged Miranda violation, this court stated:
                       The record reflects that the [petitioner] initiated the
               questioning in this case by voluntarily seeking out the detectives
               and speaking to them concerning the victim’s murder. In this
               regard, we conclude the record does not reflect that the
               [petitioner] was under custodial interrogation before the police
               read him the Miranda warnings and obtained his waiver of
               rights. The [petitioner] is not entitled to relief on this issue.

Id. at *5. Further, this court concluded that the petitioner’s statement was made voluntarily
and was not based upon improper promises or concessions. Id. at *5-6. Accordingly, this
court affirmed the petitioner’s convictions and sentences. Id. at *1.

       Thereafter, the petitioner filed a petition for post-conviction relief, alleging “that trial
counsel rendered ineffective assistance by (1) not seeking dismissal of the Petitioner’s
indictment on due process grounds, (2) not seeking dismissal of the Petitioner’s indictment
under the Interstate Compact on Detainers, and (3) not seeking suppression of the Petitioner’s
statement to police on the basis that he was denied the right to counsel.” Clarence David
Schreane v. State, No. E2009-01103-CCA-R3-PC, 2010 WL 3919264, at *1 (Tenn. Crim.
App. at Knoxville, Oct. 7, 2010). The post-conviction court denied the petition, and the
petitioner appealed. This court concluded that the petitioner’s counsel was not ineffective
and affirmed the judgment of the post-conviction court. Id.

        On May 12, 2010, the petitioner filed a petition for writ of error coram nobis, again
contending that his statements to police should have been suppressed because he had invoked
his right to counsel and because the statement was involuntary. See Clarence D. Schreane,
No. E2012-01202-CCA-R3-PC, 2013 WL 173193, at *1, 5 (Tenn. Crim. App. at Knoxville,
Jan. 16, 2013), perm. to appeal denied, (Tenn. 2013). Additionally, the petitioner alleged that
the State violated the dictates of Brady v. Maryland, 373 U.S. 83, 87 (1963). Id. at *5. As
support for this contention, he stated that the case file he received from his appellate attorney
contained “‘eight legal tapes’” that “contained recordings of suspects in the 1991 murder that
were interviewed by police before the case became ‘cold.’” Id. at *5, 8. The petitioner
contended the tapes “support[ed] his claim that the confession that he gave to police was not
voluntary.” This court concluded that the petitioner had not produced any “newly discovered
evidence” and was therefore not entitled to a writ of error coram nobis. Id. at *8.

       On March 23, 2012, the petitioner filed a “‘Federal Rule [of] Civil Procedural Rule
60(b) Motion to Reopen,’” again complaining about “counsel’s handling of the motion to
suppress his statements to investigators.” Clarence D. Schreane v. State, No. E2012-00954-
00954-CCA-R3-CO, 2013 WL 5516430, at *1 (Tenn. Crim. App. at Knoxville, Oct. 2,
2013); application for perm. to appeal filed, (Nov. 6, 2013). The “trial court treated the

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motion as a motion to reopen post-conviction proceedings, and, alternatively, as a petition
for a writ of error coram nobis.” Id. (citations omitted). However, the court found that “the
motion did not present cognizable grounds for relief under either theory and summarily
denied relief.” Id. Additionally, on June 28, 2012, the petitioner “filed a Motion for Relief
from Judgment,” which the trial court overruled. Id. at *3. The petitioner appealed the trial
court’s denials of both motions, and this court consolidated the cases. Id. at *1. On appeal,
this court affirmed the trial court’s denial of relief. Id. at *3.

       On April 13, 2013, while the Rule 11 application was pending in the supreme court
regarding this court’s denial of his writ of error coram nobis petition, the petitioner filed in
the Hamilton County Criminal Court a “Motion to Dismiss Indictment in Light of U.S. v.
Cotton, 535 U.S. 625, 630 (2002)/U.S. v. Gatewood, 173 F.3d 983, 986 (6th Cir. 1999),”
which is the subject of the instant appeal. The petitioner alleged that the indictment should
have been dismissed because the State violated Brady by not informing the grand jury of the
audiotape recordings of statements by other witnesses and/or potential suspects. The
petitioner maintains that the grand jury, therefore, was unable to “conduct[] a relevant
investigation” into whether there was sufficient proof to indict him. The petitioner further
alleged that the only evidence the grand jury considered was his confession, which was
unlawfully obtained.

        In its order ruling on the motion, the trial court stated that in “[i]nterpreting the motion
to allege that the indictment in case 242616 is invalid for various reasons, the Court treats
the motion as an application for the writ of habeas corpus.” The court found that the
indictment against the petitioner was facially valid and was not void. Additionally, the court
found that “[t]o the extent that the application challenges the composition and decision-
making process of the grand jury, it does not state a claim for the writ of habeas corpus.”
Accordingly, the trial court denied the motion.

       On appeal, the petitioner challenges the trial court’s denial of his motion.

                                          II. Analysis

       Initially, we note that the petitioner complains that the habeas corpus court
“recharacterized” his motion “to justify [its] understanding of [the petitioner’s] motion to
dismiss indictment, which is self-explanatory, caption and syle.” Tennessee Rule of Criminal
Procedure 12(b)(2)(B) provides that “a motion alleging a defect in the indictment,
presentment, or information,” including challenges to the constitutionality of an underlying
criminal statute, must generally be raised prior to trial; otherwise, the issue is considered
waived. See also State v. Seagraves, 837 S.W.2d 615, 623 (Tenn. Crim. App. 1992); Robert
Guerrero v. Dwight Barbee, Warden, No. W2012-01873-CCA-R3-HC, 2013 WL 1189462,

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at *3-4 (Tenn. Crim. App. at Jackson, Mar. 22, 2013). Accordingly, because the petitioner
filed the motion to dismiss the indictment approximately nine years after his conviction, it
was untimely.

        In our view, the trial court correctly construed the motion as a petition for a writ of
habeas corpus. The determination of whether to grant habeas corpus relief is a question of
law. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). As such, we will review the trial
court’s findings de novo without a presumption of correctness. Id. Moreover, it is the
petitioner’s burden to demonstrate, by a preponderance of the evidence, “that the sentence
is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

        Article I, section 15 of the Tennessee Constitution guarantees an accused the right to
seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). However,
“[s]uch relief is available only when it appears from the face of the judgment or the record
of the proceedings that a trial court was without jurisdiction to sentence a defendant or that
a defendant’s sentence of imprisonment or other restraint has expired.” Wyatt, 24 S.W.3d
at 322; see also Tenn. Code Ann. § 29-21-101. In other words, habeas corpus relief may be
sought only when the judgment is void, not merely voidable. Taylor, 995 S.W.2d at 83. “A
void judgment ‘is one in which the judgment is facially invalid because the court lacked
jurisdiction or authority to render the judgment or because the defendant’s sentence has
expired.’ We have recognized that a sentence imposed in direct contravention of a statute,
for example, is void and illegal.” Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000)
(quoting Taylor, 995 S.W.2d at 83).

       The State correctly asserts that the petitioner failed to comply with the procedural
requirements for a habeas corpus petition. See Tenn. Code Ann. § 29-21-107; Cox v. State,
53 S.W.3d 287, 292 (Tenn. Crim. App. 2001). However, because the lower court did not
deny the petition on procedural grounds, neither will we. See Hickman v. State, 153 S.W.3d
16, 23 (Tenn. 2004).

       We note that, typically, challenges to an indictment are not proper for a habeas corpus
action. See Haggard v. State, 475 S.W.2d 186, 187-88 (Tenn. Crim. App. 1971). However,
our supreme court has held that “the validity of an indictment and the efficacy of the resulting
conviction may be addressed in a petition for habeas corpus when the indictment is so
defective as to deprive the court of jurisdiction.” Dykes v. Compton, 978 S.W.2d 528,
(Tenn. 1998). It is undisputed that a valid indictment is essential to establish jurisdiction for
prosecution. Id. Generally, an indictment is valid if the information contained therein
provides sufficient information “(1) to enable the accused to know the accusation to which
answer is required, (2) to furnish the court adequate basis for the entry of a proper judgment,
and (3) to protect the accused from double jeopardy.” State v. Hill, 954 S.W.2d 725, 727

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(Tenn. 1997).

         The petitioner did not attach a copy of the indictment to his petition. However, the
court found that the indictment against the petitioner was facially valid and was not void.
There is nothing in the record to preponderate against this finding. See State v. Oody, 823
S.W.2d 554, 559 (Tenn. Crim. App. 1991). Additionally, the court found that “[t]o the extent
that the application challenges the composition and decision-making process of the grand
jury, it does not state a claim for the writ of habeas corpus.” We agree. As this court has
previously stated, “Whenever proof beyond the judgment and record of the underlying
proceedings is required in order to substantiate a claim, such is not cognizable in a habeas
corpus action.” Sidney Porterfield v. Rickey J. Bell, Warden, No. M2006-02082-CCA-R3-
HC, 2007 WL 2702781, at *3 (Tenn. Crim. App. at Nashville, Sept. 17, 2007). Accordingly,
we conclude that the trial court did not err in determining that the petitioner was not entitled
to habeas corpus relief.

        Moreover, we note that although the petitioner has slightly reworded his issues, his
claims were raised and addressed in several previous proceedings, namely the voluntariness
of his confession and the alleged Miranda violation. Our supreme court has held that “under
the law of the case doctrine, an appellate court’s decision on an issue of law is binding in
later trials and appeals of the same case if the facts on the second trial or appeal are
substantially the same as the facts in the first trial or appeal.” Memphis Publ’g Co. v. Tenn.
Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998). In other
words,

                “issues previously litigated and decided by a court of competent
                jurisdiction . . . need not be revisited. This rule promotes the
                finality and efficiency of the judicial process, avoids indefinite
                relitigation of the same issue, fosters consistent results in the
                same litigation, and assures the obedience of lower courts to the
                decisions of appellate courts.”

State v. Jefferson, 31 S.W.3d 558, 561 (Tenn. 2000) (quoting Memphis Publ’g Co., 975
S.W.2d at 306). Accordingly, we conclude that the habeas corpus court did not err in
denying the habeas corpus petition.




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                             III. Conclusion

Finding no error, we affirm the judgment of the habeas corpus court.


                                          _________________________________
                                          NORMA McGEE OGLE, JUDGE




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