                                                                                       06/06/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                        Assigned on Briefs December 5, 2017

    JERMAINE RASHAD CARPENTER v. TAMARA FORD, WARDEN

                Appeal from the Circuit Court for Hardeman County
                 No. CC-17-CR-103        Joe H. Walker, III, Judge
                     ___________________________________

                          No. W2017-01383-CCA-R3-HC
                      ___________________________________


The pro se Petitioner, Jermaine Rashad Carpenter, appeals the summary dismissal of his
petition for writ of habeas corpus. Following our review, we affirm the dismissal of the
petition.


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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and J. ROSS DYER, JJ., joined.

Jermaine Rashad Carpenter, Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                       FACTS and PROCEDURAL HISTORY

       In 2004, a Sullivan County jury convicted the Petitioner in case number S47,268
of possession of cocaine with intent to sell, possession with intent to sell or deliver a
Schedule III controlled substance, driving with his license suspended, and driving a
motor vehicle without operational brake lights. See State v. Jermaine Rashad Carpenter,
No. E2006-00775-CCA-R3-CD, 2007 WL 596425, at *1 (Tenn. Crim. App. Feb. 27,
2007); see also State v. Jermaine Carpenter, No. E2016-00450-CCA-R3-CD, 2016 WL
5416350, at *1 (Tenn. Crim. App. Sept. 28, 2016). The Petitioner pled guilty to other
drug-related offenses in other pending cases and was sentenced by the trial court for all
the cases to an effective term of seventeen years in community corrections followed by
four years of probation. The trial court later revoked the community corrections
placement and ordered that the Petitioner serve his twenty-one-year sentence in
confinement. Jermaine Carpenter, 2016 WL 5416350 at *1.

       Also in 2014, the Petitioner was convicted by a Sullivan County jury in case
number S51,080 with two counts of the sale and delivery of more than .5 grams of
cocaine within 1000 feet of a school zone, a Class A felony, and simple possession of
cocaine, a Class A misdemeanor, and was sentenced to an effective term of twenty-five
years in the Department of Correction, to be served consecutively to his twenty-one-year
effective sentence in the previous cases. His convictions and sentences were affirmed by
this court on direct appeal, and our supreme court denied his application for permission to
appeal. See State v. Jermaine Rashad Carpenter, No. E2007-02498-CCA-R3-CD, 2009
WL 331330, at *1 (Tenn. Crim. App. Feb. 11, 2009), perm. app. denied (Tenn. Aug. 17,
2009).

        In 2015 and 2016, the Petitioner filed a Tennessee Rule of Criminal Procedure
36.1 motion and an amended motion in which he alleged, among other things: that the
one hundred percent sentencing required by the Drug-Free School Zone Act contravenes
Tennessee Code Annotated section 40-35-501, which enumerates the offenses for which
there is no release eligibility; that the Drug-Free School Zone Act is unconstitutional; and
that possession with intent to sell cocaine in a drug-free school zone is “‘not an actual
charge[.]’” Jermaine Carpenter, 2016 WL 5416350, at *2. The trial court summarily
dismissed the motions for failure to state cognizable claims for Rule 36.1 relief, and the
Petitioner appealed to this court. On appeal, he added as additional arguments that there
was a fatal variance between the indictments and the proof and that the grand jury lacked
the authority to charge him with a violation of the Drug-Free School Zone Act. Id. This
court affirmed the judgment of the trial court, writing:

              The sentences imposed in both challenged cases were authorized by
       the Code at the time of the [Petitioner’s] convictions. Challenges to the
       constitutionality and interpretation of sentencing statutes are not cognizable
       claims for relief under Rule 36.1. Similarly, challenges to the power of the
       grand jury and claims of variance between the indictment and proof are not
       cognizable grounds for Rule 36.1 relief.

Id. at *3.

      On June 19, 2017, the Petitioner filed the writ of habeas corpus at issue in this
case. Among other things, the Petitioner alleged that his sentence was illegal because the
Drug-Free School Zone Act unconstitutionally violates his Sixth Amendment Right to
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trial by jury and due process; the one hundred percent sentencing of the Drug-Free
School Zone Act directly contravenes not only the statute that enumerates the offenses
for which there is no release eligibility, which does not include offenses under the Drug-
Free School Zone Act, but also the general statutes that list offender classification and
release eligibility percentages; and the grand jury lacked jurisdiction to charge him with a
violation of the Drug-Free School Zone Act because the Drug-Free School Zone Act “is
an enhancement and not an actual charge.”

      On June 26, 2017, the habeas corpus court issued an order in which it summarily
dismissed the petition on the basis that it failed to state a cognizable claim for habeas
corpus relief. This appeal followed.

                                       ANALYSIS

       The Petitioner argues on appeal that the habeas court erred by not addressing the
constitutionality of the Drug-Free School Zone statute and by concluding that the issues
he raised were not cognizable claims for habeas corpus relief. The State argues, among
other things, that the habeas court properly determined that the Petitioner’s sentences are
neither void nor illegal and that he is therefore not entitled to habeas corpus relief. We
agree with the State.

       It is well-established in Tennessee that the remedy provided by a writ of habeas
corpus is limited in scope and may only be invoked where the judgment is void or the
petitioner’s term of imprisonment has expired. Faulkner v. State, 226 S.W.3d 358, 361
(Tenn. 2007); State v. Ritchie, 20 S.W.3d 624, 629 (Tenn. 2000); State v. Davenport,
980 S.W.2d 407, 409 (Tenn. Crim. App. 1998). A void, as opposed to a voidable,
judgment is “one that is facially invalid because the court did not have the statutory
authority to render such judgment.” Summers v. State, 212 S.W.3d 251, 256 (Tenn.
2007) (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)).

       A petitioner bears the burden of establishing a void judgment or illegal
confinement by a preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000). Furthermore, when a “habeas corpus petition fails to establish that a
judgment is void, a trial court may dismiss the petition without a hearing.” Summers,
212 S.W.3d at 260 (citing Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005)). Whether
the petitioner is entitled to habeas corpus relief is a question of law. Id. at 255; Hart v.
State, 21 S.W.3d 901, 903 (Tenn. 2000). As such, our review is de novo with no
presumption of correctness given to the habeas court’s findings and conclusions. Id.

       We find no error in the habeas court’s summary dismissal of the petition on the
basis that it failed to establish a cognizable claim for habeas corpus relief. First, as this
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court noted in the denial of the Petitioner’s Rule 36.1 motion to correct an illegal
sentence, the one hundred percent sentence the Petitioner received was authorized by the
Drug-Free School Zone Act. The fact that the offense is not one of the enumerated
offenses in Tennessee Code Annotated section 40-35-501 for which there is no release
eligibility does not mean that the sentence “directly contravenes an applicable statute,”
such as to be considered illegal. State v. Wooden, 478 S.W.3d 585, 595 (Tenn. 2015).
Second, this court has previously rejected numerous assertions that the Drug-Free School
Zone Act is unconstitutional. See, e.g., State v. Jenkins, 15 S.W.3d 914, 915 (Tenn.
Crim. App. 1999); State v. Steve Duclair, No. E2012-02580-CCA-R3-CD, 2014 WL
1663152, at *14 (Tenn. Crim. App. Apr. 23, 2014), perm. app. denied (Tenn. Oct. 16,
2014); State v. Brian Marshall Keys, No. M2012-02245-CCA-R3-CD, 2014 WL 314485,
at *7-8 (Tenn. Crim. App. Jan. 29, 2014), perm. app. denied (Tenn. June 20, 2014); State
v. Arturo James-Garcia, No. M2009-00891-CCA-R3-CD, 2010 WL 5343286, at *20-21
(Tenn. Crim. App. Dec. 22, 2010), perm. app. denied (Tenn. May 31, 2011). Finally, the
Petitioner’s claim that the grand jury lacked the authority to charge him fails to establish
that his judgments are void or his sentences expired. Accordingly, we affirm the
summary dismissal of the petition for writ of habeas corpus.

                                     CONCLUSION

       Because the Petitioner failed to state a cognizable claim for habeas corpus relief,
we affirm the summary dismissal of the petition for writ of habeas corpus.


                                          ______________________________________
                                          ALAN E. GLENN, JUDGE




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