Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs January 17, 2018
from the Circuit Court for Montgomery County No.
63CC1-2017-CR-479 William R. Goodman III, Judge
Defendant, Mardoche Olivier, was indicted by the Montgomery
County Grand Jury for the offense of driving a vehicle at a
time when his license to drive had been canceled, suspended,
or revoked. While this charge was pending in Montgomery
County Circuit Court, the Defendant filed pro se a petition
for habeas corpus relief as to the pending charge. The trial
court summarily dismissed the petition and the Defendant has
appealed. We conclude that the trial court lacked
jurisdiction to consider the Defendant's habeas corpus
petition, and accordingly the trial court properly summarily
dismissed the petition. Because the instant appeal is
frivolous and because the Defendant is abusing the appellate
process, we order that the Clerk of this Court shall not file
any further notices of appeal from the Defendant in habeas
corpus matters unless the Defendant attaches to the notice of
appeal a copy of the final judgment challenged. We tax the
costs to the Defendant.
R. App. P. 3 Appeal as of Right, Judgment of the Circuit
Mardoche Olivier, Clarksville, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Sophia
Lee, Senior Counsel; John W. Carney, District Attorney
General; and Daniel Stephenson, Assistant District Attorney
General, for the appellee, State of Tennessee.
L. Holloway, Jr., J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and Timothy L. Easter, J.,
L. HOLLOWAY, JR., JUDGE
Defendant filed a pro se petition for writ of habeas corpus
alleging improper restraint of liberty while his charge was
still pending in the trial court. The trial court summarily
denied the petition, and the Defendant filed a pro se notice
of appeal. "The grounds upon which habeas corpus relief
will be granted are narrow." Hickman v. State,
153 S.W.3d 16, 20 (Tenn. 2004). A habeas corpus petition is
used to challenge a void judgment. Summers v. State,
212 S.W.3d 251, 255 (Tenn. 2007). "In Tennessee, habeas
corpus relief is only available when a conviction is void
because the convicting court was without jurisdiction or
authority to sentence a defendant, or that a defendant's
sentence has expired and he is being illegally
restrained." Eric D. Jones v. David Mills,
Warden, No. W2004-00855-CCA-R3-HC, 2004 WL 1656483, at
*1 (Tenn. Crim. App. July 23, 2004). There is no judgment of
conviction restraining the Defendant in this case and the
Defendant has not been sentenced on the pending charge. A
criminal defendant may not pursue habeas corpus relief while
an original criminal case or direct appeal is pending
involving the same matter of confinement. See Hankins v.
State, 512 S.W.2d 591 (Tenn. Crim. App. 1974).
at a minimum the seventh pro se appeal from the denial of a
writ of habeas corpus filed by the Defendant while the
criminal case was pending in the Circuit Court for Montgomery
County. Appeals docketed under case numbers
M2017-00159-CCA-R3-CD, and M2017-00162-CCA-R3-CD were all
summarily dismissed by order of this court for lack of
jurisdiction. In addition to this appeal, the Defendant had
two other appeals on the January 17, 2018 docket in which the
charges were still pending in case numbers
M2017-01056-CCA-R3-HC and M2017-01057-CCA-R3-HC.
22(B) of the Rules of the Court of Criminal Appeals states
A "frivolous" appeal is not merely one that is
likely to be unsuccessful. It is one that is so readily
recognizable as devoid of merit that there is little, if any,
prospect that it can ever succeed. To be frivolous, an appeal
must be so clearly untenable or manifestly insufficient that
its character may be determined by a bare inspection of the
record, without argument or research.
Tenn. Ct. Crim. App. R. 22. We determine from a "bare
inspection of the record" that the instant appeal is
"devoid of merit" and "clearly
untenable." The appeal is frivolous and the Defendant is
abusing the appellate system by repeatedly filing frivolous
appeals. Therefore, costs are taxed to the Defendant.
Furthermore, the Appellate Court Clerk (Clerk) shall not
accept for filing any of the Defendant's habeas corpus
appeals unless the Defendant attaches to his pleading a copy
of a final judgment of conviction. See Jessie D. McDonald
v. State, No. M2005-00205-SC-R10-HC (Tenn. Feb. 3, 2005)
(Order) (noting that the appellant was abusing the ...