Patrick L. Moore v. Russell Washburn, Warden

Nashville, TN - Criminal defense attorney represented Patrick L. Moore with one count of kidnapping and one count of aggravated assault.

In October of 2017, the Madison County Grand Jury returned a two-count

indictment charging Petitioner with one count of kidnapping and one count of aggravated

assault. Barely one month later, the grand jury returned a second indictment elevating the

kidnapping charge to aggravated kidnapping. As a result of the second indictment, the

State sought an order of nolle prosequi to dismiss the first indictment. The trial court

granted the State's request and the first indictment was appropriately dismissed.

Petitioner pled guilty to the charges as stated in the superseding indictment. As a

result of the guilty plea, Petitioner was sentenced to an effective sentence of eight years.

05/28/2021- 2 -

In January of 2020, Petitioner sought habeas corpus relief in case number 2020-CV4817. In the petition, he attacked his convictions for both aggravated kidnapping and

aggravated assault by arguing that his rights against double jeopardy were violated when

the State obtained a superseding indictment. The State filed a motion to dismiss the petition

on the grounds that it failed to state a claim that was cognizable for habeas corpus relief.

The habeas corpus court granted the motion to dismiss without a hearing on January 26,

2020. Petitioner filed a timely notice of appeal.

In May of 2020, Petitioner filed a second petition for habeas relief, in case number

2020-CV-4837. In this petition, Petitioner again challenged his 2018 guilty plea to

aggravated kidnapping and aggravated assault. Petitioner argued that he was entitled to

habeas corpus relief on the basis that the State failed to comply with Rule 48(a) of the

Federal Rules of Criminal Procedure because the State did not obtain "leave of court”

before dismissing the initial indictment. Petitioner also complained that the trial court

failed to require the State to provide "adequate reasons” for the dismissal of the indictment.

As a result of these perceived errors, Petitioner claimed that his convictions were void. The

State filed a motion to dismiss the petition, arguing that the second indictment was properly

secured and that the judgments finding Petitioner guilty of the crimes were facially valid.

The habeas corpus court again entered an order dismissing the petition for habeas relief.

Petitioner again filed a timely notice of appeal. After both appeals reached this Court, we

consolidated both appeals for judicial economy.

Analysis

On appeal, Petitioner contends that the trial court erred by dismissing his petitions

for habeas corpus relief. Specifically, he argues that the trial court violated Tennessee Rule

of Criminal Procedure 48(a) and erred by allowing the State to seek a superseding

indictment. Further, he fancies that his right to double jeopardy was violated when the

State obtained a second indictment. The State insists that the trial court properly dismissed

the petitions.

In Tennessee, "[a]ny person imprisoned or restrained of his liberty, under any

pretense whatsoever . . . may prosecute a writ of habeas corpus, to inquire into the cause

of such imprisonment and restraint.” T.C.A. § 29-21-101. While there is no statute of

limitations for filing a petition for a writ of habeas corpus, the grounds upon which relief

may be granted are narrow. Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004). Habeas

corpus relief is only available when it appears on the face of the judgment or record of the

proceedings that the convicting court was without jurisdiction or that the defendant is still

imprisoned despite the expiration of his sentence. Id.; Archer v. State, 851 S.W.2d 157,

164 (Tenn. 1993). In other words, habeas corpus relief may be granted only when the

judgment of conviction is void, rather than merely voidable. Summers v. State, 212 S.W.3d - 3 -

251, 255 (Tenn. 2007). A void judgment is "one that is facially invalid because the court

did not have the statutory authority to render such judgment.” Id. at 256 (citing Dykes v.

Compton, 978 S.W.2d 528, 529 (Tenn. 1998)). A voidable judgment is "one that is facially

valid and requires proof beyond the face of the record or judgment to establish its

invalidity.” Id.

The petitioner bears the burden of showing, by a preponderance of the evidence,

that the judgment is void. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). However, if

the habeas corpus court determines that there is nothing on the face of the judgment to

indicate that the conviction contained therein is illegal, it may summarily dismiss the

petition without the appointment of counsel and without an evidentiary hearing. Summers,

212 S.W.3d at 261; T.C.A. § 29-21-109. Because the issue of whether habeas corpus relief

should be granted is a question of law, we conduct a de novo review without any

presumption of correctness given to the decision of the lower court. Summers, 212 S.W.3d

at 255.

Petitioner's initial challenge was that his double jeopardy rights were violated when

the State sought a superseding indictment. Even if Petitioner's allegation were true, it

would not render his convictions void and would not entitle him to habeas corpus relief.

See Odell Wisdom v. Randy Lee, No. E2016-01737-CCA-R3-HC, 2017 WL 991910, at *3

(Tenn. Crim. App. Mar. 14, 2017), no perm. app. filed (citing multiple cases for the same

proposition).

In the second petition for habeas relief, Petitioner argued that trial court failed to

require the State to obtain "leave of court” prior to dismissing the original indictment.

Petitioner cited Federal Rule of Criminal Procedure 48(a) to support his argument. The

rule, identical to Tennessee's companion rule 48(a), directs that, "[w]ith the court's

permission, the State may terminate a prosecution by filing a dismissal of an indictment, .

. . .” Tenn. R. Crim. P. 48(a); see also State v. Landers, 723 S.W.2d 950, 953 (Tenn. 1987)

(comparing Tennessee Rule with Federal Rule), overruled on other grounds by State v.

Layman, 214 S.W.3d 442 (Tenn. 2007). Here, the State submitted an order to the trial court

seeking nolle prosequi of the original indictment. The submission of an order to a trial

court for approval is the equivalent of seeking "leave” of the court. The trial court properly

determined that Petitioner is not entitled to habeas corpus relief on this issue.

Moreover, Petitioner is not entitled to habeas relief on the basis that the State was

without reason to dismiss the original indictment. A trial court has limited control over the

prosecutor's power to dismiss an indictment. Tenn. R. Crim. P. 48(a); State v. Harris, 33

S.W.3d 767, 770 (Tenn. 2000) (noting that the "exercise of [a prosecutor's] discretion with

respect to the termination of pending prosecutions should not be judicially disturbed unless

clearly contrary to manifest public interest”). Petitioner has pointed to nothing that would - 4 -

suggest the original indictment was dismissed in a manner that was contrary to manifest

public interest. Petitioner is not entitled to relief on this issue.

Petitioner has failed to establish that he is entitled to habeas relief or that the habeas corpus court improperly dismissed the petitions. The judgments of the habeas corpus court are affirmed.