        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 5, 2012

              JIMMY L. SMITH v. HENRY STEWARD, WARDEN

                    Appeal from the Circuit Court of Lake County
                    No. 2011-CR-100     R. Lee Moore, Jr., Judge


              No. W2012-00708-CCA-R3-HC - Filed September 19, 2012


Jimmy L. Smith (“the Petitioner”), proceeding pro se, filed a petition for a writ of habeas
corpus, alleging that counts one through four of the indictment underlying his convictions
are defective, and, therefore, his judgments of conviction are void. The habeas corpus court
denied relief without a hearing. The Petitioner then filed this appeal. After a thorough
review of the record and the applicable law, we affirm the judgment of the habeas corpus
court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL, and
C AMILLE R. M CM ULLEN, JJ., joined.

Jimmy L. Smith, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General & Reporter; Jeffrey D. Zentner, Assistant Attorney
General; for the appellee, State of Tennessee.

                                         OPINION

                          Factual and Procedural Background

       The record on appeal is limited and primarily consists of the Petitioner’s pro se
petition for writ of habeas corpus, including numerous attachments; the habeas corpus court’s
order denying relief; and the Petitioner’s notice of appeal. Upon our review of the record
before us, as well as this Court’s most recent opinion addressing the Petitioner’s direct
appeal, see State v. Jimmy L. Smith, No. 88-177-III, 1989 WL 51613 (Tenn. Crim. App. May
19, 1989), perm. app. denied, (Tenn. Aug. 14, 1989), we have gleaned the following
abbreviated history.

       In 1988, a Davidson County jury convicted the Petitioner of one count of aggravated
kidnapping, three counts of aggravated rape, and one count of robbery. The trial court
sentenced the Petitioner as a Range I standard offender to thirty years on count one
(aggravated kidnapping); twenty-five years each on counts two, three, and four (aggravated
rape); and ten years on count five (robbery). The trial court ordered the sentences to be
served consecutively, for a total effective sentence of one hundred fifteen years. The
Petitioner appealed, and this Court affirmed the Petitioner’s convictions and sentencing. See
Jimmy L. Smith, 1989 WL 51613, at *2.

         On November 17, 2011, the Petitioner, pro se, filed a petition seeking habeas corpus
relief, alleging that the District Attorney General failed to sign “the bottom of the pages upon
which are printed counts one through four of the indictment, rendering those counts ‘void,’
as being defective and in violation of Tennessee statutory law.” On January 30, 2012, the
habeas corpus court entered an order dismissing the Petitioner’s petition without a hearing.
Thereafter, on April 10, 2012, the Petitioner untimely filed a notice of appeal and requested
that this Court waive the timely filing requirement.

                                           Analysis

                                     Standard of Review

        “Whether to grant relief upon review of the denial of a petition for a writ of habeas
corpus is a question of law.” Cantrell v. Easterling, 346 S.W.3d 445, 448 (Tenn. 2011)
(citing Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000)). Thus, this Court’s standard of
review is de novo, with no presumption of correctness. Id. (citing Hogan v. Mills, 168
S.W.3d 753, 755 (Tenn. 2005)).

                                 Untimely Notice of Appeal

        Initially, we must address the Petitioner’s untimely notice of appeal. The notice of
appeal must be filed “within 30 days after the date of entry of the judgment appealed from.”
Tenn. R. App. P. 4(a). Nevertheless, because the “notice of appeal” document is not
jurisdictional, the filing of such document may be waived in the interest of justice. Id.

       Although the Petitioner’s filing was pro se, Tennessee Rule of Appellate Procedure
4 does not relieve pro se petitioners from the thirty-day filing requirement. Larry Coulter v.
State, No. M2002-02688-CCA-R3-PC, 2003 WL 22398393, at *2 (Tenn. Crim. App. Oct.

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21, 2003); see also Ronald McCray v. State, No. W2006-00053-CCA-R3HC, 2006 WL
1063684, at *1 (Tenn. Crim. App. Apr. 21, 2006). Thus, the Petitioner’s pro se status is but
one factor to consider in deciding whether the interest of justice warrants waiver of the thirty-
day filing requirement. Larry Coulter, 2003 WL 22398393, at *2; see also Ronald McCray,
WL 1063684, at *1. In determining whether waiver is appropriate, this Court shall consider
the nature of the issues for review, the reasons for the delay in seeking relief, and other
relevant factors presented in each case. Larry Coulter, 2003 WL 22398393, at *2 ; see also
State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007) (citing State v. Markettus
L. Broyld, No. M2005–00299–CCA–R3–CO, 2005 WL 3543415, at *1 (Tenn. Crim. App.
Dec. 27, 2005)).

        In the Petitioner’s notice of appeal, he requested that this Court waive the thirty-day
filing requirement. The Petitioner appears to argue that he did not know his habeas corpus
petition was denied by the habeas corpus court on January 30, 2012, because he did not
receive a copy of the court’s order denying his petition (“the Order”). In support of this
contention, the Petitioner attached three exhibits to his notice of appeal: (1) a letter written
by the Petitioner on March 20, 2012, to the Lake County Circuit Court Clerk, Deborah
Beasley, inquiring about his petition; (2) a letter written by Beasley to the Petitioner
informing him that a copy of the Order was previously mailed to him on January 30, 2012,
but stating that another copy will be mailed to him; and (3) an inmate information request
filed by the Petitioner on March 29, 2012, requesting a list of the legal mail he has received
since January 30, 2012. Although the Petitioner claims he did not receive a copy of the
Order, the certificate of service contained in the Order indicates that Beasley mailed the
Petitioner a copy of the Order on the date it was filed, January 30, 2012. Although this case
presents a very close question on the issue of whether this Court should waive the thirty-day
filing requirement, we have decided to address the merits of the Petitioner’s claim.

                                     Defective Indictment

        Under the United States and Tennessee Constitutions, a convicted criminal enjoys the
right to pursue habeas corpus relief. U.S. Const. art. 1, § 9, cl. 2; Tenn. Const. art. I, § 15.
Tennessee statutes, however, have governed this right for over a century. See Ussery v.
Avery, 432 S.W.2d 656, 657 (Tenn. 1968); Tenn. Code Ann. § 29-21-101 (Supp. 2010)
(“Any person imprisoned or restrained of liberty, under any pretense whatsoever, except in
cases specified in subsection (b) and in cases specified in § 29-21-102, may prosecute a writ
of habeas corpus, to inquire into the cause of such imprisonment and restraint.”)

      In Tennessee, the “grounds upon which habeas corpus relief will be granted are very
narrow.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). Moreover, “the purpose of a
habeas corpus petition is to contest void and not merely voidable judgments.” Potts v. State,

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833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel Newsom v. Henderson, 424 S.W.2d 186,
189 (Tenn. 1968)). “A void judgment is one in which the judgment is facially invalid
because the court lacked jurisdiction or authority to render the judgment or because the
defendant’s sentence has expired.” Taylor, 995 S.W.2d at 83 (citing Dykes v. Compton, 978
S.W.2d 528, 529 (Tenn. 1998)); see also Archer v. State, 851 S.W.2d 157, 161-64 (Tenn.
1993). On the other hand, “[a] voidable judgment is one that is facially valid and requires
proof beyond the face of the record or judgment to establish its invalidity.” Summers v.
State, 212 S.W.3d 251, 256 (Tenn. 2007) (citing Dykes, 978 S.W.2d at 529). A petitioner
must prove that his or her judgment is void or sentence has expired by a preponderance of
the evidence. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

        The Petitioner argues that his convictions for count one, aggravated kidnapping, and
counts two through four, aggravated rape, are void because the pages of the indictment
setting forth these counts were not signed by the District Attorney General. Instead, only the
last page of the indictment setting forth count five, robbery, was signed by the District
Attorney General.

        “[T]he validity of an indictment and the efficacy of the resulting conviction may be
addressed in a petition for habeas corpus when the indictment is so defective as to deprive
the [trial] court of jurisdiction.” Dykes, 978 S.W.2d at 529. However, so long as the
indictment “performs its essential constitutional and statutory purposes,” habeas corpus relief
is not warranted. Id. (citing State v. Hill, 954 S.W.2d 725, 729 (Tenn. 1997)). An indictment
passes constitutional muster when it provides (1) notice of the charge against which the
accused must defend himself; (2) an adequate basis for the entry of a proper judgment; and
(3) protection of the accused from double jeopardy. Hill, 954 S.W.2d at 727. Additionally,
an indictment satisfies statutory requirements when it

       state[s] the facts constituting the offense in ordinary and concise language,
       without prolixity or repetition, in such a manner as to enable a person of
       common understanding to know what is intended, and with that degree of
       certainty which will enable the court, on conviction, to pronounce the proper
       judgment[.]

Tenn. Code Ann. § 40-13-202 (1990).

       The instant indictment satisfied all of these criteria. Additionally, the lack of the
District Attorney General’s signature on each count of the indictment did not deprive the trial
court of jurisdiction. Tennessee Code Annotated section 40-13-103 (1990) requires a district
attorney general to sign the charging document before it is sent to the grand jury. This Court
has recognized that no indictment should be sent to the grand jury “without the sanction and

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approbation of the [district attorney general], proved by his signature on some part of the
bill.” James E. Martin v. Howard Carlton, No. 03C01-9807-CR-00253, 1999 WL 360147,
at *3 (Tenn. Crim. App. June 7, 1999) (quoting Fout v. State, 4 Tenn. 98, 99 (1816)).

       Moreover, while a signature is required, it is “not necessarily required to be on each
count of an indictment.” James E. Martin, 1999 WL 360147, at *3; see also Timothy R.
Bowles v. State, No. M2003-01740-CCA-R3-PC, 2004 WL 1656476, at *4 (Tenn. Crim.
App. July 23, 2004) (concluding that the indictment was not defective because the district
attorney general only signed a six-page, six-count indictment at the bottom of the last page)
and James L. Feenin v. Kevin Myers, No. M2002-01770-CCA-R3-CO, 2003 WL 1872646,
at *2 (Tenn. Crim. App. Apr. 11, 2003) (concluding that the indictment was not defective
because the district attorney general only signed a three-page, three-count indictment at the
bottom of the last page). Our supreme court also has explained:

            [i]t is not essential that the signature of the officer should be placed at the
            end of the indictment. It is sufficient if it appear on some other part of the
            paper, provided it appear beyond doubt that the attestation relates to the
            indictment and every part thereof, and identifies the same as the act and
            accusation of the government, done through its sworn officer.

State v. Lockett, 50 Tenn. 274, 274-75 (1871); see also James E. Martin, 1999 WL 360147,
at *3. Accordingly, the signature “must be on it, and must show that it is intended to cover
all the counts contained therein.” Lockett, 50 Tenn. at 275; see also James E. Martin, 1999
WL 360147, at *3.

         In the instant case, the District Attorney General signed a five-page, five-count
indictment at the bottom of the last page, which contained count five.1 Each count in the
Petitioner’s indictment was consecutively numbered on five separate pages. Clearly, the
District Attorney General’s signature refers to the indictment, including all five counts, as
a whole. The indictment in this case was not defective due to the location of the District
Attorney General’s signature. For these reasons, we find no merit in the Petitioner’s claim
that his convictions for counts one through four are void. Accordingly, the Petitioner is not
entitled to habeas corpus relief.



        1
           Although there is a “signature line” at the bottom of each page of the five-page indictment with
the title “Attorney General” typed below it, “Attorney General” appears to be marked through on the first
four pages of the indictment (counts one through four). As stated above, the District Attorney General
signed the bottom of the last page of the indictment (count five) and “Attorney General” on this page is
not marked through.

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                                     Conclusion

      For the reasons set forth above, we affirm the judgment of the habeas corpus court
summarily dismissing the Petitioner’s claim for habeas corpus relief.



                                        _________________________________
                                        JEFFREY S. BIVINS, JUDGE




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