        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 23, 2013

            HAROLD HOLLOWAY v. DAVID SEXTON, WARDEN

                 Appeal from the Criminal Court for Johnson County
                         No. 6133    Robert E. Cupp, Judge




                  No. E2012-02451-CCA-R3-HC - Filed July 24, 2013


In an indictment returned by the Hamilton County Grand Jury, Petitioner, Harold Holloway,
Jr., was charged in count 1 with felony murder during the perpetration of, or attempt to
perpetrate, a theft. He was also charged in count 2 with felony murder committed in the
perpetration of, or attempt to perpetrate robbery. Additional counts alleged offenses which
are not pertinent to this case on appeal. Following a jury trial, he was found guilty of second
degree murder in both counts which charged felony murder. The conviction in count 2 was
merged with the conviction in count 1. On direct appeal, this court affirmed the murder
conviction. State v. Harold Holloway, Jr., No. E2004-00882-CCA-R3-CD, 2005 WL
1981791 (Tenn. Crim. App. Aug. 16, 2005). Petitioner now appeals from the trial court’s
order dismissing his petition for habeas corpus relief without an evidentiary hearing. The
habeas corpus petition alleged that Petitioner was entitled to relief because (1) each count of
the indictment that charged felony murder was invalid, and therefore led to a void judgment
because it failed “to include the statutory element of specific ‘intent’ for the underlying
offense;” and (2) the convicting criminal court erroneously amended the felony murder
counts of the indictment with its jury charge. After review of the briefs, the record, and the
applicable law, we affirm the judgment of the trial court in this case.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J OSEPH M.T IPTON, P.J.
and N ORMA M CG EE O GLE, J., joined.

Harold Holloway, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Anthony Wade Clark, District Attorney General; and Lila Cox, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                        OPINION

       Each felony murder count of the indictment had the same language in it except as to
the underlying felony offense, which was theft in count 1 and robbery in count 2. Count 1
alleges as follows:

               That [Petitioner], alias . . . heretofore on June 29, 2000, in the
        County aforesaid, did unlawfully kill Bradley Huskey during the
        perpetration of or attempt to perpetrate a theft, in violation of Tennessee
        Code Annotated section 39-13-202, against the peace and dignity of the
        State.

       In habeas corpus proceedings, a petitioner must establish a void judgment or illegal
confinement by a preponderance of the evidence. Passarella v. State, 891 S.W.2d 619, 627
(Tenn. Crim. App. 1994). A trial court may summarily dismiss a habeas corpus petition,
without the appointment of counsel and without an evidentiary hearing, if the face of the
record or judgment fails to indicate that the convictions or sentences are void. Tenn. Code
Ann. § 29-21-109(2000); Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005). We review
de novo without a presumption of correctness the trial court’s decision to dismiss a petition
for writ of habeas corpus. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000). The attack of a
judgment that is at most voidable, but not void, is not cognizable in a habeas corpus
proceeding. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A “voidable” judgment is one
that appears facially valid and would require introduction of proof beyond the face of the
record or judgment to determine its deficiency. Id.

       As to Petitioner’s first claim, it is without merit. In a recent case with an almost
identical fact situation, this court held,

               Since petitioner was indicted for felony murder committed during the
        commission of especially aggravated robbery, the requisite intent can be
        gleaned from the robbery statute. That statute defines robbery as: “[t]he
        intentional or knowing theft of property from the person of another by
        violence or putting the person in fear.” Tenn. Code Ann. § 39-13-
        401(a)(1991) . . . . Because the indictment set forth the specific underlying
        felony supporting the felony murder charge, the requisite mental state was
        easily obtainable by reviewing the robbery statute, providing adequate
        notice to petitioner of the charge against him.

Milton Lee Cooper v. Howard Carlton, Warden, No. E2011-00783-CCA-R3-HC, 2012 WL
1523960, at *3 (Tenn. Crim. App. April 30, 2012).


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       The indictment charged Petitioner with alternative counts of felony murder, one in the
perpetration of or attempt to perpetrate theft, and the other in the perpetration of or attempt
to perpetrate robbery. Petitioner had adequate notice of the charge against him. The
indictment was therefore valid, and thus so is the judgment. Petitioner is not entitled to relief
on this ground.

        As in the case sub judice, the petitioner in Milton Lee Cooper also alleged that he was
entitled to habeas corpus relief because the trial court constructively amended the indictment
with its jury instructions. This court concluded that the petitioner in that case was not
entitled to relief, holding that “adhering to our long standing precedent, petitioner’s
allegations regarding erroneous jury instructions would render his conviction merely
voidable, not void, and as such, provide no grounds for habeas corpus relief.” Id., at *5.
Petitioner is not entitled to relief on this ground.


      In conclusion, we determine that Petitioner is not entitled to relief in this appeal. The
judgment of the trial court dismissing the habeas corpus petition is affirmed.


                                                     _________________________________
                                                     THOMAS T. WOODALL, JUDGE




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