Jose Holmes v. State of Tennessee, M2017-00268-CCA-R3-HC

Jose Holmes was convicted in 1994 of especially aggravated robbery and attempted felony murder; the attempted felony murder conviction was later reversed and the robbery conviction affirmed.
Holmes received consecutive sixty-year sentences and unsuccessfully pursued post-conviction relief and prior habeas petitions.
In October 2016 Holmes filed a third habeas corpus petition alleging the trial court failed to instruct the jury on possible penalties under Tenn. Code Ann. § 40-35-201(b) as it existed at trial.
The habeas court denied relief on November 10, 2016; the clerk stamped the order filed on November 16, 2016.
Holmes filed an "Emergency Motion to Alter or Amend" (motion to reconsider) on December 12, 2016, and the habeas court denied that motion on January 12, 2017.
Holmes filed a notice of appeal on January 25, 2017. The State moved to dismiss as untimely; the Court of Criminal Appeals dismissed the appeal because the notice of appeal was not timely and the court would not waive timeliness in the interest of justice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness of appeal	Holmes filed notice of appeal after the 30-day period; he argued for review despite delay	State argued notice was untimely because 30-day clock ran from clerk's stamp-filed date and no tolling applied	Appeal dismissed for untimely notice; waiver of timeliness not warranted
Effect of motion to reconsider on appeal deadline	Holmes filed motion to reconsider on Dec. 12 and implicitly asserted it should toll appeal deadline	State: motion to reconsider is not a specified tolling motion under Tenn. R. App. P. 4(c) and does not extend deadline	Motion to reconsider did not toll the 30-day appeal period
Cognizability of jury-instruction claim in habeas	Holmes argued failure to instruct jury on range of punishment rendered judgment void	State: such errors render judgments voidable, not void, so not cognizable in habeas	Court held jury-instruction claims are voidable, not void; not cognizable in habeas corpus
Ineffective assistance claim in habeas	Holmes suggested counsel was ineffective for not requesting penalty-range instructions	State: ineffective assistance claims are not proper in habeas; must be raised in post-conviction proceedings	Court held ineffective-assistance claims are not cognizable in habeas corpus

State v. Rockwell, 280 S.W.3d 212 (Tenn. Crim. App. 2007) (timeliness of appellate notices may be waived only in the interest of justice; waiver is discretionary and not automatic)