        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs August 22, 2012

           JEREMY KYLE MASSEY v. DAVID SEXTON, WARDEN

                 Appeal from the Criminal Court for Johnson County
                          No. 6011 Lynn W. Brown, Judge




               No. E2012-00439-CCA-R3-HC - Filed September 21, 2012


The Petitioner, Jeremy Kyle Massey, pro se, appeals the Johnson County Criminal Court’s
summary dismissal of his petition for a writ of habeas corpus from his 1999 second degree
murder conviction and resulting forty-five-year sentence. The Petitioner contends that the
trial court erred by denying him habeas corpus relief. He argues that his conviction and
sentence are void because the first degree murder indictment was defective. We affirm the
judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which A LAN E. G LENN and
J EFFREY S. B IVINS, JJ., joined.

Jeremy Kyle Massey, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; and Anthony Wade Clark, District Attorney General, for the appellee, State of
Tennessee.

                                         OPINION

       The Petitioner pleaded guilty to second degree murder in 1999. Although he did not
appeal the conviction, he sought post-conviction relief, which the trial court denied, and this
court affirmed. See Jeremy Kyle Massey v. State, No. M2001-02736-CCA-R3-PC (Tenn.
Crim. App. Dec. 31, 2002), perm. app. denied (Tenn. May 19, 2003). In his petition for the
writ of habeas corpus, the Petitioner contended that his conviction and sentence are void in
that the trial court lacked jurisdiction because the indictment failed to charge all the
necessary elements of first degree murder. The trial court summarily dismissed the petition
because nothing in the petition supported a conclusion that the conviction is void or that the
Petitioner’s sentence has expired. This appeal followed.

        The Petitioner contends that the trial court erred by denying his petition for habeas
corpus relief. He argues that the trial court lacked jurisdiction because the indictment was
defective by stating he “intentionally, knowingly, or recklessly and premeditatedly” killed
the victim rather than premeditatedly and intentionally killed the victim. See T.C.A. § 39-13-
202(a)(1) (Supp. 1998) (amended 2002, 2007). The State contends that the trial court
properly dismissed the petition and argues that the Petitioner has failed to state a cognizable
claim for relief. We agree with the State.

        The determination of whether habeas corpus relief should be granted is a question of
law that is reviewed de novo with no presumption of correctness. State v. Livingston, 197
S.W.3d 710, 712 (Tenn. 2006); Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000). In
Tennessee, habeas corpus relief is available only when it appears on the face of the judgment
or the record that the trial court was without jurisdiction to convict or sentence the defendant
or that the sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). The
purpose of the habeas corpus petition is to contest a void, not merely a voidable, judgment.
Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999); State ex rel. Newsom v. Henderson, 424
S.W.2d 186, 189 (Tenn. 1969).

        A void, as opposed to a voidable, judgment is “one that is facially invalid because the
court did not have the statutory authority to render such judgment.” Summers v. State, 212
S.W.3d 251, 256 (Tenn. 2007). A voidable judgment “is one that is facially valid and
requires proof beyond the face of the record or judgment to establish its invalidity.” Id. at
255-56. The burden is on the petitioner to establish that the judgment is void or that the
sentence has expired. State ex rel. Kuntz v. Bomar, 381 S.W.2d 290, 291-92 (Tenn. 1964).
The trial court, however, may dismiss a petition for the writ of habeas corpus without a
hearing and without appointing a lawyer when the petition does not state a cognizable claim
for relief. Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004); State ex rel. Edmondson v.
Henderson, 421 S.W.2d 635, 636-37 (Tenn. 1967); see T.C.A. § 29-21-109 (2010).

       The indictment charging the Petitioner with first degree murder stated,

                     The Grand Jurors of Lawrence County, Tennessee, duly
              impaneled, and sworn upon their oath, present: That Jeremy
              Kyle Massey on or about the 12th day of October, 1998, in
              Lawrence County, Tennessee and before the finding of this
              indictment, did unlawfully and intentionally, knowingly, or
              recklessly and premeditatedly kill another, to-wit: Jeffery

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              Willard Stem, in violation of T.C.A. 39-13-202, all of which is
              against the peace and dignity of the State of Tennessee.

        Proper notice of the offense is provided if the indictment “contains allegations that (1)
enable the accused to know the accusation to which answer is required; (2) furnish the trial
court an adequate basis for entry of a proper judgment; and (3) protect the accused from a
subsequent prosecution for the same offense.” State v. Hammonds, 30 S.W.3d 294, 299
(Tenn. 2000) (citing State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997)). “A valid indictment
is an ‘essential jurisdictional element’ to any prosecution,” and “a defective indictment may
deprive a court of jurisdiction.” Hart, 21 S.W.3d at 903 (quoting Dykes v. Compton, 978
S.W.2d 528, 529 (Tenn. 1998)). “So long as an indictment performs its essential
constitutional and statutory purposes, a defect or omission in the language of the indictment
will not render the judgment void.” Hart, 21 S.W.3d at 903.

        We conclude that the indictment provided the Petitioner notice that he was charged
with first degree murder. Although the indictment states that the mental culpability for first
degree murder is an intentional, knowing or reckless and premeditated killing, rather than a
premeditated and intentional killing, the indictment cites Tennessee Code Annotated section
39-13-202 and put the Petitioner on notice that he was charged with first degree murder. See
State v. Carter, 988 S.W.2d 145, 149 (Tenn. 1999) (holding that “an indictment which
includes a reference to the criminal statute that sets forth the mens rea is sufficient to give
a defendant notice of the applicable mental state”). The inclusion of knowing or reckless was
surplus language.

       The Petitioner also argues that because of the surplus language in the indictment, the
State failed to put him on notice as to which of the three forms of first degree murder
outlined in Code section 39-13-202(a) applied. We conclude this is not a cognizable claim
for which habeas corpus relief can be granted. Because the indictment satisfied the statutory
and constitutional requirements of notice, the judgment and sentence are not void.

       We note that although the Petitioner also argues that his pleading guilty to second
degree murder did not cure the defective indictment, we have concluded that the indictment
was not defective. We conclude that the trial court did not err by dismissing the petition for
a writ of habeas corpus and that the Petitioner is not entitled to relief.

        In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.

                                            ______________________________________
                                            JOSEPH M. TIPTON, PRESIDING JUDGE

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