         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE            FILED
                         OCTOBER SESSION, 1998       December 15, 1998

                                                     Cecil Crowson, Jr.
                                                     Appellate C ourt Clerk

RONALD DAVID DUKES,              )   C.C.A. NO. 03C01-9604-CC-00175
                                 )
           Appe llant,           )
                                 )   MORGAN COUNTY
V.                               )
                                 )
CHARLIE JONES, WARDEN, and       )   HON. E. EUGENE EBLEN, JUDGE
STATE OF TENNESSEE,              )
                                 )
           Appellee.             )   (POST-CONVICTION/ESCAPE)



FOR THE APPELLANT:                   FOR THE APPELLEE:

RON ALD D AVID D UKE S, pro se       JOHN KNOX WALKUP
MCRCF, Box 2000, Unit 14             Attorney General & Reporter
Wa rtburg, T N 478 87
                                     KENNETH W. RUCKER
                                     Assistant Attorney General
                                     2nd Floor, Cordell Hull Building
                                     425 Fifth Avenue North
                                     Nashville, TN 37243

                                     CHARLES E. HAWK
                                     District Attorney General

                                     FRANK A. HARVEY
                                     Assistant District Attorney General
                                     P.O. Box 703
                                     Kingston, TN 37763




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                     OPINION
       The Petitioner, Ronald David Dukes, appe als the trial cou rt’s dism issal of h is

pro se petition for writ of habeas corpus challeng ing a 198 6 esca pe con viction. W e

affirm the ju dgme nt of the trial co urt.



       According to this Cou rt’s summ ary of facts a s set forth in State v. Ron ald

David Dukes, C.C.A. No. 26, slip op. at 1-2, Union County (Tenn . Crim. A pp.,

Knoxville, Apr. 4, 1989 ), this C ourt affir med Petition er’s convictions and sentences

for first degree murder, armed robbery, and kidnapping to commit robbery by the use

of a firearm in 1978. See Duke s v. State, 578 S.W.2d 659, 666 (Tenn. Crim. App.

1978). He was sentenced to life imprisonment on each of the first two offenses and

to life plus fiv e years as enha nced pun ishment for the comm ission of the third

offense . They w ere furthe r ordered to be serv ed con secutively.



       Petitioner filed his first petition for post-conviction relief in 1985, alleging

ineffective assistance of counsel and prejudicial conduct by the trial judge during voir

dire and the pretrial conference. After the appointment of counsel an d an evidentiary

hearing, the trial cou rt dism issed the pe tition. Th e judg men t was a ffirmed by this

Court on August 25, 198 6. See State v. Edg ar Virg il Duke s, III, and Rona ld Dav id

Dukes, C.C.A. No. 2 5, Union C ounty (Ten n. Crim. App . Knoxville, Aug. 25, 19 86).



       On Septem ber 8, 1986, Petitioner escaped from custody. On October 29,

1986, Petitioner pled guilty to the offense of escape, and the trial court imposed a

two-year sentence to be served cons ecutive ly to his prior sentences. Petitioner filed

his second post-conviction petition on December 17, 1987. See State v. Ron ald

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David Dukes, C.C.A. N o. 26, slip op . at 2, Unio n Cou nty (Ten n. Crim. A pp.,

Knoxville, Apr. 4, 1989). In that particular petition, he alleged that his convictions

violated double jeopardy principles and that his due process rights were violated

because the State failed to disclose the name s of witnesses a nd other excu lpatory

mate rial. Id.; see Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215

(1963). This Court determined the double jeopardy claim to be predetermined.

Howeve r, this Court reversed the case and ordered the appointment of counsel, the

opportu nity for filing an amended petition, a full determination on the issue of waiver

of the Brady issue, and, if necessary, a hearing on the me rits of the pe tition. Dukes,

C.C.A. No. 26, slip op. at 8. Petitioner did not raise any issues regarding his escape

convictio n in the December 17, 1987 petition. After repeated continuances, an

evidentiary hearing was held, after which the trial cou rt denied re lief. See Ron ald

David Dukes and Ed gar Virgil D ukes, III v. Sta te, C.C.A. No. 03C01-9703-CC-00112,

Union County (Tenn. Crim. A pp., Knoxville, May 27, 1998). This Court affirmed the

trial court’s dis missa l. Id.



       On December 15,1995, Petitioner filed a petition entitled, “Violation of the Due

Process of Law and Denial o f a Fair Trial or in the Alternative Post-Conviction

Relief.” The trial court treated the petition as one for habeas corpus relief and

subs eque ntly dismissed that petition in March of 1996. The trial court stated that

Petitioner did not allege, aver, or show that the judgment in his case was void or that

his sentence had expired.        It further noted that the post-conviction statute of

limitations had expired. In this appeal, Petitioner raises the following four issues: (1)

that his prior sentences were impro perly u sed to enha nce h is pun ishm ent on his

1986 escape conviction; (2) that he received the ineffective assistance of counsel

in making his plea; (3) that his plea was not knowingly, intelligently, nor

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understandingly made; and (4) that this conviction constituted double jeopardy as

he was punish ed by prison authorities in addition to being criminally prosecuted.

According to Petitioner, his prison discipline included a 30-day segregation

sentence, a loss of six months good and honor time, a subsequent six-months

administration segregation, a classification status upgrade from minimum restricted

to med ium, an d a loss o f 72 days of earne d sente nce cre dits.



      It is a well-establish ed prin ciple o f law tha t the rem edy of h abea s corp us is

limited in its nature a nd its sco pe. Archer v. State, 851 S.W.2d 157, 161-62 (Tenn.

1993); Passarella v. State, 891 S.W .2d 619 , 626 (T enn. C rim. App . 1994). In

Tennessee, habe as co rpus re lief is ava ilable only if “‘it appears upon the face of the

judgment or the record of the proceedings upon which the judgment is rendered’ that

a convicting court was without jurisdiction or authority to sentence a defendant, or

that a defendan t’s sentence of im prisonme nt or other restraint has expired.” Archer,

851 S.W.2d at 164 (citation omitted in original). The petitioner has the burden of

establishing either a void judgment or an illegal confinement by a preponderance of

the evidenc e. Pass arella, 891 S.W.2d at 627. Moreo ver, where a judgment is not

void, but is merely voidable, such judgm ent m ay not b e colla terally attack ed in a suit

for habe as corp us relief. Id.



      In the present case, Petitioner’s three consecutive life sentences have not

expired, nor has his sentence for escape since it was ordered to run cons ecutive ly

to the life sentences.    Further, none of his convictions are void on their face.

Therefore, the claims presented by Petitioner are not cognizable under the habeas

corpus statute. See Tenn . Code Ann. § 2 9-21-10 1 - 130.




                                            -4-
       In addition, as Petitioner acknowledges, his claims are time-barred for

purposes of post-conviction relief. Petitioner asserts that he did not appeal his

escape conviction, therefore, his conviction became final on October 29, 1986. At

the time Pe titioner’s esc ape co nviction be came final, the statu te of limitations

applic able to post-conviction proceedings was three years. Tenn. Code Ann. § 40-

30-102 (repealed 19 95). He therefo re needed to have filed his petition by October

29, 1989, in order to toll the running of the statute . How ever, P etitione r did no t file

this petition for post-conviction relief until December 15, 1995, thus barring any

claims h e migh t have ha d.



       The new 1995 Post-Conviction Act go verns this petition and all petitions filed

after May 10, 1995. Petitioner’s petition is not revived by the new Post-Conviction

Procedu re Act. See Tenn. Code Ann. § 40-30-201 et seq. Petitioners “for whom the

statute of limitations expired p rior to the effe ctive date of the new Act, i.e., May 10,

1995, do not have an additional year in which to file petitions for post-conviction

relief.” Carter v. S tate, 952 S.W.2d 417, 418 (Tenn. 1997). Also, after a review of

the record and the cases cited by Petitioner, we find that his claim s do no t fall into

any of the three recognized exceptions to the new Act in wh ich a trial court can have

jurisdiction to consider a petition filed outside the statute of limitations. See Tenn.

Code Ann. § 4 0-30-20 2(b).



       Additionally, Petitioner wa s convicted in U nion Coun ty. This petition for writ

of habeas corpus was filed in Morgan County, the proper venue for habeas corpus

relief but not post-conviction relief. Comp are Tenn. Code Ann. § 40-30 -204(a) (p ost-

conviction petition shall be filed in court where c onviction occurre d) with Tenn. Code

Ann. § 29-21 -105 (pe tition for writ of habeas corpus shall be filed in court “most

                                            -5-
convenient in point of distance” to petitioner unless a sufficient reason is given in the

petition). Accordingly, we conclude that the trial court did not err by failing to treat

the ap plicatio n as o ne for p ost-co nviction relief on this gro und a s well.



       Petitioner argues that United States v. Ursery, 59 F.3d 568 (6th Cir. 1995),

created a new rule of law w ith regard s to his do uble jeop ardy rights . See Tenn.

Code Ann. § 40-30-202(b)(1). However, the United States Supreme Court has

recen tly overruled the Sixth Circuit’s decision in Ursery, finding tha t in rem civil

forfeitures are in fact not punitive and do not foreclose subsequent criminal

prosecution for purp oses of the D ouble Jeopa rdy Clau se. United States v. Ursery,

518 U.S. 267, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996). Furthermore, we find the

issues raised in Ursery to be wholly inapplicable to the case sub judice.



       In Petitioner’s response to the State’s brief, he cites the case of

Com monw ealth v. Forte, 4 Mass. L. Rptr. 96, 1995 WL 809 491 (Mas s. Superior,

March 8, 1995) as applicable to his case.             The court in that case held that

disciplinary action by prison authorities was punishment for purposes of the Do uble

Jeopardy Clause, and that subsequent criminal prosecution based upon the same

wrongdoing was barred by the Doub le Jeopard y Clause . Id. How ever, a gain, it

appears that the cited case ha s been overruled . See Com monw ealth v. Forte, 423

Mass. 672, 671 N.E.2d 1218 (Mass. 1996) (holding that Double Jeopardy Clause

principles do not in all instances ban both the imposition of prison discipline and a

criminal prosecution fo r the sa me w rongfu l cond uct). Ac cordin gly, De fenda nt’s

reliance on Forte is also misplaced.




                                             -6-
       Furthermore, opinions by this C ourt have stood for the proposition that “if the

administrative action is remedial and not intended to inflict punishment as a means

of vindica ting pu blic justic e, the d ouble jeopardy clause s erves as no prote ction.”

State v. Steven J . Benne tt and Sc ott A. Montgo mery, C.C.A. No. 03C01-9607-CR-

00250, slip op. at 2, Morgan County (Tenn. Crim. App., Knoxville, Feb. 27, 1997)

(citation omitted) ; see also Ray v. Sta te, 577 S.W.2d 681 (Tenn. Crim . App. 1978 ),

cert. denied (Tenn. 197 9).



       Finding no merit in the issues raised by Petitioner, we affirm the judgment of

the trial cou rt.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
DAVID H. WELLES , Judge




                                           -7-
