        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on briefs April 1, 2014

              MARVIN GREEN v. JERRY LESTER, WARDEN

                        Circuit Court for Lauderdale County
                        No. 15308      Joseph Walker, Judge


              No. W2013-02525-CCA-R3-HC - Filed June 26, 2014


Petitioner, Marvin Green, appeals the Lauderdale County Circuit Court's summary dismissal
of his petition for habeas corpus relief in which he alleged that an insufficient indictment and
an improper offense classification rendered his conviction void. Upon a review of the record
in this case, we are persuaded that the trial court was correct in dismissing the petition for
habeas corpus relief and that this case meets the criteria for affirmance pursuant to Rule 20
of the Rules of the Court of Criminal Appeals. Accordingly, the judgment of the trial court
is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules
of the Court of Criminal Appeals

J ERRY L. S MITH, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and
D. K ELLY T HOMAS, J R., JJ., joined.

Marvin Green, Pro Se, Henning, Tennessee.

Robert E. Cooper, Jr., Attorney General & Reporter; Rachel Harmon, Assistant Attorney
General, for the Appellee, State of Tennessee.

                               MEMORANDUM OPINION

       On November 15, 2006, Petitioner was indicted by a Sullivan County Grand Jury of
possession of over .5 grams of cocaine for sale or delivery within 1000 feet of a school,
possession of marijuana, maintaining a dwelling where controlled substances are used or
sold, and possession of drug paraphernalia. On January 8, 2008, Petitioner pled guilty to all
but the paraphernalia charge and received a total effective sentence of fifteen years. This

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Court dismissed Petitioner’s direct appeal in August 2008 for failure to file an appellate brief.
See Green v. State, No. E2008-00182-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Aug.
29, 2008) (order).

       Petitioner subsequently filed several overlapping petitions for habeas corpus relief in
different courts. In 2011, Petitioner filed a petition for habeas corpus relief in Wayne
County.1 Then, in 2013, Petitioner filed two more habeas corpus petitions in Wayne County;
the dismissal of those petitions was later affirmed on appeal by this Court. See Marvin Green
v. Avril Chapman, Warden, No. M2013-02715-CCA-R3-HC, 2014 WL 2001031 (Tenn.
Crim. App., at Nashville, May 14, 2014). In the meantime, Petitioner also filed several
motions, a post-conviction petition, and a habeas corpus petition in Sullivan County, all of
which were dismissed. The appeals in those cases are currently pending before the Eastern
Division of this Court under consolidated case No. E2013-02425-CCA-R3-CD. This
particular appeal stems from Petitioner’s petition for habeas corpus relief filed in Lauderdale
County, which was dismissed on October 30, 2013.

        Petitioner’s primary argument in this case is that the indictment for possession of .5
grams or more of cocaine for sale or delivery within 1000 feet of a school was insufficient
and void on its face for failing to state every element of the charged offense and, thereby,
failing to give him adequate notice. This is the same issue unsuccessfully raised by Petitioner
in both the Wayne County and Sullivan County habeas corpus petitions. This Court has
already ruled that the indictment was sufficient and that Petitioner was not entitled to habeas
corpus relief on this ground. Green, 2014 WL 2001031 at *2. Therefore, Petitioner is
precluded by the principle of res judicata from re-litigating this claim. See, e.g., James Yates
v. State, No. W2005-01047-CCA-R3-HC, 2005 WL 2759737 at *2 (Tenn. Crim. App., at
Jackson, Oct. 25, 2005).

        It is unnecessary to reach the merits of any other claim raised by Petitioner because
he did not follow the strict procedural requirements for habeas corpus petitions. In
Tennessee, “[a]ny person imprisoned or restrained of his liberty, under any pretense
whatsoever. . . may prosecute a writ of habeas corpus, to inquire into the cause of such
imprisonment and restraint.” T.C.A. § 29-21-101. However, the procedural provisions of
the habeas corpus statute are mandatory and must be followed scrupulously. See Archer v.
State, 851 S.W.2d 157, 165 (Tenn. 1993). Under Tennessee Code Annotated section 29-21-
107(b)(4), a petition for habeas corpus relief must include a statement “[t]hat it is first


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         A copy of this petition was attached to the State’s brief, but the record does not contain a
final order in that case and it does not appear that Petitioner filed an appeal with this Court. We
can only assume the petition was denied since Petitioner remains incarcerated and is challenging
the same indictment.

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application for the writ, or, if a previous application has been made, a copy of the petition
and proceedings thereon shall be produced, or satisfactory reasons be given for the failure
to do so.” Petitioner has filed at least three prior petitions seeking relief from the same
judgment, but failed to attach any copies of those petitions in his application to the
Lauderdale County Circuit Court. Additionally, Petitioner misrepresented to the Lauderdale
County Circuit Court, under oath, that the present petition was the first application for a writ
of habeas corpus. Therefore, summary dismissal of this petition would be appropriate based
solely on procedural grounds. See Summers v. State, 212 S.W.3d 251, 260 (Tenn. 2007)
(holding that a court “properly may choose to summarily dismiss a petition for failing to
comply with the statutory procedural requirements”).

                                       Conclusion
       We determine, sua sponte, that this case meets the criteria of Rule 20, Rules of the
Court of Criminal Appeals, which provides inter alia:

       The Court, with the concurrence of all judges participating in the case, when an
       opinion would have no precedential value, may affirm the judgment or action of the
       trial court by memorandum opinion rather than by formal opinion, when:

       The judgment is rendered or the action is taken in a proceeding before the trial judge
       without a jury, and such judgment or action is not a determination of guilt, and the
       evidence does not preponderate against the finding of the trial judge. . . and

       No error of law requiring a reversal of the judgment or action is apparent on the
       record.

See Larry L. Preston v. State, No. E2007-02458-CCA-R3-PC, 2008 WL 2448318 at *2
(Tenn. Crim. App., at Knoxville, June 18, 2008) (“we point out that this court's use of Rule
20 to summarily affirm a lower court's action is not limited to cases in which the State moves
for such relief”). We find no error in the decision of the Lauderdale County Circuit Court
to dismiss the petition for a writ of habeas corpus without a hearing and without the
appointment of counsel. Accordingly, the judgment of the trial court is hereby affirmed in
accordance with Rule 20.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE



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