Ricky Flamingo Brown v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 28, 2010 at Knoxville

RICKY FLAMINGO BROWN v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 86-F-1484 Cheryl Blackburn, Judge

No. M2009-02056-CCA-R3-HC - Filed October 22 2010

The petitioner, Ricky Flamingo Brown, appeals the Davidson County Criminal Court’s

summary dismissal of his petition for writ of habeas corpus attacking his judgment of

conviction of aggravated rape and resulting life sentence. See T.C.A. § 39-2-603 (1986).

Discerning no error, we affirm the order of the trial court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE

O GLE and C AMILLE R. M CM ULLEN, JJ., joined.

Dwight E. Scott, Nashville, Tennessee, for the appellant, Ricky Flamingo Brown.

Robert E. Cooper, Attorney General and Reporter; Matthew Bryant Haskell, Assistant

Attorney General; Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

On August 14, 1987, the petitioner was convicted of the aggravated rape of his

12 year-old daughter. See Ricky Flamingo Brown v. State, No. M2007-00158-CCA-R3-HC,

slip op. at 1-4 (Tenn. Crim. App., Nashville, Feb. 11, 2008) (affirming the denial of a

previous habeas corpus petition and detailing the procedural history of the conviction), perm.

app. denied (Tenn. Aug. 25, 2008). Following his conviction but prior to sentencing, the

petitioner escaped from custody. He was sentenced in absentia to a life sentence for this

Class X felony conviction. In 1990, the petitioner was apprehended and began serving his

sentence.

Multiple collateral attacks followed a failed attempt at a delayed appeal. See

Ricky Flamingo Brown v. State, No. 01C01-9708-CR-00363 (Tenn. Crim. App., Nashville,

Feb. 10, 1999) (affirming denial of post-conviction relief), perm. app. denied (Tenn. July 12,

1999); see also Ricky Flamingo Brown v. State, No. M2002-01343-CCA-R3-CO (Tenn.

Crim. App., Nashville, Aug. 26, 2003) (affirming denials of numerous petitions for coram

nobis relief), perm. app. denied (Tenn. Mar. 8, 2004); Ricky Flamingo Brown v. State, No.

M2002-02427-CCA-R3-PC (Tenn. Crim. App., Nashville, June 13, 2003) (affirming denial

of request for DNA testing pursuant to the Post-Conviction Procedure Act), perm. app.

denied (Tenn. Oct. 6, 2003).

This court also affirmed the denial of a 2006 petition for writ of habeas corpus.

See Ricky Flamingo Brown v. State, No. M2007-00158-CCA-R3-HC (Tenn. Crim. App.,

Nashville, Feb. 11, 2008), perm. app. denied (Tenn. Aug. 25, 2008). We noted in that

opinion that the petition was not the first filed by the petitioner attacking the legality of his

conviction and sentence. Id., slip op. at 4. On May 26, 2009, the petitioner filed the instant

petition seeking habeas corpus relief from his life sentence. In the petition, he alleged issues

identical to those raised in the 2006 petition. On August 31, 2009, the trial court summarily

dismissed the petition after finding that the issues raised were either previously determined

or not cognizable. On appeal, the petitioner contends that the trial court should not have

dismissed the petition.

“The determination of whether habeas corpus relief should be granted is a

question of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State,

21 S.W.3d 901, 903 (Tenn. 2000)). Our review of the habeas corpus court’s decision is,

therefore, “de novo with no presumption of correctness afforded to the [habeas corpus]

court.” Id. (citing Killingsworth v. Ted Russell Ford, Inc., 205 S.W.3d 406, 408 (Tenn.

2006)).

The writ of habeas corpus is constitutionally guaranteed, see U.S. Const. art.

1, § 9, cl. 2; Tenn. Const. art. I, § 15, but has been regulated by statute for more than a

century, see Ussery v. Avery, 222 Tenn. 50, 432 S.W.2d 656, 657 (Tenn. 1968). Tennessee

Code Annotated section 29-21-101 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 .” T.C.A. § 29-21-101 (2000). Despite the broad wording of the statute, 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 v. Galloway, 45 Tenn.

(5 Cold.) 326 (1868). The purpose of the state habeas corpus petition is to contest a void, not

merely a voidable, judgment. State ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189

(Tenn. 1968). A void conviction is one which strikes at the jurisdictional integrity of the trial

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court. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); see State ex rel. Anglin v.

Mitchell, 575 S.W.2d 284, 287 (Tenn. 1979); Passarella v. State, 891 S.W.2d 619, 627

(Tenn. Crim. App. 1994).

In addition to the various procedural requirements for the prosecution of a

petition for writ of habeas corpus contained in the Code, see generally T.C.A. §§ 29-21-105

to -112, our supreme court has held that “[t]he petitioner bears the burden of providing an

adequate record for summary review of the habeas corpus petition.” Summers v. State, 212

S.W.3d 251, 261 (Tenn. 2007). “In the case of an illegal sentence claim based on facts not

apparent from the face of the judgment, an adequate record for summary review must include

pertinent documents to support those factual assertions.” Id. When a petitioner fails to

attach to his petition sufficient documentation supporting his claim of sentence illegality, the

habeas corpus court may summarily dismiss the petition. Id.

Additionally, previous adjudication of an issue bars the habeas corpus

petitioner from raising the issue anew in a subsequent petition. See Young v. State, 539

S.W.2d 850, 854 (Tenn. Crim. App. 1976) (stating that “in contending that he was denied

counsel at his parole revocation hearing, the petitioner is again attempting to relitigate this

question which was previously determined adverse to him by a court of competent

jurisdiction. This he may not do.”); Long v. State, 510 S.W.2d 83, 87 (Tenn. Crim. App.

1974) (“Indescribable chaos in the administration of criminal justice surely would be the

inevitable consequence of . . . permitting convicted persons to raise repeatedly and without

limitation questions previously and finally adjudicated adversely to [them].”); Myers v. State,

462 S.W.2d 265, 269 (Tenn. Crim. App. 1970) (stating that appellant could not relitigate

questions previously determined adversely to him in two separate habeas corpus cases by

state and federal courts of competent jurisdiction).

From a review of the record, we agree with the trial court that all of the issues

raised in the present petition have been previously determined adversely to the petitioner in

prior litigation. We further note that several issues regarding the lack of a sentencing hearing

transcript, notice to seek enhanced sentence, and sentencing findings of the original trial

court are simply not supported by the record, nor would they be cognizable in a habeas

corpus proceeding. Accordingly, we affirm the summary dismissal of the petition.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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