                                                                                          04/10/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs March 7, 2017

            DAVID ENRIQUE LEON v. MIKE PARRIS, WARDEN

                    Appeal from the Circuit Court for Lake County
                     No. 16-CR-10255    R. Lee Moore, Jr., Judge


                             No. W2016-02156-CCA-R3-HC


The petitioner, David Enrique Leon, appeals the summary dismissal of his petition for
writ of habeas corpus, which petition challenged his 2009 Dickson County Circuit Court
jury conviction of first degree felony murder. Discerning no error, we affirm.

             Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which and ROBERT
L. HOLLOWAY, JR., and TIMOTHY L. EASTER, JJ., joined.

David Enrique Leon, Tiptonville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; and Caitlin Smith, Assistant
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

              A Dickson County Circuit Court jury convicted the petitioner of the first
degree felony murder of the victim, Rodolfo Padilla, during the robbery of the victim at
the La Estrella Grocery Store on Highway 46 in Dickson. See State v. David Enrique
Leon, No. M2010-00513-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., Jackson, Aug.
18, 2011). This court affirmed the defendant’s convictions and sentence on direct appeal,
see id., as well as the subsequent denial of the petitioner’s bid for post-conviction relief,
see David Enrique Leon v. State, No. M2013-00519-CCA-R3-PC, slip op. at 1 (Tenn.
Crim. App., Jackson, Oct. 18, 2013).

              In August 2016, the petitioner filed a petition for writ of habeas corpus,
claiming that the judgment for his conviction of felony murder was void because the
presentment failed to include the phrase “in the perpetration of or attempt to perpetrate
any first degree murder, act of terrorism, arson, rape, robbery, burglary, theft, kidnapping,
aggravated child abuse, aggravated child neglect, or aircraft piracy.” The habeas corpus
court summarily dismissed the petition, finding, upon its review of the indictment, “no
basis to support” the petitioner’s claim.

             In this appeal, the petitioner asserts that the habeas corpus court erred by
summarily dismissing his petition.

               “The determination of whether habeas corpus relief should be granted is a
question of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v.
State, 21 S.W.3d 901, 903 (Tenn. 2000)). Our review of the habeas corpus court’s
decision is, therefore, “de novo with no presumption of correctness afforded to the
[habeas corpus] court.” Id. (citing Killingsworth v. Ted Russell Ford, Inc., 205 S.W.3d
406, 408 (Tenn. 2006)). The writ of habeas corpus is constitutionally guaranteed, see
U.S. Const. art. 1, § 9, cl. 2; Tenn. Const. art. I, § 15, but has been regulated by statute for
more than a century, see Ussery v. Avery, 432 S.W.2d 656, 657 (Tenn. 1968). Tennessee
Code Annotated section 29-21-101 provides that “[a]ny person imprisoned or restrained
of liberty, under any pretense whatsoever, except in cases specified in § 29-21-102, may
prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and
restraint.” T.C.A. § 29-21-101. Despite the broad wording of the statute, a writ of
habeas corpus may be granted only when the petitioner has established a lack of
jurisdiction for the order of confinement or that he is otherwise entitled to immediate
release because of the expiration of his sentence. See Ussery, 432 S.W.2d at 658; State v.
Galloway, 45 Tenn. (5 Cold.) 326 (1868). The purpose of the state habeas corpus
petition is to contest a void, not merely a voidable, judgment. State ex rel. Newsom v.
Henderson, 424 S.W.2d 186, 189 (Tenn. 1968). A void conviction is one which strikes at
the jurisdictional integrity of the trial court. Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993); see State ex rel. Anglin v. Mitchell, 575 S.W.2d 284, 287 (Tenn. 1979); Passarella
v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

               Initially, the State contends that the petitioner failed to satisfy the
mandatory statutory requirements for filing a petition for writ of habeas corpus by failing
to attach the final copy of the judgment for his felony murder conviction to his petition.
See T.C.A. § 29-21-107(b)(2) (“The cause or pretense of such restraint according to the
best information of the applicant, and if it be by virtue of any legal process, a copy
thereof shall be annexed, or a satisfactory reason given for its absence[.]”). The
judgment form appended to the petition does appear to be only a sort of preliminary
judgment in that it does not memorialize the sentence imposed for the defendant’s
conviction of felony murder. That being said, because the State did not seek a sentence
of death or life without the possibility of parole, the only sentence available was life
imprisonment. See id. § 39-13-208(c) (“If notice is not filed pursuant to subsection (a) or
(b), the defendant shall be sentenced to imprisonment for life by the court, if the
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defendant is found guilty of murder in the first degree.”). Under these circumstances, we
do not believe that the petitioner’s minor procedural lapse, standing alone, would have
justified the summary dismissal of his petition.

               A habeas corpus proceeding, however, is not the proper vehicle for testing
the sufficiency of an indictment unless the indictment is “so defective as to deprive the
court of jurisdiction.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). The law in
Tennessee is that an indictment must provide “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); see also T.C.A. § 40-
13-202.

             As indicated, the petitioner contends that his felony murder judgment is
void because the presentment failed to track the language of Code section 39-13-204,
which provides:

              First degree murder is . . . [a] killing of another committed in
              the perpetration of or attempt to perpetrate any first degree
              murder, act of terrorism, arson, rape, robbery, burglary, theft,
              kidnapping, aggravated child abuse, aggravated child neglect,
              rape of a child, aggravated rape of a child or aircraft piracy.

Id. § 39-13-202(a)(2). The superseding presentment charging the petitioner with felony
murder provided:

              That David Enrique Leon heretofore, to-wit: on or about
              March 25, 2006, and prior to the filing of this Presentment, in
              the county of Dickson aforesaid, then and there, unlawfully
              and feloniously and with the intent to commit Aggravated
              Robbery, did kill Rodolfo Padilla, in violation of T.C.A. 39-
              13-202, all of which is against the peace and dignity of the
              State of Tennessee.

Although, as the petitioner correctly points out, the language in the presentment does not
track exactly the language of the statute, the language is sufficient to allege that the
petitioner committed a homicide while at least attempting to perpetrate an aggravated
robbery. Consequently, the presentment provided the petitioner with “sufficient
information” to discern “the accusation to which answer [was] required, (2) to furnish the
court adequate basis for the entry of a proper judgment, and (3) to protect the [petitioner]
from double jeopardy.” Hill, 954 S.W.2d at 727.
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Accordingly, the judgment of the habeas corpus court is affirmed.

                                    _________________________________
                                   JAMES CURWOOD WITT, JR., JUDGE




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