         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs March 4, 2008

         STEVEN LAMONT ANDERSON v. STATE OF TENNESSEE

                 Direct Appeal from the Circuit Court for Hardeman County
                        No. 06-02-0128 Joseph H. Walker, III, Judge



                     No. W2006-00866-CCA-R3-HC - Filed March 2, 2009


Petitioner, Steven Lamont Anderson, appeals the trial court’s summary dismissal of his petition
for writ of habeas corpus. After a thorough review, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which NORMA MCGEE OGLE, and
D. KELLY THOMAS, JR., JJ., joined.

Steven Lamont Anderson, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; and James Pentecost, for the appellee, the State of Tennessee.

                                              OPINION

I. Background

         Petitioner was indicted in 1993 for aggravated robbery, especially aggravated robbery, first
degree felony murder, and first degree premeditated murder. At the time of the offenses, Petitioner
was seventeen years old, and he was transferred by the Juvenile Court to the Shelby County Criminal
Court to be tried as an adult. Thereafter, Petitioner entered guilty pleas in 1994 to one count of
aggravated robbery, one count of especially aggravated robbery, and one count of second degree
murder. Pursuant to the plea agreement, Petitioner was sentenced as a Range I, standard offender,
for the robbery convictions, and as a Range III, persistent offender, for the murder conviction. The
trial court imposed an effective sentence of fifty years.

        In 2004, Petitioner filed his first pro se application for writ of habeas corpus relief, alleging
that the judgments of conviction were void because (1) there was not a valid indictment because
second degree murder is not a lesser offense of felony murder, (2) the trial court erroneously
sentenced Petitioner as a Range III offender, (3) the guilty pleas were not voluntarily entered, and
(4) his due process rights were violated. Steven L. Anderson v. State, No. W2004-00622-CCA-R3-
HC, 2005 WL 396378, at *1 (Tenn. Crim. App., at Jackson, Feb. 18, 2005), perm. to appeal denied
(Tenn. May 23, 2005). A panel of this Court affirmed the trial court’s summary dismissal of the
habeas corpus petition. Id., 2005 WL 396378, at *3.

        Petitioner filed a second pro se petition for habeas corpus relief, which is the subject of this
appeal, alleging that his sentences were in direct contravention of Tennessee Code Annotated section
40-23-101(c) and thus illegal and void. The trial court found that Petitioner had failed to state a
ground for which habeas corpus relief is available, and summarily dismissed the habeas corpus
petition.

II. Standard of Review

        The right to habeas corpus relief is available “only when ‘it appears upon the face of the
judgment or the record of the proceedings upon which the judgment is rendered’ that a convicting
court was without jurisdiction or authority to sentence a defendant, or that a defendant’s sentence
of imprisonment or other restraint has expired.” Summers v. State, 212 S.W.3d 251, 255 (Tenn.
2007) (quoting Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993)). In contrast to a post-conviction
petition, a habeas corpus petition is used to challenge void and not merely voidable judgments. Id.
at 255-56. A voidable judgment is one that is facially valid and requires proof beyond the face of
the record or judgment to establish its invalidity. Id. at 256; Dykes v. Compton, 978 S.W.2d 528,
529 (Tenn. 1998). A void judgment “is one in which the judgment is facially invalid because the
court lacked jurisdiction or authority to render the judgment.” Taylor v. State, 995 S.W.2d 78, 83
(Tenn. 1999); Dykes, 978 S.W.2d at 529.

        A petitioner bears the burden of proving a void judgment or illegal confinement by a
preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). A trial court may
summarily dismiss a petition for writ of habeas corpus without the appointment of counsel 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 Summers, 212 S.W.3d at 260; Hickman v. State, 153
S.W.3d 16, 20 (Tenn. 2004). The determination of whether habeas corpus relief should be granted
is a question of law. Summers, 212 S.W.3d at 255; Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000).
Therefore, our review is de novo with no presumption of correctness given to the findings and
conclusions of the lower court. Summers, 212 S.W.3d at 255; State v. Livingston, 197 S.W.3d 710,
712 (Tenn. 2006).

III. Analysis

       In his appeal, Petitioner initially argues that the trial court failed to follow the proper statutory
procedures in processing his habeas corpus petition as set forth in Tennessee Code Annotated
sections 29-21-108, et. seq. In this instance, however, the trial court reviewed Petitioner’s habeas
corpus petition and determined that Petitioner had failed to state a cognizable claim for habeas
corpus relief, and that his sentence has neither expired nor is it void. Tennessee Code Annotated


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section 29-21-109 provides that “[i]f, from the showing of the petitioner, the [petitioner] would not
be entitled to any relief, the writ may be refused” without an evidentiary hearing. See also Summers,
212 S.W.3d at 260. Only if “the petition show[s] a sufficient ground for relief” will the issuance of
a writ be allowed thereby triggering the statutory requirements for processing the writ. T.C.A. § 29-
21-110; see State v. Antonio Coach, No. W2001-01673-CCA-R3-CD, 2002 WL 1482713, at *1
(Tenn. Crim. App., Mar. 18, 2002), perm. to appeal denied (Tenn. Sept. 9, 2002) (observing that if
the trial court refuses a petition for habeas corpus relief, “a hearing on the petition is precluded
thereby obviating any response from the State”).

        Petitioner also argues that the trial court erred in not appointing counsel to assist him with
his habeas corpus petition. There is no federal or state constitutional right to counsel in a habeas
corpus proceeding. 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). “Appointment of counsel in a state
habeas corpus proceeding is within the trial court’s discretion.” Summers, 212 S.W.3d at 260 -261
(citing T.C.A. § 40-14-204). Thus, “an indigent petitioner does not have a right to appointed counsel
in a habeas corpus action except to the extent that appointment of counsel is found to be ‘necessary’
within the meaning of Tennessee Code Annotated section 40-14-204.” Id. at 261. If a petition for
writ of habeas corpus does not allege any ground upon which relief may be granted, the petition may
be summarily dismissed without the appointment of counsel. Id.

        Accordingly, we turn to Petitioner’s claims that his sentences are illegal and void. Petitioner
contends that the trial court failed to give him pre-trial jail credits for the time he was detained at the
juvenile center prior to his transfer to the Shelby County Criminal Court to be tried as an adult.
Petitioner has attached copies of a petition filed in juvenile court dated December 10, 1992, charging
Petitioner with delinquent acts, and the juvenile court’s order of transfer dated December 23, 1992,
to support his allegation that the sentencing court failed to give him all of the pre-trial credit to which
he was entitled.

      Petitioner alleges that his judgments of conviction are in direct contravention of Tennessee
Code Annotated section 40-23-101(c) which provides that:

        [t]he trial court shall, at the time the sentence is imposed and the defendant is
        committed to jail, the workhouse or the state penitentiary for imprisonment, render
        the judgment of the court so as to allow the defendant credit on the sentence for any
        period of time for which the defendant was committed and held in the city jail or
        juvenile court detention prior to waiver of juvenile court jurisdiction, or county jail
        or workhouse, pending arraignment and trial.

       Petitioner relies on State v. Richard Daniel Filauro, No. M2002-02186-CCA-R3-CD, 2004
WL 840084 (Tenn. Crim. App., at Nashville, Apr. 16, 2004) in support of his position. In Richard
Daniel Filauro, the defendant entered pleas of guilty to two counts of rape of a child. The negotiated
plea agreement stipulated that the defendant would not receive pre-trial jail credit for the eighteen
months he spent in jail before agreeing to plead guilty. Id., 2004 WL 840084, at *1. The defendant


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was sentenced as a Range I, standard offender, to two concurrent sentences of twenty-five years. The
defendant subsequently sought to withdraw his pleas of guilty, which motion was denied by the trial
court. In his direct appeal, the defendant argued, among other issues, that the trial court was without
jurisdiction to accept his pleas because pre-trial jail credits cannot be waived. Id. 2004 WL 840084,
at *4.

        The Richard Daniel Filauro panel concluded that the statutory grant of pre-trial jail credit is
mandatory and “‘leaves no room for discretion.’” Id., 2004 WL 840084, at *5 (quoting Stubbs v.
State, 393 S.W.2d 150, 154 (Tenn. 1965)). Thus, the panel concluded that the sentences purporting
to waive pre-trial jail credits were in direct contravention of Tennessee Code Annotated section 40-
23-101(c) and thus illegal. Id.

        The challenge to the denial of pre-trial jail credits in Richard Daniel Filauro, however, is
distinguishable from the case sub judice. In Richard Daniel Filauro, the defendant was required to
waive pre-trial jail credits in order to enter into a plea agreement, thereby placing the resulting agreed
upon sentence in direct contravention to the statute governing the mandatory grant of such credits.
In the instant case, Petitioner was not required to waive any applicable pre-trial jail credits as part
of his negotiated plea agreement. The face of Petitioner’s judgments of conviction reflect that
Petitioner was granted pre-trial jail credits for the period from December 23, 1992, through January
20, 1994, but for only 367 days (the actual number of days for that time period is 394 days). A writ
of habeas corpus will issue only when a convicting court was without jurisdiction or authority to
sentence a defendant or when a defendant’s term of imprisonment has expired. Summers, 212
S.W.3d at 255; Taylor v. Morgan, 909 S.W.2d 17, 19 (Tenn. Crim. App. 1995). The writ reaches
jurisdictional error only, or in other words, void, not voidable, judgments. Archer, 851 S.W.2d at
163-64. Petitioner’s claim that the trial court improperly calculated the pre-trial jail credits to reflect
his time spent in the juvenile court detention center, even if proven, would render the judgments
voidable rather than void, and is, therefore, not a claim that is cognizable in a habeas corpus
proceeding. See Luttrell v. State, 644 S.W.2d 408, 409 (Tenn. Crim. App. 1982); Nicholas Coleman
v. State, No. E2006-01105-CCA-R3-HC, 2007 WL 3245418, at *1 (Tenn. Crim. App., at Knoxville,
Nov. 5, 2007), no perm. to appeal filed; Eric Carter v. Turner, No. W2006-01114-CCA-R3-HC,
2007 WL 494969, at *1 (Tenn. Crim. App., at Jackson, Feb. 16, 2007), perm. to appeal denied
(Tenn. June 25, 2007); Andre L. Mayfield v. State, No. E2005-02154-CCA-R3-HC, 2006 WL
3313637, at *2 (Tenn. Crim. App., at Knoxville, Nov. 15, 2006), no perm. to appeal filed.

         To the extent, therefore, that Petitioner was denied a portion of his pre-trial jail credit by
mistake of calculation or by oversight, the proper avenue for relief regarding the application of
pretrial jail credit is through the Uniform Administrative Procedures Act, Tennessee Code Annotated
sections 4-5-101 to -325. Steven Christopher Hixon, alias v. State, No. E2007-00221-CCA-R3-CD,
2007 WL 4439700, at *1 (Tenn. Crim. App., at Knoxville, Dec. 19, 2007), no perm. to appeal filed.

        Petitioner argues for the first time on appeal that his transfer to the Shelby County criminal
court for prosecution as an adult twice put him in jeopardy for the charged offenses. Petitioner
contends that prior to his transfer, the juvenile court conducted an adjudicatory hearing at the


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conclusion of which the juvenile court found him to be delinquent. Petitioner submits that his
subsequent trial in the state criminal court system for the same offenses violated double jeopardy
principles. See Breed v. Jones, 421 U.S. 519, 95 S. Ct. 1779 44 L. Ed. 2d 346 (1975) (concluding
that a prosecution of a youth as an adult in state court, after a juvenile court adjudicatory and
dispositional hearing in which the youth was found to have violated a state criminal statute is barred
by double jeopardy).

        We note initially that issues which were not presented to the habeas court will not be
considered for the first time on appeal. See State v. Turner, 919 S.W.2d 346, 356 (Tenn. Crim. App.
1995) (observing that issues not raised or litigated in the trial court are waived). Therefore, these
issues are deemed waived.

        Waiver notwithstanding, however, Petitioner’s double jeopardy challenge does not establish
a cognizable ground for habeas corpus relief even if his claim is true. An allegation of double
jeopardy does not render a conviction void, but merely voidable after satisfaction of an evidentiary
burden which would require the introduction of extrinsic evidence and appropriate findings. See
Archer, 851 S.W.2d at 163; see also Ralph Phillip Claypole, Jr. v. State, No. M1999-02591-CCA-
R3-PC, 2001 WL 523367, at *2 (Tenn. Crim. App., at Nashville, May 16, 2001), no perm. to appeal
filed; William A. Ransom v. State, No. 01C01-9410-CR-00361, 1995 WL 555064 (Tenn. Crim.
App., at Nashville, Sept. 20, 1995), perm. to appeal denied (Tenn. Feb. 5, 1996). Thus, Petitioner
is not entitled to habeas corpus relief on this ground.

                                          CONCLUSION

       After a thorough review, we conclude that Petitioner has failed to establish any grounds that
would entitle him to habeas corpus relief, and that the trial court accordingly did not err in summarily
dismissing the petition for writ of habeas corpus relief.


                                                        ___________________________________
                                                        THOMAS T. WOODALL, JUDGE




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