Robert M. Winters v. Jim Morrow, Warden

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 26, 2010

ROBERT M. WINTERS v. JIM MORROW, WARDEN

Appeal from the Circuit Court for Bledsoe County

No. 2009-CR-17 Thomas W. Graham, Judge

No. E2009-01334-CCA-R3-HC - Filed June 7, 2010

The pro se Petitioner, Robert M. Winters, appeals as of right from the Bledsoe County

Circuit Court’s order summarily dismissing his petition for a writ of habeas corpus attacking

his convictions for felony murder and aggravated robbery. He alleges that his indictment is

void for failing to charge an offense. Following our review, we affirm the judgment of the

habeas corpus court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,

P.J., and N ORMA M CG EE O GLE, J., joined.

Robert M. Winters, Pikeville, Tennessee, Pro Se.

Robert E. Cooper, Attorney General and Reporter; and Leslie E. Price, Assistant Attorney

General, for the appellee, State of Tennessee.

OPINION

The Petitioner was convicted by a Hamilton County jury of premeditated first degree

murder, felony murder and aggravated robbery. The trial court merged the murder

convictions and imposed concurrent sentences of life imprisonment and twelve years. On

direct appeal, this court reversed the premeditated first degree murder conviction but

affirmed the remaining convictions for felony murder and aggravated robbery, as well as the

sentence. State v. Winters, 137 S.W.3d 641 (Tenn. Crim. App. 2003). The Petitioner filed

an untimely petition for post-conviction relief, which was dismissed by the trial court. This

court affirmed the dismissal on appeal. Robert Michael Winters v. State, No. E2005-01349-

CCA-R3-PC, 2005 WL 3479506 (Tenn. Crim. App. Dec. 20, 2005), perm. app. denied

(Tenn. May 1, 2006).

The Petitioner filed his first petition for a writ of habeas corpus alleging, in part, that

his indictment for aggravated robbery and felony murder failed to state an offense.

Following a summary dismissal by the habeas corpus court, this court concluded relative to

the sufficiency of the indictment that the petition failed to state a cognizable claim and

affirmed the dismissal. Robert M. Winters v. Cherry Lindamood, Warden, and State of

Tennessee, No. M2007-02699-CCA-R3-HC, 2009 WL 774479, at *3 (Tenn. Crim. App.

Mar. 25, 2009).

The Petitioner filed this second petition on May 26, 2009. In this petition, the

Petitioner makes the same claims regarding the insufficiency of the indictment that were

raised in the first petition. Accordingly, the habeas corpus court summarily dismissed the

petition on June 10, 2009. This timely appeal followed.

In Tennessee, the grounds upon which habeas corpus relief may be granted are very

narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The writ will issue only when the

petitioner has established 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

v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell, 443 S.W.2d 839

(Tenn. Crim. App. 1969). The purpose of the habeas corpus petition is to contest a void, not

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

(Tenn. 1968). A void, as opposed to a voidable, judgment is “one that is facially invalid

because the court did not have the statutory authority to render such judgment.” Summers

v. State, 212 S.W.3d 251, 256 (Tenn. 2007). A petitioner bears the burden of establishing

a void judgment or illegal confinement by a preponderance of the evidence. See Wyatt v.

State, 24 S.W.3d 319, 322 (Tenn. 2000). A court may summarily dismiss a petition for

habeas corpus relief, without the appointment of counsel and without an evidentiary hearing,

if the petition does not state a cognizable claim. See Hickman v. State, 153 S.W.3d 16, 20

(Tenn. 2004).

“[I]t is a fundamental principle of law that the remedy of habeas corpus may not be

used to resurrect and relitigate matters which have been raised and determined in a prior suit

for habeas corpus, a prior suit for post-conviction relief, or on direct appeal unless a change

in the law renders the petitioner’s conviction void.” Freddie Olden v. David Mills, Warden

and the State of Tennessee, No. 332, 1991 WL 59366, at *2 (Tenn. Crim. App. at Knoxville

Apr. 12, 1991) (citing State ex rel. Brown v. Newell, 391 S.W.2d 667, 670 (Tenn. 1965);

State ex rel. Leighton v. Henderson, 448 S.W.2d 82, 89 (Tenn. Crim. App. 1969); State ex

rel. Smith v. Henderson, 447 S.W.2d 880, 882 (Tenn. Crim. App. 1969); Morgan v. State,

445 S.W.2d 477, 478 (Tenn. Crim. App. 1969); State ex rel. Carroll v. Henderson, 443

S.W.2d 689, 692 (Tenn. Crim. App. 1969)). There has been no such change of law which

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would render the Petitioner’s judgment or conviction void in this case.

CONCLUSION

Accordingly, upon due consideration of the pleadings, the record, and the applicable

law, the court concludes that the Petitioner has not established that he is entitled to habeas

corpus relief. The judgment of the habeas corpus court is affirmed.

_______________________________________

D. KELLY THOMAS, JR., JUDGE

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