        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 18, 2011

          TYRONE E. MONTGOMERY v. RICKY BELL, WARDEN

             Direct Appeal from the Criminal Court for Davidson County
                        No. 4232    Mark J. Fishburn, Judge




                 No. M2010-02397-CCA-R3-HC - Filed March 8, 2012


The petitioner, Tyrone E. Montgomery, appeals the Davidson County Criminal Court’s
summary dismissal of his pro se petition for the writ of habeas corpus seeking relief from his
first degree murder conviction and life sentence. On appeal, the petitioner contends that the
trial court erred and that his conviction is void because: (1) the indictments did not allege the
“knowingly” and “intentionally” mental states; (2) the trial court improperly instructed the
jury on premeditation and felony murder; (3) he was charged with “Murder By Use of A
Firearm” but convicted of first degree felony murder, a crime for which he did not have
proper notice from the indictment; and (4) his judgment of conviction is facially invalid and
void. Following review of the record, we conclude that the trial court properly dismissed the
petition and affirm the judgment.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J. and J EFFREY S. B IVINS, J., joined.

Tyrone E. Montgomery, Wartburg, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Rob McGuire, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                     Procedural History
       In June 1986, a Hamilton County jury convicted the petitioner of first degree
premeditated murder, and the petitioner was sentenced to life imprisonment. The petitioner
appealed his conviction to this court, alleging that the evidence was insufficient to sustain
his conviction because he shot the victim accidentally. This court stated that the facts
underlying the conviction as follows:

              The defendant first complains that the evidence was insufficient to
       support his conviction. The State’s evidence showed that on December 24,
       1985, the victim and his wife had visited some relatives on Signal Mountain
       and were returning home when the victim decided to drive through the
       “projects” in Chattanooga in order to purchase some [marijuana]. The car
       which they were driving was a late-model, red Camaro.

              As the victim arrived in the vicinity of 47th and Cain Streets, several
       people, including the defendant and his codefendant, Joe Williams, approached
       the car, ostensibly to sell [marijuana]. The others left and the defendant
       proceeded to try to sell the victim a bag of [marijuana]. Codefendant Williams
       remained near the car.

              The victim’s wife testified that her husband was not satisfied with the
       “nickel bag” [the] defendant gave him for $5.00 so he gave it back. The
       defendant said he would get him a better bag and turned away from the car.
       The defendant had a gun in his hand when he turned back around. At this
       point, Williams put a gun to the victim’s neck and tore off his necklace. In the
       meantime, the defendant leaned in the car on the driver’s side and tried to take
       the car keys. About this time, another car came up behind the victim’s car.
       Williams stepped back and put his gun down at his side. The defendant kept
       his gun pointed at the victim, and when the victim accelerated his car, the
       defendant shot him once in the head. The car lurched forward and crashed in
       a ditch.

              The eyewitness who was driving the car which came up behind the
       victim’s car testified that he saw two men near the red car, heard a shot, and
       saw the car quickly accelerate.

             The medical testimony showed that the victim sustained a gunshot
       wound to the left temple. The trajectory of the bullet from the point of entry
       was “about ten degrees downward.”

              The defendant testified that the shooting was accidental. He sold

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       [marijuana], and he claimed that he had the gun because buyers would try to
       drive off with his bags of [marijuana] without paying for them. On this
       occasion, he did not threaten the victim with the gun. However, before the
       shooting, he saw codefendant Williams holding a gun to the victim’s neck. He
       had his own gun in his coat pocket and had his hand on it. When the victim’s
       car accelerated and swerved toward him, he lost his balance and accidentally
       shot him.

              On cross-examination, the defendant said he had the gun in his coat
       pocket, then stated it could have been in his pants pocket, and then stated that
       he could not remember whether it was his coat or pants pocket. He admitted
       that when he had the gun in his pocket, it was cocked.


State v. Tyrone Montgomery, C.C.A. No. 999, 1987 WL 9536, at *1 (Tenn. Crim. App. at
Knoxville, Apr. 16, 1987), perm. app. denied (Tenn. June 8, 1987). This court concluded
that the evidence presented was, in fact, sufficient to sustain the petitioner’s conviction,
stating:

       The jury accredited the testimony of the State’s witnesses and correctly
       rejected the defendant’s accident theory. The evidence, as we have
       summarized, does not comport with the defendant’s theory that the shooting
       was accidental. The trajectory of the bullet in a downward direction negates
       the defendant’s claim that the gun was in his pocket when it was fired.


       On November 11, 2007, the Petitioner filed a writ of habeas corpus in the United
States Federal District Court. On January 9, 2008, the District Court dismissed the petition
as untimely filed. Tyrone Elliott Montgomery v. Ricky Bell, Warden, No. 1:07-cv-289 (E.D.
Tenn., Jan. 9, 2008).

       On April 28, 2010, the petitioner filed a petition for habeas corpus relief, alleging that
his convictions were void. He asserted that he was indicted for the charge of “Murder By
Use of Firearm” but convicted of first degree premeditated murder. He further asserted that
the indictment failed to specify the requisite mental elements of “Knowingly” and
“Intentionally.” The petitioner also contended that the trial court improperly instructed the
jury on felony murder when there was no evidence of a felony being committed at the time
of the murder.

       The habeas court, by written order, summarily dismissed the petition on October 11,

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2010. The petitioner timely appeals that decision. On appeal, he contends that: (1) the
indictments did not allege the “knowingly” and “intentionally” mental states; (2) the trial
court improperly instructed the jury on premeditation and felony murder; (3) he was charged
with “Murder By Use of A Firearm” but convicted of first degree felony murder, a crime for
which he did not have proper notice from the indictment; and (4) his judgment of conviction
is facially invalid and void.

                                            Analysis

       The determination of whether habeas corpus relief is proper is a question of law,
subject to de novo review on appeal, without a presumption of correctness given to the
findings of the lower court. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (citing
Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000); State v. Livingston, 197 S.W.3d 710, 712
(Tenn. 2006)).

              Habeas corpus relief is available in Tennessee “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.

Id. (quoting Archer v. State, 851 S.W.2d 157, 164 (Tenn.1993)).

        “[A] habeas corpus petition is used to challenge void and not merely voidable
judgments.” Summers, 212 S.W.3d at 255-56. “A void judgment is one that is facially
invalid because the court did not have the statutory authority to render such judgment.” Id.
at 256 (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)). On the other hand,
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. “The petitioner has the burden of
establishing by a preponderance of the evidence that his judgment is void or that his term of
imprisonment has expired.” Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.
1994). “If the petitioner establishes by a preponderance of the evidence that his conviction
is void or that his term of imprisonment has expired, he is entitled to immediate release.” Id.

         A trial court is not required, as a matter of law, to grant the writ or conduct an inquiry
into the allegations contained in the petition. T.C.A. § 29-21-109 (2010). If the petition fails
on its face to state a cognizable claim, it may be summarily dismissed by the trial court. State
ex. Rel. Byrd v. Bomar, 381 S.W.2d 280, 283 (Tenn. 1964); see also T.C.A. § 29-21-109
(2010). “If from the showing of the petitioner, the plaintiff would not be entitled to any
relief, the writ may be refused.” T.C.A. § 29-21-109 (2010).

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                                        Indictment

       The petitioner first contends that his indictment was fatally defective because he was
indicted for first degree felony murder but convicted of first degree premeditated murder.
He notes that his indictment did not allege that he committed the murder “knowingly” or
“intentionally,” as would be required for a first degree premeditated murder conviction.

        Although, in most instances, a challenge to the sufficiency of an indictment is not a
proper claim to raise in a habeas corpus proceeding, see Haggard v. State, 475 S.W.2d 186,
187-88 (Tenn. Crim. App. 1971), “the validity of an indictment and the efficacy of the
resulting conviction may be addressed in a petition for habeas corpus when the indictment
is so defective as to deprive the court of jurisdiction.” Dykes, 978 S.W.2d at 529. An
indictment meets constitutional requirements if it provides sufficient information to: (1)
enable the accused to know the accusation to which an answer is required, (2) furnish the
court an adequate basis for the entry of a proper judgment; and (3) protect the accused from
double jeopardy. State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). In addition, an indictment
must state the facts of the offense in ordinary and concise language “in a manner so as to
enable a person of common understanding to know what is intended.” T.C.A. § 40-13-202
(2006).

       In the instant case, the indictment read:

              THE GRAND JURORS for the State aforesaid, being duly summoned,
       elected, impaneled, sworn and charged to inquire for the body of the County
       aforesaid, upon their oaths present:

              That Tyrone Montgomery and Joe Frank Williams heretofore on the
       24th day of December, 1985, in the County aforesaid, did unlawfully,
       feloniously, willfully, deliberately, maliciously, premeditatedly and of malice
       aforethought assault, kill and murder William Clemons, by the use of a
       firearm, to-wit: a pistol, against the peace and dignity of the State.

This indictment provided the petitioner with the offense charged, namely that the petitioner
premeditatedly killed the victim. Further, by listing the date of the offense, by naming the
victim, and by describing the offense, the indictment provided the trial court with an
adequate basis to enter the judgment and also protected the petitioner from double jeopardy.
The indictment’s failure to list the mens rea of “intentionally” and “knowingly” does not
make it fatally defective. The petitioner is not entitled to relief on this issue.

                                     Jury Instructions

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       The petitioner contends that the trial court improperly instructed the jury on felony
murder when the petitioner was not charged with an underlying felony. This court has
previously stated, “Erroneous jury instructions meet none of the . . . requirements for habeas
corpus relief. The only method of collaterally attacking the judgment because of
constitutional deprivations occasioned by erroneous jury instructions is by petition for post
conviction relief.” Willie Edward Thornton v. Fred Raney, Warden, No. 02C01-9302-CC-
00025, 1994 WL 25827, at *1 (Tenn. Crim. App. at Jackson, Jan. 26, 1994). In other words,
such an error, if one existed, does not render the petitioner’s conviction void. Therefore, the
petitioner is not entitled to habeas corpus relief on this basis.

                                      Felony Murder

       The petitioner asserts he was charged with “Murder By Use of A Firearm” but
convicted of first degree felony murder, a crime for which he did not have proper notice from
the indictment. As previously stated, our review of the indictment indicates that the
petitioner had proper notice of the charge for which he was ultimately convicted.

                                  Judgment of Conviction

       The petitioner finally cursorily asserts that his judgment of conviction is facially
invalid and void. Our review indicates that the judgment is not facially invalid or void.

       Following our review of the record, we conclude that the habeas corpus court properly
determined that summary dismissal was proper and so indicated in its order of dismissal. The
petitioner is entitled to no relief.

                                         Conclusion

       Based upon the foregoing, the denial of habeas corpus relief is affirmed.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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