        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs September 16, 2014

               PERRY L. MCCROBEY v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Hamilton County
                       No. 290369     Rebecca J. Stern, Judge


               No. E2014-00369-CCA-R3-HC - Filed December 11, 2014


The Petitioner, Perry L. McCrobey, appeals the Hamilton County Criminal Court’s dismissal
of his petition for a writ of habeas corpus, petition for post-conviction relief, and petition for
a writ of error coram nobis, seeking relief from his conviction of possession of cocaine for
resale and resulting eight-year sentence. On appeal, we affirm the trial court’s dismissal of
the petitions.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which R OGER A. P AGE, and
R OBERT H. M ONTGOMERY, J R., JJ., joined.

Perry L. McCrobey, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; and William H. Cox, III, District Attorney General, for the appellee, State
of Tennessee.

                                           OPINION

                                   I. Factual Background

       In April 1994, the Hamilton County Grand Jury indicted the Petitioner for possessing
cocaine on December 27, 1993, with intent to sell or deliver. On April 7, 1995, the Petitioner
pled guilty to possession of cocaine for resale, a Class B felony, and received an eight-year
sentence. According to the judgment, the Petitioner was to serve the sentence concurrently
with a federal sentence. More than eighteen years later, on December 12, 2013, the
Petitioner filed a “PETITION FOR WRIT OF HABEAS CORPUS, POST CONVICTION
RELIEF, AND/OR WRIT OF ERROR CORAM NOBIS,” alleging that he was entitled to
relief because (1) his guilty plea was void or voidable due to his plea not being entered
knowingly, intelligently and voluntarily, (2) he received the ineffective assistance of counsel,
and (3) he was actually innocent of the offense. The Petitioner acknowledged that his
petitions for post-conviction relief and writ of error coram nobis were untimely but argued
that he was entitled to tolling of the statute of limitations.

        On January 21, 2014, the trial court issued an order dismissing the petitions.
Regarding the writ of habeas corpus, the trial court denied relief on the basis that the
Petitioner’s judgment of conviction was no longer the cause of his imprisonment or the
restraint on his liberty. Regarding the petition for post-conviction relief, the court concluded
that the petition was untimely and that due process did not require tolling the statute of
limitations. As to the writ of error coram nobis, the trial court determined that the petition
did not “allege the discovery of new, admissible-at-trial evidence of actual innocence, only
the discovery of new, irrelevant-at-trial-and-therefore-inadmissible-at-trial evidence of
ineffectiveness of counsel.” The Petitioner filed a timely notice of appeal to this court.

                                             II. Analysis

         The Petitioner contends that he is entitled to habeas corpus relief because his “plea
agreement effectively amended the indictment, as there was a defect in the indictment
itself.”1 The determination of whether to grant habeas corpus relief is a question of law.
Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). Accordingly, we will review the trial
court’s findings de novo without a presumption of correctness. Id. Moreover, the petitioner
has the burden to demonstrate, by a preponderance of the evidence, “that the sentence is void
or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

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


        1
         As noted by the Petitioner, neither the indictment nor the judgment reflect the amount of cocaine
involved. However, the judgment reflects that he was convicted of a Class B felony. At the time of the
offense, possession of cocaine was a Class B felony if the amount involved one-half gram or more. See
Tenn. Code Ann. § 39-17-417(c)(1) (1993).

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jurisdiction or authority to render the judgment or because the defendant’s sentence has
expired.’ We have recognized that a sentence imposed in direct contravention of a statute,
for example, is void and illegal.” Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000)
(quoting Taylor, 995 S.W.2d at 83).

        As a prerequisite to habeas corpus relief, a petitioner “must be ‘imprisoned or
restrained of liberty’ by the challenged convictions.” Benson v. State, 153 S.W.3d 27, 31
(Tenn. 2004) (quoting Tenn. Code Ann. § 29-21-101). Persons detained because of federal
convictions are not entitled to state habeas review of their federal detention. See Tenn. Code
Ann. § 29-21-102. The “[u]se of the challenged judgment to enhance the sentence imposed
on a separate conviction is not a restraint of liberty sufficient to permit a habeas corpus
challenge to the original conviction long after the sentence on the original conviction has
expired.” Hickman v. State, 153 S.W.3d 16, 23 (Tenn. 2004). Moreover, “[h]abeas corpus
relief does not lie to address a conviction after the sentence on the conviction has been fully
served.” Summers v. State, 212 S.W.3d 251, 257 (Tenn. 2007).

       The Petitioner pled guilty on April 7, 1995, and was ordered to serve his sentence
concurrently with a federal sentence. He is presently incarcerated in a federal prison, and
nothing in the record suggests that he is serving the sentence from the challenged judgment
with his current federal sentence, notably because the 1995 sentence has apparently expired.
See Faulkner v. State, 226 S.W.3d 358, 362 (Tenn. 2007). Therefore, his claim for habeas
corpus relief is unavailing.

        Regarding his post-conviction claim, the Petitioner contends that he is entitled to relief
because the trial court failed to advise him about “certain consequences of his plea” as
required by Rule 11, Tennessee Rules of Criminal Procedure, and Boykin v. Alabama, 395
U.S. 238 (1969); because he was coerced into pleading guilty “to a defective charge of which
he was actually innocent”; and because he received the ineffective assistance of counsel.
However, the one-year statute of limitations for filing a petition for post-conviction relief
expired years before he filed the instant petition. See Tenn. Code Ann. § 40-30-102(a). The
Petitioner does not allege any grounds which would provide an exception to the statute of
limitations. See Tenn. Code Ann. § 40-30-102(b). In addition, he does not allege any facts
that would require that the limitations period be tolled based upon due process concerns. See
Burford v. State, 845 S.W.2d 204, 208-09 (Tenn. 1992). For example, he does not allege that
trial counsel misled him as to further representation on appeal which deprived him of a
reasonable opportunity to seek post-conviction relief. See Williams v. State, 44 S.W.3d 464
(Tenn. 2001) (holding that strict application of the statute of limitations when a petitioner has
been unilaterally deprived of the opportunity to seek appellate review of his convictions
through misrepresentations of his attorney may violate due process). Therefore, he also is
not entitled to post-conviction relief.

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       Finally, regarding the Petitioner’s claim for a writ of error coram nobis, he states that
“[t]he facts of the instant case at bar establishes that McCrobey is actually innocent of
possession of cocaine with intent to sell or [deliver]. McCrobey possessed less than 0.3
grams of cocaine, which was purchased on December 27, 1993 for personal use.” The writ
of error coram nobis “is an extraordinary procedural remedy . . . [that] fills only a slight gap
into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999). Currently,
the writ is codified as follows in Tennessee Code Annotated section 40-26-105(b):

              The relief obtainable by this proceeding shall be confined to
              errors dehors the record and to matters that were not or could
              not have been litigated on the trial of the case, on a motion for
              a new trial, on appeal in the nature of a writ of error, on writ of
              error, or in a habeas corpus proceeding. Upon a showing by the
              defendant that the defendant was without fault in failing to
              present certain evidence at the proper time, a writ of error coram
              nobis will lie for subsequently or newly discovered evidence
              relating to matters which were litigated at the trial if the judge
              determines that such evidence may have resulted in a different
              judgment, had it been presented at the trial.

       Our supreme court has stated that when examining a petition for writ of error coram
nobis, a trial court is to

              first consider the newly discovered evidence and be “reasonably
              well satisfied” with its veracity. If the defendant is “without
              fault” in the sense that the exercise of reasonable diligence
              would not have led to a timely discovery of the new information,
              the trial judge must then consider both the evidence at trial and
              that offered at the coram nobis proceeding in order to determine
              whether the new evidence may have led to a different result.

State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007). In determining whether the new
information may have led to a different result, the question before the court is “‘whether a
reasonable basis exists for concluding that had the evidence been presented at trial, the result
of the proceeding might have been different.’” Id. (quoting State v. Roberto Vasques, No.
M2004-00166-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 1100, at *36-37 (Nashville, Oct.
7, 2005)). The decision to grant or deny such a writ rests within the sound discretion of the
trial court. Teague v. State, 772 S.W.2d 915, 921 (Tenn. Crim. App. 1988).

       A petition for a writ of error coram nobis must be filed within one year of the date the

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judgment becomes final in the trial court. Tenn. Code Ann. § 27-7-103. Clearly, the instant
petition was filed well-beyond the one-year statute of limitations. Nevertheless, the one-year
statute of limitations may be tolled on due process grounds if a petition seeks relief based
upon newly discovered evidence of actual innocence. Wilson v. State, 367 S.W.3d 229, 234
(Tenn. 2012).

       Nothing indicates why the Petitioner waited eighteen years after his guilty plea to
present his coram nobis claim. In any event, he has not presented any newly discovered
evidence that may have resulted in a different judgment, and, therefore, has failed to state a
cognizable claim for coram nobis relief.

                                      III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgments of the trial
court.


                                                   _________________________________
                                                   NORMA McGEE OGLE, JUDGE




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