        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs April 1, 2014

         MICHAEL WILLIAMS v. MICHAEL DONAHUE, WARDEN

             Direct Appeal from the Circuit Court for Hardeman County
                 No. CC-13-CR-143 Joseph H. Walker, III, Judge




                No. W2013-02146-CCA-R3-HC - Filed August 27, 2014




Petitioner, Michael Williams, was convicted of rape in 2001 by a Shelby County jury. As
a result, he was sentenced as a violent offender to serve thirty years in incarceration.
Petitioner’s conviction was affirmed on direct appeal. See State v. Michael Williams, No.
W2001-01925-CCA-R3-CD, 2002 WL 1349520 (Tenn. Crim. App., at Jackson, June 20,
2002). Appellant subsequently sought post-conviction relief. The petition for post-
conviction relief was denied. See Michael Williams v. State, No. W2005-01810-CCA-R3-
PC, 2006 WL 3371404 (Tenn. Crim. App., at Jackson, Nov. 20, 2006), perm. app. denied,
(Tenn. Mar. 19, 2007). Petitioner filed a petition for writ of habeas corpus in Hardeman
County, alleging that the 2001 judgment is void because he was sentenced as a career
offender. The habeas corpus court denied relief, dismissing the petition without a hearing
after determining that Petitioner’s sentence had not expired. After a review of the record, we
conclude that the habeas corpus court properly dismissed the petition for relief where
Petitioner failed to show that the judgment was void or that his sentence had expired. For
those reasons, the judgment of the habeas corpus court is affirmed.

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

J ERRY S MITH, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and D.
K ELLY T HOMAS, J R., JJ. joined.

Michael Williams, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Clarence E. Lutz, Assistant
Attorney General, for the respondent, State of Tennessee.
                                          OPINION

       Petitioner was convicted of the rape of an eighteen-year-old-girl in Memphis that
occurred in 1999. As a result, he was sentenced to thirty-years as a violent offender. His
conviction was affirmed on appeal. Michael Williams, 2002 WL 1349520, at *6.

        Petitioner later sought post-conviction relief. After the denial of post-conviction
relief, Petitioner sought habeas corpus relief. Specifically, Petitioner alleged that he does not
qualify as a career criminal offender and that the judgment is void. The habeas corpus court
dismissed the petition without a hearing. Petitioner appeals.

                                           Analysis

         Petitioner insists that the habeas corpus court committed prejudicial error by failing
to address his habeas corpus claim. Specifically, Petitioner claims that he is entitled to relief
because he was improperly sentenced as a career offender. The State disagrees, arguing that
Petitioner has not shown that he was sentenced as a career offender or that the sentence was
illegal.

       Pursuant to Tennessee Code Annotated section 29-21-101(a), habeas corpus relief is
only available if the petitioner is “imprisoned or restrained of liberty.” The determination
of whether to grant habeas corpus relief is a question of law. See Hickman v. State, 153
S.W.3d 16, 19 (Tenn. 2004). As such, we will review the habeas corpus court’s findings de
novo without a presumption of correctness. Id. Moreover, it is the petitioner’s burden to
demonstrate, by a preponderance of the evidence, “that the sentence is void or that the
confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

        Article I, section 15 of the Tennessee Constitution guarantees an accused the right to
seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A writ of
habeas corpus is available only when it appears on the face of the judgment or the record that
the convicting court was without jurisdiction to convict or sentence the defendant or that the
defendant is still imprisoned despite the expiration of his sentence. Archer v. State, 851
S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). In other
words, habeas corpus relief may be sought only when the judgment is void, not merely
voidable. See Taylor, 995 S.W.2d at 83. “A void judgment ‘is one in which the judgment
is facially invalid because the court lacked jurisdiction or authority to render the judgment
or because the defendant’s sentence has expired.’ We have recognized that a sentence
imposed in direct contravention of a statute, for example, is void and illegal.” Stephenson
v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (quoting Taylor, 955 S.W.2d at 83).



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        However, if after a review of the habeas petitioner’s filings the habeas corpus court
determines that the petitioner would not be entitled to relief, then the petition may be
summarily dismissed. T. C.A. § 29-21-109; State ex rel. Byrd v. Bomar, 381 S.W.2d 280,
283 (Tenn. 1964). Further, a habeas corpus court may summarily dismiss a petition for writ
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. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

        In Cantrell v. Easterling, 346 S.W.3d 445 (Tenn. 2011), the Tennessee Supreme Court
reminded us that an illegal sentence may be a ground for habeas corpus relief and discussed
in detail the three categories of error that can appear in a judgment and the proper procedures
for correcting those errors. The three categories of errors that can appear in a judgment are
clerical errors, appealable errors, and fatal errors. Id. at 449-53. “An illegal sentence
[containing fatal error] is one which is ‘in direct contravention of the express provisions of
[an applicable statute], and consequently [is] a nullity,’” or one which is “not authorized
under the applicable statutory scheme.” Id. at 452 (citations omitted). Only sentences
containing “fatal errors,” and which are therefore illegal, may be addressed through the
collateral proceeding of habeas corpus. Id. Examples of illegal sentences for which habeas
corpus relief is permissible include: “(1) a sentence imposed pursuant to an inapplicable
statutory scheme; (2) a sentence designating a [release eligibility date] where . . . prohibited
by statute; (3) a sentence ordered to be served concurrently where statutorily required to be
served consecutively; and (4) a sentence not authorized for the offense by any statute.” Id.
at 452 (citing Davis v. State, 313 S.W.3d 751, 759 (Tenn. 2010)).

       Petitioner insists that he was sentenced as a career offender and his prior convictions
do not qualify him as such. When examining the judgment form, it appears that the box for
career offender was initially checked by the trial court and then scratched out. The box
indicating Petitioner was a violent offender was also checked. Thus, the record in this case
indicates, contrary to Petitioner’s assertion, that Petitioner was sentenced as a violent
offender. Moreover, nothing in this Court’s prior opinions supports the conclusion that
Petitioner was sentenced as a career offender, and Petitioner did not include a copy of his
sentencing hearing. It is our view that any perceived error by the trial court in scratching out
the box for career offender does not entitle Petitioner to habeas corpus relief because it can
be classified as a clerical error as opposed to a void judgment. See Coleman v. Morgan, 159
S.W.3d 887, 890 (Tenn. Crim. App. 2004). Clerical errors are not appropriately resolved via
the writ of habeas corpus and can be corrected by the court of conviction at any time. Tenn.
R. Crim. P. 36. They do not render a judgment void for purposes of habeas corpus relief.
Petitioner is not entitled to relief on this issue.




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                              CONCLUSION

For the foregoing reasons, the judgment of the habeas corpus court is affirmed.




                                          _______________________________
                                          JERRY SMITH, JUDGE




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