         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs June 25, 2008

          TIMOTHY E. HIGGS v. JAMES WORTHINGTON, Warden

                 Direct Appeal from the Criminal Court for Morgan County
                            No. 9355    E. Eugene Eblen, Judge



                      No. E2007-02266-CCA-R3-HC - Filed July 7, 2008



The Petitioner was convicted of possession of contraband in a penal institution, a Class C felony,
and was sentenced to ten years as a Range III offender. He filed a petition for habeas corpus relief
claiming that he did not knowingly and intelligently waive his right to counsel when he represented
himself at trial and that the indictment was defective. The habeas corpus court dismissed the petition
without a hearing. After a thorough review of the record and applicable law, we affirm the judgment
of the habeas court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
JAMES CURWOOD WITT, JR., JJ., joined.

Timothy E. Higgs, Petros, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Deshea
Dulany and John Bledsoe, Assistant Attorneys General, for the Appellee, the State of Tennessee.


                                             OPINION

                                              I. Facts

       We outlined the following facts on the direct appeal of the Defendant’s conviction:

       [O]n the afternoon of February 28, 1999, Eric Gordon, the jailor for the Weakley
       County Sheriff’s Office, was making his rounds in the Weakley County jail when he
       observed the defendant smoking a homemade cigarette while incarcerated in the jail.
       Gordon smelled an odor of burning marijuana and incense. He looked through the
       door of the day room and saw the defendant sitting on a bunk, smoking a homemade
       cigarette. He asked the defendant to bring him the cigarette, but the defendant
        refused. The jailor testified that the defendant jumped up and panicked when he
        asked for the cigarette. The defendant began throwing things under the bunk.

        The jailor decided that it was not prudent to enter the day room alone, and he left to
        get assistance. He returned with another deputy, and they found the defendant
        smoking a regular, filtered cigarette. When the defendant acted belligerently, they
        placed him in the drunk tank and searched the day room. The jailor discovered three
        marijuana cigarettes under the bunk where the defendant had been sitting.

State v. Timothy E. Higgs, No. W1999-01534-CCA-R3-CD, 2000 WL 1024553, at *1 (Tenn. Crim.
App., at Jackson, July 24, 2000), perm. app. denied (Tenn. Mar. 12, 2001). This Court affirmed the
Petitioner’s conviction. Id. at *3.

        In 2006, the Petitioner filed a petition for habeas corpus relief alleging “his sentence of ten
years as a persistent offender is illegal because the state did not timely file a notice to seek an
enhanced punishment, and he did not have the requisite number of prior convictions to qualify as a
persistent offender.” Timothy E. Higgs v. State, No. E2005-02712-CCA-R3-HC, 2006 WL 3628074,
at *1 (Tenn. Crim. App., at Knoxville, Dec. 14, 2006), perm. app. denied (Tenn. Mar. 12, 2007).
This Court affirmed the denial of habeas corpus relief. Id. at *3.

        In his latest petition for habeas corpus relief, the Petitioner alleges that he did not knowingly
and voluntarily waive his right to counsel when he represented himself at trial and that the indictment
was defective. The habeas court denied the petition without a hearing, and it is from this judgment
that the Petitioner now appeals.

                                             II. Analysis

        On appeal, the Petitioner contends the habeas court erred because he did not knowingly and
voluntarily waive his right to counsel and the indictment against him is fatally deficient. Article I,
section 15 of the Tennessee Constitution guarantees the right to seek habeas corpus relief. See
Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007). Although the right is guaranteed in the
Tennessee Constitution, the right is governed by statute. T.C.A. § 29-21-101 (2006) et seq. The
determination of whether habeas corpus relief should be granted is a question of law and is
accordingly given de novo review. Smith v. Lewis, 202 S.W.3d 124, 127 (Tenn. 2006); Hart v. State,
21 S.W.3d 901, 903 (Tenn. 2000). Although there is no statutory limit preventing a habeas corpus
petition, the grounds upon which relief can be granted are very narrow. Taylor v. State, 995 S.W.2d
78, 83 (Tenn. 1999). It is the burden of the petitioner to demonstrate by a preponderance of the
evidence that “the sentence is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319,
322 (Tenn. 2000). In other words, the very narrow grounds upon which a habeas corpus petition can
be based are as follows: (1) a claim there was a void judgment which was facially invalid because
the convicting court was without jurisdiction or authority to sentence the defendant; or (2) a claim
the defendant’s sentence has expired. Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000);
Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). “An illegal sentence, one whose imposition


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directly contravenes a statute, is considered void and may be set aside at any time.” May v. Carlton,
245 S.W.3d 340, 344 (Tenn. 2008) (citing State v. Burkhard, 566 S.W.2d 871, 873 (Tenn. 1978)).
In contrast, a voidable judgment is “one that is facially valid and requires the introduction of proof
beyond the face of the record or judgment to establish its invalidity.” Taylor, 995 S.W.2d at 83; see
State v. Richie, 20 S.W.3d 624, 633 (Tenn. 2000).

        The Petitioner’s first allegation, that he did not knowingly and voluntarily waive his right to
counsel when he represented himself at trial, is not a colorable claim for habeas corpus relief. This
type of claim is a claim that his conviction is voidable, not void, because it requires the introduction
of proof beyond the record. Cf. Archer, 851 S.W.2d at 164 (“The petition in this case, however, like
most post-conviction challenges to the voluntariness of guilty pleas, alleges only that, upon
introduction of further proof and after appropriate findings of fact by the trial judge, the facially valid
judgments may be voided.”) (emphasis in original). As this is not a claim that the trial court was
without jurisdiction or authority or that the sentence has expired, the Petitioner is not entitled to
relief on this issue. See Stephenson, 28 S.W.3d at 911.

       Next, the Petitioner alleges the indictment was fatally deficient. Although he failed to attach
a copy of the indictment to his petition, he did allege the indictment read as follows:

        On the 28th day of February, 1999, in Weakley County, Tennessee and before the
        finding of this indictment, did unlawfully feloniously and knowingly have in his
        possession a controlled substance while present in the Weakley County Jail, a penal
        institution where prisoners were quartered and under custodial supervision without
        the express written consent of the chief administrator of the said institution in
        violation of T.C.A. § 39-16-201(a)(2) a class [C] felony contraband in a penal
        institution.

Under some circumstances, an indictment can be so defective as to deprive a court of jurisdiction.
Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). “Generally stated, an indictment is valid if
it provides sufficient information (1) to enable the accused to know the accusation to which answer
is required, (2) to furnish the court adequate basis for the entry of a proper judgment, and (3) to
protect the accused from double jeopardy.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (citing
State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991); VanArsdall v. State, 919 S.W.2d 626, 630 (Tenn.
Crim. App. 1995); State v. Smith, 612 S.W.2d 493, 497 (Tenn. Crim. App. 1980)). Because he did
not attach the indictment to his petition, he is not entitled to relief. However, assuming the
indictment reads as the Petitioner alleges it does, we conclude that the indictment conforms to the
requirements of Hill. The Petitioner is not entitled to relief on this issue.

                                            III. Conclusion

        After a thorough review of the record and applicable law, we conclude that the Petitioner
is not entitled to relief, and the judgment of the habeas court is affirmed.



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    ________________________________
     ROBERT W. WEDEMEYER, JUDGE




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