         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                        May 2000 Session

                   DWIGHT SEATON v. STATE OF TENNESSEE

                    Direct Appeal from the Circuit Court for Sevier County
                           No. 96-313-I   Ben W. Hooper, II, Judge



                                  No. E1999-01312-CCA-R3-CD
                                        August 21, 2000

This appeal arises from the trial court’s denial of the petitioner's pro se application for habeas corpus
relief, based on his claim that his 1988 guilty plea to a state aggravated assault charge was invalid.
The petitioner was subsequently convicted in federal court of being a felon in possession of a
firearm, and the federal sentence was enhanced using the state conviction based on the allegedly
invalid guilty plea. The trial court analyzed the petition as a post-conviction petition, a petition for
writ of habeas corpus, and as a petition for writ of error coram nobis, based on the various arguments
of the petitioner, and denied relief under any of these vehicles. After a careful review of the record,
we affirm the trial court's denial of the petitioner's request for relief.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which THOMAS T. WOODALL and JOHN
EVERETT WILLIAMS, JJ., joined.

Dwight Seaton, Estill, South Carolina, Pro Se.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney General;
Al C. Schmutzer, Jr., District Attorney General; and Steven R. Hawkins, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

         On December 6, 1988, the petitioner, Dwight Seaton, pled guilty in the Sevier County Circuit
Court to a charge of aggravated assault. On October 31, 1995, the United States District Court for
the Eastern District of Tennessee, sitting at Knoxville, used this conviction to enhance his sentence
for being an armed felon in violation of 18 U.S.C. § 922(g)(1). On March 26, 1996, the petitioner
filed a federal habeas corpus application in the Sevier County Circuit Court, in which he claimed that
the state assault conviction was invalid and should not have been used to enhance the federal
sentence. The petitioner alleged that he was not informed at the time of his 1988 guilty plea that the
conviction could be used as an enhancement factor in future proceedings, in effect, claiming that his
guilty plea was not knowingly or voluntarily entered. He claims that his attorney was not aware of
the fact that the state conviction could be used for enhancement purposes and failed to so advise him.

         The trial court dismissed Seaton’s petition on November 23, 1999. Giving the pro se
petitioner substantial leeway in his characterization of his request for relief, the trial court treated the
request as a petition for post-conviction relief, a writ of habeas corpus, and a writ of error coram
nobis in determining if the petitioner was entitled to any relief. The court denied relief after
determining that: (1) the petitioner was not entitled to habeas relief, and federal prisoners were
excluded from state courts pursuant to Tennessee Code Annotated § 29-21-102; (2) the three-year
statute of limitations had run on a post-conviction petition; and (3) a writ of error coram nobis was
likewise not the proper vehicle for the petitioner to obtain relief. The petitioner appealed to this
court. Based upon our review of the record, we affirm the dismissal of the petitioner’s request for
relief.1

                                              Habeas Corpus Relief

        It is well-established in Tennessee that the remedy provided by a writ of habeas corpus is
limited in scope and may only be invoked where the judgment is void or the petitioner’s term of
imprisonment has expired. State v. Ritchie, 20 S.W.3d 624 (Tenn. 2000); State v. Davenport, 980
S.W.2d 407, 409 (Tenn. Crim. App. 1998); Passarella v. State, 891 S.W.2d 619, 626 (Tenn. Crim.
App.), perm. app. denied, (Tenn. 1994). A void, as opposed to a voidable, judgment has been
defined by our supreme court as “one in which the judgment is facially invalid because the court did
not have the statutory authority to render such judgment.” Dykes v. Compton, 978 S.W.2d 528, 529
(Tenn. 1998); see also Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The judgment of a court
of general jurisdiction is conclusive and presumed to be valid, and such a judgment can only be
impeached if the record affirmatively shows that the rendering court was without personal or subject
matter jurisdiction. Archer v. State, 851 S.W.2d 157, 162 (Tenn. 1993); Passarella, 891 S.W.2d at
626. Thus, habeas corpus relief is available only when “‘it appears upon the face of the judgement
or the record of the proceedings upon which the judgement is rendered’ that a convicting court was
without jurisdiction or authority to sentence a defendant, or that a defendant’s sentence of
imprisonment . . . has expired.” Archer, 851 S.W.2d at 164 (citation omitted).

         To obtain habeas corpus relief, the petitioner must show by a preponderance of the evidence
that his conviction is void and not merely voidable. See Davenport, 980 S.W.2d at 409; Passarella,
891 S.W.2d at 627. Consequently, a petitioner cannot collaterally attack a facially valid judgment
of the trial court in a petition for habeas corpus relief. Archer, 851 S.W.2d at 162. The proper
means of challenging a facially valid judgment based on a constitutional violation is through a
petition for post-conviction relief. Lewis v. Metropolitan Gen. Sessions Court for Nashville, 949
S.W.2d 696, 699 (Tenn. Crim. App. 1996), perm. app. denied, (Tenn. 1997); Fredrick v. State, 906
S.W.2d 927, 929 (Tenn. Crim. App. 1993).


         1
           W e will likewise analyze the petition as a request for habeas corpus relief, a post-conviction petition, and as
a petition fo r writ of erro r coram nobis.

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        Upon reviewing the record, we conclude that the trial court was correct in denying the
petitioner habeas relief. The petitioner has not alleged that the state court was without jurisdiction
or authority to convict him in 1988 based on the guilty plea. Therefore, the petitioner has not shown
that his state conviction is void, as required to obtain habeas relief.

                                               Post-Conviction Relief

        Because the petitioner filed his pro se petition on March 26, 1996, it is governed by the 1995
Post-Conviction Procedure Act. Tenn. Code Ann. § 40-30-201 et. seq. (1990 & Supp. 1995). On
appeal, we are bound by the trial court’s findings of fact unless the record preponderates against
those findings. State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998).

        Tennessee Code Annotated § 40-30-210(f) (1997) requires that a post-conviction petitioner
prove by “clear and convincing evidence” his allegations regarding constitutional claims. Claims
of “deficient performance by counsel and possible prejudice to the defense are mixed questions of
law and fact,” meaning that the review is de novo. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)
(citing Goad v. State, 938 S.W.2d 363 (Tenn. 1996)).

         First, we note that a post-conviction petition was the proper vehicle for the petitioner to
challenge a constitutionally defective guilty plea and subsequent conviction. Although the 1995 Act
requires that a post-conviction petition must be filed within one year of the date on which the state
court judgment became final, there is an exception in the Act.2 The 1986 version of the Post-
Conviction Act that was in effect at the time of petitioner’s 1988 conviction had a three-year statute
of limitations, and, if the petitioner’s post-conviction petition was not time-barred when the new
statute of limitations took effect, he would still have had one year from May 10, 1995, to file his
petition under the 1995 Act. Tenn. Code Ann. § 40-30-102 (1982 & Supp. 1988); Tenn. Pub. Act,
Ch. 207, § 3. Unfortunately for the petitioner, his post-conviction petition was not filed until some
seven years and three months after the entry of his conviction on the state charge; thus, the three-year
statute of limitations under the 1986 Act had long expired. As the trial court found, the statute of
limitations began to run on December 6, 1988, and petitioner’s right to file his petition for post-
conviction relief was extinguished three years after his conviction on December 6, 1991. He failed
to file within that time frame, and his petition is time-barred. Thus, we agree with the trial court that
relief was not available to the petitioner pursuant to the Post-Conviction Procedure Act because the
petitioner’s application was not filed within the applicable statute of limitations.




         2
           W e note that, by his own admission on the federal habeas application, the petitioner did not appeal the state
conviction. Thus, he do es not get the bene fit of waiting until the ruling o f the highest appellate court to start the running
of the statute of limitations. Tenn. Code An n. § 40-30-201(a) (1990 & Supp. 1995 ).

                                                              -3-
                                    Writ of Error Coram Nobis

       A petition for writ of error coram nobis is used to challenge a court’s judgment and, like a
post-conviction petition, is subject to a one-year statute of limitations. Van Tran v. State, 6 S.W.3d
257, 264 (Tenn. 1999). The petitioner’s writ was not filed within that time period and was properly
dismissed by the trial court. In addition, a petition for writ of error coram nobis is not the proper
means for this petitioner to obtain relief, as the relief afforded by such a writ is very narrow and is
only appropriate when an issue was not addressed or could not be addressed, because it was
somehow hidden from the trial court. Tenn. Code Ann. § 40-26-105 (1990); Newsome v. State, 995
S.W.2d 129, 133 (Tenn. Crim. App. 1998), perm. app. denied, (Tenn. 1999). No such allegations
have been made in this case, and, even if the statute of limitations had not expired, the petitioner has
no cognizable claim for relief under a writ of error coram nobis.

        In his appellate brief, the petitioner has claimed, for the first time, that a writ of audita
querela should issue as to his conviction. This is a common law writ affording “relief to a judgment
debtor against a judgment or execution because of some defense or discharge arising subsequent to
the rendition of the judgment or the issue of the execution.” United States v. Fonseca-Martinez, 36
F.3d 62, 64 (9th Cir. 1994) (quoting 11 Wright and Miller, Federal Practice and Procedure, § 2867
at 235 (1973)). See also Black’s Law Dictionary 131 (6th ed. 1990) (The writ lies to allow a
defendant “to obtain relief against the consequences of the judgment on account of some matter of
defense or discharge arising since its rendition and which could not be taken advantage of
otherwise.”).

         Apparently, this writ is utilized, upon occasion, in the federal courts in an attempt to vacate
an allegedly unfair conviction. However, as stated in Fonseca-Martinez, 36 F.3d at 65, no federal
appellate court has utilized a writ of audita querela “to vacate an otherwise valid conviction for
solely equitable reasons.” Initially, as to the petitioner’s claim that the writ should issue as to his
conviction, we note that he failed to present this claim to the trial court and cannot now raise it for
the first time on appeal. See State v. Matthews, 805 S.W.2d 776, 781 (Tenn. Crim. App.), perm.
app. denied (Tenn. 1990). Additionally, his appellate brief, in contravention of Rule 27, Tennessee
Rules of Appellate Procedure, and Rule 10(b), Rules of the Tennessee Court of Criminal Appeals,
contains no citations to appropriate authorities in support of this argument. Accordingly, the
argument has been waived. However, even if we were to consider his argument on the merits, to
whatever extent this writ is still viable in Tennessee, the petitioner has failed to present a claim
entitling him to relief. He simply has not demonstrated any post-judgment occurrence, which would
entitle him to issuance of this writ.




                                                  -4-
                                        CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the order of the trial court
denying relief to the petitioner.




                                                     ___________________________________
                                                     ALAN E. GLENN, JUDGE




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