Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs August 20, 2014.
Appeal from the Circuit Court for Johnson County No. CC13CV133 Robert E. Cupp, Judge.
Jeffery Yates, Mountain City, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; and Brent C. Cherry, Senior Counsel, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Camille R. McMullen, J., and David A. Patterson, Sp. J., joined.
JOHN EVERETT WILLIAMS, JUDGE.
Facts and Procedural History
In 1993, the petitioner was convicted of attempted aggravated robbery, especially aggravated kidnapping, and aggravated kidnapping. The attempted aggravated robbery and especially aggravated kidnapping took place on December 23, 1991, and the aggravated kidnapping occurred on December 29, 1991. He received concurrent sentences of five, eighteen, and ten years, for an effective sentence of eighteen years. On direct appeal, this court affirmed the convictions. State v. Jeffery Yates, No. 02C01-9307-CR-00164, 1994 WL 466825 (Tenn. Crim. App. Aug. 31, 1994). On June 14, 1994, the petitioner pled guilty to five counts of aggravated assault and two counts of possession of cocaine. Four of the aggravated assaults occurred on July 15, 1991, and the fifth occurred on November 8, 1990. One of the cocaine offenses occurred on May 28, 1991, and the second occurred on March 9, 1993. He received an effective sentence of ten years for his 1994 guilty pleas to be served concurrently with his eighteen-year sentence for his 1993 convictions. In 2003, the petitioner was convicted of aggravated robbery, and he was sentenced to serve thirty years as a Range III, career offender. The trial court found that the petitioner was a career offender based upon his 1993 and 1994 convictions. This court affirmed the convictions on appeal. State v. Jeffery Yates, No. W2003-02422-CCA-MR3-CD, 2005 WL 1707974 (Tenn. Crim. App. Jul. 21, 2005), perm. app. denied (Tenn. Dec. 19, 2005).
On April 10, 2006, the petitioner filed his first petition for writ of habeas corpus, alleging that he was released on bail for the offenses he was convicted of in 1994 when he committed the offenses he was convicted of in 1993 and that his effective eighteen-year sentence for the 1993 convictions was illegal because he was required to serve it consecutively to, rather than concurrently with, his ten-year sentence for the 1994 guilty pleas. Jeffery Yates v. State, No. W2006-00969-CCA-R3-HC, 2007 WL 936117, at *1 (Tenn. Crim. App. Mar. 29, 2007), perm. app. denied (Tenn. Aug. 13, 2007). This court affirmed the denial of the petition, noting that the judgment forms for the petitioner's 1993 convictions showed that he committed the offenses in December of 1991 but did not indicate whether he was on bail when he committed the offenses. Id. at *2. The court further observed that he did not attach any documents demonstrating that he was released on bail for the aggravated assault and unlawful possession of cocaine offenses when he committed attempted aggravated robbery, aggravated kidnapping, and especially aggravated kidnapping. Id. This court concluded that because the petitioner did not provide documentation establishing that he committed the 1993 offenses while released on bail, the judgments for the 1993 convictions were facially valid, and habeas corpus relief was not warranted. Id.
In 2007, the petitioner filed a second petition for writ of habeas corpus, arguing that his 1994 convictions used to enhance his 2003 sentence were void. Jeffery Yates v. State, No. W2007-02868-CCA-R3-HC, 2008 WL 3983111 (Tenn. Crim. App. Aug. 27, 2008), perm. app. denied (Tenn. Jan. 20, 2009). He claimed that because he was released on bail when he committed the offenses that resulted in his 1994 guilty pleas, the effective ten-year sentence should have been served consecutively to his 1993 sentence. Id. at *1. This court affirmed the denial of the petition, stating that:
The Petitioner is not entitled to habeas corpus relief. It is well-settled that "habeas corpus relief is not available for expired sentences that are used solely to enhance a subsequent conviction." See Paul Wilson v. Stephen Dotson, Warden, No. W2005-02317-CCA-R3-HC (Tenn. Crim. App., at Jackson, May 4, 2006), perm. to appeal denied, (Tenn. Sept. 25, 2006). Indeed, in Hickman v. State, 153 S.W.3d 1, 23 (Tenn. 2004), our supreme court explained:
A person is not "restrained of liberty" for purposes of the habeas corpus statute unless the challenged judgment itself imposes a restraint upon the petitioner's freedom of action or movement. Use of the challenged judgment to enhance the sentence imposed on a separate conviction is not a restraint on liberty sufficient to permit a habeas corpus challenge to the original conviction long after the sentence on the original conviction has expired.
The Petitioner is not currently restrained of his liberty as a result of the convictions of which he now complains. He is not entitled to habeas corpus relief from a sentence fully served. Rather, a petitioner may only seek habeas corpus relief "when the challenged judgment itself imposes a restraint upon the petitioner's freedom of action or movement." Hickman, 153 S.W.3d at 22.
Id. at *2. On February 18, 2009, the petitioner filed his third petition for writ of habeas corpus, again claiming that his 1994 convictions should have been served consecutively to his 1993 convictions. Jeffery Yates v. State, No. W2009-01136-CCA-R3-HC, 2010 WL 4540063 (Tenn. Crim. App. Sept. 24, 2010), perm. app. denied (Tenn. Dec. 22, 2010). He argued that both sentences were void because he was released on bail for the 1994 offenses at the time he committed the 1993 offenses, meaning that his effective eighteen-year 1993 sentence should have been served consecutively to his effective ten-year 1994 sentence. Id. at *3. This court denied relief, noting that a previous panel of the court had concluded that the petitioner was no longer confined as a result of his 1994 convictions. Id. (citing Jeffery Yates v. State, 2008 WL 3983111, at *2). This court concluded that "[i]ssues that have been previously ...