                                                                                         08/02/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs July 19, 2017

                  JOSE HOLMES v. STATE OF TENNESSEE

               Appeal from the Criminal Court for Trousdale County
                  No. 2016-CV-4561 John D. Wootten, Jr., Judge
                     ___________________________________

                           No. M2017-00268-CCA-R3-HC
                       ___________________________________


The Petitioner, Jose Holmes, appeals the habeas corpus court’s denial of his petition for
habeas corpus relief in which he challenged his conviction for especially aggravated
robbery and his sixty-year sentence as a career offender. Because the Petitioner filed an
untimely notice of appeal and the interest of justice does not support waiver of the timely
filing requirement in this case, this appeal is dismissed.

              Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and TIMOTHY L EASTER, JJ., joined.

Jose Holmes, Hartsville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;
and Tom P. Thompson, Jr., District Attorney General, for the appellee, State of
Tennessee.


                                       OPINION

                        FACTUAL AND PROCEDURAL HISTORY

       On October 5, 1994, the Petitioner was convicted of attempted felony murder and
especially aggravated robbery. The trial court imposed consecutive sixty-year sentences.
On direct appeal, this court reversed the Petitioner’s conviction for attempted felony
murder and affirmed the Petitioner’s conviction for especially aggravated robbery. State
v. Jose Holmes, No. 02C01-9505-CR-00154, 1997 WL 759429, at *1 (Tenn. Crim. App.
Dec. 10, 1997). The Petitioner subsequently filed a petition for post-conviction relief in
which he maintained that he received the ineffective assistance of counsel. The post-
conviction court denied relief, and this court affirmed the post-conviction court’s
judgment on appeal. See Jose D. Holmes v. State, No. W2000-02600-CCA-R3-PC, 2002
WL 1558617, at *1 (Tenn. Crim. App. Jan. 30, 2002).

        In September 2007, the Petitioner filed a petition for writ of habeas corpus, which
the habeas corpus court dismissed. The Petitioner appealed, but this court dismissed the
appeal after the Petitioner failed to file an appellate brief. See Jose D. Holmes v. Howard
Carlton, Warden, No. E2008-01529-CCA-R3-HC (Tenn. Crim. App. Jan. 13, 2009)
(Order). In May 2009, the Petitioner filed a second petition for writ of habeas corpus in
which he contended that the judgment was void because the State did not file a notice of
intent to seek enhanced punishment until sixteen days after he had been convicted at trial.
See Jose Holmes v. Howard Carlton, Warden, No. E2009-01960-CCA-R3-HC, 2010 WL
3365926, at *1 (Tenn. Crim. App. Aug. 26, 2010). The habeas corpus court dismissed
the petition, and this court affirmed the dismissal on appeal. See id.

       In October 2016, the Petitioner filed a third petition for writ of habeas corpus in
which he challenged his conviction for especially aggravated robbery and sixty-year
sentence due to the trial court’s failure to instruct the jury regarding the possible penalties
for the offense. The Petitioner based his claim on Tennessee Code Annotated section 40-
35-201(b), which, at the time of the Petitioner’s trial, provided that in non-capital cases
and “upon the motion of either party, filed with the court prior to the selection of the jury,
the court shall charge the possible penalties for the offense charged and all lesser
included offenses.” T.C.A. § 40-35-201(b) (Supp. 1994).1 On November 10, 2016, the
habeas corpus court entered an order finding that the Petitioner’s claim did not render the
judgment void and denying the petition, and the order was filed by the trial court clerk on
November 16, 2016.

       On December 12, 2016, the Petitioner filed a motion to reconsider.2 On January
12, 2017, the habeas corpus court entered an order denying the Petitioner’s motion, and
the order was filed by the trial court clerk on January 17, 2017. On January 25, 2017, the
Petitioner filed a notice of appeal.




        1
         The statute currently prohibits a trial court from instructing a jury on the range of punishment in
non-capital cases. T.C.A. § 40-35-201(b) (2014).
        2
         The Petitioner’s motion is specifically titled “Emergency Motion to Alter or Amend a Judgment
and Memorandum of Law.” However, the Petitioner requests in his motion that the habeas corpus court
reconsider its order denying habeas corpus relief.
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                                        ANALYSIS

        The State maintains that the Petitioner failed to file a timely notice of appeal and
that, as a result, this court should dismiss the appeal. The Petitioner had thirty days after
the date of entry of the habeas corpus court’s judgment in which to file a notice of appeal.
Tenn. R. App. P. 4(a). Although the habeas corpus court entered the order denying the
Petitioner’s habeas corpus petition on November 10, 2016, the trial court clerk did not
stamp file the order until November 16. The Petitioner had thirty days from November
16 in which to file a notice of appeal. See Alfred William Smith v. State, No. E2007-
02457-CCA-R3-PC, 2009 WL 112569, at *7 (Tenn. Crim. App. Jan. 15, 2009) (holding
that the petitioner’s notice of appeal was timely when it was filed within thirty days of the
stamp-filed date of the post-conviction court’s order denying relief but more than thirty
days after the court entered the order).

       Rather than file a notice of appeal by December 16, the Petitioner filed a motion to
reconsider on December 12. A motion to reconsider is not a specified motion that tolls
the time for filing a notice of appeal. See Tenn. R. App. P. 4(c); see Marcus Boales v.
State, No. W2013-02512-CCA-R3-HC, 2014 WL 3954029, at *2 (Tenn. Crim. App. July
30, 2014) (holding that the petitioner’s motion to reconsider did not toll the time for filing
a notice of appeal from the habeas corpus court’s order denying habeas corpus relief).
Accordingly, the Petitioner failed to file a timely notice of appeal.

        Tennessee Rule of Appellate Procedure 4(a) provides that “in all criminal cases
the ‘notice of appeal’ document is not jurisdictional and the filing of such document may
be waived in the interest of justice.” “‘In determining whether waiver is appropriate, this
court will consider the nature of the issues presented for review, the reasons for and the
length of the delay in seeking relief, and any other relevant factors present in the
particular case.’” State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007)
(quoting State v. Markettus L. Broyld, No. M2005-00299-CCA-R3-CO, 2005 WL
3543415, at *1 (Tenn. Crim. App. Dec. 27, 2005)). “Waiver is not automatic and should
only occur when ‘the interest of justice’ mandates waiver. If this court were to
summarily grant a waiver whenever confronted with untimely notices, the thirty-day
requirement of Tennessee Rule of Appellate Procedure 4(a) would be rendered a legal
fiction.” Id. (citing Michelle Pierre Hill v. State, No. 01C01-9506-CC-00175, 1996 WL
63950, at *1 (Tenn. Crim. App. Feb. 13, 1996)).

       The Petitioner has not explained why he filed a notice of appeal on January 25,
2017, instead of December 16, 2016, or how waiver of the thirty-day deadline serves the
interest of justice. Moreover, our review of the issues raised by the Petitioner on appeal
leads us to conclude that waiver of the Petitioner’s untimely notice of appeal is not in the
interest of justice. With regard to the Petitioner’s claims that he is entitled to habeas
                                            -3-
corpus relief because the trial court failed to properly instruct the jury, we have held that
“allegations regarding jury instructions render judgments voidable, not void, and,
therefore, are not cognizable claims for habeas corpus relief.” Jerry W. Dickerson v.
State, No. E2011-00685-CCA-R3-HC, 2011 WL 6181465, at *4 (Tenn. Crim. App. Dec.
12, 2011) (citation omitted). While the Petitioner seems to suggest on appeal that trial
counsel was ineffective in failing to request that the trial court instruct the jury on the
possible ranges of punishment, claims of ineffective assistance of counsel, likewise, are
not cognizable claims for habeas corpus relief. See Jose Luiz Dominquez v. State, No.
M2016-00302-CCA-R3-HC, 2017 WL 652218, at *3 (Tenn. Crim. App. Feb. 17, 2017)
(citing Michael Aaron Pounds v. Roland Colson, Warden, No. M2012-02254-CCA-R3-
HC, 2013 WL 6001951, at *4 (Tenn. Crim. App. Nov. 12, 2013)).

      We conclude that the Petitioner’s untimely filing of his notice of appeal should not
be waived in the interest of justice. Accordingly, we dismiss the Petitioner’s appeal.



                                              ____________________________________
                                              JOHN EVERETT WILLIAMS, JUDGE




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