Jimmy Leslie Sluder has been in prison for over 17 years under a void
judgment. He was wrongfully convicted of Second Degree Murder, a Class X
Offense, for an accidental death while driving intoxicated. Please
review my research and see if he can't somehow fit into the scope of your
own activism projects.



IN THE CRIMINAL COURT OF MORGAN COUNTY ,
STATE OF TENNESSEE


JIMMY LESLIE SLUDER,
PETITIONER,


Case No. ________________

v.

JACK MORGAN, WARDEN,
and STATE OF TENNESSEE,
RESPONDENTS.



PETITION FOR WRIT OF HABEAS CORPUS


COMES the Petitioner, JIMMY LESLIE SLUDER, pursuant to T.C.A. § 29-21-
101, et seq., to present the following to this court in support of this
petition for writ of habeas corpus:

I.

That the Petitioner is currently imprisoned and restrained of his liberty
at the Brushy Mountain Correctional Complex, Petros, Tennessee, upon a
void judgment of the Knox County Criminal Court, case number 32303,
serving sentences of fifty (50) years for Second Degree Murder, a Class X
Offense, with a consecutive term of six (6) years for Aggravated Assault,
with additional lesser sentences running consecutive to the fifty (50)
year term, but consecutively to the greater term. The petitioner has
been incarcerated for over 17 years. Said facility is operated by the
respondents in Morgan County, Tennessee, at 9182 Petros Highway, Petros,
Tennessee, thus bringing this issue lawfully into the jurisdiction of
this court; and,

II.

That the petitioner filed a previous federal writ of habeas corpus, but
did not present the issues presented herein in that petition. Also, one
petition was improperly filed in the trial court of Knox County,
Tennessee, and was dismissed and affirmed on appeal. Thus, the
petitioner seeks relief through this petition in this court as the trial
court closest and in which the petitioner is being held under a void
judgment; and,

III.

That the confinement of the Petitioner and judgment against him issued by
this court is void under law. A void judgment is one in which the
judgment if facially invalid because the court did not have the statutory
authority to render such a judgment. See Archer v. State, 851 SW2d 157,
161. When the face of the record shows that the court did not have the
jurisdiction, then the judgment is void, pursuant to State ex rel
Underwood v. Brown, 244 SW2d 168, 71, 93 Tenn. 113, 22 (1951), and State
v. Davenport, 980 SW2d 407 (1998). The right to habeas corpus relief is
guaranteed in Article I, Section 15 of the Tennessee Constitution.
Therefore, the petitioner presents the following in support of this
petition for habeas corpus; and,

IV.

Background of the case. This summary is taken from the actual trial
transcripts and said transcripts are cited in various places. The
Petitioner submits to this court that from the outset of his original
case, stemming from an accident on June 17, 1987, his constitutional
rights and the laws of this state have been undermined by the blatant
railroading of him for the results of an accident in which the petitioner
was driving while under the influence of alcohol. Testimony at trial
showed that the petitioner swerved to avoid a head-on collision with an
oncoming vehicle and, in swerving, he jumped the curb of the sidewalk,
crashed through the corner of a house on the corner off the intersection
and struck two young boys who were riding their bicycles down the
intersecting sidewalk. One child was killed and the other was injured.
Just before the time that he swerved his speed was estimated to be forty
miles-per-hour.

Upon exiting his automobile, Petitioner left the scene in a state of
disarray. He was later apprehended at a nearby residence and given a
breathalyzer at the scene. At the time of the breathalyzer,
approximately forty-five (45) minutes following the accident, his blood
alcohol level was said to have been at .31.

Much testimony was given during the course of the trial regarding the
fact that the petitioner was under the influence of alcohol. Officer
Charles Newman testified that the petitioner was "belligerent, had
slurred speech, red eyes and could not walk." Officer Don Jones gave
similar testimony. Officer Dee McCharge, who administered the breath
test at the scene of the accident, stated that he had "the strong smell
of alcohol, slurred speech, trouble walking," and was at one point in the
evening "hysterical." She further stated that it was her opinion as a
law enforcement officer trained to investigate cases of driving under the
influence that he was "not capable of handling a car. "

Additional testimony was given as to the fact that the petitioner, who
was twenty-two (22) years old at that time, had a history of liking to
squeal his tires and drive in a reckless manner. However, in spite of
their hindsight vision, not one call had ever been made to the police
regarding his conduct. There were also several witnesses, including one
victim, who testified that he did not ever act "mean toward anyone." The
state also presented testimony of one of the three passengers that were
in his vehicle with him, Timmy Solomon, who further supported the case
regarding his high level of intoxication. Statements were entered, but
the petitioner was denied his right to fair trial by not being allowed to
cross-examine, by two additional passengers from his car on that night.
Petitioner's counsel was ineffective in that he failed to suppress those
statements, nor did he produce them as witnesses to be cross-examined, an
issue which was presented in post-conviction but never ruled upon by the
trial court because counsel for the post-conviction was deemed
ineffective by the trial court during the hearing.

Robert Carr, the child who was injured in this accident, gave testimony
himself that there was no history of any problems whatsoever with the
petitioner. He also testified that he and Tony Romines, whose injuries
were fatal, were riding their bikes along the sidewalk to a local store
at the time of the accident. He stated that the two of them had crossed
the road and rode to the dent of the sidewalk. That dent was located in
front of the house to the right of the one the petitioner crashed through
prior to striking the two boys. Mr. Carr had no reason to believe that
the accident was intentional nor did he see what caused it to happen. He
further testified that he had never had a problem with the petitioner.
Petitioner's counsel was further ineffective in bringing the issues
raised by this witness to the jury.

While the state proceeded with testimony from a number of members of the
community that told of the petitioner's bad driving habits, they
presented only two actual witnesses who saw first-hand what happened.
Mr. Solomon and Mr. Walter Smith, who was the driver of the automobile
the petitioner was swerving to avoid when the accident occurred. Both
testified to the accidental nature of this incident in that he swerved to
avoid a head-on collision with an oncoming Truck driven by Mr. Smith.

The petitioner was eventually taken into custody and charged with the
following:

First Offense DUI
Second Degree Murder in the death of Tony Romines
Vehicular Homicide in the same death
Vehicular Homicide by intoxication in the same death
4 variations of Aggravated Assault on Robert Carr
2 charges of leaving the scene of an accident
Driving on a Revoked License
& Driving on a Suspended License
All charges stemmed from the incident that occurred at approximately
21:05, June 17, 1987.

Upon arrest, the petitioner was said to have given a statement to
Officers Newman and Jones. Officer Newman testified that the petitioner
was sober enough to appreciate his rights and that the petitioner had
written the statement himself (Trial Transcript, Page 35, Lines 17-22).
However, Officer Jones said that is was actually he who had authored the
statement for the petitioner (Trial Transcript, Page 46, Lines 7-10).
Officer Jones also testified that he "could not say" what effect the
alcohol would have had on the petitioner's state of mind at the time of
that alleged statement (Trial Transcript, Page 45, Lines 24-25). Counsel
for the petitioner failed to adequately argue the motion to suppress that
statement even though State v. Dodson, 780 SW2d 778 (1989) manifests that
state of mind is essential to a criminal proceeding, nor did he
effectively show the jurors that there were inconsistencies in the
testimony of the two officers.

Dr. Randall Eric Pedigo, University of Tennessee Hospital, testified that
the petitioner was impaired in his operation of his vehicle. "His speech
was at times incoherent and was, at best, slurred," he said in trial. He
also stated that the petitioner was "so drunk he was unable to safely
stand or walk without assistance." At the conclusion of his testimony,
Dr. Pedigo offered his expert testimony that the petitioner was "under
the influence of alcohol," and, "in my opinion, he would still be
impaired three or four hours after the time that I examined him" (Trial
Transcript, Page 131, Lines 9-10).

Prior to the proceedings, the state made formal motion to charge on range
of punishment. This motion was sustained by the trial judge (Trial
Transcript, Page 11, Lines 3-4), but was never given to the jury.
Strader v. State, 362 S.W.2d 224 (1962), mandates that all facts of the
indictment and which could increase the term of confinement be presented
to and determined by the jury. This same principle has been reiterated
in the Apprendi decision, as well as numerous others throughout the
years.

Prior to the jury being brought in for the trial, the petitioner, upon
fatal advice of counsel, entered a plea of guilty to counts two through
eleven of the indictment. The only charge to which he pled not guilty to
was the Second Degree Murder charge, Count One of the indictment. While
the trial judge did inform the petitioner that these pleas could be used
against him if he were to ever be charged with another offense, he failed
to inform the petitioner that they would be used against him in his
current trial for Second Degree Murder. The trial judge further erred in
the fact that he did not accept nor reject the pleas, pursuant to Rule ll
(e)(4) and ll(e)(5), Rules of Criminal Procedure, nor did he offer the
petitioner the opportunity to withdraw the pleas, but, rather stated that
he would hold those pleas in "obeyance," a word not found in the
aforementioned rule (“abeyance” is not found in the rule either). Though
the trial judge did not accept the pleas they were read to the jury and
used quite skillfully by the prosecutor to incriminate the petitioner for
pleading guilty to the knowing, willful act of aggravated assault. Rule
410, Rules of Evidence, prohibits the admissibility of pleas, plea
discussions and related statements in trial.

The Petitioner also had his rights against Double Jeopardy violated. He
not only went on trial for an offense to which he had already pled
guilty, he was allowed, by ineffective assistance of counsel, to plead
guilty to several charges for the same offense or acts inherent in that
offense.

Petitioner would submit that since the court used the pleas in the trial,
though they had not been accepted by the trial judge at that time, that
the inference is they were valid and, therefore, Double Jeopardy applies.

Later in the trial Dr. Tony Catine testified to the fact that the body of
Tony Romines was "not smashed" (Trial Transcript, Page 93, Lines 16-22)
and therefore could not have been struck by the petitioner prior to his
crashing through the house. The counsel for the petitioner was
ineffective in arguing this fact, or the fact that, given the proximity
of the petitioner's vehicle and the path of the two victims, it was
virtually impossible for this tragedy to be foreseen.

The defense counsel called only one witness, which was the petitioner.
Though the petitioner had witnesses who were vital to his defense,
counsel never even spoke to them, much less called them to testify. This
was highly prejudicial against the petitioner because there was also
testimony of a time-line nature that his witnesses could readily refute.
Upon cross-examination by the prosecution, petitioner was further
prejudiced by the entry of his pleas on the lesser charges involving
Robert Carr, the victim who was injured in the accident. At the time
that the petitioner's counsel talked him into pleading guilty to the four
(4) counts of aggravated assault, he showed him the wrong statute. He
showed him the statutes for aggravated assault that were enacted in the
months after the incident for which the petitioner was charged.

This had, in fact, been a controversy since the outset of this case. The
Petitioner was originally charged in the indictment of Second Degree
Murder, a Class X Offense, in count one, although the statute for T.C.A.
§ 39-1-702(2), for Class X Offenses, deems that vehicular homicide was to
be excluded as a Class X Offense. Furthermore, T.C.A. § 39-2-211(b)
states that "no offense covered under provisions of § 39-2-231,
concerning vehicular homicide, shall be considered as a Class X felony."
Yet, this was the precise charge, Second Degree Murder, a Class X
Offense, that the petitioner was on trial for. This was in violation of
the statute.

Upon completion of the trial, the trial judge failed to instruct the jury
on any lesser-included offenses for Second Degree Murder, in violation of
the law. Nor were any enhancement or range considerations determined by
the jury nor admitted by the defendant. See Apprendi v. New Jersey, 530
US 466 (2000) and Blakely v. Washington, 2004 WL 1402697. This is plain
error and demands that the judgment of the trial court is void.

V.

This trial was filled with highly prejudicial errors, but the trial
judge, with assistance from the prosecution and to the blind eye of
ineffective defense counsel, made the most prejudicial and harmful, and
reversible, error, thus violating the defendant’s constitutional rights
under law. The trial judge gave a completely erroneous jury instruction
to the jury, which is plain error.

The sum of the following transcripts demands that this judgment is void
and that the sentence the petitioner is now serving, and has been serving
for over sixteen (16) years, is illegal.

Page 166, of the Trial Transcript, reads as follows:

MR. NASSIOS: Your Honor, the State's position is T. P. I. charge 20.07,
specifically designed for second degree murder cases where it requires a
vehicle, is adequate and does not mention the use of a deadly weapon. It
mentions the use of a vehicle, and the definition of that is any person
who unlawfully kills another person with malice aforethought, either
express or implied, shall be guilty of murder in the second degree.

The prosecution asked the court to utilize the new charge, found in
Tennessee Practice, Volume VII, Committee of the Tennessee Judicial
Conference, Tennessee Pattern Jury Instructions, Criminal C.P.I. -Grim.
) , Second Edition., published by West in 1988, § 20.07, and that is
exactly what the trial judge charged.

The Supplemental Transcript of the Evidence, page 102, begins the record
of the charge made to the jury in this case. And on page 104, the record
reads, as follows:

(THE COURT The defendant is charged in the first count of the
indictment with the offense of second degree murder. To this court the
defendant has entered a plea of not guilty. Any person who wrongfully --
excuse me. Any person who unlawfully kills another person with malice
aforethought, either express or implied, shall be guilty of murder in the
second degree.

For you to find the defendant guilty of this offense, the State must have
proven beyond a reasonable doubt the existence of the following essential
elements:

(1) that the defendant unlawfully killed the alleged victim by the
operation of a motor vehicle; and, that the killing was malicious.

Under the laws of Tennessee, it is unlawful for a person to drive or be
in physical control of any automobile or other motor vehicle upon any
public roads or highways, streets or alleys, or while on the premises of
any shopping center, trailer park, or any apartment house complex which
is generally frequented by the public, while under the influence of any
intoxicant, marihuana, narcotic drug, or drug producing stimulating
effects on the central nervous system...”

End of quote, but transcript goes on to show that the trial judge read,
verbatim, the pattern instructions mentioned above – the incorrect and
completely erroneous jury instructions. And furthermore, defense counsel
was ineffective in even noticing this mistake, much less objecting to it.

The jury in this case was not even instructed on Class X Second Degree
Murder under the 1987 instruction, yet was told by the trial judge that
they must find the petitioner guilty of second degree murder. In
essence, the trial court's error in this case is like arresting a
defendant for stealing a piece of candy from a flea market and demanding
the jury to find him guilty of armed bank robbery, therefore leaving the
jury no choice but to find the defendant guilty, but of the wrong
elements for an incorrect charge. Completely voiding the jurisdiction of
the trial court for doing so, and thus voiding the judgment under which
the petitioner is unlawfully restrained of his liberty.

A jury instruction for an offense for which the defendant was not on
trial, but had already entered a plea of guilty to (and was presented to
the jury at the beginning of the trial proceedings!) was presented to the
jury in the place of the lawful jury instruction for the offense for
which the defendant was indicted and tried, this is tantamount to a “bait
and switch” with the jury and so highly prejudicial against the defendant
that his right to a Fair Trial was utterly obliterated.

The prosecution began its case by vehemently presenting that
the defendant committed second-degree murder in the death of the victim
by using his vehicle as a dangerous weapon. In order for the indictment
to stand, and for the defendant to be put on trial, this very element of
that offense (the offense for which the defendant was on trial) had to be
proven beyond a reasonable doubt. Were it not proven then the Class X
Statute in effect at the time of the actual offense PROHIBITED it from
being tried as either Second Degree Murder or as a Class X Offense. And
had the jury been presented with that correct instruction and returned a
verdict of guilty there would be no such issue before this court.

The record sufficiently presents that just prior to the
reading of the jury instructions to the jury, the trial judge read the
correct instructions but was interrupted by the prosecutor. The
prosecutor stated that he preferred a new jury instruction, T. P. I.
20.07, to be used rather than the correct one. He even stated that the
newer statute “does not mention the use of a deadly weapon” (Transcripts,
Page 166, lines 1-13). He basically abandoned the very element of the
offense which necessitated a trial in the first place. And the
ineffective counsel which was suppose to protect the rights of the
defendant was as dumb as a lamb before the slaughter and didn’t have the
experience or the knowledge, apparently, to object. Counsel for the
defendant should have properly moved, at the moment the prosecution moved
to use the new instruction, that the case be dismissed and the
defendant’s plea of guilty to Vehicular Homicide by means of
Intoxication, be accepted. This would have been proper and would have
required a maximum sentence of twenty-one (21) years, rather than the
fifty-six (56) that was handed to the defendant.

This issue, though obvious to a jailhouse lawyer in the prison unit of
the defendant, has gone unnoticed by every attorney appointed to
represent the defendant, by every court that has supposedly reviewed this
case.

While the Petitioner would in no way lessen the value of the life of
Charles Anthony (Tony) Routines, or the injuries to Robert Carr, he has
maintained from the outset of this accident that he never meant to hurt
anyone, much less them. He knew those boys. There is not a day that
goes by that he has not thought about them. And he was willing to plead
guilty to Vehicular Homicide all along, but the prosecutor and the trial
judge did not accept his plea, but held them "in obeyance." Yet used his
plea against him. However, the jury did not find him guilty of Second
Degree Murder, but rather of Vehicular Homicide.

VI.

That the trial court further violated the petitioner’s rights
under the constitution, as well as the statute governing the sentencing
process of the court, when he failed to consider the pre-sentence
investigation report or present it on the record as a part of the
sentencing process; and,

VII.

Also at issue is the fact that the trial judge used the plea and the
subsequent conviction to enhance not only the Range of the petitioner to
Range II, but gave the petitioner fifty (50) years for this conviction
and ran the other convictions to the offenses which were inherent in the
offense of Count One as consecutive sentences. The sentences for those
convictions are illegal as well. His sentence was enhanced by acts
inherent in the greater offense. The offense of Vehicular Homicide is
excluded from being a Class X offense under the statute at the time of
the offense. Therefore the trial court did not have the statutory
authority to even have a trial for the offense of Class X Second Degree
Murder, which is the precise offense that the defendant went on trial
for. The sentence for Vehicular Homicide By Means of Intoxication,
pursuant to T.C.A. § 39-2-232, was a determinate sentence of not less
than one year nor more than twenty-one (21) years; and,

VIII.

That throughout the appeals process the rights of the
petitioner to appeal were denied through the ineffective assistance of
counsel. This is evident in the fact that the issues herein

were never presented in any prior appeal. But the violation of his
rights extended into the Court of Criminal Appeals by the denial of his
right to a de novo review of his case. Though that Court stated that it
“has been hampered in its attempt to review the sentences” because the
“record does not contain the pre-sentence report which was before the
trial judge when he sentenced the defendant,” neither that Court nor the
defendant’s counselor(s) did anything to insure that his right to this de
novo review was protected. In fact, the statutory provision that a pre-
sentence investigation report be utilized in sentencing by the trial
judge existed in the law prior to 1989, as well as was included in the
current law. Since the record on appeal in both the direct appeal and
the appeal of the post-conviction petition contained no such report,
there is no presumption of correctness in the appeals because the record
was insufficient to conclude that the trial judge adhered to the
mandatory language of the statute (old and new) that he consider the pre-
sentence report when sentencing the defendant. The pre-sentence
investigation report was missing from the record on appeal and was only
recently placed into the record at the insistence of the petitioner.
T.C.A. 40-35-401(d) states clearly that:

“(d) When reviewing sentencing issues raised pursuant to
subsection (a), including the granting or denial of probation and the
length of sentence, the appellate court shall conduct a de novo review on
the record of such issues. Such review shall be conducted with a
presumption that the determinations made by the court from which the
appeal is taken are correct.” See also Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001)(citing Tenn R. App. P. 13(d)); and Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997). The petitioner has been completely denied
his right to this de novo review; and,

IX.

That the pre-sentence investigation report finds that the petitioner
should have been sentenced as a mid-Range I offender. The jury found no
additional enhancing factors.

PREMISES considered, the Petitioner would ask this court to:

Order the transfer of the trial record from the Knox County Criminal
Court (case number 32303); and,
appoint counsel for the petitioner; and,
Grant additional time for appointment counsel to amend this petition, if
necessary; and,
Hold an evidentiary hearing in this cause instanter; and,
Grant the petition for writ of habeas corpus; and,
And, in the interest of justice and to prevent further harm to the
petitioner and violations of his rights.
The foregoing statements are true and correct to the best of my ability
and knowledge and are affirmed and ascribed on this the ______ day of
February, 2005.

RESPECTFULLY SUBMITTED,

JIMMY LESLIE SLUDER , PETITIONER
TDOC #124026
Brushy Mountain Correctional Complex
P. 0. Box 1000
9182 Petros Highway
Petros, TN 37845-5002


)
)
) Sworn and ascribed on this the ______ day of ______________, 2005,
) before the undersigned NOTARY PUBLIC, whose commission expires on
) _______________.
)
)
) ___________________, NOTARY
)
)
)
)
)
)
)
)
)





CERTIFICATE OF SERVICE




I, Jimmy Leslie Sluder, do hereby certify that a true and
correct copy of the foregoing instrument has been sent, via United States
Postal First Class Mail, to the following persons:


Jack Morgan, Warden
Brushy Mountain State Penitentiary
P. O. Box 1000
Petros, TN 37845-5001


Paul Summers, Attorney General
Tennessee Attorney General’s Office
P. O. Box 20207
Nashville, TN 37202





On this the _____________ day of February, 2005.






________________________________


JIMMY LESLIE SLUDER