                                                                                        02/01/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       Assigned on Briefs November 28, 2017


        STATE OF TENNESSEE v. EDWARD JEROME HARBISON

                Appeal from the Criminal Court for Hamilton County
                 No. 154361, 154362 Thomas C. Greenholtz, Judge
                     ___________________________________

                           No. E2017-00520-CCA-R3-CD
                       ___________________________________

The defendant, Edward Jerome Harbison, was convicted of first-degree murder, second
degree burglary, and grand larceny for the 1983 death of Edith Russell and sentenced to
death. State v. Harbison, 704 S.W.2d 314 (Tenn. 1986). The defendant’s death sentence
was eventually commuted, and he is currently serving a term of life imprisonment
without the possibility of parole. After numerous appeals, the defendant filed the present
motion to correct an illegal sentence pursuant Tennessee Rule of Criminal Procedure
36.1. The defendant argues his sentence under the prior Tennessee statute, Tennessee
Code Annotated § 39-2-202(a) (1982), is unconstitutional in addition to a plethora of
other claims. Having reviewed the record and the procedural history of the defendant’s
convictions, we conclude that the defendant’s claims are either not cognizable under Rule
36.1 and/or have been previously reviewed and resolved by our courts. As a result, the
defendant is not entitled to relief.

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

J. ROSS DYER, J., delivered the opinion of the court, in which THOMAS T. WOODALL, P.J.,
and ROBERT W. WEDEMEYER, J., joined.

Edward Jerome Harbison, Nashville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas White Spangler,
Assistant Attorney General; Glenn R. Funk, District Attorney General; and Courtney
Nicole Orr, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                 FACTUAL AND PROCEDURAL BACKGROUND
       The defendant was convicted of first-degree murder, second-degree burglary, and
grand larceny for the 1983 death of Edith Russell. Harbison, 704 S.W.2d at 315. He was
sentenced to death for his first-degree murder conviction and to three years for his
second-degree burglary and grand larceny convictions. Id. On appeal, the defendant
challenged, among other issues, the sufficiency of the evidence supporting his conviction,
the voluntariness of his confession, and the effectiveness of his counsel. The Tennessee
Supreme Court found no errors and affirmed his convictions. Id.

        The defendant subsequently filed a petition for post-conviction relief. Harbison v.
State, No. 03C01-9204-CR-00125, 1996 WL 266114, at *1 (Tenn. Crim. App. May 29,
1996), perm. app. denied (Tenn. Nov. 12, 1996). After a hearing, the post-conviction
court rejected the defendant’s challenges to: the sufficiency of the evidence of
premeditation and deliberation; the jury instruction on instant premeditation; the
effectiveness of trial and appellate counsel; and the constitutionality of the felony-murder
and death-penalty statutes. Id. On appeal, this Court affirmed the post-conviction court,
determining the defendant’s claims were either previously litigated or disposed of by the
Tennessee Supreme Court, or were without merit in light of established law and
concluding “[t]here can be absolutely no doubt” the evidence was “clearly sufficient.”
Id. at *2-12.

        Next, the defendant filed a motion to reopen his post-conviction petition based on
a claim of newly discovered evidence, violation of Apprendi v. New Jersey, 530 U.S. 466
(2000), and ineffective assistance of appellate counsel. Harbison v. State, No. E2004-
00885-CCA-R28-PD, 2005 WL 1521910, at *1 (Tenn. Crim. App. June 27, 2005), perm.
app. denied (Tenn. Dec. 19, 2005). The trial court, upon the defendant’s request,
converted the filing to a petition for writ of error coram nobis. Id. After a hearing, the
trial court denied the petition as time barred concluding, “the time within which the
petition was filed exceeds the reasonable opportunity afforded by due process.” Id. at *4.
In affirming the trial court’s ruling, this Court noted in the relevant part:

               Although the [defendant] claims that he could not file his petition
       until his federal habeas corpus proceeding was resolved and that he was not
       afforded an avenue of relief until the Workman decision in 2001, we agree
       with the trial court that the [defendant] had ample opportunity to file his
       petition for error coram nobis and that he waited an unreasonable time to do
       so. Cf. [Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001)] (petitioner
       filed his petition thirteen months after discovering the newly discovered
       evidence). In any event, unlike Workman, the trial court in the present case
       held an evidentiary hearing. At the hearing, the [defendant’s] trial, direct
       appeal, and post-conviction attorneys testified. [The defendant’s] . . . trial
       attorney[] testified that he was aware of allegations that the victim was
                                           -2-
       involved in selling stolen property and was aware of Ray Harrison.
       According to David Boss’s statement to police, Ray Harrison and at least
       one other person were in the [victim’s] house and “they” ran when the
       victim entered her home. At best, the police department records indicate
       that Ray Harrison was in the [victim’s] home at the time of the crime. They
       in no way exculpate the [defendant]. Additionally, at the end of the
       evidentiary hearing, the [defendant] failed to show conclusively that [the
       defendant’s trial attorney] had represented Ray Harrison. The conclusion
       that [the defendant’s trial attorney] had a conflict of interest in representing
       the [defendant] would be little more than speculation by this court. In light
       of the [defendant]’s confession and the fact that the police found property
       stolen from the victim’s home in the [defendant]’s girlfriend’s apartment
       and fragments from the murder weapon in the [defendant]’s car, the
       [defendant] is not entitled to error coram nobis relief.

Id. at *5-6.

        In 2007, the defendant filed a second motion to reopen his post-conviction petition
or, in the alternative, a petition for writ of error coram nobis. Harbison v. State, E2011-
01711-CA-R3-PC, 2012 WL 1956757, at *1, 5 (Tenn. Crim. App. May 31, 2012), perm.
app. denied (Tenn. Dec. 10, 2012). The trial court dismissed the motion, finding it did
not satisfy the statutory grounds for a motion to reopen and the coram nobis issue had
previously been addressed by the courts and was not cognizable. Id. at *5. The court
rejected the defendant’s arguments challenging: the constitutionality of his arrest, based
on certified copies of the Chattanooga City Court docket for the day of his arrest showing
that it was not pursuant to a warrant; and, the non-disclosure of the lack of a warrant. Id.
The defendant initiated an appeal from that denial, but he voluntarily dismissed the
appeal to pursue executive clemency. Id. In January 2011, the Governor commuted the
defendant’s death sentence to life imprisonment without the possibility of parole. Id.
Although the sentence of “life without the possibility of parole” can be imposed by a
court judgment only when the murder occurred on or after July 1, 1993, (and the
homicide in the petitioner’s case occurred in 1983), a Governor’s commutation can set a
sentence of incarceration that would not be authorized by statutory law, “[w]here the
original sentence is valid and the [Governor] having the power to commute sentences, the
commuted sentence cannot be unlawful merely because the statutes do not authorize the
courts to fix such punishment in the first instance.” Tenn. Op. Atty. Gen. No. 95-081,
1995 WL 473748, *2 (Aug. 8, 1995) (quoting Stroud v. Johnston, 139 F2d 171, 172 (9th
Cir. 1943)). “Further, it is clear that the Governor can commute a death sentence to life
without parole under whatever circumstances he deems it appropriate despite the
implications of any statute or sentencing guidelines to the contrary.” Id.

                                            -3-
      In May 2011, the defendant filed an additional writ of error coram nobis, alleging
newly discovered evidence to support his previously litigated claim that he was subjected
to a warrantless arrest. Id. Specifically, the defendant argued new evidence indicated a
warrantless, and therefore unconstitutional, arrest. The coram nobis court dismissed the
defendant’s claim. Id. On appeal, this Court noted in the relevant part:

              [The defendant] has obtained a thorough review of his issues over
       almost thirty years. In state court, his claims have been subjected to direct
       review, one petition for post-conviction relief, and three petitions for error
       coram nobis relief. He has also been denied habeas corpus relief in federal
       court. Moreover, his death sentence was commuted to life imprisonment
       without the possibility of parole by the Governor. All of [the defendant’s]
       claims not addressed in this opinion have been previously litigated and are
       outside of the parameters of the writ of error coram nobis. Tenn. Code.
       Ann. § 40-26-105(b) (Supp. 2011).

Id. at *7.

       In 2013, the defendant filed a motion to reopen his post-conviction proceedings,
claiming “that the United States Supreme Court’s decision in Martinez v. Ryan, 132 S.
Ct. 1309 (2012), established a newly recognized constitutional right to effective
assistance of counsel at first-tier collateral proceedings and that this constitutional right
was not recognized at the time of his trial.” Order, Harbison v. State, No. E2013-01336-
CCA-R28-PC, slip op. at 2 (Tenn. Crim. App. Aug. 1, 2013), perm. app. denied (Tenn.
Jan. 12, 2014). The post-conviction court denied the motion, and the defendant filed an
application for permission to appeal to this Court. Id. This Court held Martinez did not
announce a new constitutional rule that required retrospective application and denied the
defendant’s application for permission to appeal. Id. at 3-4.

       In 2014, the defendant filed another motion to reopen post-conviction proceedings.
Order, Harbison v. State, No. E2014-01830-CCA-R28-PC, slip op. at 1 (Tenn. Crim.
App. Nov. 4, 2014), perm. app. denied (Tenn. Mar. 11, 2015). The trial court denied the
motion. Id. at 2. The defendant filed an application for permission to appeal to this
Court, which was also denied. Id. at 3.

      On November 22, 2016, the defendant filed the present motion to correct an illegal
sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The Hamilton County
Criminal Court reviewed all the documents filed by the defendant and interpreted the
defendant’s claims as follows:



                                            -4-
              (1) at the time of the defendant’s second seizure, the taint of his first
      seizure had not attenuated; (2) officers misrepresented their authority; (3)
      his confession and other evidence should have been excluded; (4) he was
      indicted of first-degree premeditated murder and first-degree felony murder
      of the same victim; (5) “that various 1970s enactments relating to first-
      degree murder and its punishment were invalid;” (6) that the first-degree
      murder statute in effect at the time of the offense, on its face and as applied,
      was vague, overbroad, exceeded its caption, constituted an ex post facto
      law, and allowed double jeopardy; (7) that, consequently, the indictment
      was multiplicitous and invalid; (8) that the defendant requested discovery;
      (9) that prosecutors did not disclose the affidavit of complaint, information
      contradicting officer’s accounts “of the existence or date of arrest and
      search warrant” and any agreements between the State and officers not to
      prosecute the officers for perjury; (10) that, “though they have yet to admit
      it, officers fabricated evidence and testified falsely;” (11) that the State
      knew about the officers’ dishonesty but nevertheless presented fabricated
      evidence; (12) that the defendant was unable to fully confront witnesses or
      present a defense; (13) that the State did not elect offenses and that the
      petitioner was convicted of both first-degree premeditated murder and first-
      degree felony murder; (14) “that it is impossible to re-kill someone;” (15)
      that there was insufficient evidence to support both convictions for first-
      degree murder and that there was a constructive amendment to the
      indictment; (16) that the trial court was required to merge verdicts of guilt
      of the same offense into a single conviction; (17) that, consequently, the
      court did not have jurisdiction to enter two convictions for first-degree
      murder; (18) that trial counsel and appellate counsel were ineffective; (19)
      that the defendant’s prior claims for relief had been rejected because of the
      prosecutor’s misconduct, “including ongoing defiance of discovery orders;”
      (20) that, as a consequence, procedural bars should not apply to the
      defendant’s claims; (21) that the defendant had presented a colorable claim
      of illegality within the meaning of Tenn. R. Crim. P. 36.1; and (22) that the
      date of his arrest was February 21, not 22, of 1983.

       The trial court found the defendant’s three-year sentence for second-degree
burglary and grand larceny had expired, and the Rule 36.1 motion was not timely as to
those convictions. The trial court also noted the commutation of the defendant’s death
sentence rendered the issue of illegality, as to that sentence, moot.

       As to the other claims, the trial court acknowledged the defendant conceded many
of his claims were not cognizable under Rule 36.1, and explained it is not authorized to
examine any claim unless the claim directly involves the illegality of a sentence within
                                            -5-
the definitions outlined in Rule 36.1. The trial court, therefore, concluded the defendant
did not state a colorable claim for Rule 36.1 relief.

       The trial court also concluded that even if it were to treat the present motion as a
habeas corpus claim, the claim was without merit. The trial court stated the only ground
for issuance of the writ of habeas corpus is an imprisonment or restraint on liberty that
derives from a void judgment or an unexpired sentence. The trial court concluded none
of the issues raised in the defendant’s motion rendered the judgment void, only
potentially voidable.

       Next, the trial court concluded the filings did not present a claim for writ of error
coram nobis because the alleged fabrications of evidence, false testimony, and
prosecutorial misconduct were not newly discovered evidence and “dispositions of the
prior claims for the writ preclude the [c]ourt from reconsidering those claims.” Further,
the instant petition was filed outside the one-year statute of limitations and due process
did not toll the statute.

        The trial court’s denial order was entered on February 8, 2017. On February 23,
2017, the defendant filed a “Motion for Extension of Time to File Opposition of Having
Defendant’s Rule 36.1 Dismissed.” The trial court granted the defendant’s motion on
February 28, 2017. The defendant filed a response to the order, alleging that he had
presented a colorable claim his “sentence or conviction” was illegal, and otherwise
asserting several of the same claims he raised in his Rule 36.1 motion and subsequent
filings. He asked for the trial court to grant him Rule 36.1 relief, which it denied. The
defendant filed a notice of appeal on March 9, 2017.

                                        ANALYSIS

        Whether a motion states a colorable claim for correction of an illegal sentence
under Tennessee Rule of Criminal Procedure 36.1 is a question of law which this Court
reviews de novo. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). Rule 36.1
provides the defendant “may, at any time, seek the correction of an illegal sentence by
filing a motion to correct an illegal sentence in the trial court in which the judgment of
conviction was entered.” Tenn. R. Crim. P. 36.1(a). A sentence is illegal if it is not
authorized by the applicable statutes or directly contravenes an applicable statute. Id. If
the motion states a colorable claim, the trial court shall appoint counsel if the defendant is
indigent and not already represented by counsel and hold a hearing on the motion, unless
the parties waive the hearing. Tenn. R. Crim. P. 36.1(b). A “‘colorable claim’ means a
claim, if taken as true and viewed in a light most favorable to the moving party, would
entitle the moving party to relief under Rule 36.1.” State v. Wooden, 478 S.W.3d 585,
593 (Tenn. 2015).
                                            -6-
       “[F]ew sentencing errors render [a sentence] illegal.” Id. at 595. Examples of
illegal sentences include “sentences imposed pursuant to an inapplicable statutory
scheme, sentences designating release eligibility dates where early release is statutorily
prohibited, sentences that are ordered to be served concurrently where statutorily required
to be served consecutively, and sentences not authorized by any statute for the offense.”
Id. However, “attacks on the correctness of the methodology by which a trial court
imposed [a] sentence” do not rise to the level of an illegal sentence. Id.

        The defendant argues his sentence was illegal under Rule 36.1 because “he was
indicted of first-degree premeditated murder and first-degree felony murder of the same
victim” and, therefore, “the indictment was multiplicitous and invalid.” The indictment
at issue consists of a single count that charges first-degree murder and felony murder as
alternative forms of a single offense, murder. The defendant’s argument is based upon
his belief he was convicted of both first-degree murder and felony murder.1 However,
this is not the case. The defendant was convicted of one count of first-degree murder
under this indictment and only one judgment on this count was entered. Therefore, this
claim is not cognizable under Rule 36.1, and the defendant is not entitled to relief. See
Wooden, 478 S.W.3d at 593; see also Tenn. R. Crim. P. 36.1(a).

        We next address the defendant’s argument “that various 1970s enactments relating
to first-degree murder and its punishment were invalid” and “that the first-degree murder
statute in effect at the time of the offense, on its face and as applied, was vague,
overbroad, exceeded its caption, constituted an ex post facto law, and allowed double
jeopardy. . . .” As both claims are similarly tied, we review these claims together.



      The statute governing first-degree murder which was in effect at the time of the
defendant’s conviction provided, in pertinent part, as follows:

              Every murder perpetrated by means of poison, lying in wait, or by
       other kind of willful, deliberate, malicious, and premeditated killing, or
       committed in the perpetration of, or attempt to perpetrate, any murder in the
       first degree, arson, rape, robbery, burglary, larceny, kidnapping, aircraft


       1
         While a single indictment that argues alternative theories of the same murder is
uncommon, such an indictment is valid. See State v. Jefferson, 529 S.W.2d 674, 678 (Tenn.
1975), rehearing denied, 529 S.W.2d 674, overruled on other grounds, State v. Mitchell, 593
S.W.2d 280 (Tenn. 1980) (citing in part Tenn. Code Ann. § 40-1806, now Tenn. Code Ann. §
40-13-206(a)).
                                           -7-
       piracy, or the unlawful throwing, placing or discharging of a destructive
       device or bomb, is murder in the first degree.

Tenn. Code Ann. § 39-2-202(a) (1982). The pre-1989 felony murder statute did not
require a separate mens rea for the killing. See id. The defendant alleges the prior
Tennessee first-degree murder statute fails constitutional scrutiny because the statute
allows him to be convicted of both premeditated first-degree murder and first-degree
felony murder.

        Tennessee courts have determined the statute in this case is sufficiently precise to
have provided the defendant with notice of the charges against him. See State v. Thomas,
635 S.W.2d 114, 116 (Tenn. 1982). A person of common intelligence could reasonably
understand what acts the statute prohibits. See State v. Burkhart, 58 S.W.3d 694, 697
(Tenn. 2001). Therefore, the statute under which the defendant was convicted was not
unconstitutionally vague. Furthermore, the Tennessee Supreme Court, while not
specifically addressing the issue of vagueness, has upheld the constitutionality of the pre-
1989 felony murder statute on the basis that it “does not violate the due process clause of
the Fifth Amendment to the United States Constitution.” State v. Middlebrooks, 840
S.W.2d 317, 336 n.2 (Tenn. 1992) (citing State v. Barber, 753 S.W.2d 659, 671 (Tenn.
1988)); see State v. Godsey, 60 S.W.3d 759, 773 (Tenn. 2001); see also State v. Barber,
753 S.W.2d 659, 671 (Tenn.1988) (holding the pre-1989 felony murder statute was not
unconstitutional in that it did not violate due process or double jeopardy). In light of
established law, the defendant has not stated grounds that his sentence, under the prior
statute, violates Rule 36.1. See Wooden, 478 S.W.3d at 593; see also Tenn. R. Crim. P.
36.1(a). Therefore, the defendant is not entitled to relief.

       The defendant’s next argument alleges “the prosecution did not elect the offense
and he was convicted of first-degree, premeditated, deliberate murder and first-degree,
felony murder of the same victim.” This is tied to the defendant’s claims “that it is
impossible to re-kill someone;” “State v. Berry [503 S.W.3d 360, 362 (Tenn. 2015)]
requires trial courts to merge verdicts of guilt of the same offense into a single
conviction;” and, “the [c]ourt did not have jurisdiction to enter two convictions for first-
degree murder, and therefore has no basis upon which to grant relief.” These claims are
not supported by the record. While the record does not reflect the entry of more than one
judgment of conviction on the charge of murder, Berry does not establish a new
constitutional right and, thus, does not entitle the defendant to relief. Berry, 503 S.W.3d
at 362. Rather, it merely clarifies that, when a trial court merges two verdicts into one
judgment of conviction, it should prepare a judgment form for each count that reflects the
merger. Id. Furthermore, Berry is inapplicable in the defendant’s charges because there
was no merger of verdicts. Id. The defendant, therefore, is not entitled to relief. See
Wooden, 478 S.W.3d at 593; see also Tenn. R. Crim. P. 36.1(a).
                                           -8-
       Next, the defendant argues he is entitled to one day of jail credit because he was
arrested on “February 21 not [February] 22, 1983.” This claim is not cognizable under
Rule 36.1 as it does not speak to whether the defendant’s sentence is legal. See Wooden,
478 S.W.3d at 593; see also Tenn. R. Crim. P. 36.1(a). Furthermore, the defendant has
already litigated this claim and has been granted relief. The trial court noted below “the
request for jail credit for the date of arrest should be treated as a motion to correct a
clerical error pursuant to Tenn. R. Crim. P. 36. The State [was] requested to file a copy
of the arrest report within forty-five . . . days from the entry of [the] order.” The
defendant is required to petition the Department of Correction for any application of
credits to his sentence. Ultimately, as the defendant is currently serving a sentence of life
without the possibility of parole, and has already completed his sentences for grand
larceny and second-degree burglary, this argument is moot. The defendant, therefore, is
not entitled to relief.

       The defendant’s remaining claims all relate to his arrest; his questioning by
officers; discovery issues; the officer’s testimony at trial; the State’s conduct at trial;
sufficiency of the evidence; and ineffective assistance of counsel. These claims are not
cognizable under Rule 36.1, as they do not address the illegality of the defendant’s
sentence. See Wooden, 478 S.W.3d at 593; see also Tenn. R. Crim. P. 36.1(a). Instead,
these claims address evidentiary concerns and are, therefore, inapposite. See Wooden,
478 S.W.3d at 593; see also Tenn. R. Crim. P. 36.1(a). Furthermore, these issues have
been litigated extensively during the defendant’s numerous prior appeals, and the
defendant has been denied relief. See Harbison, 704 S.W.2d at 315; Harbison, No.
E2014-01830-CCA-R28-PC, slip op. at 1; Harbison, No. E2013-01336-CCA-R28-PC,
slip op. at 2; Harbison, 2012 WL 1956757, at *1; Harbison, 2005 WL 1521910, at *1;
Harbison, 1996 WL 266114, at *1. The defendant is, therefore, not entitled to relief as to
any of the above listed claims.

        Finally, the defendant argues “procedural bars should not apply to his present
claims” and “even if procedural bars do apply to one or more of the present claims, if the
Court acknowledges the merit of any of those claims, then there is a colorable claim of
illegality within the meaning of Rule 36.1.” Because the defendant has failed to state a
single colorable claim pursuant to Rule 36.1, these arguments are moot. Procedurally,
the defendant’s argument also fails because he cites no law in support of his claim that
procedural bars should not apply to his claim. As a result, the argument is waived. Tenn.
R. App. P. 27(a)(7)(A) (requiring an argument to set forth: “the contentions of the
appellant with respect to the issues presented, and the reasons therefor, including the
reasons why the contentions require appellate relief, with citations to the authorities and
appropriate references to the record . . . relied on”). The defendant, therefore, is not
entitled to relief.
                                            -9-
                                    CONCLUSION

        Based upon the foregoing authorities and reasoning, we affirm the judgment of the
trial court.



                                            ____________________________________
                                            J. ROSS DYER, JUDGE




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