         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


                   ALLEN OLIVER v. DAVID MILLS, WARDEN

                 Direct Appeal from the Circuit Court for Lauderdale County
                            No. 6019 Joe H. Walker, III, Judge



                    No. W2007-00518-CCA-R3-HC - Filed August 30, 2007




The Petitioner, Allen Oliver, appeals the lower court's denial of his petition for habeas corpus relief.
The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20,
Rules of the Court of Criminal Appeals. The Petitioner has failed to assert a ground that would
entitle him to habeas corpus relief. Accordingly, we affirm the trial court's dismissal.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT
WILLIAMS, JJ., joined.

Allen Oliver, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Rachel E.
Willis, Assistant Attorney General, for the appellee, State of Tennessee.


                                   MEMORANDUM OPINION

        On July 2, 2001, the Petitioner entered guilty pleas to eight offenses including one count of
attempted first degree murder, one count of especially aggravated burglary, two counts of aggravated
assault, one count of aggravated kidnapping, one count of assault, one count of stalking, and one
count of harassment. See Allen Oliver v. State., No. W2005-00677-CCA-R3-PC (Tenn. Crim. App.,
at Jackson, Jan. 5, 2006). The trial court imposed an effective sentence of twenty-three years. Id.
No direct appeal was taken. However, the Petitioner eventually filed a petition for post-conviction



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relief, alleging that his guilty pleas were not knowingly and voluntarily entered and that trial counsel
was ineffective. The trial court denied post-conviction relief, and this Court affirmed. Id.

         On December 8, 2005, the Petitioner filed a pro se petition for habeas corpus relief in the
Lauderdale County Circuit Court. As grounds for relief, the Petitioner alleged that his judgment for
attempt to commit first degree murder was void as it is not a valid criminal offense in Tennessee.
The Petitioner also asserted that the sentence imposed for his aggravated assault conviction was
illegal because it was ordered to be served with one hundred percent release eligibility. On January
3, 2006, the trial court granted habeas corpus relief as to the Petitioner’s claim that he was illegally
sentenced on his conviction for aggravated assault. The trial court remanded the matter to the Shelby
County Criminal Court for the entry of a corrected judgment.

         On January 31, 2006, the Petitioner filed a “Motion for Reconsideration,” in light of the trial
court’s failure to address the Petitioner’s claim that attempted first degree murder was not a criminal
offense in Tennessee. On February 21, 2007, the trial court denied habeas corpus relief on the claim
that attempted first degree murder is not a criminal offense in Tennessee. In denying relief, the court
noted that the Petitioner had failed to attach the indictment of the challenged attempt to commit first
degree murder conviction. The court further noted that, although there is no offense of attempt to
commit first degree felony murder, there is an offense for attempted first degree premeditated
murder. The court determined that the Petitioner failed to meet his burden to establish his
entitlement to habeas corpus relief. The Petitioner timely filed a notice of appeal document.

        The State of Tennessee has filed a motion to affirm the judgment of the lower court pursuant
to Rule 20, Rules of the Tennessee Court of Criminal Appeals. Contemporaneously, the Petitioner
has filed a motion requesting the appointment of counsel.

        There is no federal or state constitutional right to the appointment of counsel in habeas corpus
proceedings, however, a trial court has the statutory duty to appoint counsel, “if necessary.” See
John C. Tomlinson v. State, No. M2001-02152-CCA-R3-CO (Tenn. Crim. App. at Nashville, June
28, 2002) (citing Coleman v. Thompson, 501 U.S. 722, 755, 111 S. Ct. 2546 (1991); State ex rel.
Hall v. Meadows, 215 Tenn. 668, 389 S.W.2d 256, 260 (1965); T.C.A. § 40-14-204)). Appointment
of counsel is not “necessary” merely because a petition is filed, rather appointment of counsel is
“necessary” where the petition alleges facts that would justify relief and the petitioner is deemed
indigent. See McLaney v. Bell, 59 S.W.3d 90, 94 n.3 (Tenn. 2001) (citing Tenn. Sup. Ct. R. 13, §
1(d)); John C. Tomlinson v. State, No. M2001-02152-CCA-R3-CO (citations omitted).

        The determination of whether to grant habeas corpus relief is a question of law. McLaney v.
Bell, 59 S.W.3d 90, 92 (Tenn. 2001), overruled in part by, Summers v. State, 212 S.W.3d 251 (Tenn.
2007). The Tennessee Constitution guarantees a convicted criminal defendant the right to seek
habeas corpus relief. See Tenn. Const. art. I, § 15. However, the grounds upon which habeas corpus
relief will be granted are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A petition
for habeas corpus relief may only be granted when the judgment is shown to be void, rather than
merely voidable. Id. A judgment is void only when it appears upon the face of the judgment or the


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record of the proceedings upon which the judgment is rendered that the convicting court was without
jurisdiction or authority to sentence a defendant or that a defendant's sentence has expired. Archer
v. State, 851 S.W.2d 157, 164 (Tenn. 1993). On the other hand, a voidable judgment or sentence is
one which is facially valid and which requires evidence beyond the face of the judgment or the
record of the proceedings to establish its invalidity. Taylor, 995 S.W.2d at 83.

        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). In the present
case, the Petitioner, although attaching a copy of the judgment of conviction, failed to include the
challenged indictment in the record. See T.C.A. § 29-21-107(b)(2). This omission makes
meaningful review of this claim impossible. The judgment form reflects a conviction for the offense
of attempt to commit first degree murder.1 While State v. Kimbrough nullified the offense of
criminal attempt to commit first degree felony, see 924 S.W.2d 888 (Tenn. 1996), the offense of
criminal attempt to commit first degree murder (premeditated) remains a valid offense in Tennessee.

       The Petitioner’s sentence has not expired and the trial court was with jurisdiction to enter the
judgment against him. For these reasons, the lower court’s dismissal of the Petitioner’s request for
habeas corpus relief was proper as to the judgment for criminal attempt to commit first degree
murder.

        When an opinion would have no precedential value, the Court of Criminal Appeals may
affirm the judgment or action of the trial court by memorandum opinion when the judgment is
rendered or the action taken in a proceeding 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.
See Tenn. R. Ct. Crim. App. 20. We conclude that this case satisfies the criteria of Rule 20.
Accordingly, it is ordered that the State's motion is granted. The Petitioner’s motion for
appointment of counsel is denied. The judgment of the trial court is affirmed in accordance with
Rule 20, Rules of the Court of Criminal Appeals.


                                                                  ___________________________________
                                                                                 ALAN E. GLENN, JUDGE

         1

It appears that the conviction resulted from the “[P]etitioner’s repeated brutal attempts to kill his estranged wife.” See
Allen Oliver v. State, No. W 2005-00677-CCA-R3-PC. The transcript of the guilty plea proceeding included as an
exhibit in the Petitioner’s post-conviction appeal reveals that the Petitioner hid in the attic armed with a knife where he
waited for his estranged wife, who was the victim of his eventual attack. See generally State ex rel. Williamson v. Bomar,
376 S.W .2d 451, 453 (Tenn. 1964) (court may take judicial notice of its own records); Bobby James Mosley v. Wayne
Brandon, Warden, No. M2006-02398-CCA-R3-HC (Tenn. Crim. App., at Nashville, Jun. 20, 2007) (judicial notice of
cases involving the same party is permissible especially when the relevance of the prior litigation is expressly made an
issue in the case on appeal). W hile neither the record before this Court nor the record from the post-conviction appeal
include the challenged indictment, the evidence contained in the guilty plea transcript would support a conviction for
criminal attempt to commit first degree premeditated murder.



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