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Johnson v. Settles

Court of Criminal Appeals of Tennessee, Knoxville

April 4, 2018

MARCUS T. JOHNSON
v.
DARREN SETTLES, WARDEN

          Assigned on Briefs March 28, 2018

          Appeal from the Criminal Court for Knox County No. 111073 Steven Wayne Sword, Judge

         Marcus T. Johnson, the Petitioner, filed a Petition for Writ of Habeas Corpus ("the Petition") claiming that he was being illegally restrained of his liberty because the Tennessee Board of Probation and Parole ("the Parole Board") violated his due process rights by failing to timely serve him with a parole violation warrant and failing to conduct a preliminary hearing within fourteen days of the service of the warrant. The State moved to dismiss the Petition for failure to state a cognizable claim. The habeas corpus court granted the State's motion and summarily dismissed the Petition. We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Marcus T. Johnson, Pikeville, Tennessee, pro se.

          Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney General; and Charme Allen, District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which John Everett Williams and J. Ross Dyer, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE.

         Procedural and Factual Background

         We glean the following history from the direct appeal following the revocation of the Petitioner's probation. The Petitioner pleaded guilty to the sale of cocaine and agreed to a ten-year suspended sentence. State v. Marcus Terrell Johnson, No. E2012-00015-CCA-R3-CD, 2012 WL 3651129, at *1 (Tenn. Crim. App. Aug. 27, 2012), perm app. denied (Tenn. Nov. 27, 2012). Approximately one month after the judgment of conviction was entered, the State obtained a probation revocation warrant. Id. Following a revocation hearing, the Petitioner's probation was fully revoked, and the Petitioner was ordered to serve his sentence in the Department of Correction. Id. On appeal, this court affirmed the revocation. Id.

         The Petitioner has filed numerous pleadings seeking relief, including two post-conviction petitions which were dismissed by the trial court and appealed to this court. See Marcus Johnson v. State, No. E2013-01464-CCA-R3-PC, 2014 WL 1118018, at *1 (Tenn. Crim. App. Mar. 20, 2014) (affirming the summary dismissal of the Petitioner's untimely petition for post-conviction relief), perm. app. denied (Tenn. June 24, 2014); Marcus Johnson v. State, No. E2016-00758-CCA-R3-PC, 2017 WL 2772691, at *1 (Tenn. Crim. App. June 26, 2017) (affirming under Rule 20 the trial court's summary dismissal of the Petitioner's second petition for post-conviction relief), perm. app. denied (Tenn. Sept. 20, 2017). The Petitioner has also filed four Tennessee Rule of Criminal Procedure 36.1 motions, two of which were appealed. In both appeals, this court affirmed the summary dismissal of the Petitioner's motion for failure to state a colorable claim. See State v. Marcus T. Johnson, No. E2016-00004-CCA-R3-CD, 2016 WL 3912565 (Tenn. Crim. App. July 13, 2016), perm. app. denied (Tenn. Oct. 19, 2016); Marcus T. Johnson v. State, No. E2016-00642-CCA-R3-CD, 2016 WL 6581354 (Tenn. Crim. App. Nov. 7, 2016), no perm. app. filed.

         On July 26, 2017, the Petitioner filed the Petition, claiming that "the court was without jurisdiction to sentence and[/]or reincar[c]erate" him and that "the judgments are void." In the alternative, the Petitioner claimed that the Parole Board "had no [j]urisdiction to sentence or reincar[c]erate" him. Concerning the revocation of his parole, the Petitioner claimed that he was denied due process because he was detained for one and a half months before he was served with a notice of parole violation. The State moved to dismiss the Petition for failure to state a cognizable ground. The habeas corpus court found the State's motion well-taken and dismissed the Petition. The Petitioner timely appeals.

         Analysis

         On appeal, the Petitioner raises two issues: (1) whether the habeas corpus court erred in summarily dismissing the Petition, and (2) whether the revocation of his parole violated due process under the federal and state constitutions. The State argues that the ...


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