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Bigbee v. Lebo

Court of Criminal Appeals of Tennessee, Jackson

August 14, 2019

ROOSEVELT BIGBEE, JR.
v.
JONATHAN LEBO, WARDEN

          Assigned on Briefs June 5, 2019

          Appeal from the Circuit Court for Lauderdale County No. 7062 Joe H. Walker, III, Judge.

         The pro 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 corpus relief.

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

          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 of Tennessee.

          Alan E. Glenn, J., delivered the opinion of the court, in which Thomas T. Woodall and Timothy L. Easter, JJ., joined.

          OPINION

          ALAN E. GLENN, JUDGE

         FACTS

         The 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).

         The 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 801.

         In 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 petition. Id.

         On 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, robbery.

         On 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 ...


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