The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
FEBRUARY SESS ION, 1999 May 19, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
JONATHAN STEPHENSON, ) C.C.A. NO. 03C01-9807-CR-00255
)
Appe llant, )
) JOHNSON COUNTY
V. )
)
HOWARD CARLTON, WARDEN, ) HON. LYNN W. BROWN, JUDGE
and STATE OF TENNESSEE, )
)
Appellee. ) (HABEAS CORPUS)
FOR THE APPELLANT: FOR THE APPELLEE:
JON ATHAN STEP HEN SON , pro se JOHN KNOX WALKUP
Northeast Correction Complex #140145 Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683 ELLEN H. POLLACK
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
JOE C. CR UM LEY, J R.
District Attorney General
114 Alf Taylor Road
Johnson City, TN 37601
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Petitioner, Jonathan Stephe nson , appe als from the dis miss al of his
petition for habeas corpus relief. Petitioner was tried and convicted in 1990 for
conspiracy to com mit first degree murder and for the first degree murder of his wife.
He was originally senten ced to death . Petitioner’s convictions w ere affirmed on
appe al, but the death sentence was reversed and the case was remanded to the trial
court for resen tencing. State v. Stephenson, 878 S.W.2d 530 (Tenn. 1994). On
October 6, 1994, Petitioner was resentenced to life without parole for the first degree
murder conviction and to sixty (60) years for conspiracy to commit the murd er.
While Petitioner did file a petition for post-conviction relief, he later requested it be
dismissed. In this pe tition for h abea s corp us relie f filed in 1998, Petitioner raises the
following issues:
1) The trial court erred in failing to suppress the confession taken
from Petition er in tha t it was take n involunta rily and in violatio n of both
the Tennessee and United States’ constitutions;
2) The trial court erre d in failing to d ismiss ind ictmen ts which were
multiplicitous;
3) The trial court erred in failing to order disco very of the notes of
investigators of the State;
4) The trial court erred in ordering counsel for Petitioner at trial to
give m emo s from his file ov er to the State a s Jen cks m aterial;
5) The trial cou rt erred in failing to order the State to disclose
whether they inte nded to try Petitioner a s a principal or acc essory;
6) The trial court erred in failing to order a mistrial after improper
and prejudicial op ening argum ent by the State p rosecutor;
7) The trial court erred during preliminary charges when it referred
to quotes from the Bible;
8) The trial court erred in calling jurors back in after the verdict had
been re ndered for ques tioning reg arding th e verdict;
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9) The trial court erred in failing to charge the jury on all lesser
included offenses;
10) The trial court erred in allowing a State’s witness to quote from
and refer to the written statement of Petitioner’s co-defendant, Ralph
Thom pson, without a llowing cross-exa mination by the Petitioner;
11) Petition er did n ot rece ive the e ffective a ssista nce o f coun sel;
12) The trial cou rt violate d the P etitione r’s due process rights by
sentencing Petitioner in excess of the order on remand by the
Tenn essee Supre me C ourt;
13) The prosecutor a llowed the alleged victim’s family to set
Petition er’s punishment by which Petitioner would receive on a plea
bargain;
14) The court erred in knowingly, willfully and with careless disreg ard
allowing the State’s witness to perjure himself; and
15) The trial court permitted testimony that the Petitioner took and
clearly stated that he failed a lie detector test to be presented as
evidence to the jury.
In an order, the trial court dismisse d the petition on gro unds that no ne of the abo ve
issues were “groun ds for habea s corpus relief.” We affirm the judgment of the trial
court.
It is a well-establis hed p rinciple of law th at the re med y of hab eas c orpus is
limited in its nature a nd sco pe. Archer v. State, 851 S.W.2d 157, 164 (Ten n. 1993);
Pass arella v. State, 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994). Habeas corpus
relief is available only when “it appears upon the face of the judgment or the record
of the proceedings upon which the judgment is rendered” that the convicting cou rt
was without jurisdiction or autho rity to sente nce a defen dant, o r that the defen dant’s
sentence had exp ired. Archer, 851 S.W .2d at 164 . A petitioner bears the burden
of establishing that by a preponderance of the evidence the judgm ent he attack s is
void or that the term of imprison ment h as expire d. Pass arella, 891 S.W.2d at 627.
Moreover, where a judgment is not vo id, but is merely voidable, such judgment may
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not be collaterally attacked in a suit for habeas corpus relief. Id. The Petition er’s
pleading in the case sub judice fails to make allegations either regarding a lack of
jurisdiction by the Cocke County Criminal Court or that his sentence has expired.
As the State correctly no tes within its brief to this court, this habeas corpus
petition may not be considered by this court as a post-conviction petition under
Tennessee Code Annota ted section 40-30-205(c). A post-conviction petition may
not be used to relitigate issues which have p reviou sly bee n dete rmine d on a ppea l.
Tenn. Code Ann. § 40-30-206(h). Petitioner himself concedes that the majority of
his issues have p reviou sly bee n con sidere d on a ppea l. In add ition, the applic able
statute of limitations would b ar cons ideration o f the plead ing as a p etition for po st-
conviction relief.
Petition er’s convictions were affirmed on May 9, 1994, and the rehearing
denied on June 20, 1994. He was resentenced by the trial court on October 6, 1994.
There is nothing in the reco rd to indicate that Petitioner appealed his resentencing.
This petition wa s filed a pprox imate ly four (4 ) years past th e Sup reme Cour t’s
decision to affirm his conviction and reve rse his de ath sente nce a nd the trial cou rt’s
resentencing of the Petitioner. The Post-Conviction Procedure Act of 1995 stated
that a petition for post-conviction relief must have been filed “within one (1) year of
the date of the final action o f the highe st appe llate court to which an appeal is taken,
or if no appeal is taken within one (1) year of the date on which the judgment
became final, or consideration of such petition shall be barred.” Tenn. Code Ann.
§ 40-30-202(a). As Petitioner would have had three (3) years under the prior Pos t-
Conviction Procedure Act during which to file his post-conviction petition (Tennessee
Code Annotated section 40-30-102 (Repealed May 10, 1995)), he had one (1) year
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from May 10 , 1995, to file a claim under the new provisions of section 40-30-202.
Carter v. State, 952 S .W .2d 41 7, 419 (Ten n. 199 7). Th e availa ble time period
allowed to Petitio ner to file his pe tition had long since e xpired when he filed his
petition for h abeas corpus relief.
We affirm the ju dgme nt of the trial co urt.
____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
JERRY L. SMITH, Judge
___________________________________
L. T. LAFFERTY, Senior Judge
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