        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                  March 18, 2003 Session

                ROGER L. HICKMAN v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Knox County
                            No. 74318    Ray L. Jenkins, Judge



                                 No. E2002-01916-CCA-R3-PC
                                      December 18, 2003

The Appellant, Roger L. Hickman, appeals the dismissal of his petition for writ of habeas corpus
collaterally attacking a 1986 misdemeanor conviction. We affirm dismissal of the petition upon
grounds that (1) there is no showing that Hickman is currently "imprisoned or restrained of his
liberty," as required by Tennessee Code Annotated Section 29-21-101, and (2) the petition fails to
comply with the statutory requirements.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which THOMAS T. WOODA LL, J., joined;
JOHN EVERETT WILLIAMS, J., dissenting.

Douglas A. Trant, Knoxville, Tennessee, for the Appellant, Roger L. Hickman.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Thomas E.
Williams, II, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Zane
M. Scarlett, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                           OPINION

                                      Factual Background

        In 1986, the Appellant pled guilty to simple possession of marijuana in the Knox County
General Sessions Court and received a $50.00 fine and a ten-day suspended sentence. In February,
2002, the Appellant filed a petition for writ of habeas corpus in the Knox County Criminal Court
alleging that his 1986 conviction was void because it resulted from an uncounseled guilty plea. At
an evidentiary hearing on this issue, the proof established that no attorney of record was noted on
the 1986 warrant/judgment form and the judgment did not reflect that the Appellant waived his right
to counsel. The trial court dismissed the petition upon grounds that the judgment was voidable as
opposed to void upon its face, thus, warranting no relief.1 This appeal followed.

                                                      ANALYSIS

        The remedy of habeas corpus, which finds its origin in the common law, is guaranteed by the
Constitution of Tennessee. TENN. CONST . ART . 1, §. 15; Ricks v. State, 882 S.W.2d 387, 390 (Tenn.
Crim. App. 1994). Its central purpose has been to test the legality of detention. The remedy of
habeas corpus is limited in scope, as well as relief, and is available only to contest a void judgment
or a sentence that has expired. Archer v. State, 851 S.W.2d 157, 161-162, 64 (Tenn. 1993).

       Tennessee Code Annotated Section 29-21-101 sets out when habeas corpus relief is
available:

         Any person imprisoned or restrained of his liberty, under any pretense whatsoever,
         except [those held under federal authority] may prosecute a writ of habeas corpus to
         inquire into the cause of such imprisonment and restraint.

Tenn. Code Ann. § 29-21-101. The term "restrained of his liberty" has been extended to include
constructive custody, as well as actual physical custody. State ex rel. Dillehay v. White, 398 S.W.2d
737, 738 (Tenn. 1966) (holding that a defendant released upon her own recognizance could
nevertheless pursue a habeas corpus claim under the principle of "constructive confinement" because
she was subject to immediate incarceration should her appeal be dismissed). The concept of
constructive custody is applicable only in those situations where the petitioner may later lose his or
her liberty and be eventually incarcerated under the challenged conviction. Accordingly, in addition
to those "imprisoned," habeas corpus relief has been extended to a prisoner on parole, probation, or
other form of release.

        In this case, we have concluded that the Appellant has presented a cognizable habeas corpus
claim, i.e., that his 1986 misdemeanor conviction is presumptively void. Because the Appellant is
not in actual or constructive custody, as his sentence has long expired, the question remains whether
we must further extend the phrase "imprisoned or restrained of his liberty" to our Appellant.
Although we are unable to find any appellate decisions directly on point in Tennessee, we find the
following decisions persuasive. In Maleng v. Cook, 490 U.S. 488, 492, 109 S. Ct. 1923, 1926
(1989),2 the Supreme Court, in construing the "in custody" provision of the federal habeas corpus
statute, held:


         1
          W e find it unnecessary to review the trial court’s ruling supporting dismissal of the petition in view of our
decision in this case.

         2
           W hile acknowledging the variation in scope and remed y of the federal habeas corpus statute and this state’s
statute, we no netheless are reminded that both have their origins in the co mmon law and b oth issue only “for the purpo se
of inquiring into the cause of restraint of liberty.” 28 U.S.C.S. § 2241, History; Ancillary Laws and Directives (2003).



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         The question presented by this case is whether a habeas petitioner remains 'in
         custody' under a conviction after the sentence imposed for it has fully expired, merely
         because of the possibility that the prior conviction will be used to enhance the
         sentences imposed for any subsequent crimes of which he is convicted. We hold that
         he does not. While we have very liberally construed the 'in custody' requirement for
         purposes of federal habeas, we have never extended it to the situation where a habeas
         petitioner suffers no present restraint from a conviction. Since almost all states have
         habitual offender statutes, . . . a contrary ruling would mean that a petitioner whose
         sentence has completely expired could nonetheless challenge the conviction for
         which it was imposed at any time on federal habeas. This would read the 'in custody'
         requirement out of the statute and be contrary to the clear implication of the opinion
         in Carafas v. LaVallee, [391 U.S., 234, 238, 88 S. Ct. 1556, 1560 (1968) (holding
         that the federal habeas corpus statute required that the habeas petitioner be "in
         custody" as a result of the conviction or sentence under attack at the time his petition
         was filed)].

Maleng v. Cook, 490 U.S. at 492, 109 S. Ct. at 1926. “We have never held, . . ., that a habeas
petitioner may be ‘in custody’ under a conviction when the sentence imposed for that conviction has
fully expired at the time his petition is filed.” Id. at 491, 1925.

       In John Mock v. Warden, No. CV000003127 (Conn. Super. Ct. at Rockland, Feb. 18, 2003),
the Superior Court of Connecticut, when confronted with an issue virtually identical to the issue
presented before us, observed,

         there is no fixed statute of limitations for the filing of a petition for the writ of habeas
         corpus. Notwithstanding this lack of a fixed statute of limitations, there is a key
         prerequisite to the filing of a habeas corpus petition that is the functual equivalent of
         a statute of limitations. In order for the court to grant a writ of habeas corpus, the
         petitioner must be 'illegally confined or deprived of his liberty,' at the time that the
         petition is filed.

John Mock, No. CV000003127 at *3-4.
        Consistent with these holdings and the common law history of the writ are the following
reported appellate decisions of this state.3 Our supreme court has held that the only relief that can
be given a prisoner in a state habeas corpus proceeding is release or discharge from custody. Ussery
v. Avery, 432 S.W.2d 656, 658 (Tenn. 1968); Taylor v. Morgan, 909 S.W.2d 17, 20 (Tenn. Crim.
App. 1995). The purpose of the writ of habeas corpus is to test the legality of the imprisonment or
restraint of one who is being illegally detained. State v. Warren, 740 S.W.2d 427, 428 (Tenn. Crim.

         3
           In the dissent, our colleague Judge W illiams, cites Church v. State, 987 S.W.2d 855 (Tenn. Crim. App. 1998)
for a contra position. In Church, a panel of this co urt affirmed the d ismissal o f a habeas corpus petition, concluding that
the petition failed to state a cognizable claim for habeas co rpus re lief. Id. at 858. The holding in Church does not
add ress the issu e presented in this case. Mo reover, we are constrained to no te that, under the dissent’s position, there
would never be any finality in a judgm ent of co nviction in a criminal case .

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App. 1986). In Ussery v. Avery, 432 S.W.2d at 658, the court denied habeas corpus relief, even
though the judgment was potentially void, because imprisonment resulted from a conviction other
than that challenged in the petition. A fortiori, habeas relief is available only to a petitioner
contesting the validity of the judgment under which he is confined. Id.; see also Warren, 740
S.W.2d at 428.

        Moreover, we conclude that the Tennessee habeas corpus statutes clearly contemplate that
the habeas petitioner must be in either actual or constructive custody of the sentence being
challenged at the time the petition is filed. See, e.g., Tenn. Code Ann. § 29-21-110 (requiring that
the writ be directed to the sheriff or other person having custody of or restraining the person on
whose behalf the application is made and commanding the restraining authority to have the body of
such person before the court at the time and place specified); Tenn. Code Ann. § 29-21-122
(providing that if legal cause for detention is not shown, the petitioner shall be discharged, otherwise,
the petitioner shall be remanded to custody). We are constrained to note that the term "imprisoned
or restrained of liberty" for purposes of habeas corpus relief is not co-extensive with the term "person
in custody" contained in Tennessee Code Annotated Section 40-30-102 of our Post-Conviction
Procedures Act. The post-conviction term "in custody" has long been construed to mean that a
petitioner may collaterally attack a conviction, even when that sentence is served and the petitioner
is no longer on any form of release, if there is a possibility that any collateral legal consequences will
be imposed on the basis of the challenged conviction. Ellison v. State, 549 S.W.2d 691, 694 (Tenn.
Crim. App. 1976); see also State v. McCraw, 551 S.W.2d 692, 694 (Tenn. 1977). Indeed, post-
conviction proceedings are routinely utilized to collaterally challenge a void or voidable conviction,
where that conviction is being used to enhance a second or subsequent sentence. Again, the term
"restrained of liberty" for habeas corpus purposes requires either actual or constructive custody,
while the term "in custody" for post-conviction purposes does not.

        Because the record establishes that the Appellant's 1986 sentence has expired and he is no
longer in actual or constructive custody, we conclude that the Appellant is not “imprisoned or
restrained of his liberty,” as required by the habeas corpus statute. Accordingly, the issue of whether
he may prosecute the writ of habeas corpus is moot. State ex rel. Nelson v. Sims, 583 S.W.2d 302,
303 (Tenn. 1976) (holding that habeas corpus proceeding was rendered moot after petitioner was no
longer subject to actual or constructive confinement of a "peace warrant"); see also State ex rel.
Lewis v. State, 347 S.W.2d 47, 48 (Tenn. 1961); Johnson v. State, No. W2001-02373-CCA-R3CD
(Tenn. Crim. App. at Jackson, Aug.7, 2002); Jones v. State, No. 01C01-9711-CR-00548 (Tenn.
Crim. App. at Nashville, Dec. 11, 1998).

         Finally, we observe that the petition woefully fails to comply with the statutory provisions,
which require specific facts to be included in the application for the writ. In this case, the petitioner
(1) fails to name the restraining authority and place of restraint, (2) fails to state whether the legality
of the restraint has or has not been previously adjudicated, and (3) fails to state whether or not




                                                   -4-
previous applications have been made.4 Tenn. Code Ann. § 29-21-107(b)(1)(3), (4). In addition, the
petition is not verified by affidavit, as required by Tennessee Code Annotated Section 29-21-107(a).
Compliance with the statutory requirements of Tennessee Code Annotated Section 29-27-107 is
mandatory and must be scrupulously followed. State ex rel. Kuntz v. Bomar, 381 S.W.2d 290, 291
(Tenn. 1964); Bateman v. Smith, 194 S.W.2d 336, 337 (Tenn. 1946).

                                                     CONCLUSION

       Based upon the foregoing reasons, we affirm the trial court's dismissal of the Appellant's
application for the writ of habeas corpus.




                                                                      ___________________________________
                                                                      DAVID G. HAYES, JUDGE




          4
           Indeed, the rec ord s of this court indicate that the Appellant has filed a second challenge to this same Knox
County General S essions conviction, which is captioned, "Petition For Relief From Conviction or Se ntence ." This
petition was also dismissed at the trial level and is on appeal to this court. Interestingly, this petition states that the
petitioner is currently confined in a North Carolina federal correctional facility under sentence imposed by the United
States District Court for the M iddle District o f Florida. Assuming this allegation is true, the Appellant would again be
ineligible for habeas corpus relief in T ennessee. See Tenn. Code Ann. § 29-21-102 (persons committed or detained by
virtue of process issued by a court of the United States, or a judge thereof . . . are not entitled to the benefits of this writ).



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