        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs December 11, 2013

MATHIS T. VAUGHN v. ARVIL K. CHAPMAN, WARDEN and STATE OF
                        TENNESSEE

                     Appeal from the Circuit Court for Wayne County
                          No. 15334 Jim T. Hamilton, Judge



                  No. M2013-00956-CCA-R3-HC - Filed February 6, 2014


Petitioner, Mathis L. Vaughn, was convicted in 1993 of first degree murder during the
perpetration of a robbery. His conviction was affirmed on appeal. See State v. Mathis T.
Vaughn, No. 01C01-0312-CR-00425, 1994 WL 256993, at *1 (Tenn., June 9, 1994).
Subsequently, Petitioner unsuccessfully sought post-conviction relief on the basis of
ineffective assistance of counsel. See Mathis T. Vaughn v. State, No. M2007-00755-CCA-
R3-PC, 2001 WL 303034, at *1 (Tenn. Crim. App., at Nashville, Mar. 29, 2001), perm. app.
denied, (Tenn. Sept. 17, 2001). Petitioner first sought habeas corpus relief in 2006; it was
denied. See Mathis T. Vaughn v. James Worthington, Warden, No. E2007-00808-CCA-R3-
HC, 2008 WL 58956, at *1 (Tenn. Crim. App., at Knoxville, Jan. 4, 2008). Petitioner again
seeks habeas relief, arguing that his judgment is void because it lists his conviction offense
as first degree murder when the jury actually convicted him of first degree felony murder.
The habeas corpus court dismissed the petition. Petitioner appeals. After a review, we
determine that the habeas corpur court properly dismissed the petition where Petitioner failed
to establish that the judgment was void or that his sentence had expired. Consequently, 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 L. S MITH, J., delivered the opinion of the court, in which A LAN E. G LENN and C AMILLE
M CM ULLEN, JJ., joined.

Mathis T. Vaughn, Pro Se, Only, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; and Mike Bottoms, District Attorney General, for the appellant, State of Tennessee.
                                           OPINION

                                     Factual Background

      Petitioner was convicted in 1993 of first degree murder during the perpetration of a
robbery. On appeal, the facts were summarized as follows:

               On the evening of September 21, 1992, the victim drove into the
       Lincoln Homes Projects in Clarksville, Tennessee. Testimony revealed that
       the victim was the subject of envy among some of the men at Lincoln Homes
       because he owned a sports car with an expensive stereo system and dated some
       of the local women. While the victim was waiting to meet someone that
       evening, his car was surrounded by a group of men which included the
       [Petitioner]. [Petitioner] approached the driver’s side of the vehicle and
       demanded that the victim get out of the car. The victim refused to leave.
       [Petitioner] then removed a pistol from his waistband and pointed it at the
       victim. The victim attempted to drive away when the pistol discharged.

Mathis T. Vaughn, 1994 WL 256993, at *1. On appeal, Petitioner argued that the trial court
erred in refusing a request for a special instruction to the jury. His conviction was affirmed
on appeal. Id.

        Subsequently, Petitioner sought post-conviction relief on the basis of ineffective
assistance of counsel. Mathis T. Vaughn, 2001 WL 303034, at *1. Specifically, he argued
that trial counsel failed to object to certain hearsay testimony during trial and that the failure
of counsel to object led to the failure to preserve those issues on appeal. The petition was
dismissed. This Court affirmed the dismissal. Id.

        Petitioner first sought habeas corpus relief in 2006. See Mathis T. Vaughn, 2008 WL
58956, at *1. The petition was denied after a hearing. Id. On appeal, he asserted that “the
habeas corpus court erred by dismissing his petition prior to the appointment of counsel and
that his conviction for first degree felony murder is void because (1) the trial court failed to
charge any lesser included offenses of felony murder and (2) the indictment did not charge
an underlying felony to support the felony murder charge.” Id. This Court determined that
neither claim would render Petitioner’s convictions void and affirmed the judgment of the
habeas corpus court. Id. at *3.

        Petitioner again sought habeas relief in February of 2013, arguing that the judgment
in his case is void because it lists his conviction offense as first degree murder when the jury


                                               -2-
actually convicted him of first degree felony murder. The habeas corpus court dismissed the
petition. Petitioner appeals.

                                            Analysis

       Appellant argues on appeal that the habeas corpus court improperly dismissed the
petition for relief. Specifically, he argues that his conviction is void because he was
convicted of first degree murder rather than first degree felony murder. He also insists that
his sentence violates the ex post facto laws because he was sentenced to life imprisonment
requiring him to serve no less than twenty-five years prior to eligibility for parole. The State
argues simply that the habeas court properly dismissed the petition.

        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 term
“imprisoned” means “actual physical confinement or detention.” Hickman v. State, 153
S.W.3d 16, 22 (Tenn. 2004). A petitioner does not have to be physically confined to be
“restrained of liberty.” A petitioner can be restrained of liberty if “the challenged judgment
itself imposes a restraint upon the petitioner’s freedom of action or movement,” even if “the
petitioner is not physically confined or detained.” Id. (citations omitted); see Benson v. State,
153 S.W.3d 27, 31 (Tenn. 2004). “The phrase ‘restrained of liberty’ has generally been
interpreted to include any limitation placed upon a person’s freedom of action, including
such restraints as conditions of parole or probation, or an order requiring a person to remain
in one city.” Benson, 153 S.W.3d at 31 (citing Hickman, 153 S.W.3d 16, 22-23 (Tenn.
2004)). The requirement that a petitioner be “imprisoned or restrained of liberty” by the
challenged conviction is basically a requirement that a petitioner have standing to bring a
habeas corpus proceeding, and this standing requirement operates independently of a
petitioner’s substantive claim of voidness. See Benson, 153 S.W.3d at 31 (“A statutory
prerequisite for eligibility to seek habeas corpus relief is that the petitioner must be
‘imprisoned or restrained of liberty’ by the challenged convictions.”); see also T.C.A. § 29-
21-107(b).

        Moreover, 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


                                               -3-
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).

        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).

      At the time Petitioner committed the crime, 1992, Tennessee Code Annotated section
39-13-202 (1992) defined murder as:

       (1) An intentional, premeditated and deliberate killing of another; or
       (2) A reckless killing of another committed in the perpetration of, or attempt
       to perpetrate any first degree murder, arson, rape, robbery, burglary, theft,
       kidnapping or aircraft piracy; . . . .

T.C.A. § 39-13-202 (1992). Looking at the statute, it is clear that despite Petitioner’s
argument to the contrary, felony murder is first degree murder. Thus, Petitioner’s conviction
is not void, and he is not entitled to habeas corpus relief.

        Additionally, Petitioner insists that the trial court was without jurisdiction to impose
a life sentence which required him to serve a minimum sentence. According to Tennessee
Code Annotated section 39-13-202 (1992), the punishment for a first degree murder
conviction was “death or . . . imprisonment for life.” Further, in 1992, release eligibility was
determined based in first degree murder convictions occurred “after service of sixty percent
(60%) of sixty (60) years less sentence credits earned and retained by the defendant.” T.C.A.




                                              -4-
§ 40-35-501(g) (1992).1 We have examined Petitioner’s judgment form. It does not state a
release eligibility. Consequently, Petitioner’s release eligibility is set by statute. Petitioner
did not provide the court with any documents to show that his judgment is void or that his
sentence has expired based on a violation of the statute or otherwise. The habeas corpus
court properly denied relief.

                                                    Conclusion

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




                                                       ___________________________________
                                                       JERRY L. SMITH, JUDGE




        1
          This statute was amended in 1994. The new calculation for release eligibility was “after sixty (60%) percent
of sixty (60) years less sentence credits earned and retained . . . , but in no event shall a defendant sentenced to
imprisonment for life be eligible for parole until the defendant has served a minimum of twenty-five (25) full calendar
years of such sentence . . . .” T.C.A. § 40-35-501(h)(1) (1994).

                                                         -5-
