        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs October 4, 2016

               ERIC R. WRIGHT v. GRADY PERRY, WARDEN

                  Appeal from the Circuit Court for Hardeman County
                  No. CC-16-CR-44     Joseph H. Walker, III, Judge


              No. W2016-00341-CCA-R3-HC - Filed January 18, 2017


The pro se petitioner, Eric R. Wright, appeals the habeas court’s summary dismissal of
his petition for writ of habeas corpus alleging eleven reasons why the habeas court erred.
After review, we affirm the summary dismissal of the petition.

  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 CAMILLE R. MCMULLEN
and TIMOTHY L. EASTER, JJ., joined.

Eric R. Wright, Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; and Jonathan H. Wardle, Assistant
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                        FACTS

       In January 1990, the Shelby County Grand Jury indicted the petitioner for one
count of robbery with a deadly weapon and two counts of assault with intent to commit
murder in the first degree, all committed on October 15, 1989. The petitioner was
convicted by a jury of all counts. See Eric Wright v. State, No. W2009-00864-CCA-R3-
PC, slip op. at 2 (Tenn. Crim. App. Sept. 24, 2010).

       On September 20, 1990, the petitioner was sentenced as a Range III, persistent
offender, to consecutive terms of thirty years for the robbery and sixty years for each
assault, resulting in an effective sentence of 150 years. See Eric R. Wright v. Michael
Donahue, No. 2:11-cv-03102-SHM-tmp, 2015 U.S. Dist. LEXIS 136175, at *3 (W.D.
Tenn. Mar. 31, 2015). Because the offenses were committed before the effective date of
the 1989 Sentencing Act but the petitioner was convicted after the effective date of the
Act, the trial court was to calculate the appropriate sentence under both the 1982 and
1989 sentencing law and impose the lesser sentence of the two. See Eric Wright, No.
W2009-00864-CCA-R3-PC, slip op. at 11. The maximum effective sentence under the
1982 law would have been 180 years with no parole, which was more than the 150 years
at 45% the petitioner received under the 1989 law. See id.

       A brief summary of the evidence adduced at trial from an opinion of this court
affirming the denial of one of the petitioner’s petitions for post-conviction relief is as
follows:

               This matter concerns the October 15, 1989 robbery of a Circle K
       service station on Lamar Avenue in Memphis, Tennessee. The evidence
       presented at the petitioner’s trial showed that, at approximately 4:50 a.m.
       that day, two black males entered the store, and one of them shot Ricky
       Coleman, the store clerk’s boyfriend, in the face without warning. The
       store clerk, Stella Oakes Coleman,1 opened the register for the men, and
       they removed the cash from the drawer. Mrs. Coleman testified that there
       was approximately $20 in the register. The men demanded that she open
       the store’s safe, but she was not able to open the time-lock safe. Instead,
       the men pressed the button on the safe that allowed clerks to access the
       currency when they needed change. In this way, the men took $10 in $1
       bills from the safe. When Mrs. Coleman went to check on Mr. Coleman,
       who was lying on the floor, the shooter shot her twice.

See id. at 2.

       The petitioner filed a direct appeal, in which he challenged the sufficiency of the
convicting evidence, the legality of the verdict, and the trial court’s failure to grant a
special jury instruction. State v. Eric R. Wright, No. 02C01-9107-CR-00152, 1992 WL
1414, at *1 (Tenn. Crim. App. Jan. 8, 1992). This court affirmed the petitioner’s
convictions and sentences by memorandum opinion on January 8, 1992. Id. The
petitioner did not timely file an application for permission to appeal this court’s decision
to the Tennessee Supreme Court. See Eric Wright v. State, No. W2001-00386-CCA-R3-
PC, 2001 WL 1690194, at *1 (Tenn. Crim. App. Dec. 17, 2001). Evidently, the
petitioner’s appellate counsel failed to inform the petitioner that his direct appeal had
been denied, and his attorney never filed a Rule 11 application for permission to appeal
or moved to withdraw. See id. This came to light when the petitioner, on April 27, 2000,
filed a motion for appointment of counsel to file a Rule 11 application. See id. The

       1
           The Colemans were married on October 19, 1989.
                                                 -2-
Tennessee Supreme Court denied the petitioner’s motion for appointment of counsel to
file a Rule 11 application but indicated that the petitioner’s recourse was to file a post-
conviction petition alleging ineffective assistance of counsel and seeking a delayed
appeal. See id.

        On December 11, 2000, the petitioner filed a petition for post-conviction relief.
See id. The post-conviction court denied the petition as untimely, but this court
remanded the case to determine whether due process tolled the statute of limitations. See
id. at *2-3.2 On remand, the post-conviction court held that due process tolled the statute
of limitations and granted permission for the petitioner to seek a delayed Rule 11 appeal.
See Eric Wright, No. W2009-00864-CCA-R3-PC, slip op. at 3. The Tennessee Supreme
Court denied the petitioner’s application for permission to appeal. See id.; State v. Eric
R. Wright, No. W1991-00016-SC-R11-CD (Tenn. Mar. 21, 2005) (order).

       In May 2005, the petitioner filed a motion to reopen his post-conviction
proceedings, as well as, contemporaneously, a second petition for post-conviction relief.
See Eric Wright, No. W2009-00864-CCA-R3-PC, slip op. at 3. The petitioner alleged
that his trial counsel failed to challenge a comment made by the trial court, properly
investigate the case, or prepare for trial and that his sentence violated the prohibition
against ex post facto laws because he was sentenced under the 1989 Act instead of the
1982 Act. See id. at 7-12. The post-conviction court conducted an evidentiary hearing,
after which it denied the petition. See id. at 4-6. This court affirmed that denial. Id. at
12. The Tennessee Supreme Court denied permission to appeal on February 16, 2011.
See Eric Wright v. State, No. W2009-00864-SC-R11-PC (Tenn. Feb. 16, 2011) (order).

       The petitioner then filed for federal habeas corpus relief on December 15, 2011, in
which he alleged that his counsel was ineffective for failing to properly investigate and
prepare for trial, the trial court improperly commented on the evidence, and his sentence
violated the prohibition against ex post facto laws. Eric R. Wright, 2015 U.S. Dist.
LEXIS 136175, at *7, *13-14. The district court thoroughly analyzed each issue and then
denied the petitioner’s claim for relief. See id. at *20-94.

       The petitioner filed the present petition for state habeas corpus relief on January
21, 2016. The petitioner included with his petition a document that he had sent to a
Nashville attorney describing the five claims for relief he relied on in support of his
petition and seeking the attorney’s insight. The five claims were: the trial court lacked
jurisdiction because there was no arrest report, a single course of criminal activity cannot
be separated into three separate charges, the indictment was void on its face, his sentence
       2
         One appellate judge dissented, noting that the petitioner knew by April 1998 that his attorney
had not withdrawn or filed a Rule 11 application, yet the petitioner did not seek redress until December
2000. Eric Wright, 2001 WL 1690194, at *3 (Tipton, J., dissenting).
                                                  -3-
violated ex post facto laws, and the trial court illegally allowed an “unindictable” offense
to proceed to trial. The habeas court summarily denied the petition on January 29, 2016,
and the petitioner appealed.

                                       ANALYSIS

       Initially, the State asserts that the petitioner provided no argument other than to
reference an attachment to a letter the petitioner sent to a Nashville attorney, David
Raybin, from which the petitioner asks this court to decipher the bases for his claims.
However, the petitioner mentions in his brief that the habeas court clerk entered his
documents out of order and that his arguments were listed as trust fund transactions
instead of being attached to his habeas petition, so what the State refers to as an
attachment to the letter to Mr. Raybin could possibly be the out-of-order documents.
Because we give pro se petitioners greater latitude, we will look at the document to
discern the petitioner’s arguments.

       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. Faulkner v. State, 226 S.W.3d 358, 361
(Tenn. 2007); State v. Ritchie, 20 S.W.3d 624, 629 (Tenn. 2000); State v. Davenport, 980
S.W.2d 407, 409 (Tenn. Crim. App. 1998). A void, as opposed to a voidable, judgment
is “one that is facially invalid because the court did not have the statutory authority to
render such judgment.” Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (citing
Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)).

       A petitioner bears the burden of establishing a void judgment or illegal
confinement by a preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000). Furthermore, when a “habeas corpus petition fails to establish that a
judgment is void, a trial court may dismiss the petition without a hearing.” Summers,
212 S.W.3d at 260 (citing Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005)). Whether
the petitioner is entitled to habeas corpus relief is a question of law. Id. at 255; Hart v.
State, 21 S.W.3d 901, 903 (Tenn. 2000). As such, our review is de novo with no
presumption of correctness given to the habeas court’s findings and conclusions. Id.

      On appeal, the petitioner identifies eleven issues for this court’s review, even
though he only raised five issues in support of his habeas petition below.

       The petitioner first asserts that the habeas court failed to rule on every issue
presented in his petition because of the clerk’s erroneously filing the document describing
his arguments as trust fund transactions. It is true the clerk placed the document
describing the petitioner’s arguments as an attachment to the affidavit of indigency, but
                                            -4-
there is no confusion in the record about which document is which. Moreover, the
habeas court’s order denying relief specifically identifies each of the five issues the
petitioner raised in the attached document, which were not identified elsewhere in the
petition. This issue lacks merit.

       The petitioner next asserts that he is entitled to the relief sought. In support of this
assertion, the petitioner provides no argument other than to reference two pages in his
petition. On those pages to which he refers, the petitioner claims that the indictments
were void because no one died and that there is no criminal statute for “assault to
murder.” This issue is without merit. Although the summary of the charges on the
indictment reads “assault to murder first degree,” the cited statute and code section are
clearly for the offense “assault with intent to commit murder in the first degree.” This
was a crime in existence at the time the petitioner committed the offenses, and it
necessarily required that the victims survive.3 The habeas court properly concluded that
the petitioner’s indictments were not defective.

        The petitioner next argues that he is held under a pretense of law. The petitioner
provides no explanation for this assertion except to refer to the entire eleven-page
argument in the technical record that was presumably attached to his petition for writ of
habeas corpus. It thus appears that the petitioner claims he is being held under a pretense
of law because he believes he is entitled to relief based on the five issues raised in his
petition. As we either have already and/or will address below, the petitioner is not
entitled to relief based on any of his claims. This issue is without merit.

       3
           The statute read:

       Assault with intent to murder. -- (a) Whoever shall feloniously and with malice
       aforethought assault any person, with intent to commit murder in the first degree, or shall
       administer or attempt to give any poison for that purpose, though death shall not ensue,
       shall, on conviction, be imprisoned in the state penitentiary for not less than five (5) nor
       more than twenty-five (25) years.

       (b) If bodily injury to the victim occurs as a result of such an assault in violation of
       subsection (a), the punishment shall be a determinate sentence of confinement in the state
       penitentiary for life or for a period of not less than five (5) years.

       (c) In the case of bodily injury to the victim, the offense defined in subsection (b) of this
       section is a Class X felony.

       [Tenn. Code Ann.] § 39-2-103 (repealed 1989).

State v. James Harris, No. 03C01-9901-CC-00007, 2000 WL 5040, at *2-3 (Tenn. Crim. App. Jan. 5,
2000).

                                                   -5-
        The petitioner next argues that his indictment for assault with intent to commit
murder is not “a valid law to indict, try as well convict any person.” In support of this
argument, the petitioner refers to three pages in his petition that claim: robbery with a
deadly weapon is a “non-existing” offense; there was no true bill of indictment, no proper
arrest report, or waiver of Miranda rights; there was a violation of ex post facto laws; he
was not sentenced to the “least restrictive amount of time”; and the indictments were “so
fatally defective, as to render [the] trial court without jurisdiction.” The pages to which
the petitioner refers do not support his argument on this issue. Moreover, as discussed
above, the crime of assault with intent to commit murder existed when the petitioner
committed the offenses. The indictment was valid, and there was nothing unlawful about
the State indicting, trying, and convicting the petitioner for his crimes. The issue is
without merit.

        The petitioner next argues that the court clerk “so fundamentally mixed up
papers/documents filed by [him]” that it “denied him a fair hearing process and the due
process of law.” To support this claim, the petitioner repeats verbatim his argument in
support of his claim that the habeas court did not fully adjudicate his claims. As we
determined above, there is no confusion in the record about which documents supported
the affidavit of indigency and which documents were intended to support the petitioner’s
claims for relief, and the habeas court identified in its order each of the issues the
petitioner raised in his explanatory attachment. Moreover, the petitioner fails to cite any
authority that would entitle him to relief based on the court clerk’s supposedly shuffling
documents submitted with the habeas petition. This issue is without merit.

        The petitioner next argues that “a reasonable jurist could conclude that [the]
[p]etitioner[’s] issues are valid . . . [and] he has a right to the relief sought” because
“renowned” attorney, David Raybin, said that his issues were valid and that there is “no
such crime/law as to assault to murder.” The pages to which the petitioner refers include
a letter the petitioner sent to attorney David Raybin with a list of the issues he intended to
present for habeas review, which letter Mr. Raybin returned to the petitioner with a
handwritten note. The note reads: “I found your arguments most interesting – I think the
issue regarding that there’s no crime as assault to murder is valid.” This court is
obviously not bound by a handwritten note from an attorney to a prison inmate,4 and the
standard is not whether a “reasonable jurist could conclude” that the stated issues were
valid. As the habeas court found, the petitioner’s sentence had not expired, the trial court
had jurisdiction to sentence the petitioner, and the indictment was not defective. This
issue is without merit.
        4
          It does not appear that Mr. Raybin was aware that the petitioner was convicted of crimes
committed in 1989 or that the petitioner was actually convicted of assault with intent to commit murder,
not “assault to murder.”
                                                  -6-
        The petitioner next argues that the trial court did not have jurisdiction to try,
convict, and sentence him because there was “no arrest warrant-report.” In support of
this claim, the petitioner provides no explanation other than referencing an unspecified
number of pages from the eleven-page argument in the technical record that was
presumably attached to his petition for writ of habeas corpus. This issue is waived for
failing to provide an argument on the issue and, furthermore, there is no requirement that
an arrest warrant issue in order to confer jurisdiction on the trial court. Cf. Tenn. R.
Crim. P. 5(a)(2). This issue is without merit.

        The petitioner next argues that the State violated the prohibition against double
jeopardy by “taking a single course of action/conduct/episode and illegally separating it
into separate events.” He provides no argument on this issue other than to refer to two
pages in his petition in which he asserts that the State violated the prohibition against
double jeopardy when it charged him with three crimes arising out of one criminal
episode and aligning his sentences consecutively. In support of his argument regarding
multiple criminal charges, the petitioner selectively quotes from the indictment to prove
that there was only one criminal episode and cites to two opinions from this court, State
v. Franklin, 130 S.W.3d 789 (Tenn. Crim. App. 2003) and State v. Williams, 623 S.W.2d
121 (Tenn. Crim. App. 1981), for the principle that “a defendant may not be convicted -
or- punished for two (2) crimes arising out of the same event.”5 However, these
decisions stand for the proposition that the prohibition against double jeopardy protects
criminal defendants against multiple punishments for the same offense, not that criminal
defendants cannot be charged with multiple offenses arising from the same criminal
episode. For example, in Franklin, this court found that the defendants could not be
convicted of two counts of aggravated robbery where only one theft occurred, but they
could be convicted of two counts of aggravated assault because the two victims were
each threatened with a gun during the course of the robbery. See Franklin, 130 S.W.3d at
798. The petitioner’s convictions align with Franklin: he was convicted of one count of
robbery and there was only one robbery; he was convicted of two counts of assault with
intent to commit murder because he assaulted two different people. There is no double
jeopardy violation.

       The petitioner also asserts that his protection against double jeopardy was violated
by his receiving consecutive sentences because such sentences were prohibited by an
unspecified statute. The petitioner also cites two cases in support of his assertion that
double jeopardy prohibits consecutive sentences, one of which does not mention the term
“double jeopardy” and actually upheld consecutive sentences imposed by the court where
the two defendants were convicted of “assault to commit murder in the first degree” and

       5
           The language quoted by the petitioner does not appear in either opinion.
                                                    -7-
“robbery with a deadly weapon.” See Grey v. State, 542 S.W.2d 102, 102-04 (Tenn.
Crim. App. 1976).6 The other case, an en banc Sixth Circuit opinion, held that
consecutive sentences were inappropriate where the defendant was convicted of assault
with intent to commit felony murder and assault with intent to commit robbery with a
deadly weapon because, in that specific situation, they were the same offense under the
Blockburger analysis due to the trial court’s including felony murder in its charge to the
jury, and the legislature had not clearly indicated that consecutive sentences were allowed
in that situation. Pryor v. Rose, 724 F.2d 525, 529-31 (6th Cir. 1984); see Blockburger v.
United States, 284 U.S. 299, 304 (1932). However, the court noted that “[u]nder most
circumstances, assault with intent to commit first degree murder and assault with intent to
commit robbery with a deadly weapon are different offenses within the meaning of
Blockburger,” Pryor, 724 F.2d at 530, and thus not subject to further inquiry before
consecutive sentences could be imposed. There is no double jeopardy violation in this
case.

       The petitioner next argues that the indictments against him “were so fatally
flawed” as to deprive the trial court of jurisdiction. He provides no argument on this
issue other than to refer to three pages in his petition in which he asserted that the
indictments against him were void because he was indicted for “assault to murder,”
which is not a crime, and no one was murdered. We have previously touched on this
allegation above but will note again that, although the summary of the charges on the
indictment reads “assault to murder first degree,” the cited statute and code section are
clearly for the offense “assault with intent to commit murder in the first degree.” This
was a crime in existence at the time the petitioner committed the offenses, and it
necessarily required that the victims survive. The habeas court properly concluded that
the indictment was not defective, and this issue is without merit.

       The petitioner next asserts that his sentence violated the prohibition against ex post
facto laws. Again, the petitioner provides no argument on this issue other than to refer to
four pages in his petition in which he asserted that his sentence would have been
significantly less had the court sentenced him under the 1982 law, rather than the 1989
law. He is correct that the trial court was required to calculate his sentence under both
the 1982 and 1989 Sentencing Acts and then impose the lesser sentence. However, this is
exactly what the trial court did, as described by this court on review of the denial of the
petitioner’s claim for post-conviction relief and the federal district court on consideration
of the petitioner’s claim for federal habeas corpus relief. See Eric Wright, No. W2009-
00864-CCA-R3-PC, slip op. at 6, 11; Eric R. Wright, 2015 U.S. Dist. LEXIS 136175, at
*25-26, *76-91. The petitioner compares concurrent lesser sentences he theoretically
        6
          Interestingly, the Grey court also found “no merit in plaintiffs-in-error’s argument that these
four offenses were only one criminal event and should therefore result in one punishment.” 542 S.W.2d
at 104.
                                                  -8-
could have received under the 1982 Act with the consecutive maximum sentence he
actually received under the 1989 Act and concludes that he should have been sentenced
under the 1982 Act. However, the petitioner is not comparing apples to apples – had the
court imposed the maximum sentence available under the 1982 Act, he would have
received three consecutive life sentences of sixty years each with no chance of parole.
See Eric Wright, No. W2009-00864-CCA-R3-PC, slip op. at 11. Instead, the trial court
imposed a total effective sentence of 150 years at 45% release eligibility. He clearly
received the lesser of the maximum sentences available under the two sentencing
schemes.

       The petitioner also appears to argue that the offense of robbery with a deadly
weapon either did not exist under the 1982 Act or it was a lesser grade of felony.
However, the trial court would have accounted for the classification of each offense
under each version of the law when it sentenced the petitioner and appears to have done
so. See Eric R. Wright, 2015 U.S. Dist. LEXIS 136175, at *84-88; see also Eric Wright,
No. W2009-00864-CCA-R3-PC, slip op. at 11. The petitioner has not shown that his
sentence is void.

       The petitioner lastly asserts that the trial court “acted in contravention of a statute,
as well [as] upon an unindictable offense” in convicting him. Again, the petitioner
provides no argument on this issue other than to refer to two pages in his petition in
which he asserted, without explanation, that the trial court did not have a lawful
indictment or arrest report, did not sentence him to the least restrictive amount of time
and violated ex post facto laws, never provided the petitioner with his Miranda rights, and
that the indictment was fatally defective. These pages only recap the petitioner’s
arguments without additional analysis or support and, as discussed above, all of those
arguments lack merit.

        Even giving the petitioner a significant amount of leeway considering the huge
insufficiencies in his brief and arguments, we conclude that none of the petitioner’s issues
entitle him to habeas corpus relief.

                                      CONCLUSION

     Based on the foregoing authorities and reasoning, we affirm the habeas court’s
summary dismissal of the petition.

                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE



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