        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs December 7, 2010

            JAMES E. LOFTON v. HENRY STEWARD, WARDEN

                 Appeal from the Circuit Court for Lauderdale County
                      No. 6391    Joseph H. Walker, III, Judge


               No. W2010-01122-CCA-R3-HC - Filed January 31, 2011


The petitioner, James E. Lofton, appeals the Lauderdale County Circuit Court’s dismissal of
his petition for writ of habeas corpus. Following our review, we affirm the summary
dismissal of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J OHN E VERETT W ILLIAMS, JJ., joined.

James E. Lofton, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Deshea Dulany Faughn, Assistant
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                        FACTS and PROCEDURAL HISTORY

        On April 19, 1985, the petitioner was convicted by a Shelby County Criminal Court
jury of larceny from the person, armed robbery, and assault with intent to commit first degree
murder. The jury also found him guilty of being an habitual criminal regarding each offense.
State v. James Earl Lofton, 1986 WL 1672, at *1 (Tenn. Crim. App. Feb. 5, 1986), perm. to
appeal denied (Tenn. Apr. 28, 1986). The trial court sentenced him to three life sentences
for the convictions, with the life sentences for the armed robbery and felonious assault
convictions to be served concurrently to each other but consecutively to the life sentence for
the larceny from the person conviction. Id. This court affirmed the judgments of the trial
court, and our supreme court denied the petitioner’s application for permission to appeal. Id.
        The petitioner subsequently filed a petition for post-conviction relief, which was
denied by the post-conviction court. James Earl Lofton v. State, No. 02C01-9306-CR-00111,
1995 WL 7679, at *1 (Tenn. Crim. App. Jan. 11, 1995), perm. to appeal denied (Tenn. June
12, 1995). Among other claims, the petitioner alleged that his guilty pleas in prior cases, on
which the jury had relied for its finding that he was an habitual criminal, were unknowing
and involuntary. Id. On direct appeal, this court vacated the petitioner’s 1970 conviction for
third degree burglary but held that the remaining convictions were sufficient to “sustain the
jury’s finding of habitual criminality.” Id. at *6.

       In November 2005, the petitioner challenged the jury’s finding that he was an habitual
criminal in another petition for post-conviction relief, which was dismissed by the post-
conviction court without a hearing. Jimmy Earl Lofton v. State, No. 02C01-9603-CR-00073,
1997 WL 100810, at *1 (Tenn. Crim. App. Mar. 7, 1997), perm. to appeal denied (Tenn. Oct.
6, 1997). This court affirmed the summary dismissal of the petition, concluding, among
other things, that the issue had been previously determined and that the petition was barred
by the statute of limitations. Id. at *1-2. Our supreme court subsequently denied the
petitioner’s application for permission to appeal. Id. at *1.

       On July 29, 2005, the petitioner filed a petition for writ of habeas corpus, which was
dismissed without a hearing, in which he alleged that the habitual criminal statute was illegal.
This court affirmed the summary dismissal, finding that the habitual criminal statute was not
unconstitutional, and our supreme court denied the petitioner’s application for permission to
appeal. Paul L. Hawkins and James Earl Lofton v. State, No. M2005-02807-CCA-R3-HC,
2006 WL 2206094, at *1-3 (Tenn. Crim. App. July 27, 2006), perm. to appeal denied (Tenn.
Dec. 27, 2006).

        On March 24, 2010, the petitioner filed the petition at issue in this case, alleging that
he is being illegally restrained because he “was never effectively sentenced according to his
actual convictions, but instead, illegally sentenced as being an Habitual Criminal under the
1982 Criminal Sentencing Act.” On April 16, 2010, the habeas court entered an order
dismissing the petition without a hearing on the basis that the petitioner’s allegations did not
entitle him to habeas corpus relief. This appeal followed.

                                         ANALYSIS

        Whether the petitioner is entitled to habeas corpus relief is a question of law.
Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007); Hart v. State, 21 S.W.3d 901, 903
(Tenn. 2000). As such, our review is de novo with no presumption of correctness given to
the trial court’s findings and conclusions. Id.



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        It is well-established in Tennessee that the remedy provided by a writ of habeas corpus
is limited in scope and may only be invoked where the judgment is void or the petitioner’s
term of imprisonment has expired. Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007);
State v. Ritchie, 20 S.W.3d 624, 629 (Tenn. 2000); State v. Davenport, 980 S.W.2d 407, 409
(Tenn. Crim. App. 1998). 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, 212 S.W.3d at 256 (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)).
A petitioner bears the burden of establishing a void judgment or illegal confinement by a
preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).
Furthermore, when “a habeas corpus petition fails to establish that a judgment is void, a trial
court may dismiss the petition without a hearing.” Summers, 212 S.W.3d at 260 (citing
Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005)).

        The habitual criminal statute, which has since been repealed, provided for enhanced
punishment of life imprisonment for enumerated felonies if a defendant had the requisite
number of prior felonies. See Tenn. Code Ann. § 39-1-801 et seq. (1982) (repealed 1989).
Procedurally, a defendant was charged with the underlying offense in one count of the
indictment or presentment and with being an habitual criminal in a second count, with the
jury considering evidence in support of the habitual criminal charge after finding the
defendant guilty of the underlying substantive offense. See id.; State v. Wyrick, 62 S.W.3d
751, 763-64 (Tenn. Crim. App. 2001). The Habitual Criminal Act did not, however, “‘create
an independent crime but a status prescribing circumstances under which there is an
enhanced penalty for the present crime.’” Wyrick, 62 S.W.3d at 764 (quoting Harrison v.
State, 394 S.W.2d 713, 714 (Tenn. 1965); State v. Duffel, 665 S.W.2d 402, 404 (Tenn. Crim.
App. 1983)).

        The petitioner does not challenge the jury’s finding that he was an habitual criminal
in the instant case. Instead, his argument, as we understand it, is that his judgments for his
substantive offenses were never final, thereby rendering his confinement illegal, because the
trial court failed to pronounce separate sentences for the underlying substantive offenses
before sentencing him to life imprisonment in accordance with the habitual criminal counts
of the indictment.

       As the State points out, this court addressed a similar issue in Canupp v. State, 460
S.W.2d 382 (Tenn. Crim. App. 1970), where a petitioner “attack[ed] the validity of his
conviction as an habitual criminal on the sole basis that in his original trial the court did not
pronounce judgment upon the jury’s verdict finding him guilty of grand larceny, his
insistence being that a judgment by the trial court upon that verdict was a positive
prerequisite to the habitual criminal judgment.” Id. at 384. We rejected that claim,
concluding that, since the petitioner’s status as an habitual criminal mandated life

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imprisonment for his conviction, there was no error in the sentencing procedure employed
by the trial court:

               Thus, it can no longer be open to question or debatable that it is wholly
       unnecessary for the trial court to pronounce separate judgments upon the
       verdict of the jury finding the defendant guilty of the specified crime presently
       charged, and also upon the verdict finding him guilty as an habitual criminal.
       It would be an idle thing to hold that the trial court must pronounce judgment
       upon the verdict of the jury finding the defendant guilty of the present crime,
       when the punishment for that offense (except in cases punishable by death) is
       by statute automatically and mandatorily increased to life imprisonment upon
       the defendant’s conviction as an habitual criminal. The law does not concern
       itself with trifles. As a matter of law, as an habitual criminal the defendant is
       subject to that punishment and no other.

Id. at 384-85.

       We are unpersuaded by the petitioner’s argument that his case is distinguishable from
Canupp because the Canupp jury, in returning its verdict on the substantive offense,
“sentenced” Canupp by fixing his punishment at three years in the state penitentiary. See id.
at 383; see also State v. Jay Will Kilby, No. 03C01-9110-CR-00332, 1992 WL 97086, at *1
(Tenn. Crim. App. May 12, 1992) (noting that trial court’s having imposed life sentences
upon jury’s finding of defendant’s habitual criminality, without first having sentenced the
defendant upon his guilty plea convictions for the triggering offenses, was a procedure
authorized both by statute and by the holding in Canupp). We conclude, therefore, that the
habeas corpus court’s summary dismissal of the petition was proper.

                                      CONCLUSION

      We conclude that the petitioner’s allegations do not entitle him to habeas corpus relief.
Accordingly, we affirm the summary dismissal of his petition for writ of habeas corpus.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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