Kelvin Wade Cloyd v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 25, 2005

KELVIN WADE CLOYD v. HOWARD CARLTON, WARDEN

Appeal from the Criminal Court for Johnson County

No. 4412 Lynn W. Brown, Judge

No. E2004-02003-CCA-R3-HC - Filed March 10, 2005

The petitioner, Kelvin Wade Cloyd, appeals the summary dismissal of his petition for habeas corpus

relief. He alleges that he was denied the effective assistance of counsel, claims that the state

knowingly used false testimony during his trial, and asserts that he was erroneously assessed costs.

The judgment is affirmed.

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

GARY R. WADE, P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR., and

NORMA MCGEE OGLE, JJ., joined.

Kelvin Wade Cloyd, Mountain City, Tennessee, pro se.

Paul G. Summers, Attorney General & Reporter; and John H. Bledsoe and Kathy D. Aslinger,

Assistant Attorneys General, for the appellee, State of Tennessee.

OPINION

In 1996, the petitioner was convicted of two counts of vehicular homicide and possession of

a controlled substance. This court affirmed on direct appeal. See State v. Kelvin Wade Cloyd, No.

03C01-9704-CR-00153 (Tenn. Crim. App., at Knoxville, Apr. 2, 1998), perm. app. denied (Tenn.

Dec. 14, 1998). The petitioner filed a timely petition for post-conviction relief, alleging ineffective

assistance of counsel and a violation of the requirements of Brady v. Maryland, 373 U.S. 83 (1963).

The post-conviction court denied relief and this court affirmed. See Kelvin Wade Cloyd v. State,

No. E2003-00125-CCA-R3-PC (Tenn. Crim. App., at Knoxville, Nov. 3, 2003), perm. app. denied

(Tenn. Jan. 26, 2004).

On June 3, 2004, the petitioner filed a petition for habeas corpus relief, alleging that his trial

counsel was ineffective by failing to inform him of a plea offer and that the state violated his due

process rights by utilizing testimony it knew to be false. The trial court summarily dismissed the

petition, concluding that the petitioner had failed to establish a claim for habeas corpus relief.

Because he had failed to file an affidavit of indigency, the trial court taxed the costs to the petitioner.

In this appeal, the petitioner restates his earlier claims and complains about the assessment of court

costs.

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 v. Avery, 222 Tenn. 50, 432 S.W.2d 656 (1968); State

ex rel. Wade v. Norvell, 1 Tenn. Crim. App. 447, 443 S.W.2d 839 (1969). Habeas corpus relief is

available in this state only when it appears on the face of the judgment or the record that the trial

court was without jurisdiction to convict or sentence the petitioner or that the sentence of

imprisonment has otherwise expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v.

State, 833 S.W.2d 60, 62 (Tenn. 1992). Unlike the post-conviction petition which would afford a

means of relief for constitutional violations, such as the deprivation of the effective assistance of

counsel, the purpose of the habeas corpus petition is to contest a void, not merely a voidable,

judgment. State ex rel. Newsome v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189 (1969). A

petitioner cannot attack a facially valid conviction in a habeas corpus proceeding. Potts, 833 S.W.2d

at 62; State ex rel. Holbrook v. Bomar, 211 Tenn. 243, 364 S.W.2d 887, 888 (1963).

The petitioner first asserts that his conviction is void because his trial counsel was ineffective

by failing to communicate a plea offer from the state. He also asserts that his right to due process

was violated because the state used false testimony. These claims, even if true, would not entitle the

petitioner to habeas corpus relief. Instead, they would entitle the petitioner to post-conviction relief,

which has a one-year statute of limitations. See, e.g., Newsome, 424 S.W.2d at 189. In

consequence, it is our view that the trial court did not err by summarily dismissing the petition. See

Passarella v. State 891 S.W.2d 619, 627 (Tenn. 1994) (holding that the trial court may summarily

dismiss a petition for writ of habeas corpus when the allegations do not state a cognizable claim);

see also Tenn. Code Ann. § 29-21-109.

The petitioner also asserts that the trial court erred by taxing the costs of the proceeding

below to him because he is indigent. The state submits that because the petitioner failed to file an

affidavit of indigency, the trial court did not abuse its discretion by taxing the costs to the petitioner.

Tennessee Code Annotated section 29-21-125 provides that "[t]he costs of [habeas corpus

proceedings], except when otherwise expressly provided, shall be adjudged as the court or judge may

think right, and taxed and collected as in other cases." Tenn. Code Ann. § 29-21-125. Our law

allows for the commencement of a civil action, including the filing of a petition for writ of habeas

corpus, without giving security for the costs and without paying litigation taxes when the petitioner

files an oath of poverty and affidavit of indigency. Tenn. Code Ann. § 20-12-127(a). That statute

also provides, however, that "[t]he filing of a civil action without paying the costs or taxes or giving

security for the costs or taxes does not relieve the person filing the action from responsibility for the

costs or taxes but suspends their collection until taxed by the court." Even if the petitioner had filed

the necessary documentation to proceed without securing the costs, he would not be exempt from

the payment of costs in the trial court on this basis alone. Our supreme court has held as follows:

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[N]either the plain language of [Supreme Court Rule 29], nor the plain language of

Tennessee Code Annotated section 20-12-127(a) (Supp. 1999), contemplates that

indigent litigants are permanently relieved from their responsibility to pay litigation

taxes. Rather, Rule 29 and section 20-12-127(a) only contemplate that an indigent

litigant will not be denied access to the courts to commence a civil action solely

because of an inability to pay litigation taxes.

Fletcher v. State, 9 S.W.3d 103, 106 (Tenn. 1999).

The authority to tax the costs of habeas corpus litigation to the petitioner is within the

discretion of the trial court. See Tenn. Code Ann. § 29-21-125. Nothing in our statutory or case law

exempts the petitioner from the payment of costs based upon his indigency. As indicated, the

petition for writ of habeas corpus was without merit. The issues had been previously litigated in a

post-conviction petition. In our view, the trial court did not abuse its discretion under these

circumstances by taxing the costs to the petitioner.

Accordingly, the judgment of the trial court is affirmed.

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GARY R. WADE, PRESIDING JUDGE

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