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24738 - Jack Simpson v. State, et al.

Davis Adv. Sh. No. 3
S.E. 2d


In The Supreme Court

Jack Simpson, #168120, Appellant,


State of South

Carolina, Attorney

General, Warden Ricky

Harrison, Respondents,

Appeal From Chester County

Don S. Rushing, Judge

Opinion No. 24738

Heard January 22, 1997 - Filed January 12, 1998


Assistant Appellate Defender Lisa T. Gregory of

South Carolina Office of Appellate Defense, of

Columbia, for appellant.

Attorney General Charles Molony Condon, Deputy

Attorney General John W. McIntosh, Assistant

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Deputy Attorney General Teresa A. Knox, and

Assistant Attorney General Barbara M. Tiffin, all of

Columbia, for respondents.

PER CURIAM: Appellant Jack Simpson pled guilty to second

degree arson and entered guilty but mentally ill pleas, pursuant to North

Carolina v. Alford,1 to first degree burglary, assault with intent to kill, and

possession of a weapon during the commission of a violent crime.

Appellant did not appeal his pleas.

Thereafter, appellant filed an application for post-conviction

relief (PCR). The PCR judge granted the application and vacated

appellant's burglary conviction. The State appealed, and this Court

reversed. Simpson v. State, 371 S.C. 506, 455 S.E.2d 175 (1995).

Appellant next filed a petition for a writ of habeas corpus in

this Court's original jurisdiction which was dismissed pursuant to Key v.

Currie.2 Appellant then filed a petition for a writ of habeas corpus in the

circuit court. The circuit court judge granted the State's motion to dismiss

the petition on the ground that habeas corpus may not be used as a

substitute for an action under the Uniform Post-Conviction Procedure Act.

Appellant asserts the ruling of the circuit judge was erroneous. We


At common law, the writ of habeas corpus was available after

conviction only to attack the jurisdiction of the court that had imposed

sentence. The rule was stated as follows:

It is fundamental that habeas corpus is a collateral remedy,
subject to the limitations common to collateral proceedings, and
calls in question only the jurisdiction of the court whose
judgment is challenged. It is only when a judgment of
conviction or sentence imposed is void, and not merely
voidable, that relief may be had by habeas corpus.... And the
jurisdiction of a court to render a particular judgment or
impose a particular sentence may be a proper subject of

1 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d (1970).

2 305 S.C. 115, 406 S.E.2d 356 (1991).

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inquiry on habeas corpus. Where, for example, it appears upon
the face of the record that a court having jurisdiction both of
the person and of the subject-matter has imposed an excessive
sentence, that is, one by which a greater punishment is
inflicted than the maximum allowed by law, and where it
further appears that the prisoner, at the time of his application
for habeas corpus, has served out the maximum term of
imprisonment to which the court had power to sentence him,
according to the prevailing rule and the better doctrine, so
much of such sentence as is excessive will be declared void,
and the prisoner discharged on habeas corpus.

Ex Parte Klugh, 132 S.C. 199, 128 S.E. 882 (1925)(citations omitted). The

use of the writ to inquire into the legality of a conviction was, however,

greatly expanded in this State in the late 1950's and 1960's, apparently in

response to decisions of the United States Supreme Court related to

whether state procedures for providing relief for violations of constitutional

rights were adequate to meet the exhaustion requirement for federal

habeas corpus. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9

L.Ed.2d 770 (1963); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed.

469 (1953); Young v. Ragen, 337 U.S. 235, 69 S.Ct. 1073, 93 L.Ed. 1333

(1949). See also Case v. Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14

L.Ed.2d 422 (1965). In South Carolina, the number of reported opinions in

appeals in habeas matters increased from approximately fourteen in the

twenty years from 1930 to 1950 to approximately 70 in the years from

1950 to 1970.

In 1966, the Commissioners on Uniform State Laws

promulgated the Uniform Post-Conviction Procedure Act (Uniform Act).

The Comment to the Uniform Act states that the Uniform Act was

written, in part, "to bring together and consolidate into one simple statute

all the remedies, beyond those that are incident to the usual procedures of

trial and [appellate] review, which are at present available for challenging

the validity of a sentence of imprisonment." Uniform Post-Conviction

Procedure Act (1966) (U.L.A.) § 1 Comment. The Uniform Act

encompassed the relief available under the common law writ of habeas

corpus, the relief available under the expansion of the writ, and the relief

available by collateral attack under any common law, statutory or other

writ, motion, petition, proceeding, or remedy. Id. § l(a)(6). South

Carolina adopted its version of the Uniform Act in 1969. S.C. Code Ann. §

p. 16


17-27-10 to -1203 (the Act).

Section 17-27-20(b) states that the Act "comprehends and takes

the place of all other common law, statutory or other remedies heretofore

available for challenging the validity of the conviction or sentence," and

provides the Act "shall be used exclusively in place of them." We

acknowledge we have stated that habeas corpus is available once the

petitioner has exhausted all post-conviction remedies. Hunter v. State,

316 S.C. 105, 447 S.E.2d 203 (1994); Pennington v. State, 312 S.C. 436,

441 S.E.2d 315 (1994); Slack v. State, 311 S.C. 415, 429 S.E.2d 801 (1993).

In Tyler v. State, 247 S.C. 34, 145 S.E.2d 434 (1965), however, this Court

stated that habeas corpus cannot be used as a substitute for appeal or

other remedial procedure for the correction of errors for which a criminal

defendant had an opportunity to avail himself. Because we believe the

rule in Tyler is the appropriate rule, we now hold that a matter which is

cognizable under the Act may not be raised by a petition for a writ of

habeas corpus before the circuit or other lower courts.4 See Gibson v.

State, Op. No. 24737 (S.C. filed, January 12, 1998).

We are not unaware of art. 1, § 18 of the South Carolina

Constitution which states that the writ of habeas corpus may not be

suspended except when, in case of insurrection, rebellion or invasion, the

public safety may require it. However, our action today does not suspend

the writ, but merely curtails its use to those situations where the Act

would not be applicable. Tyler v. State, supra.

In this case, the allegations raised in appellant's habeas corpus

petition clearly are cognizable under the Uniform Act. Accordingly, the

PCR judge properly dismissed the petition.

3 The Uniform Post-Conviction Procedure Act has since been amended

in ways not relevant to this appeal.

4 Under art. V, § 5 of the South Carolina Constitution, this Court

retains the ability to entertain writs of habeas corpus in our original

jurisdiction and grant relief in those unusual instances where "there has

been a violation which, in the setting, constitutes a denial of fundamental

fairness shocking to the universal sense of justice." Butler v. State, 302

S.C. 466, 397 S.E.2d 87,(1990); see also Simmons v. State, __S.C.__,

471 S.E.2d 455 (1992); Key v. Currie, supra (this Court will exercise its

original jurisdiction where there is an extraordinary reason such as a

question of significant public interest or an emergency).

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