        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs November 27, 2012

       TIMMY CHARLES McDANIEL v. DAVID SEXTON, WARDEN

                 Appeal from the Criminal Court for Hamilton County
                          No. 284268   Don W. Poole, Judge


                 No. E2012-01443-CCA-R3-HC - Filed March 25, 2013


The Petitioner, Timmy Charles McDaniel, appeals the Hamilton County Criminal Court’s
summary dismissal of his pro se petition for habeas corpus relief from his convictions for
first degree felony murder and especially aggravated burglary. On appeal, the Petitioner
alleges that his convictions are void because (1) his indictment failed to state that the Grand
Jurors issuing the indictment were from the county in which the offenses occurred, (2) his
convictions violate the principles of double jeopardy, and (3) his dual convictions for felony
murder and especially aggravated burglary violate Tennessee Code Annotated section 39-14-
404(d) (2010). Upon review, we affirm the summary dismissal of the petition.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and D. K ELLY T HOMAS, J R., JJ., joined.

Timmy Charles McDaniel, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; and
William H. Cox, III, District Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

       Background. On August 24, 2005, the Petitioner pled guilty to first degree felony
murder and especially aggravated burglary. At the guilty plea hearing, the State summarized
the facts of this case, which were recounted by this court in its opinion on the Petitioner’s
post-conviction appeal:

             [T]he State’s proof would have shown that on the 9th of December
       2002, Mary Lou Wojcik’s neighbor, at the request of her sister, went to check
       on Mary Lou at her residence in Mountain Shadows. And when she arrived
at the residence, she found that the door had been pried open, standing partially
open. She entered to investigate and found the victim’s partially nude body
lying in the bathroom with severe injuries, blood all over the place. . . .

          It turns out that the victim . . . apparently . . . laid [sic] dead in her home
for approximately 24 to 30 hours before she was discovered by the neighbor
. . . . [D]uring the course of the investigation, [the Hamilton County Sheriff’s
Department] learned that a pickup truck had been in the area on that particular
night, had been described as having a wooden bed in it, and that was a lead.
Eventually, they followed that lead and developed [the defendant] as a suspect.

       [The defendant] was an ex-boyfriend to the daughter of [the victim] and
apparently he and some of his buddies had come up from Tunnel Hill, Georgia,
on the night of this murder, he having the intent to burglarize this house
belonging to [the victim]. He . . . broke into [the house] with a crowbar that
he’d brought to the scene, entered the house, found the victim in the bathroom
[and] slashed her throat with a knife.

        After she fell to the floor, our proof would demonstrate that he stomped
on her, breaking bones inside her body, breaking her sternum, continued to
inflict injuries, knife injuries on the victim, slashing her throat. Again, we
would show that there were two slash wounds to her throat approximately
three and a half inches deep, practically cutting off her head. Also, she had
stab wounds to her abdomen area. . . .

       Fortunately, the police were able to locate . . . palm prints and
fingerprints that subsequently turned out to belong to the defendant in this
case.

       . . . . [The defendant] went back to Tunnel Hill after the murder, buried
the murder weapon . . . , burned his clothing and then took off to Florida and
spent some time there.

        Later, he c[a]me back to Tunnel Hill . . . where law enforcement
officers in that jurisdiction . . . located him at this residence. The first thing he
said to them when they walked in is I know why you’re here, because of the
woman that I killed.

       They brought him back . . . to Chattanooga . . . where he gave an
extensive . . . confession as to the facts. . . .


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               The aggravating factor in this case . . . was the injuries inflicted to the
       victim that were far in excess of what was required to produce death, the
       heinous nature of this killing. The defendant, by his own admission, abused
       the victim’s body sexually after having slashed her numerous times, cut her
       throat, digital penetration. For those facts . . . we sought the [death penalty]
       in this case.

Timmy Charles McDaniel v. State, No. E2007-00113-CCA-R3-PC, 2007 WL 3332855, at
*1-2 (Tenn. Crim. App. Nov. 9, 2007), perm. app. denied (Tenn. Feb. 25, 2008). The trial
court sentenced the Petitioner, pursuant to his plea agreement, to concurrent sentences of life
without the possibility of parole and twelve years, respectively. Id. at *1.

        On May 10, 2006, the Petitioner filed a pro se petition for post-conviction relief,
“alleging that he did not knowingly and voluntarily plead guilty, that his arrest was unlawful,
that his statement to police was not voluntarily given, that the prosecution failed to disclose
exculpatory evidence, that he was denied the effective assistance of counsel, and that he was
mentally incompetent to enter his pleas.” Id. The post-conviction court, after appointing
counsel and conducting an evidentiary hearing, denied relief. Id. at *1-3. On the post-
conviction appeal, the Petitioner argued that “he did not knowingly, voluntarily, and
intelligently plead guilty because he was unaware of the consequences of his pleas and
because he was ‘tired and stressed’ at the time he agreed to plead guilty.” Id. at *3. This
court affirmed the denial, and the Tennessee Supreme Court denied the Petitioner’s
application for permission to appeal. Id. at *4.

       On June 14, 2012, the Petitioner filed the instant pro se petition for writ of habeas
corpus in the Hamilton County Criminal Court. In it, he alleged that his convictions for first
degree felony murder and especially aggravated burglary were void because (1) his
indictment failed to state that the Grand Jurors issuing the indictment were from Hamilton
County, the county in which the offenses were committed, and (2) his convictions for both
felony murder and the underlying felony violated the principles of double jeopardy. The
Petitioner also asserted that he filed his petition for habeas corpus relief in the Hamilton
County Criminal Court, the court of conviction, because that court “ha[d] possession of the
records pertaining to the unlawful conviction, as to providing a sufficient reason for this
court to exercise jurisdiction despite T.C.A. § 29-21-105[.]” On June 25, 2012, the court
summarily dismissed the habeas corpus petition, finding that the Petitioner had not filed his
petition in the proper court and that even if the petitioner had filed the petition in the correct
court, he failed to present any cognizable claims for habeas corpus relief. On July 9, 2012,
the Petitioner filed a timely notice of appeal.

                                          ANALYSIS


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        On appeal, the Petitioner alleges that his convictions are void because his indictment
failed to state that the Grand Jurors issuing the indictment were from the county in which the
offenses occurred, because his convictions violate the principles of double jeopardy, and
because his dual convictions for felony murder and especially aggravated burglary violate
Tennessee Code Annotated section 39-14-404(d) of the especially aggravated burglary
statute. The State responds that the Petitioner failed to file his petition in the proper court
and failed to establish that his judgments are void. Upon review, we conclude that the
summary dismissal of the habeas corpus petition was proper.

       “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)). Accordingly, our review is de novo without a presumption
of correctness. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (citing State v.
Livingston, 197 S.W.3d 710, 712 (Tenn. 2006)).

        A prisoner is guaranteed the right to habeas corpus relief under Article I, section 15
of the Tennessee Constitution. Tenn. Const. art. I, § 15; see T.C.A. §§ 29-21-101 to -130
(2012). The grounds upon which a writ of habeas corpus may be issued, however, are very
narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). “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.” Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 337 (1868)). “[T]he purpose of
a habeas corpus petition is to contest void and not merely voidable judgments.” Potts v.
State, 833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel. Newsom v. Henderson, 424
S.W.2d 186, 189 (Tenn. 1968)). 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.” Taylor, 995 S.W.2d at 83 (citing Dykes v. Compton,
978 S.W.2d 528, 529 (Tenn. 1998); Archer, 851 S.W.2d at 161-64)). However, as the
Tennessee Supreme Court stated in Hickman v. State:

       [A] voidable judgment is facially valid and requires the introduction of proof
       beyond the face of the record or judgment to establish its invalidity. Thus, in
       all cases where a petitioner must introduce proof beyond the record to establish
       the invalidity of his conviction, then that conviction by definition is merely
       voidable, and a Tennessee Court cannot issue the writ of habeas corpus under
       such circumstances.

153 S.W.3d 16, 24 (Tenn. 2004) (internal citations, quotations, and emphasis omitted); see
Summers, 212 S.W.3d at 256 (citation omitted). Moreover, it is the petitioner’s burden to

                                              -4-
demonstrate, by a preponderance of the evidence, that the judgment is void or that the
confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). If this burden is
met, the Petitioner is entitled to immediate release. State v. Warren, 740 S.W.2d 427, 428
(Tenn. Crim. App. 1986) (citing Ussery v. Avery, 432 S.W.2d 656, 658 (Tenn. 1968)).

        If the habeas corpus court determines from the petitioner’s filings that no cognizable
claim has been stated and that the petitioner is not entitled to relief, the petition for writ of
habeas corpus may be summarily dismissed. See Hickman, 153 S.W.3d at 20. Further, the
habeas corpus court may summarily dismiss the petition 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 are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.
1994), superseded by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC-
00266, 1998 WL 104492, at *1 n.2 (Tenn. Crim. App., at Jackson, Mar. 11, 1998). “The
petitioner bears the burden of providing an adequate record for summary review of the
habeas corpus petition, including consideration of whether counsel should be appointed.”
Summers, 212 S.W.3d at 261.

       Additionally, the procedural requirements for habeas corpus relief are mandatory and
must be scrupulously followed. Summers, 212 S.W.3d at 259 (citations omitted). Tennessee
Code Annotated section 29-21-107(a) (2012) provides that the petition for writ of habeas
corpus must be signed and verified by affidavit. In addition, the statute requires that the
petition state:

       (1) That the person in whose behalf the writ is sought, is illegally restrained of
       liberty, and the person by whom and place where restrained, mentioning the
       name of such person, if known, and, if unknown, describing the person with
       as much particularity as practicable;

       (2) The cause or pretense of such restraint according to the best information
       of the applicant, and if it be by virtue of any legal process, a copy thereof shall
       be annexed, or a satisfactory reason given for its absence;

       (3) That the legality of the restraint has not already been adjudged upon a prior
       proceeding of the same character, to the best of the applicant’s knowledge and
       belief; and

       (4) That it is first application for the writ, or, if a previous application has been
       made, a copy of the petition and proceedings thereon shall be produced, or
       satisfactory reasons be given for the failure so to do.



                                                -5-
T.C.A. § 29-21-107(b) (2012). Also, “[t]he application should be made to the court or judge
most convenient in point of distance to the applicant, unless a sufficient reason be given in
the petition for not applying to such court or judge.” Id. § 29-21-105 (2012); see Davis v.
State, 261 S.W.3d 16, 21 (Tenn. Crim. App. 2008) (“[I]f a petition does state a reason
explaining why it was filed in a court other than the one nearest the petitioner, the petition
may be dismissed pursuant to this section only if the stated reason is insufficient.”). “A trial
court properly may choose to summarily dismiss a petition for failing to comply with the
statutory procedural requirements.” Summers, 212 S.W.3d at 260; see Hickman, 153 S.W.3d
at 21.

        On appeal, the Petitioner claims he argued in his petition that “he was convicted and
sentenced in violation of the double jeopardy principles [which] creates a situation of an
illegal sentence in accordance with the Davis ruling.” He also claims he asserted not only
“that the trial court possess[es] the relevant records” but also that it “retains the authority to
re-indict appellant under the proper grand jury and or in the alternative, modify appellant’s
sentence” given that “the trial court was without jurisdiction to convict and sentence
appellant for both felony murder and especially aggravated burglary.” In support of these
claims, he argues that the convicting court “can reverse the appellant’s conviction and allow
appellant to enter a new plea as this would be a convenience to the appellant and the court.”
Our review of the petition shows that the only reason the Petitioner gave for filing his
petition in Hamilton County was that the court had “possession of the records pertaining to
the unlawful conviction.” Accordingly, we must evaluate whether the habeas corpus court
properly determined that this was an insufficient reason for filing the petition in Hamilton
County Criminal Court.

        In Davis, the Petitioner filed a petition for habeas corpus relief alleging that his
sentence was illegal because he was denied pretrial jail credits. Davis, 261 S.W.3d at 17.
Following the summary dismissal of his petition, he appealed, arguing that a sufficient reason
under code section 29-21-105 to file a habeas corpus petition in the convicting court rather
than the court closest in point of distance to a petitioner was that the convicting court
possessed relevant records relating to his sentence and retained the authority to correct an
illegal sentence at any point in time. Id. at 21. In considering this issue, the Davis court
specifically quoted the court’s holding in Donald Ree Jones:

               “Procedurally, the defendant seeking habeas corpus relief should apply
       to the court most convenient in distance unless a sufficient reason exists to
       apply elsewhere. Tenn. Code Ann. § 29-21-105. We note that the convicting
       court possesses all of the records relevant to a defendant’s sentence. Also, the
       issue relates to a void sentence, which the convicting court can correct at any
       time, not a void conviction in terms of the verdict of guilt. We believe these


                                               -6-
       circumstances provide a sufficient reason for a defendant striving to correct an
       illegal sentence to file his habeas corpus petition in the convicting court.”

Id. (quoting State v. Donald Ree Jones, No. M2000-00381-CCA-R3-CD, 2000 WL 1520012,
at *2 (Tenn. Crim. App. Oct. 13, 2000). The Davis court then held:

       [W]hen a habeas corpus petitioner asserts that his sentence is illegal, the fact
       that the convicting court possesses relevant records and retains the authority
       to correct an illegal sentence at anytime is a sufficient reason under Tennessee
       Code Annotated section 29-21-105 for the petitioner to file in the convicting
       court rather than the court closest in point of distance.

Id. at 22 (citing Donald Ree Jones, 2000 WL 1520012, at *2; State v. Burkhart, 566 S.W.2d
871, 873 (Tenn.1978)).

        In the instant case, the Petitioner does not allege that his sentence is illegal; instead,
he asserts that his convictions are void because of an improper indictment, because his
convictions violate the principles of double jeopardy, and because his dual convictions for
felony murder and especially aggravated burglary violate the especially aggravated burglary
statute. Accordingly, we agree with the State that the Petitioner failed to show how any of
the records in Hamilton County were necessary in his particular case. We also agree that the
Petitioner attached the relevant indictment and judgments, thereby making the filing of the
petition in Hamilton County unnecessary. Upon review, we conclude that the habeas corpus
court’s summary dismissal of the petition was proper, given that the Petitioner failed to
provide a sufficient reason for filing his petition in the Hamilton County Criminal Court. See
id. § 29-21-105; Davis, 261 S.W.3d at 21; James M. Grant v. State, No. M2006-01368-
CCA-R3-HC, 2006 WL 2805208, at *3 (Tenn. Crim. App. Oct. 2, 2006) (holding that the
Petitioner’s failure to comply with code section 29-21-105 “alone is an adequate basis for the
trial court to dismiss his petition”). Notwithstanding the Petitioner’s failure to follow the
requirement in code section 29-21-105, we conclude that the habeas corpus court properly
dismissed the petition in this case because it failed to state a cognizable claim for habeas
corpus relief.

       First, the Petitioner alleges that his convictions are void because his indictment failed
to state the that Grand Jurors issuing the indictment were from the county in which the
offenses occurred. Here, the indictment for the pertinent charges stated the following:

                   STATE OF TENNESSEE, HAMILTON COUNTY
                               Criminal Court



                                               -7-
              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 Timmy Charles McDaniel, alias Tim C. McDaniels heretofore on
       December 8, 2002, in the County aforesaid, did unlawfully kill Mary Lou
       Wojcik during the perpetration of Burglary, in violation of Tennessee Code
       Annotated 39-13-202, against the peace and dignity of the State.

       ....

              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 Timmy Charles McDaniel, alias Tim C. McDaniels heretofore on
       December 8, 2002, in the County aforesaid, did unlawfully enter the habitation
       of Mary Lou Wojcik without her effective consent, with intent to commit
       Theft, and did cause serious bodily injury to Mary Lou Wojcik, in violation of
       Tennessee Code Annotated 39-14-404, against the peace and dignity of the
       State.

        Typically, a challenge to the sufficiency of an indictment should not be raised in a
habeas corpus proceeding. See Haggard v. State, 475 S.W.2d 186, 187-88 (Tenn. Crim. App.
1971) (citations omitted). However, “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. In
addition, pursuant to Tennessee Code Annotated section 40-13-202, the indictment must

       state the facts constituting the offense in ordinary and concise language,
       without prolixity or repetition, in such a manner so as to enable a person of
       common understanding to know what is intended, and with that degree of
       certainty which will enable the court, on conviction, to pronounce the proper
       judgment. . . .

T.C.A. § 40-13-202 (2012). The Petitioner complains that the indictment failed to state that
the Grand Jurors were from the county in which the offenses occurred. However, the
language of the indictment shows that the Grand Jurors were from Hamilton County, where
the offenses in this case took place. We agree with the habeas corpus court’s determination
that this was not a cognizable claim for habeas corpus relief.


                                            -8-
        Second, the Petitioner alleges that his convictions violate the principles of double
jeopardy based on his mistaken impression that Tennessee law precludes a conviction for
both first degree felony murder and the underlying felony. See Briggs v. State, 573 S.W.2d
157, 159 (Tenn. 1978) (holding “that dual convictions of felony-murder and the underlying
felony are offensive to the Double Jeopardy Clause of the Fifth Amendment to the
Constitution of the United States and Article 1, Section 10 of the Constitution of the State
of Tennessee and may not stand”), overruled by State v. Blackburn, 694 S.W.2d 934, 937
(Tenn. 1985) (concluding that dual convictions for felony murder and the underlying felony
do not violate double jeopardy principles). Although Briggs was once the law in Tennessee,
this position was abandoned in Blackburn, which governs this case. See Blackburn, 694
S.W.2d at 937. Here, the habeas corpus court noted that double jeopardy principles do not
“preclude convictions for . . . felony murder and the underlying felony[.]” It then held that
the Petitioner’s claim was not a cognizable claim for habeas corpus relief. We agree with
the habeas corpus court. See Summers, 212 S.W.3d at 261 (stating that “the habeas corpus
statutes are for the purpose of challenging a void judgment” while “a post-conviction petition
may challenge a conviction or sentence that is alleged to be void or voidable because of the
abridgement of constitutional rights”); Luttrell v. State, 644 S.W.2d 408, 409 (Tenn. Crim.
App. 1982) (reiterating that constitutional challenges to convictions should be made in a
post-conviction proceeding, rather than a habeas corpus proceeding); Ricky Lynn Hill v.
Tony Parker, Warden, No. W2010-01423-CCA-R3-HC, 2011 WL 287343, at *4 (Tenn.
Crim. App. Jan. 24, 2011) (stating that a claim of double jeopardy renders a judgment
voidable, not void); Bobby James Mosley v. Wayne Brandon, Warden, No. M2006-02398-
CCA-R3-HC, 2007 WL 1774309, at *5 (Tenn. Crim. App. June 20, 2007) (reiterating that
a claim of double jeopardy is not a cognizable claim for habeas corpus relief); Ralph Phillip
Claypole, Jr. v. State, No. M1999-02591-CCA-R3-PC, 2001 WL 523367, at *2 (Tenn. Crim.
App. May 16, 2001) (stating that the petitioner’s claim of double jeopardy, if true, would
render the convictions “voidable, not void.”). The Petitioner is not entitled to relief on this
issue.

        Third, the Petitioner argues on appeal, though not in his petition for writ of habeas
corpus, that his convictions for first degree felony murder and especially aggravated burglary
violate Tennessee Code Annotated section 39-14-404(d) of the especially aggravated
burglary statute, which states, “Acts which constitute an offense under this section may be
prosecuted under this section or any other applicable section, but not both.” Initially, we
conclude that the Petitioner has waived this issue because he failed to raise it in his petition
for writ of habeas corpus. See State v. Turner, 919 S.W.2d 346, 356-57 (Tenn. Crim. App.
1995) (“A party may not raise an issue for the first time in the appellate court.”); James Leon
Parker v. David R. Sexton, Warden, No. E2011-01472-CCA-R3-HC, 2012 WL 32116, at *4
(Tenn. Crim. App. Jan. 6, 2012) (concluding that the petitioner waived an issue on appeal by
failing to raise it in his petition for habeas corpus relief); Bobby Lee v. Stephen Dotson,
Warden, No. W2007-02584-CCA-R3-HC, 2009 WL 482532, at *2 (Tenn. Crim. App. Feb.

                                              -9-
24, 2009) (holding that “[i]ssues that were not presented to the habeas court will not be
considered for the first time on appeal.”).

       Waiver notwithstanding, this issue is not a cognizable claim for habeas corpus relief.
“Subsection (d) [of code section 39-14-404] prohibits using the same act to prosecute for
especially aggravated burglary and another offense.” State v. Holland, 860 S.W.2d 53, 60
(Tenn. Crim. App. 1993) (concluding code section § 39-14-404(d) precluded convictions for
especially aggravated burglary and aggravated rape when serious bodily injury was an
element of both crimes and modifying the especially aggravated burglary conviction to an
aggravated burglary conviction). In other words, code section 39-14-404(d) expresses the
General Assembly’s intent “to preclude multiple punishment” for double jeopardy purposes
for acts constituting the offense of especially aggravated burglary. State v. Watkins, 362
S.W.3d 530, 556 & n.44 (Tenn. 2012). Because the Petitioner’s claim regarding code section
39-14-404(d) is essentially a double jeopardy claim, he is not entitled to habeas corpus relief.
See Summers, 212 S.W.3d at 261; Luttrell, 644 S.W.2d at 409; Ricky Lynn Hill, 2011 WL
287343, at *4; Bobby James Mosley, 2007 WL 1774309, at *5; Ralph Phillip Claypole, Jr.,
2001 WL 523367, at *2.

                                          CONCLUSION

       Upon review, we affirm the summary dismissal of the habeas corpus petition.




                                                     ______________________________
                                                     CAMILLE R. McMULLEN, JUDGE




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