ROOSEVELT BIGBEE, JR.
JONATHAN LEBO, WARDEN
Assigned on Briefs June 5, 2019
from the Circuit Court for Lauderdale County No. 7062 Joe H.
Walker, III, Judge.
se Petitioner, Roosevelt Bigbee, Jr., appeals the summary
dismissal of his petition for writ of habeas corpus.
Following our review, we affirm the summary dismissal of the
petition for failure to state a cognizable claim for habeas
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Roosevelt Bigbee, Jr., Henning, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter;
Courtney N. Orr, Assistant Attorney General; Mark E.
Davidson, District Attorney General, for the appellee, State
E. Glenn, J., delivered the opinion of the court, in which
Thomas T. Woodall and Timothy L. Easter, JJ., joined.
E. GLENN, JUDGE
Petitioner was convicted by a Sumner County Criminal Court
jury of the December 28, 1988 first degree felony murder of a
convenience store clerk and sentenced to death. Our supreme
court affirmed his conviction but reversed and remanded for
resentencing, finding that the combination of improper
prosecutorial argument and admission of evidence of the
Petitioner's previous felony murder conviction of another
store clerk "resulted in plain error that affected the
substantial rights of the defendant." State v.
Bigbee, 885 S.W.2d 797, 800 (Tenn. 1994). The Petitioner
was subsequently resentenced to life imprisonment, to be
served consecutively to the life plus eleven year sentence he
had received for the previous felony murder and robbery
convictions in Montgomery County. The sentence was affirmed
by this court on direct appeal, and our supreme court denied
his application for permission to appeal. State v.
Roosevelt Bigbee, No. 01C01-9601-CR-00045, 1997 WL
13738, at *1 (Tenn. Crim. App. Jan. 16, 1997), perm. app.
denied (Tenn. Sept. 15, 1997).
Petitioner's conviction was based on his participation
with three men in an attempted armed robbery of a convenience
store in Hendersonville in which the victim store clerk was
beaten and shot to death. Bigbee, 885 S.W.2d at 800.
No money was missing from the store, and $82.00 was found in
the victim's wallet. Id. However, the
State's key witness, the Petitioner's co-defendant,
Joe T. Baker, who had earlier pled guilty to the victim's
murder, testified that although none of the men had any money
when they entered the market, another accomplice, Joel
Hoosier, tried to give Mr. Baker some money when the men
returned to their vehicle after the crime. Id. at
August 2016, the Petitioner filed a petition for writ of
habeas corpus in which he alleged that "because he was
not separately indicted for attempted robbery, the underlying
felony in the felony murder indictment, he did not receive
adequate notice of the charges against him."
Roosevelt Bigbee v. Jonathan Lebo, Warden, No.
W2016-01997-CCA-R3-HC, 2017 WL 838482, at *1 (Tenn. Crim.
App. Mar. 3, 2017), perm. app. denied (Tenn. May 24,
2017). The habeas corpus court summarily dismissed the
petition for failure to state a cognizable claim for relief,
and this court affirmed the summary dismissal of the
December 11, 2018, the Petitioner filed the petition for writ
of habeas corpus that is at issue in this case. In this
second petition, the Petitioner alleges that his conviction
is void because he was tried for an offense not charged in
the indictment, and the indictment "was illegally
broadened by the evidence submitted at trial."
Specifically, he argues that the State constructively amended
the indictment by presenting the "false and misleading
testimony" of co-defendant Baker in support of a
completed robbery, when the indictment charged the Petitioner
with murder during an attempted, rather than completed,
December 12, 2018, the habeas corpus court summarily
dismissed the petition on the basis that it failed to state a
cognizable claim for habeas corpus relief. In its order of
dismissal, the court noted that "issues with regard to
the indictment were ruled on in a prior petition" and
that the Petitioner's complaints about witnesses and the
sufficiency of the evidence did not entitle him to habeas
corpus relief, which is warranted only when the convicting
court is ...