             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                          SEPTEMBER SESSION, 1995             FILED
                                                               March 27, 2008

                                                              Cecil Crowson, Jr.
RONALD TURKS, a/k/a                                             Appellate Court Clerk
ASAD E. MUJIHADEEN,          )
                             )    No. 02C01-9502-CR-00035
             Appellant,      )
                             )    Shelby County
v.                           )
                             )    Hon. John P. Colton, Jr., Judge
                             )
STATE OF TENNESSEE,          )    (Post-Conviction, Habeas Corpus, and Coram
                             )    Nobis)
                             )
             Appellee.       )



For the Appellant:                For the Appellee:

Wayne Chastain                    Charles W. Burson
66 Monroe, Suite 804              Attorney General of Tennessee
Memphis, TN 38103                        and
                                  Sharon S. Selby
                                  Assistant Attorney General of Tennessee
                                  450 James Robertson Parkway
                                  Nashville, TN 37243-0493

                                  John W. Pierotti, Jr.
                                  District Attorney General
                                          and
                                  Chris Craft
                                  Assistant District Attorney General
                                  201 Poplar Avenue
                                  Memphis, TN 38103-1947




OPINION FILED:_______________________


AFFIRMED

Joseph M. Tipton
Judge
                                    OPINION



              The petitioner, Ronald Turks, a/k/a Asad E. Mujihadeen, appeals as of

right from the Shelby County Criminal Court which denied him post-conviction, habeas

corpus and coram nobis relief from his 1979 first degree murder conviction and

resulting life sentence. The trial court dismissed the petitioner's case because the post-

conviction and coram nobis actions were barred by statutes of limitations and the

habeas corpus action failed to state a ground for relief. The following issues are

presented for review:

              (1) Can evidence tending to show actual innocence of the
              crime for which the petitioner has been convicted be the basis
              for post-conviction relief under Tennessee law?

              (2) Can evidence tending to show actual innocence of the
              crime for which the petitioner has been convicted be the basis
              for habeas corpus relief?

              (3) Does the one-year statute of limitations for bringing
              evidence of actual innocence under Tennessee's coram nobis
              statute violate the Due Process Clause of the Fourteenth
              Amendment to the United States Constitution?

We affirm the trial court’s dismissal of the petition.



              The record reflects that the defendant was convicted in 1979 of felony

murder and that his conviction and life sentence were affirmed on appeal to this court.

Ronald Turks v. State, No. 35, Shelby County (Tenn. Crim. App. Mar. 27, 1980), app.

denied on delayed app., (Tenn. Apr. 8, 1985) (concurring in results only). The

petitioner's first post-conviction petition was filed in 1980 and dismissed in 1981 for

failure to state a claim for relief. No appeal was taken. The petitioner was denied

federal habeas corpus relief in September 1981. His second post-conviction petition

was filed in October 1981 and dismissed in November 1981 on grounds of waiver and

previous determination. No appeal was taken.




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              The petitioner filed a state habeas corpus petition in 1983 and the petition

was treated as one for post-conviction relief and dismissed for waiver and previous

determination. However, the case was reversed and remanded for the appointment of

an attorney and a hearing. Ronald Turks, a/k/a Asad E. Mujihadeen v. State, No. 57,

Shelby County (Tenn. Crim. App. Dec. 29, 1983). The trial court held an evidentiary

hearing and then dismissed the petition. This court affirmed the dismissal of the

petition but vacated and reentered the judgment that affirmed the petitioner’s conviction

on direct appeal in order that the petitioner could seek a delayed appeal to the supreme

court. Ronald Turks v. State, No.27, Shelby County (Tenn. Crim. App. Jan. 16, 1985).

In April 1985, the supreme court denied the petitioner’s application to appeal,

concurring in results only.



              The present case began in March 1993 when the petitioner filed a pro se

petition for post-conviction relief. Counsel was appointed and filed an amended petition

that sought both post-conviction and habeas corpus relief on the ground that the

petitioner’s right to due process was violated because the trial court erroneously

instructed the jury. The petition asserted that the trial court’s instruction on malice

violated Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450 (1979) and that the trial

court’s instruction on the elements of first degree murder allowed the jury to use the

elements of premeditation and deliberation interchangeably. The petitioner also filed

with the trial court an affidavit that was signed by Bert Eggleston, one of the petitioner’s

co-defendants. In the affidavit, Eggleston alleged that the petitioner did not shoot the

victim and that he and the other codefendant had planned the robbery before they

asked the petitioner to join them.



              The trial court entered an order dismissing the petition on the grounds that

the petition did not state grounds for habeas corpus relief and that the petitioner ’s post-

conviction claims were barred by the applicable statute of limitations, T.C.A. § 40-30-



                                              3
102. Before the trial court’s order became final, the petitioner filed a motion for the

court to amend its order to include a ruling on whether Burford v. State, 845 S.W.2d

204 (Tenn. 1992), tolled the limitations period. The petitioner also filed a second

amended petition. In addition to seeking post-conviction and habeas corpus relief, the

second amended petition sought a writ of error coram nobis based upon the affidavit of

Bert Eggleston. On August 12, 1994, the trial court entered an order denying the

second petition because the coram nobis claim was untimely under T.C.A. § 27-7-201.

The order also incorporated the earlier order that denied the petitioner habeas corpus

and post-conviction relief.



                                                       I

                 In his first issue, the petitioner contends that he is entitled to post-

conviction relief because the affidavit of Bert Eggleston is newly discovered evidence of

his actual innocence. He couples his claim of actual innocence with allegations that his

constitutional rights were violated when the trial court erroneously instructed the jury.

Relying on Burford, he argues that the three-year limitation period in T.C.A. § 40-30-

1021 should not bar his claims for post-conviction relief because he did not discover the

evidence of actual innocence until 1992 when Eggleston decided to tell the truth and

because State v. Brown, 836 S.W.2d 530 (Tenn. 1992), was not decided until after the

post-conviction statute of limitations had run. We disagree.



                 Initially, we note that we do not view the Bert Eggleston affidavit as

evidence of the petitioner’s innocence. In relevant part, the affidavit states:

                          I Bert Eggleston . . . depose and say:

                         2. That Asad E. Mujihadeen did not shoot and kill the
                 victim (Arnold Griggs) on the night of October 26, 1978;




         1
         The lim itation period for petitions filed on or after May 10, 1995, is one year. T.C.A. §
40-30-202.

                                                       4
                     3. That Mujihadeen at all times was sitting in the
              driver side of his automobile and was still in the car when I
              fled the scene;

                      4. That at no time did anyone contemplate, plan, or
              discuss killing the victim on the night of the crime, and that
              the plan to bump into the victim’s car en route to the bank
              and grabbing the (assumed) money when he got out to
              assess the damage, was planned prior to asking Mujihadeen
              to join myself and the third co-defendant (Robert Sharp)[.]



              Under then existing law, the petitioner was as liable as a principal for

felony murder as long as he was a willing participant in the robbery that resulted in the

murder. See T.C.A. §§ 39-109 (1975 Repl.), 39-2402 (1975 Repl.); Dupes, 209 Tenn.

506, 512, 354 SW.2d 453, 456 (Tenn. 1962). In fact, taken as true, the affidavit not

only fails to establish that the defendant was not involved in the robbery, it does not

negate his knowledge and aid in the killing. We note that the proof presented at the

petitioner’s trial showed that the codefendants traveled with him in his car to the scene

of the robbery and that his his gun was the murder weapon. Thus, the petitioner is

guilty of felony murder by aiding and abetting regardless of whether he was the

triggerman or initiated the planning of the robbery. Eggleston’s affidavit is neither proof

of the petitioner’s actual innocence nor proof of a constitutional violation that would

make his conviction void or voidable so as to entitle him to post-conviction relief. See

T.C.A. § 40-30-105 (1990 Repl.).



              We also disagree with the petitioner’s contentions regarding the timeliness

of his claims for post-conviction relief. The petitioner contends that application of the

three-year statute of limitations to his petition results in a denial of his right to due

process. He argues that he should be entitled to post-conviction relief because the trial

court erroneously instructed the jury in violation of Sandstrom v. Montana, 442 U.S.

510, 99 S. Ct. 2450 (1979), and that the sufficiency of the evidence to support his

conviction for first degree murder should be reexamined in light of the Tennessee

Supreme Court’s decision in State v. Brown, 836 S.W.2d 530 (Tenn. 1992). However,


                                               5
the petitioner could have raised his Sandstrom issue before the statute of limitations

even began to run in this case, see Sands, 903 S.W.2d 297, 302 (Tenn. 1995), and we

have refused to apply Brown’s holdings retroactively. See, e.g., Lofton v. State, 898

S.W. 2d 246, 250 (Tenn. Crim. App. 1994).



              The record reflects that the petition for post-conviction relief was filed in

the trial court on March 3, 1993. Because the petitioner was convicted before the

enactment of T.C.A. § 40-30-102, the limitations period in this case started to run on

July 1, 1986. Sands, 903 S.W.2d at 301; Abston v. State, 749 S.W.2d 487, 488 (Tenn.

Crim. App. 1988). The petitioner failed to file his petition within three years of that date

and presents no just cause for the tolling of the statute of limitations.



                                              II

              In his next issue, the petitioner contends that the trial court erred by

concluding that his petition failed to state grounds for habeas corpus relief. He argues

that evidence of actual innocence should be a ground for habeas corpus relief in

Tennessee. He also urges us to adopt developments in federal habeas corpus law

which he claims allow a petitioner with evidence of actual innocence to bring an

otherwise procedurally barred constitutional claim. See Schlup v. Delo, 115 S. Ct. 851

(1995). He argues that developments in federal habeas corpus law must necessarily

be adopted in state cases because Article I, Section 8 of the Tennessee Constitution is

synonymous with the due process provisions of the federal constitution. See State ex

rel. Anglin v. Mitchell, 506 S.W.2d 224 (Tenn. 1980). We disagree with his procedural

premise. We are not obligated to incorporate federal habeas corpus limits and law into

our state habeas corpus procedure.



              In this respect, as the petitioner acknowledges, the state remedy of

habeas corpus relative to criminal convictions in Tennessee is limited in scope to void



                                              6
judgments of conviction and expiration of terms of imprisonment. See Potts v. State,

833 S.W.2d 60, 62 (Tenn. 1992); State ex rel. Kuntz v. Bomar, 214 Tenn. 500, 504, 381

S.W.2d 290-91 (1964). Also, if the trial court rendering a judgment has jurisdiction of

the person and the subject matter and has the authority to make the challenged

judgment, the judgment of conviction is normally considered to be voidable, not void.

Potts, 833 S.W.2d at 62. The petitioner has not alleged sufficient grounds that would

make his conviction void. We agree with the trial court’s conclusion that he failed to

state any ground for habeas corpus relief.



                                             III

              Next, the petitioner challenges the trial court’s dismissal of his coram

nobis claim. First, he argues that his claim should not be barred by the one-year

limitations period that usually applies to such claims because it was not his fault that he

failed to present the evidence at an earlier time. In support, he cites T.C.A. § 40-26-

105, which, in relevant part, states:

                       Writ of error coram nobis.-- 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. . . . 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 he 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. . . .

(emphasis added). The petitioner argues that the language underlined above indicates

that the legislature intended to exclude criminal cases from the one-year limitations

period that applies to writs of error coram nobis in civil cases, see T.C.A. § 27-7-103,

“[u]pon a showing by the defendant that he was without fault in failing to present certain


                                             7
evidence at the proper time.” We disagree. We do not view the statute of limitations as

being inconsistent with the prerequisite that the defendant show that he was without

fault in failing to present the evidence at the appropriate time. See Sands v. State, 903

S.W.2d at 299 (applying T.C.A. § 27-7-103 to bar a claim for coram nobis relief).



               Secondly, the petitioner refers to constitutional principles of liberty, justice,

due process and comity between state and federal courts to argue that his coram nobis

claim should not be time-barred. However, in Herrera v. Collins, 113 S. Ct. 853 (1993),

the Supreme Court upheld the application of a Texas rule that barred the defendant

from presenting newly discovered evidence of actual innocence because he failed to

raise the issue within thirty days from when his sentence was imposed. We likewise

conclude that the petitioner’s constitutional rights have not been violated by application

of Tennessee’s one-year limitation period.



               In consideration of the foregoing and the record as a whole, the judgment

of the trial court is affirmed.




                                                   Joseph M. Tipton, Judge




CONCUR:




Joe B. Jones, Presiding Judge




John K. Byers, Special Judge




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