        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs October 19, 2016

            JAMES ROBERT WILSON v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                      No. 98-D-3052      Steve Dozier, Judge
                     ___________________________________

              No. M2016-00860-CCA-R3-HC – Filed November 2, 2016
                     ___________________________________


A Davidson County jury convicted the Petitioner, James Robert Wilson, of especially
aggravated robbery and first degree felony murder, and the trial court sentenced him to an
effective sentence of life in prison. The Petitioner appealed, and this Court affirmed the
trial court‟s judgments. State v. James Robert Wilson, No. M2000-00760-CCA-R3-CD,
2002 WL 1050259, at *1 (Tenn. Crim. App., at Nashville, May 24, 2002), perm. app.
denied (Tenn. Nov. 12, 2002). In 2003, the Petitioner unsuccessfully sought post-
conviction relief. James Robert Wilson v. State, M2004-00933-CCA-R3-PC, 2005 WL
1378770, at *1 (Tenn. Crim. App., at Nashville, June 10, 2005), perm. app. denied (Oct.
31, 2005). In 2016, the Petitioner filed a petition for habeas corpus relief contending that
the trial court “constructively amended the indictment in this case” when it charged the
jury using language that did not fully comport with the language used by the grand jury
when it indicted him. The habeas corpus court summarily dismissed the petition, and we
affirm the habeas corpus court‟s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and NORMA MCGEE OGLE, JJ., joined.

James Robert Wilson, Only, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Glenn R. Funk, District Attorney General; and J. Wesley King, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts
       In our opinion disposing of the Petitioner‟s direct appeal, we summarized the facts
presented at trial:

             On November 13, 1997, Timothy Wayne Holt (also known as
      Timbo) was fatally shot three times in the back of the head inside his home
      located at 713 Oneida Avenue in Nashville. The proof at trial revealed that
      the victim was a well-known local marijuana dealer and merchant of stolen
      property. At the time of his death, the victim was married to Julie Holt, and
      the couple had a four year old son, Blake Holt. The couple maintained two
      residences, one at 713 Oneida Avenue, and another at 211 Archwood Drive
      in Madison. Mrs. Holt explained that the couple maintained two residences
      so that her husband could conduct his drug and stolen property business on
      Oneida street, while the family slept at their apartment in Madison.

              Timbo employed many security devices at the Oneida residence.
      The home was equipped with a deadbolt lock, security system, and metal
      security gates on the front and rear door. Mrs. Holt testified that Timbo
      always kept the doors locked when he was inside. Timbo also kept a pit
      bull and a boxer for protection. Mrs. Holt testified that both dogs were very
      protective of the victim and would bark and become fierce when a strange
      person approached the home. On November 13, 1997, Mrs. Holt and her
      infant son arrived at the Oneida residence at approximately 7:00 p.m.
      When she arrived, Timbo was in the process of selling marijuana to a
      frequent customer, Derek Larkin (also known as Bushrod). Mrs. Holt
      testified that Bushrod purchased an ounce from Timbo, which Timbo
      measured by piecing it from a larger brick of marijuana. She stated that
      Timbo normally stored the brick of marijuana in a large black trash bag in
      the trunk of a car behind the home. Timbo stored marijuana in three (3)
      separate locations: (1) in ziplock bags inside the dog food; (2) inside his
      son‟s toys in the backyard; and (3) in the trunk of the car parked behind the
      house. Timbo stored the trunk‟s key in the top dresser drawer in the master
      bedroom. Mrs. Holt testified that Bushrod paid Timbo and then left. She
      also testified that the dogs did not like Bushrod, and often barked when he
      came to the house. Bushrod‟s testimony corroborated Mrs. Holt‟s account
      of the events on that night. She also testified that Timbo‟s pit bull usually
      barked when he was there.

             Approximately fifteen minutes after Bushrod left, Mrs. Holt and the
      baby left to attend a wrestling match. She returned to the Oneida residence
      approximately two hours later at 9:00 p.m. She stated that although Timbo
      was not home, she paged him and he arrived at the Oneida residence thirty
                                            2
minutes later. Mrs. Holt testified that [the Petitioner] called the Oneida
residence later that night. She stated that she knew that it was the Petitioner
because when she answered the phone he identified himself as “B.J.” or
“Black James.” She overheard Timbo and [the Petitioner] discussing a .40
caliber Glock pistol for $400.00. Timbo also informed [the Petitioner] that
his brother, Michael Holt was not at his home. Mrs. Holt was well
acquainted with [the Petitioner], as he and Timbo were friends and often
spent time together. [The Petitioner] had also been a frequent guest at the
Oneida residence over the past two years. She recalled that [the Petitioner]
often wore a black leather jacket.

       Mrs. Holt left the Oneida residence while Timbo was on the phone
with [the Petitioner]. As was her common practice, Mrs. Holt called Timbo
when she reached the apartment in Madison, at approximately 10:30 p.m.
She stated that when she called, the line was busy and although she paged
him, Timbo did not respond. Mrs. Holt became alarmed because this was
uncommon. She then called Jason Westmoreland, Timbo‟s “roommate,”
who often stayed at the Oneida residence. Mr. Westmoreland stated that he
had dropped the victim off at the Oneida residence at approximately 10:00
p.m. She then called Michael Holt, the victim‟s brother, and asked him to
check on Timbo.

       Timbo‟s brother, Michael Holt, lived next door at 711 Oneida
Avenue with his wife, Shannon Holt, and their infant son. Michael Holt
was also known in the neighborhood as a drug dealer and weapons
“merchant” and was incarcerated at the time of trial on a felony drug
conviction. Michael Holt testified that on November 13, 1997, his family
left home at 5:00 p.m., and returned home at approximately 10:00 p.m. As
they were pulling into their driveway, his wife noticed that someone had
opened the front door of Timbo‟s home, peered out, and shut the door
quickly. Michael Holt testified that at approximately 10:30 p.m., Julie Holt
called him upset because Timbo had not returned her calls or pages. Upon
her request, he went next door to check on Timbo. He noticed that
although all of the interior lights were on, the door was locked and no one
appeared to be home. Seeing no signs of forced entry, he returned home.
He then telephoned Julie Holt and asked her to bring the keys to the Oneida
residence.

       Mrs. Holt testified that when she arrived at the Oneida residence, she
detected a “burnt smell” as she walked towards the front of the house. As
she entered the home, she noticed that the phone was off the receiver. She
                                      3
then discovered Timbo‟s body laying face-down on the floor of her son‟s
bedroom, and ran next door to get help. When Mrs. Holt returned, she
discovered that Timbo was dead.

        Mrs. Holt further testified that the day before Timbo was killed, he
had purchased five pounds of marijuana from his supplier. When they
found the victim‟s body, he had $13.00 in his pants pocket. She testified
that it was common knowledge that the victim often kept cash and
marijuana in the house. Timbo often stored the money from his drug sales
in the front pocket of a Levi‟s shirt, that hung in the closet in the master
bedroom. On the night he was murdered, Timbo had $2,000.00 in the
pocket earlier in the evening, in denominations ranging from $5.00 to
$100.00. After an initial inspection, Mrs. Holt discovered that the
$2,000.00 was missing. She also noticed that the black trash bag, where
Timbo stored the brick of marijuana, was empty on the kitchen table. The
key to the trunk of the car where the marijuana was normally stored was
also missing, but was later discovered in the passenger seat of the Bronco.
However, the victim‟s stolen radios, and the Holt‟s [sic] own televisions,
VCRs, and jewelry were not disturbed. Mrs. Holt and Michael Holt both
testified that everything else in the house seemed to be intact. Although
there were no signs of forced entry into the home, it was later discovered
that the back door was wide open.

        Ms. Lee Carrington, a long-time neighbor, lived at 715 Oneida
Avenue. Ms. Carrington testified that on November 13, 1997, at
approximately 10:00 p.m., she heard some commotion outside. She
testified that the noise sounded like someone banging on a car door three
times with a fist. When Ms. Carrington looked out the window, she saw
what appeared to be a man standing in the driveway between her and
Timbo‟s home. She then went out on the porch and asked the man if
Timbo knew that he was there. The man, who continued to look in the
direction of Michael Holt‟s home, replied emphatically, “ma„am, yes,
ma„am; yes, ma„am.” She recalled that the man had the voice of an older
teenager and was approximately between the ages of nineteen and twenty-
one. She testified that he was black and was wearing dark clothing and a
large dark bulky jacket that fit slightly below the waist. She observed that
the man was standing next to the window of the Bronco, and appeared to be
as tall as the window‟s metal frame. After she turned away, she saw a blur
run past her as someone ran through her yard and down Oneida street. She
recalled that it was odd that the pit bull in Timbo‟s backyard did not bark at
the man, because he normally barked at strangers. Later, officers measured
                                      4
the Bronco‟s door frame and it was estimated to be approximately sixty to
sixty three inches in height. Michael Holt and Julie Holt each testified that
[the Petitioner] was often respectful towards older people and usually
answered them by saying, “yes, ma„am” or “no, ma„am.”

      ....

        Michael Holt testified that within a few days of his brother‟s death,
he posted signs offering a $10,000 reward for information on his brother‟s
killer. Shortly thereafter, Mr. Burke, the owner of a local pawn shop, gave
him two videotapes and a $100.00 bill. Michael Holt later turned this
evidence over to police.

        Timothy Burke testified that he and Timbo were close friends.
Burke gave Michael Holt surveillance video tapes of the pawn shop in an
attempt to help him apprehend his brother‟s killer. In his opinion, anyone
who did business with him on the days surrounding Timbo‟s murder
probably did business with Timbo, and he felt that the killer might be on
one of the tapes. Mr. Burke also admitted that he gave Michael Holt a
$100.00 bill that [the Petitioner] had spent in the pawn shop shortly after
Timbo‟s death. Mr. Burke testified that on November 12 and 13, [the
Petitioner] asked him if he could borrow some money. He stated that [the
Petitioner] explained that he needed money to buy things for his baby‟s
arrival. He testified that [the Petitioner] also tried to borrow money from
several of his customers, however they refused because [the Petitioner]
already owed them money. However, on November 14, 1997, [the
Petitioner] came into the pawn shop and spent approximately $300.00, and
Mr. Burke noticed that [the Petitioner] had much more money in his pocket.
When he inquired where [the Petitioner] got the money, [the Petitioner]
responded, “I hit a lick,” meaning he had made some money. Mr. Burke
identified [the Petitioner] in both of the videos that were played in the
jury‟s presence. He testified that the video tapes were recorded on
November 12 and 13, 1997. Mr. Burke admitted that the tapes were not
formally marked or labeled by date. In the background, [the Petitioner]
could be heard asking people for money. [The Petitioner] was also seen
wearing a quarter-length black leather coat. He stated that [the Petitioner]
frequently wore the coat before November 13, but that he never wore it
after that date. Instead, [the Petitioner] began to wear a blue thermal
lumber jacket. Mr. Burke also testified that before November 14, 1997, he
had seen [the Petitioner] carrying a .357 caliber revolver.

                                     5
        Dr. Bruce Levy, the Medical Examiner for Davidson County,
testified on behalf of Dr. Emily Ward, the medical examiner who
performed the autopsy on the victim. . . . Dr. Levy testified that . . . the
victim died as a result of three gunshot wounds to the head. “Stippling”
was noted around two of the three bullet wounds, which indicated that
when the gun was fired, the barrel was between approximately six inches to
twenty-four inches away from the victim‟s head . . . . In his expert medical
opinion, all of the shots were fatal and would have led to death within a
matter of minutes.

        Tandra Walker testified that in November of 1997, she was dating
and living with her boyfriend, Michael Garcia and his family. She was
acquainted with [the Petitioner], who was a friend of Mr. Garcia‟s. Ms.
Walker stated that late one night in 1997, [the Petitioner] appeared at their
home unexpected. She testified that Mr. Garcia got up to answer the door
while she remained in bed. She stated that she knew it was [the Petitioner]
because she heard him talking in the den, located only a few feet from her
bedroom. Mr. Garcia then came back in the room and stated that he had to
leave with [the Petitioner], although he did not say where they were going.
Mr. Garcia returned home later that night and awakened her. She testified
that he was acting “strange” and told her that [the Petitioner] had confessed
to killing someone. Mr. Garcia also told her that [the Petitioner] had blood
on his clothing and that he saw the murder weapon in [the Petitioner]‟s car.
Early the next morning, between five and six o‟clock, the phone rang and
Mr. Garcia woke up and turned on the morning news. She stated that the
news was reporting about Timbo‟s murder. She admitted that after this
date, they continued to socialize with [the Petitioner] and his girlfriend.

        Ms. Walker testified that in the fall of 1998, [the Petitioner] began to
make threatening calls to her home. The court then held a jury out hearing
to determine whether evidence of the threats and the audio taped calls were
admissible. Upon review, the trial court only permitted Ms. Walker to
testify of the conversations she had with [the Petitioner]. She testified that
in 1998, [the Petitioner] began calling her home looking for Mr. Garcia.
The first call was placed on the morning after Mr. Garcia was released from
jail. Ms. Walker testified that over the course of two days, she received
approximately twenty calls from [the Petitioner]. She stated that although
she recorded some of the later calls, she did not tape their initial
conversations. Ms. Walker recalled that [the Petitioner]‟s tone of voice was
often harsh and menacing. She stated that in many of the calls, [the
Petitioner] referred to Mr. Garcia as a “Florida ass n----- and homicide ass
                                       6
n-----.” He also threatened to harm Mr. Garcia and Ms. Walker if his calls
were unreturned. She tried unsuccessfully to block [the Petitioner]‟s calls
and finally changed her number to an unpublished listing. At the time of
trial, she was still dating Mr. Garcia.

       Mr. Garcia testified that he and [the Petitioner] were friends for
almost two years. He also knew Timbo, and he knew that [the Petitioner]
and Timbo were friends. Mr. Garcia stated that on November 13, 1997,
[the Petitioner] appeared at his home late at night. Mr. Garcia was in the
bed with his girlfriend, Ms. Walker, when [the Petitioner] knocked on his
door. When he answered the door, he noticed something “reddish” on the
front of [the Petitioner]‟s black leather jacket. He testified that [the
Petitioner] was upset, and confessed to killing Timbo. Mr. Garcia then
assumed that the red stain on [the Petitioner]‟s chest was blood. Although
[the Petitioner] wanted to spend the night, Mr. Garcia refused. [The
Petitioner] then told Mr. Garcia to come ride with him. He testified that
when he looked at [the Petitioner], [the Petitioner] had a “strange” look in
his eyes. Mr. Garcia agreed to go because he was afraid that [the
Petitioner] would harm him or his family.

        When Mr. Garcia got into the car, he saw what appeared to be a .357
revolver in [the Petitioner]‟s passenger seat. He testified that [the
Petitioner] then drove to [the Petitioner]‟s brother‟s house near Riverside
Drive. Steve Wilson, [the Petitioner]‟s brother, greeted them at the door
and [the Petitioner] informed him that he had killed Timbo. Then, [the
Petitioner] and his brother went into the house and [the Petitioner]
reappeared in different clothing and a blue lumber jacket. Mr. Garcia
further testified that [the Petitioner] showed him what appeared to be a
“chunk” of money. [The Petitioner] then took the money and a package
from the trunk and carried both into his brother‟s house. Mr. Garcia stated
that [the Petitioner] later bragged that he had “hit for two G's,” meaning
two thousand dollars. When [the Petitioner] left his brother‟s house, he
drove to Shelby Park where he backed his car up and unloaded the
remaining bullets from the revolver. Mr. Garcia testified that he watched as
[the Petitioner] threw the revolver and the bullets into the Cumberland
River. [The Petitioner] then drove to the home of his girlfriend, Toni
Avant, where he went inside. After waiting in the car for a couple of
minutes, Mr. Garcia knocked on the door and asked [the Petitioner] to
leave. He stated that on their way home, [the Petitioner] drove down a
street that was parallel to Oneida, looking for signs of police activity.
Seeing no police cars, [the Petitioner] took Mr. Garcia home. When Mr.
                                     7
Garcia returned home, he told his girlfriend what had happened and then
went to sleep. He stated that [the Petitioner] called early the next morning
and told him to turn on the news to watch the story of Timbo‟s murder.

        Mr. Garcia further testified that he and [the Petitioner] talked about
the events on the night of the homicide every day for several months. [The
Petitioner] told Mr. Garcia that on November 13, 1997, he called Timbo to
purchase some marijuana. According to their agreement, Timbo would
leave a quarter bag of marijuana in the mailbox and [the Petitioner] would
pick it up, and leave the money for the marijuana in the mailbox. However,
[the Petitioner] decided to go to Timbo‟s door, and after identifying
himself, Timbo opened the door. While Timbo was breaking off some
marijuana from a brick, [the Petitioner] took out his gun and demanded
Timbo‟s money. Timbo led [the Petitioner] into one of the bedrooms and
gave [the Petitioner] a “bunch of money.” While Timbo was giving [the
Petitioner] the money, Timbo kept smiling and saying, “you can have it,
you can have it.” [The Petitioner] replied, “I know I can have it.” [The
Petitioner] then ordered Timbo to get on the ground, but when Timbo tried
to run away [the Petitioner] shot him in the back of the head three times.
[The Petitioner] described in detail that “the blood came out of his head like
a water faucet, like a water fountain . . . .” [The Petitioner] then ran from
the victim‟s house, but stopped beside a vehicle in Timbo‟s front yard when
he saw that Michael Holt was arriving home. As he watched Michael Holt,
Timbo‟s neighbor, an older lady, spoke to him. [The Petitioner] stated that
although he responded to her, he never took his eyes off Michael Holt‟s
home.

       Mr. Garcia further testified that [the Petitioner] confided that the gun
he had used to kill Timbo belonged to Terry Fisher (also known as Mug).
On November 13, 1997, [the Petitioner] retrieved this gun that Mug stored
in a car behind his mother‟s house. [The Petitioner] further admitted to Mr.
Garcia that he needed money quickly because he had a “real bad dope case
pending” and he was expecting a new baby‟s arrival. Mr. Garcia stated that
[the Petitioner] told him that he had spent between $500.00 to $700.00 on
lay-away items for the baby, and had paid his lawyer $1000.00. [The
Petitioner] also stated that he sold the marijuana recovered from the victim
to Daryl Haley. Mr. Garcia testified that he was present when Daryl Haley
saw [the Petitioner] at Tim Burke‟s pawn shop approximately a week after
the murder and asked [the Petitioner], “[w]hy you sold me that dead man‟s
weed?” He then witnessed [the Petitioner] grab Mr. Haley and rush him
out the back door. [The Petitioner] told Mr. Garcia that after the murder, he
                                      8
gave the black leather coat to Marlin Thompson to get it out of his
possession. Mr. Garcia acknowledged that although he knew [the
Petitioner] had murdered Timbo, he continued to remain friends, spent time
with him, and even double-dated a couple of times.

       In August of 1998, Mr. Garcia surrendered to authorities due to a
probation violation warrant and was incarcerated until the middle of
September. He testified that the day before his release, [the Petitioner]
stole his car. Although Mr. Garcia reported the auto theft to police, he did
not mention the murder. Shortly thereafter, [the Petitioner] began making
threatening calls to Ms. Walker‟s home, where Mr. Garcia was living. Mr.
Garcia stated that [the Petitioner] threatened to kill him and his family
because [the Petitioner] feared that Mr. Garcia had contacted the police
about the murder. In the calls, [the Petitioner] referred to him as a “police
ass n-----“ and a “snitch.” Mr. Garcia testified that five of the calls were
recorded on his girlfriend‟s answering machine. The tapes of the calls were
played for the jury during the trial. Mr. Garcia admitted that a portion of
these calls were related to property that he had in his possession, which
belonged to [the Petitioner]. Mr. Garcia testified that several days after the
phone calls began, [the Petitioner] drove into his yard and pointed a pistol
at him. Frightened by [the Petitioner]‟s actions and the threats, Mr. Garcia
spoke to his lawyer and then went to police. He testified that he was never
promised anything in exchange for his testimony.

       Daryl Haley, whose step-son Marlin Thompson was [the
Petitioner]‟s friend, testified that a few days after the victim was shot, he
purchased almost two ounces of marijuana from [the Petitioner] for
approximately $125.00. He stated that this price was a bargain because an
ounce of marijuana normally sold for $100.00. He added that they
completed the transaction at Mr. Haley‟s home, and that during the sale he
inquired, “this isn‟t any-that dead man‟s weed?” [The Petitioner] claimed
that he had traded a gun for the marijuana. Mr. Haley later reported this
transaction to police. Contrary to Mr. Garcia‟s testimony, he denied having
made the statement in any other location.

       Toni Avant testified that she dated [the Petitioner] in November
1997. On November 13, 1997, she went riding with [the Petitioner],
Marlon Thompson and Stacy Newman. She remembered that [the
Petitioner] was wearing a black leather coat that night, which he never wore
after that date. After riding around Shelby Park, they returned home at
approximately 5:30 p.m. She then walked with [the Petitioner] to his
                                      9
mother‟s home to retrieve a gun for Mug, which was stored in a car behind
the home. When they returned to her home, [the Petitioner] placed a phone
call and then left. Later that evening, between 10:30 and 11:30 p.m., [the
Petitioner] returned to her home heavily intoxicated. It appeared that he
had been drinking heavily and taking Valiums. Within minutes of [the
Petitioner]‟s arrival, Mr. Garcia knocked on the door and [the Petitioner]
left again. However, before he came back, [the Petitioner] called her from
a pay phone. The next morning, she woke [the Petitioner] and told him
about the news report of Timbo‟s murder. She recalled that [the Petitioner]
called Mr. Garcia during the news broadcast. Ms. Avant testified that after
Timbo‟s murder, [the Petitioner] wore a bullet proof vest for a couple of
days; he did not wear one before the murder. Ms. Avant further testified
that shortly before Timbo‟s murder, [the Petitioner] stated that he needed
money to cover attorney fees and pay a lay-away at Kmart that was about
five or six hundred dollars. After the murder, [the Petitioner] gave her a
receipt showing that the Kmart lay-away was paid off. However, the
receipt was misplaced before trial. During her direct testimony, she
admitted that when interviewed by detectives in November and December
1997, she lied and stated that [the Petitioner] was with her the entire night
of November 13, 1997. However, Ms. Avant testified that the statement
she provided detectives in September of 1998 was accurate, and that her
testimony at trial was true.

       Detective Pat Postiglione of the Metro Murder Squad Unit was the
lead investigator in the victim‟s murder. Detective Postiglione testified that
during his initial investigation he interviewed numerous witnesses
including the victim‟s wife, brother, and several other people. Although he
promptly arrived at the Oneida residence on November 13, 1997, he was
unable to find physical evidence identifying a possible suspect. After
further discussion with Michael Holt, [the Petitioner]‟s name, among
others, arose as a possible suspect. He stated that [the Petitioner] was
investigated because he regularly bought marijuana from Timbo and they
often dealt in stolen equipment together. Detective Postiglione later
received information from Mrs. Holt that [the Petitioner] had called Timbo
the night of his murder. Detective Postiglione testified that initially, [the
Petitioner] was not a suspect. However, he recalled that during the
interview, [the Petitioner] appeared nervous. [The Petitioner] admitted that
he and Timbo were well acquainted, but denied any involvement in the
murder. [The Petitioner] also denied owning a leather jacket on November
13, 1997. [The Petitioner] claimed that on the night Timbo was murdered,
he was with his girlfriend, Toni Avant. He stated that on that night, he was
                                     10
not with anyone named Mike. [The Petitioner] stated that he did not hear
of Timbo‟s murder until November 15, 1997, two days after it occurred.
Detective Postiglione testified that he followed up on Ms. Carrington‟s
statement that the man she saw was as tall as the window on the victim‟s
Bronco. He later determined that [the Petitioner] was approximately the
same height.

        Detective Postiglione stated that the investigation was stagnant until
Michael Garcia approached him in 1998. In September of 1998, Wayne
Davis, Mr. Garcia‟s attorney, contacted the district attorney‟s office and
reported that Mr. Garcia might have some possible information about the
victim‟s murder. When interviewed, Mr. Garcia admitted that he was
afraid that [the Petitioner] might harm him or his family. After Mr. Garcia
gave a statement to police, Detective Postiglione investigated the facts and
confirmed details provided by Mr. Garcia. Mr. Garcia also took Detective
Postiglione to the location where [the Petitioner] disposed of the weapon
and identified the home belonging to [the Petitioner]‟s brother on Riverside
Drive. Detective Postiglione testified that Mr. Garcia also provided
information about the marijuana sale, which led them to Daryl Haley.
Detective Postiglione testified that the information given by Mr. Garcia was
corroborated through further investigations and the statements of additional
witnesses. Detective Postiglione also stated that Mr. Garcia was not
promised anything in exchange for his cooperation. Detective Postiglione
testified that the following information was not released to the public: the
location of the bullet wounds, the number of wounds, the type of bullet
used, the amount of marijuana stolen, the amount of blood the victim lost,
and the fact that the suspect possibly wore a black leather coat.
Subsequently, [the Petitioner] was arrested and charged with the murder.

      Although scuba divers searched the Cumberland River in 1998, they
were unable to recover the revolver and bullets that [the Petitioner] had
purportedly thrown into the river in November of 1997. . . .

       Detective Damion Huggins of the Metro Vice Division testified that
[the Petitioner] contacted him on October 8, 1998, to give a statement about
Timbo‟s murder. [The Petitioner] was familiar with Detective Huggins
because Detective Huggins formerly worked as a uniformed officer in the
housing projects.      After Detective Huggins administered “Miranda
warnings,” [the Petitioner] waived these rights and gave the following
statement that Detective Huggins transmitted to written form:

                                     11
                    [The Petitioner] told me, (Officer Huggins), that on the
             night of Timothy Holt‟s murder, a girl named, Toni, himself,
             Marlin Thompson and a girl named Staci all went out to eat.
             After eating, [the Petitioner] had a lot to drink and took some
             Valiums. He said they all went to Toni‟s apartment at 619 S.
             7th St and went to sleep. Prior to going to sleep [the
             Petitioner] and Toni went to James‟s mother‟s residence and
             [the Petitioner] put some pills and cash into a Cadillac parked
             in the rear of the house, 601 S. 9th St. [the Petitioner] then
             states Mike Garcia came to 619 S. 7th Street to get him to
             ride around. Toni‟s mother at 619 S. 7th Street answered the
             door. [The Petitioner] rode around with Mike Garcia and
             they stopped by Garcia‟s home, but, James was tired and
             stayed inside the car. (They were in M. Garcia‟s Chevy
             Caprice, red in color.) M. Garcia came out and took James
             Wilson back to 619 S. 7th Street. [The Petitioner] said he
             then heard about the murder at work at the pawn shop the
             next day. [The Petitioner] says that he had heard rumors
             about the wife of T. Holt and her boyfriend and insurance
             money as possible motive. [The Petitioner] claims his
             innocence.

James Robert Wilson, 2002 WL 1050259, at *1-9.

       After presenting this evidence, the State rested its case. The Petitioner offered
evidence from his brother, who refuted Mr. Garcia‟s account of the night of the murder.
The Petitioner also testified, confirming his statement. The Petitioner added that he had
loaned his gun to Mr. Garcia, who never returned the weapon to him and gave him
marijuana in lieu of the weapon. The Petitioner said he sold the marijuana to Mr. Haley,
but, when Mr. Haley asked him if it was the “dead man‟s” marijuana, the Petitioner
began to suspect that Mr. Garcia had killed the victim.

       The Petitioner denied wearing the black leather coat to the pawn shop and said he
let someone borrow the jacket. He said that he and Mr. Garcia became angry with each
other after Mr. Garcia refused to return a valuable gun that the Petitioner had stored at
Mr. Garcia‟s home. George Duzane testified that he represented Petitioner in 1998 on a
drug charge. He stated that Petitioner never paid him a lump sum of $1,000.00 in 1997 or
1998. Instead, he produced receipts in court showing that Petitioner only paid him
$250.00, and later, $500.00 towards legal fees.



                                           12
       Edward Bell testified that in November of 1997, he lived on Prince Street and
knew Timbo from the neighborhood. At the time of the trial, Mr. Bell was eighteen years
old and a senior at Maplewood High School. He stated that on the night that Timbo was
murdered, he was “hanging out” on Joy Circle, two streets away from Oneida, when he
heard four or five gunshots. He then saw Bushrod running across the street wearing a
black bullet proof vest. He testified that Bushrod also had a .357 in his hand. He stated
that he was able to identify the weapon as a .357 because of its long barrel and brown
handle. He remembered that Bushrod was breathing heavily as he ran past them on the
opposite side of the street. He stated that in March 1998, he called the victim‟s mother-
in-law, Ms. Vivian Chapman, and relayed these facts. He stated that although he was
contacted by police, he refused to provide a statement because he was afraid of Bushrod.

       In rebuttal, the State offered the testimony of Ms. Vivian Chapman, the victim‟s
mother-in-law. She corroborated Mr. Bell‟s statement that he contacted her in March of
1998 about her son-in-law's murder. However, she stated that Mr. Bell only told her that
Bushrod was wearing a bullet proof vest and that he had a gun. Although she encouraged
Mr. Bell to report this information to police, she testified that he was reluctant to get
involved.

        Based upon this evidence, the jury convicted the Petitioner of especially
aggravated robbery and first degree felony murder. Id. at *10. The trial court sentenced
him to an effective sentence of life. The Petitioner appealed, contending inter alia that
the trial court erred when it failed to instruct the jury on second degree murder instead of
reckless homicide and criminally negligent homicide as lesser-included offenses of
felony murder. Id. at *18. This Court affirmed his convictions. Id. at *1.

       In 2003, the Petitioner unsuccessfully sought post-conviction relief on the basis
that he had received the ineffective assistance of counsel. Wilson, 2005 WL 1378770, at
*1. The post-conviction court dismissed his petition, and this Court affirmed. Id.

        The Petitioner then filed a petition for writ of habeas corpus contending that his
judgment for felony first degree murder is void because the trial court amended count one
of the indictment over his objection. The indictment, based upon a 1995 statute, read:

       Count 1: The Grand Jurors of Davidson County, Tennessee, duly impaneled
       and sworn, upon their oath, present that: JAMES ROBERT WILSON on
       the 14th day of November, 1997, in Davidson County, Tennessee and before
       the finding of this indictment, recklessly did kill Timothy Wayne Holt,
       during the perpetration of or attempt to perpetrate robbery, in violation of
       Tennessee Code Annotated § 39-13-202, and against the peace and dignity
       of the State of Tennessee.
                                            13
The Petitioner asserted at trial that the indictment did not charge first degree felony
murder because it included that the murder was committed “recklessly.” The trial court
held that the term “reckless[]” was “surplusage,” and it amended the indictment by
striking that term. The trial court then instructed the jury using the current first degree
murder statute, which did not include the term reckless. In his petition for habeas corpus
relief, the Petitioner asserts that the trial court constructively amended the indictment
without the Petitioner‟s consent and thereby was without jurisdiction to enter the
judgment of conviction.

       The habeas corpus court summarily dismissed the petition. It found:

               The petitioner alleges that he is entitled to relief because “[t]he trial
       court constructively amended the indictment in this case over the
       petitioner‟s objection when the court failed to charge the jury in the
       language utilized by the Grand Jury when they returned the indictment and
       when the Court instructed the jury in a manner which deleted language
       utilized to return the indictment by the Grand Jury.”

               Article I, § 15 of the Tennessee Constitution guarantees the right to
       seek habeas corpus relief and Tennessee Code Annotated § 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. A
       habeas corpus petition may only 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) Petitioner‟s sentence
       has expired. The Court finds that none of the habeas corpus grounds are
       present in the petition. The Court has reviewed the issue raised and is of
       the opinion that the petition contains no grounds that establish that this
       Court was without jurisdiction or authority to sentence the petitioner in the
       instant case. Therefore, the petition is denied.

It is from this judgment that the Petitioner now appeals.

                                         II. Analysis

       On appeal, the Petitioner contends that when the trial court amended the
indictment without his permission, it was divested of jurisdiction to enter a judgment of
conviction against him. He asserts that the trial court‟s instructions to the jury omitted an
element of the indicted offense, which entitles him to a reversal of his conviction. The
                                              14
State counters, first, that the Petitioner failed to follow the mandatory procedure of the
habeas corpus statute by failing to file his habeas corpus petition in the proper court. It
further notes that in the Petitioner‟s direct appeal, he argued that the trial court erred
when it instructed the jury on the lesser-included charge of second degree murder rather
than reckless homicide. The State recounts that, addressing that argument on direct
appeal, this Court held, “that the „reckless‟ language contained in the indictment was
surplusage, and its use cannot change the essential elements of the offense.” James
Robert Wilson, 2002 WL 1050259, at *18.

        Article I, section 15 of the Tennessee Constitution guarantees the right to seek
habeas corpus relief. See Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007).
Although the right is guaranteed in the Tennessee Constitution, the right is governed by
statute. T.C.A. §§ 29-21-101,-130 (2014). The determination of whether habeas corpus
relief should be granted is a question of law and is accordingly given de novo review with
no presumption of correctness given to the findings and conclusions of the court below.
Smith v. Lewis, 202 S.W.3d 124, 127 (Tenn. 2006) (citation omitted); Hart v. State, 21
S.W.3d 901, 903 (Tenn. 2000). Although there is no statutory limit preventing a habeas
corpus petition, the grounds upon which relief can be granted are very narrow. Taylor v.
State, 995 S.W.2d 78, 83 (Tenn. 1999).

        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). In other words, the very narrow grounds upon which a habeas corpus
petition can be based are as follows: (1) a claim there was a void judgment which was
facially invalid because the convicting court was without jurisdiction or authority to
sentence the Petitioner; or (2) a claim the Petitioner‟s sentence has expired. Stephenson
v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000); Archer v. State, 851 S.W.2d 157, 164
(Tenn. 1993). “An illegal sentence, one whose imposition directly contravenes a statute,
is considered void and may be set aside at any time.” May v. Carlton, 245 S.W.3d 340,
344 (Tenn. 2008) (citing State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978)). In
contrast, a voidable judgment or sentence is “one which is facially valid and requires the
introduction of proof beyond the face of the record or judgment to establish its
invalidity.” Taylor, 995 S.W.2d at 83 (citations omitted); see State v. Ritchie, 20 S.W.3d
624, 633 (Tenn. 2000). The petitioner bears the burden of showing, by a preponderance
of the evidence, that the conviction is void or that the prison term has expired. Passarella
v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). Furthermore, the procedural
requirements for habeas corpus relief are mandatory and must be scrupulously followed.
Summers v. State, 212 S.W.3d 251, 260 (Tenn. 2007); Archer, 851 S.W.2d at 165.

     We first note that the State is correct that the Petitioner did not follow the
mandatory procedures articulated by the habeas corpus statute. The Petitioner is
                                            15
incarcerated in Hickman County, but he filed his petition in Davidson County, which is
not the court that is the “most convenient in point of distance” to him. Procedurally, we
note that the failure to file a petition for a writ of habeas corpus in the county of
incarceration, absent a sufficient reason for not doing so, is a proper basis for the
dismissal of the petition. T.C.A. § 29-21-105. If a petition states a reason explaining
why it was filed in a court other than the one nearest to the petitioner, the petition may be
dismissed pursuant to this section only if the stated reason is insufficient. Davis v. State,
261 S.W.3d 16, 21 (Tenn. Crim. App. 2008). In Davis, the Court concluded that “the fact
that the convicting court possesses relevant records and retains the authority to correct an
illegal sentence at any time is a sufficient reason under Tennessee Code Annotated
section 29-21-105 for the petitioner to file in the convicting court rather than the court
closest in point of distance.” Id. at 22.

       In this case the Petitioner failed to offer a reason why he filed his petition in the
convicting court rather than in the court closest in point of distance. The habeas corpus
court could have properly dismissed his petition on those grounds. It, however, did not
and addressed the petition on its merits. In the interest of judicial economy, we will also
address the Petitioner‟s claim on its merits.

       The habeas corpus court found that there was no basis for the writ of habeas
corpus because the Petitioner‟s judgments were not void. We conclude that the Petitioner
has not met his burden of establishing that his judgments are void or that his sentences
have expired. This Court held on direct appeal that the “reckless” language in the
indictment was surplusage and that the indictment was not defective. See James Robert
Wilson, 2002 WL 1050259, at *18. Furthermore, the Petitioner‟s claims on appeal are
not a cognizable ground for habeas corpus relief. See Stephen Lujan Beasley v. State,
E2005-00367-CCA-R3-HC, 2005 WL 3533265, at *4 (Tenn. Crim. App., Knoxville,
Dec. 27, 2005) (holding that the petitioner‟s allegations that the state constructively
amended the indictment by presenting proof that the petitioner was guilty of felony
murder in addition to proof that he was guilty of premeditated murder did not presents a
cognizable ground for habeas corpus relief), perm app. denied (Tenn. May 30, 2006).
Accordingly, we conclude that the trial court properly dismissed the petition. The
Petitioner is not entitled to habeas corpus relief.

                                      III. Conclusion

      After a thorough review of the record and relevant authorities, we affirm the
habeas corpus court‟s judgment.
                                         ____________________________________
                                        ROBERT W. WEDEMEYER, JUDGE


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