                                                                                                    03/03/2020
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs December 17, 2019

              JAMES BURGESS v. DARREN SETTLES, WARDEN1

                    Appeal from the Circuit Court for Bledsoe County
                       No. 2018-CR-80 Justin C. Angel, Judge


                                No. E2019-01189-CCA-R3-HC


The petitioner, James Burgess, appeals the Bledsoe County Circuit Court’s summary
dismissal of his petition for habeas corpus relief, which petition alleged that his
judgments for first degree felony murder are illegal. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which NORMA
MCGEE OGLE, and ALAN E. GLENN, JJ., joined.

James Burgess, Pikeville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

              A Putnam County Criminal Court jury convicted the petitioner of two
counts each of second degree murder and first degree felony murder and one count each
of especially aggravated burglary and reckless endangerment for the shooting deaths of
the petitioner’s estranged wife and her boyfriend. State v. James Anthony Burgess, No.
M2009-00897-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., Nashville, Aug. 4, 2010).
In 2007, the petitioner and Elizabeth Burgess separated after seven years of marriage,
and, during the separation, Ms. Burgess remained in the house that she and the petitioner
co-owned and began dating Jimmy Prewitt. The petitioner and Ms. Burgess had one
child together, J.B., and Ms. Burgess had another child, M.C., from a previous
relationship. In March 2007, Ms. Burgess obtained an ex parte order of protection
1
      At the time of the filing of the original petition for writ of habeas corpus in this case, Kevin
Hampton was the warden of the Bledsoe County Correctional Complex.
against the petitioner. After an April 20, 2007 hearing, the order of protection was
extended with the modification that the petitioner could contact Ms. Burgess only to
arrange visitation with J.B., but the order was not filed until May 7, 2007. Id., slip op. at
2-4.

               On May 5, 2007, the petitioner texted Ms. Burgess regarding J.B., and
when Ms. Burgess refused to talk at that time, the petitioner approached Ms. Burgess
outside of a restaurant where she was having dinner with Mr. Prewitt and her children.
After “[w]ords were exchanged” between them, Ms. Burgess and her family drove away,
and the petitioner “was angry and sat in his car.” Id., slip op. at 2. Sometime later that
day, the petitioner drove to Ms. Burgess’ house and called his girlfriend, Jackie Reid, to
tell her that he was going to kill Ms. Burgess. When the petitioner arrived at the house,
Ms. Burgess and Mr. Prewitt were outside, but they went into the house after Ms.
Burgess told the petitioner she did not want to talk to him. The petitioner retrieved a gun
and two loaded magazines from his car and knocked on the front door. When no one
answered, the petitioner fired six shots through the door, broke a window to access and
unlock the door, entered the house, and shot Ms. Burgess nine times in the living room.
The petitioner then entered a room where Mr. Prewitt was shielding J.B. and M.C., and
he shot Mr. Prewitt five times. The petitioner gave the children a hug and called 9-1-1,
telling the operator that he had killed Ms. Burgess. Id., slip op. at 2-3.

               The trial court sentenced the petitioner to two consecutive life sentences.
Id., slip op. at 4. On appeal, this court concluded that the order of protection filed on
May 7 was effective on May 1, and that the petitioner, consequently, was not an owner of
the house at the time of the offenses for the purpose of the burglary statute. Id., slip op.
at 5-8. This court, however, modified the especially aggravated burglary conviction to
aggravated burglary because the statute prohibited the dual convictions of especially
aggravated burglary and murder. Id., slip op. at 10. This court affirmed the petitioner’s
sentences. Id., slip op. at 10-14.

              In May 2010, the petitioner sought a writ of error coram nobis, arguing that
a deed which showed that he was co-owner of the house with Ms. Burgess constituted
new evidence and that he was not subject to a valid order of protection at the time of the
offenses. James A. Burgess v. State, No. M2010-01517-CCA-R3-CO, slip op. at 1-5
(Tenn. Crim. App., Nashville, Jan. 20, 2011). This court affirmed the denial of the writ
of error coram nobis, finding that the petitioner did not present any newly-discovered
evidence and that the issue of whether the petitioner was an “owner” of the house at the
time of the offense had been previously determined on direct appeal. Id., slip op. at 6.

              The petitioner then sought post-conviction relief on the ground of
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ineffective assistance of counsel. James Anthony Burgess v. State, No. M2012-01308-
CCA-R3-PC, slip op. at 1-2 (Tenn. Crim. App., Nashville, Mar. 21, 2013). This court
affirmed the denial of post-conviction relief, noting again that this court had “extensively
reviewed” the “status of the order of protection” on direct appeal. Id., slip op. at 7.

              The petitioner filed a second petition for a writ of error coram nobis in
January 2015, “again challenging his aggravated burglary conviction on the basis that
there was not a valid order of protection.” James Anthony Burgess v. State, No. M2015-
00584-CCA-R3-ECN, slip op. at 3 (Tenn. Crim. App., Nashville, Nov. 19, 2015). This
court affirmed the denial of relief, stating, “Petitioner’s claim that there was not a valid
order of protection in place at the time he committed these murders has been previously
adjudicated, and we will not revisit it now.” Id., slip op. at 4.

              On November 7, 2018, the petitioner filed a petition for writ of habeas
corpus, seeking relief on the ground that his convictions for first degree felony murder
are illegal because the order of protection giving rise to the underlying aggravated
burglary conviction was invalid. Attached to the petition are the petitioner’s judgments
for the first degree felony murder convictions and a partially-redacted order of the
Putnam County General Sessions Court, finding the petitioner to be a threat to Ms.
Burgess and setting bail conditions, including that he have no contact with Ms. Burgess
and that he “vacate or stay away from [her] home.” Also attached to the petition is an
order of the Putnam County Chancery Court, modifying a prior order of protection to
permit the petitioner to contact Ms. Burgess “strictly to set visitation” with J.B. and
ordering the petitioner to begin temporary child support payments on May 1, 2007. This
order was signed and filed on May 7, 2007. The State moved to dismiss the habeas
corpus petition for failure to state a cognizable claim. The habeas corpus court granted
the State’s motion and summarily dismissed the petition.

              In this appeal, the petitioner reasserts his argument that the order of
protection giving rise to the aggravated burglary conviction was “fatally flawed and void
ab initio” because it “lacked an end date.” The petitioner contends that the alleged flaw
in the order of protection renders the first degree felony murder convictions void because
the convictions “rel[y] upon as one of its elements an invalid permanent, open-ended,
order of protection.” The State maintains that the petitioner’s claim is not cognizable in a
habeas corpus proceeding. We agree with the State.

              “The determination of whether habeas corpus relief should be granted is a
question of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v.
State, 21 S.W.3d 901, 903 (Tenn. 2000)). Our review of the habeas corpus court’s
decision is, therefore, “de novo with no presumption of correctness afforded to the
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[habeas corpus] court.” Faulkner, 226 S.W.3d at 361 (citing Killingsworth v. Ted Russell
Ford, Inc., 205 S.W.3d 406, 408 (Tenn. 2006)).

                 The writ of habeas corpus is constitutionally guaranteed, see U.S. Const.
art. 1, § 9, cl. 2; Tenn. Const. art. I, § 15, but has been regulated by statute for more than
a century, see Ussery v. Avery, 432 S.W.2d 656, 657 (Tenn. 1968). Tennessee Code
Annotated section 29-21-101 provides that “[a]ny person imprisoned or restrained of
liberty, under any pretense whatsoever, except in [specified] cases . . . , may prosecute a
writ of habeas corpus, to inquire into the cause of such imprisonment and restraint.”
T.C.A. § 29-21-101. Despite the broad wording of the statute, a writ of habeas corpus
may be granted only when the petitioner has established a lack of jurisdiction for the
order of confinement or that he is otherwise entitled to immediate release because of the
expiration of his sentence. See Ussery, 432 S.W.2d at 658; State v. Galloway, 45 Tenn.
(5 Cold.) 326 (1868). The purpose of the state habeas corpus petition is to contest a void,
not merely a voidable, judgment. State ex rel. Newsom v. Henderson, 424 S.W.2d 186,
189 (Tenn. 1968). A void conviction is one which strikes at the jurisdictional integrity of
the trial court. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); see State ex rel.
Anglin v. Mitchell, 575 S.W.2d 284, 287 (Tenn. 1979); Passarella v. State, 891 S.W.2d
619, 627 (Tenn. Crim. App. 1994).

               Here, the petitioner has failed to show that he is entitled to habeas corpus
relief because the judgments that he challenges are not facially invalid. See Hickman v.
State, 153 S.W.3d 16, 24 (Tenn. 2004) (“[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.” (alteration and emphasis in
original) (quoting State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000))). The record before
us contains an order of the Putnam County General Sessions Court, issued pursuant to
Code section 40-11-150, setting conditions of bail regarding the petitioner’s contact with
Ms. Burgess. The record also contains an order from the Putnam County Chancery Court
modifying a prior order of protection. Neither of these documents establishes that the
order of protection that the petitioner challenges is invalid. Even if the order of
protection was invalid, as the petitioner suggests, nothing in the record indicates that the
trial court lacked jurisdiction or authority to enter the judgment. See id. Furthermore, the
petitioner’s claim that no valid order of protection existed to support his conviction of
aggravated burglary amounts to a challenge to the sufficiency of the convicting evidence,
which claim is not cognizable in a habeas corpus proceeding. See Gant v. State, 507
S.W.2d 133, 136 (stating that “[t]he law is settled beyond question that habeas corpus . . .
proceedings may not be employed” to “review and question the sufficiency of the
evidence”). Consequently, because the petitioner’s judgments for first degree felony
murder are not void, he has failed to establish that he is entitled to habeas corpus relief.
                                             -4-
            Accordingly, we affirm the habeas corpus court’s summary dismissal of the
petition.


                                               _________________________________
                                              JAMES CURWOOD WITT, JR., JUDGE




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