                                                                                        03/26/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs December 4, 2018

                  RICKY BENSON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                 No. 17-05158, 17-05159 James M. Lammey, Judge
                      ___________________________________

                           No. W2018-00967-CCA-R3-HC
                       ___________________________________


A Shelby County grand jury indicted the Petitioner for two counts of burglary of a
building. In March 2018, before being convicted of the charges, the Petitioner filed a
habeas corpus petition seeking appointment of counsel and “an updated trial in another
courtroom.” The habeas corpus court denied the petition because the Petitioner had not
yet been convicted of the charged offenses and based upon the numerous procedural
deficiencies in the petition. The Petitioner appeals the habeas corpus court’s denial.
After review, we affirm the habeas corpus court’s judgment.

 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 ROBERT H.
MONTGOMERY, JR. and ROBERT L. HOLLOWAY, JR., JJ., joined.

Ricky Benson, Memphis, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Ryan E. Thompson,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                     I. Background

        A Shelby County grand jury indicted the Petitioner for two counts of burglary of a
building. On March 8, 2018, the Petitioner filed a “Petition for Writ of Habeas Corpus
With Motion for Change of Venue.” The State responded that, because the petition failed
to state a claim for which relief could be granted, the petition should be dismissed. On
April 23, 2018, the habeas corpus court issued an order summarily denying habeas corpus
relief. The habeas corpus court noted that the Petitioner’s trial for the burglary charges
was set for October and, thus, there were no convictions from which to appeal. The
habeas corpus court also found that the Petitioner had not complied with the statutory
procedural requirements for habeas corpus petitions. It is from this judgment that the
Petitioner appeals.

                                      II. Analysis

        The Petitioner appeals the habeas corpus court’s summary dismissal of his petition
for failure to state a cognizable claim. The State responds that the habeas corpus court
properly dismissed the petition because, at the time of the petition, there was no
corresponding judgment. We agree with the State.

        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, -130 (2014). The determination of whether habeas corpus
relief should be granted is a question of law and is accordingly given de novo review with
no presumption of correctness given to the findings and conclusions of the court below.
Smith v. Lewis, 202 S.W.3d 124, 127 (Tenn. 2006) (citation omitted); 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). The 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) (citing Archer v. State, 851 S.W.2d 157,
164 (Tenn. 1993)). “An illegal sentence, one whose imposition 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. Burkhart, 566 S.W.2d 871, 873 (Tenn.
1978)). In contrast, a voidable judgment or sentence is “one which 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 (citations omitted); see State v. Ritchie, 20
S.W.3d 624, 633 (Tenn. 2000).

       The petitioner bears the burden of showing, by a preponderance of the evidence,
that the conviction is void or that the prison term has expired. Wyatt v. State, 24 S.W.3d
319,322 (Tenn. 2000). Furthermore, the procedural requirements for habeas corpus relief
are mandatory and must be scrupulously followed. Archer, 851 S.W.2d at 165. The
formal requirements for a petition for a writ of habeas corpus are found at Tennessee
Code Annotated section 29-21-107:

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      (a) Application for the writ shall be made by petition, signed either by the
      party for whose benefit it is intended, or some person on the petitioner’s
      behalf, and verified by affidavit.

      (b) The petition shall state:

          (1) That the person in whose behalf the writ is sought, is illegally
          restrained of liberty, and the person by whom and place where
          restrained, mentioning the name of such person, if known, and, if
          unknown, describing the person with as much particularity as
          practicable;

          (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;

          (3) That the legality of the restraint has not already been adjudged
          upon a prior proceeding of the same character, to the best of the
          applicant’s knowledge and belief; and

          (4) That it is first 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 so to do.

A habeas corpus court may dismiss a petition for habeas corpus relief that fails to comply
with these procedural requirements. Hickman v. State, 153 S.W.3d 16, 21 (Tenn. 2004).

       It is also permissible for a trial court to summarily dismiss a petition of habeas
corpus without the appointment of a lawyer and without an evidentiary hearing if there is
nothing on the face of the judgment to indicate that the convictions addressed therein are
void. See Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994), superseded
by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC-00266, 1998 WL
104492, at *1 n. 2 (Tenn. Crim. App. Mar.11, 1998); Rodney Buford v. State, No.
M1999-00487-CCA-R3-PC, 2000 WL 1131867, at *2 (Tenn. Crim. App., at Nashville,
July 28, 2000), perm. app. denied (Tenn. Jan. 16, 2001).

      According to the record, the Petitioner’s trial on the burglary charges was set for
October 2018, therefore, the habeas corpus petition was premature in that there were no
convictions at the time of the March 8, 2018 petition. Absent a judgment or sentence, the
                                          -3-
Petitioner cannot show that the convicting court was without jurisdiction or that his
sentence has expired. Moreover, the habeas corpus procedural requirements “are
mandatory and must be followed scrupulously.” Archer, 851 S.W.2d at 165. The
Petitioner failed to adhere to the procedural requirements for filing a petition for habeas
corpus relief; thus, the habeas corpus court properly dismissed the petition on the basis of
procedural defects.

       Furthermore, the failure to appoint a private attorney is not a colorable/cognizable
claim for habeas corpus relief. The purpose of the writ is to challenge a petitioner’s
confinement or restraint of liberty on the basis that a judgment is void or a sentence has
expired. Any violation of the constitutional right to counsel would merely render a
judgment voidable rather than void. See § 40-30-103; Vaughn v. State, 202 S.W.3d 106
(Tenn. 2006). The Petitioner is not entitled to relief.

                                     III. Conclusion

       Based upon the foregoing, we affirm the habeas corpus court’s judgment.



                                             ____________________________________
                                                  ROBERT W. WEDEMEYER, JUDGE




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