         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs May 3, 2005

                 JOHNNY L. BUTLER v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                              No. P-28609   Chris Craft, Judge



                     No. W2004-02237-CCA-R3-CO - Filed July 26, 2005


The petitioner, Johnny L. Butler, appeals the dismissal of his petition for writ of error coram nobis.
In this appeal, he asserts that his conviction is void because the indictment was defective and that
his guilty plea was not knowingly and intelligently made. The judgment of the trial court is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and JOHN
EVERETT WILLIAMS, JJ., joined.

Johnny L. Butler, Memphis, Tennessee, pro se.

Paul G. Summers, Attorney General & Reporter; David H. Findley, Assistant Attorney General; and
James Wax, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        On November 19, 1974, the petitioner entered a plea of guilty to one count of robbery with
a deadly weapon. By agreement, he received a ten-year sentence in the Department of Correction.
In June of 2004, the petitioner filed a petition for writ of error coram nobis, contending that the
indictment was defective. The trial court concluded that because the petitioner alleged no newly
discovered evidence and because the statute of limitations for pursuing a writ of error coram nobis
had expired, the petition should be treated as a petition for habeas corpus relief. The court
determined that the petitioner was not entitled to habeas corpus relief because the language of the
indictment was "sufficient to put the defendant on notice of the crime charged" and dismissed the
petition.

        In this appeal, the petitioner asserts that the indictment is defective because it makes no
reference to the statute which was violated and is otherwise insufficient to charge the offense of
robbery with a deadly weapon. In a related issue, he claims that his guilty plea was not knowingly
and intelligently entered because the faulty indictment deprived the trial court of jurisdiction. The
state submits that the petitioner is not entitled to a writ of error coram nobis because there is no
allegation of newly discovered evidence. In addition, the state contends that the petitioner is not
entitled to habeas corpus relief because he is not "restrained of his liberty" as a result of the
challenged conviction.

         The writ of error coram nobis developed at common law as a procedural mechanism to allow
courts to provide relief at a time when there was no motion for new trial and no right to appeal. State
v. Mixon, 983 S.W.2d 661, 667 (Tenn. 1999). The procedure permitted the trial court "to reopen
and correct its judgment upon discovery of a substantial factual error not appearing in the record
which, if known at the time of judgment, would have prevented the judgment from being
pronounced." Id. The common law writ was codified in 1858 and later extended to criminal cases
in 1955. Id. The current statute provides as follows:
                   There is hereby made available to convicted defendants in criminal cases a
         proceeding in the nature of a writ of error coram nobis, to be governed by the same
         rules and procedure applicable to the writ of error coram nobis in civil cases, except
         insofar as inconsistent herewith. Notice of the suing out of the writ shall be served
         on the district attorney general. No judge shall have authority to order the writ to
         operate as a supersedeas. The court shall have authority to order the person having
         custody of the petitioner to produce the petitioner in court for the hearing of the
         proceeding. 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. The issue shall be tried by the court without the intervention of a jury,
         and if the decision be in favor of the petitioner, the judgment complained of shall be
         set aside and the defendant shall be granted a new trial in that cause.
Tenn. Code Ann. § 40-26-105. "[A] petition for writ of error coram nobis must be dismissed as
untimely unless it is filed within one year of the date on which the judgment of conviction became
final in the trial court." Mixon, 983 S.W.2d at 670.

         As the state points out, the petitioner does not assert any "subsequently or newly discovered
evidence." In consequence, the trial court did not err by denying the writ of error coram nobis. In
addition, because the petitioner alleged that the trial court was without jurisdiction to convict or
sentence him, the trial court properly treated the petition as one for habeas corpus relief. See Norton
v. Everhart, 895 S.W.2d 317, 319 (Tenn. 1995) ("It is well settled that a trial court is not bound by
the title of the pleading, but has the discretion to treat the pleading according to the relief sought.");
see also Arzolia Charles Goines v. State, No. E1999-02459-CCA-R3-PC (Tenn. Crim. App., at
Knoxville, Aug. 25, 2000).



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         The writ of habeas corpus is guaranteed by Article 1, section 15 of the Tennessee
Constitution, which provides that "the privilege of the writ of Habeas Corpus shall not be suspended,
unless when in case of rebellion or invasion, the General Assembly shall declare the public safety
requires it." Tenn. Const. art. I, § 15. Although the writ of habeas corpus is constitutionally
guaranteed, it has been regulated by statute for more than a hundred years. See Ussery v. Avery, 222
Tenn. 50, 432 S.W.2d 656, 657 (1968). Our current code provides that "[a]ny person imprisoned
or restrained of liberty, under any pretense whatsoever, except in cases specified in § 29-21-102, may
prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and restraint."
Tenn. Code Ann. § 29-21-101.

         Although the language of the statute is broad, the courts of this state have long held that a
writ of habeas corpus may be granted only when the petitioner has established a lack of jurisdiction
for the order of confinement or that he is otherwise entitled to immediate release because of the
expiration of his sentence. See Ussery, 432 S.W.2d at 658; State ex rel. Wade v. Norvell, 1 Tenn.
Crim. App. 447, 443 S.W.2d 839 (1969). Unlike the federal writ of habeas corpus, relief is available
in this state only when it appears on the face of the judgment or the record that the trial court was
without jurisdiction to convict or sentence the petitioner or that the sentence of imprisonment has
otherwise expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d
60, 62 (Tenn. 1992). Unlike the post-conviction petition, which would afford a means of relief for
constitutional violations, such as the deprivation of the effective assistance of counsel, the purpose
of the habeas corpus petition is to contest a void, not merely a voidable, judgment.1 State ex rel.
Newsome v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189 (1969). A petitioner cannot attack a
facially valid conviction in a habeas corpus proceeding. Potts, 833 S.W.2d at 62; State ex rel.
Holbrook v. Bomar, 211 Tenn. 243, 364 S.W.2d 887, 888 (1963).

        The policy behind limiting habeas corpus relief to facially void convictions is "grounded on
the strong presumption of validity that attaches to final judgments of courts of general jurisdiction."
State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000). In Ritchie, our supreme court reiterated the
limited nature of habeas corpus relief:

                 In all cases where a petitioner must introduce proof beyond the record to
         establish the invalidity of his conviction, then that conviction by definition is merely
         voidable, and a Tennessee court cannot issue the writ of habeas corpus under such
         circumstances. Unlike the procedures governing the availability of the federal writ
         of habeas corpus, our procedures do not contemplate that a petitioner may relititgate


         1
            The Post-Conviction Procedure Act codified at Tennessee Code Annotated sections 40-30-101 thru 40-30-122
describes the procedure for filing a petition for post-conviction relief. The original Post-Conviction Procedure Act of
1967 did not include a statute of limitations. In 1986, the General Assembly adopted a three-year statute of limitations.
See Tenn. Code Ann. § 40-30-102 (repealed 1995). In 1995, our legislature amended the Post-Conviction Procedure
Act such that under our current law, a petitioner must seek post-conviction relief "within one (1) year of the date of the
final action of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year
of the date on which the judgment became final." Tenn. Code Ann. § 40-30-102(a) (2003). Accordingly, a petition for
post-conviction relief is time-barred in this case.

                                                            -3-
       facts in a habeas corpus proceeding. Because a conviction is either void on its face
       for want of jurisdiction, or it is not, the need for an evidentiary hearing in a habeas
       corpus proceeding should rarely arise . . . .
Id.

        In this case, the petitioner asserts that the trial court was without jurisdiction because the
indictment was defective. He also alleges that because the indictment was defective, his guilty plea
was not knowingly and voluntarily entered. The petitioner contends that he is restrained of his
liberty by the 1974 conviction because that conviction was used to enhance his sentence for a later
federal conviction. The ten-year sentence he received for that conviction expired more than twenty
years ago.

        Recently, in Hickman v. State, 153 S.W.3d 16 (Tenn. 2004), our supreme court addressed
whether a petitioner was entitled to seek habeas corpus relief from a judgment when the sentence
had been fully served but the conviction was used to enhance the sentence for a subsequent offense.
In Hickman, the petitioner pled guilty to one count of possession of marijuana in 1986 and received
a ten-day suspended sentence and a fifty-dollar fine. Some sixteen years later, after being convicted
of a subsequent crime and facing possible sentence enhancement in the United States District Court,
the petitioner filed a petition for writ of habeas corpus, contending that the possibility of sentence
enhancement based upon the 1986 conviction was a restraint on his liberty. Our supreme court
affirmed the trial court's dismissal of the petition, holding that while a person may be restrained of
liberty without being physically confined, the possibility of future sentence enhancement was not a
restraint of liberty sufficient to permit the filing of a petition for writ of habeas corpus. Id. at 22.
Our high court ruled that a petitioner may seek habeas corpus relief only "when the challenged
judgment itself imposes a restraint upon the petitioner's freedom of action or movement." Id.
Further, the high court held that "[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." Id. at 23.

        In our view, this case is indistinguishable from Hickman. The petitioner, incarcerated for a
federal conviction, seeks relief from his 1974 Tennessee conviction. His ten-year sentence has long
since expired. Because the petitioner is no longer restrained of his liberty as a result of the 1974
conviction, he may not seek habeas corpus relief. See id.

        In any event, the petitioner has failed to establish that his conviction is void, a requirement
for the grant of habeas corpus relief. The indictment, which the petitioner claims is insufficient to
charge an offense, provides as follows:
                The grand jurors of the State of Tennessee, duly elected, empaneled, sworn
        and charged to inquire in and for the body of the County of Shelby, in the State
        aforesaid, upon their oath, present that [the defendant] . . . did unlawfully,
        feloniously, violently and forcibly by Use of Deadly Weapons to-wit: pistols and
        knife make an assault on the person of Jerry Palmer and putting him in great danger
        and bodily fear of his life, and did then and there unlawfully and feloniously and with


                                                  -4-
        force and violence aforesaid, steal, take and carry away from the person of Jerry
        Palmer, [money and property with a value of] $395.95.
This language tracks the language of the statutory provisions in effect at the time of the petitioner's
conviction. See Tenn. Code Ann. §§ 39-3901, -4914 (Supp. 1974). That the indictment does not
contain a statutory citation does not render it defective. See generally State v. Hill, 924 S.W.2d 725
(Tenn. 1997). In our view, the indictment provided adequate notice to the petitioner of the charged
offense and a proper basis for the entry of judgment.

       Accordingly, the judgment of the trial court is affirmed.



                                                       ___________________________________

                                                       GARY R. WADE, PRESIDING JUDGE




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