                                                                                            02/03/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                    AT NASHVILLE

               JOHNNY PETERSON v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Trousdale County
                                  No. 19-CV-4742


                             No. M2019-00390-CCA-R3-HC


The Petitioner, Johnny Peterson, appeals the trial court’s summary dismissal of his petition
for habeas corpus relief. The State has filed a motion asking this Court to affirm pursuant
to Court of Criminal Appeals Rule 20. Said motion is hereby granted.

Tenn. R. App. P. 3 Appeal as of Right; Order of the Trial Court Affirmed Pursuant
               to Rule 20, Rules of the Court of Criminal Appeals

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR. and TIMOTHY L. EASTER, JJ. joined.

Johnny Peterson, Pro se.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General, for the appellee, State of Tennessee.

                              MEMORANDUM OPINION

       The Petitioner was convicted of first degree murder and attempted first degree
murder in 2008. State v. Johnny Peterson, No. W2008-01340-CCA-R3-CD, 2009 WL
2985950 (Tenn. Crim. App. Sep. 18, 2009), perm. to app. denied (Tenn. Mar. 15, 2010).
After his convictions and sentences were affirmed on appeal, the Petitioner was
unsuccessful in his subsequent pursuit of post-conviction relief. Johnny L. Peterson v.
State, No. W2011-00367-CCA-R3-PC, 2012 WL 1080486 (Tenn. Crim. App. Mar. 29,
2012), perm. to app. denied (Tenn. Aug. 16, 2012). In January 2019, the Petitioner filed a
habeas corpus petition challenging the effective assistance of post-conviction counsel and
the validity of the grand jury foreperson. The trial court denied relief, in part, because the
Petitioner did not attach copies of his judgments to his petition.

       Initially, the Court notes the determination of whether to grant habeas corpus relief
is a question of law. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). As such, this
Court reviews a trial court’s findings de novo without a presumption of correctness. Id.
Moreover, it is a 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).
However, “[s]uch relief is available only when it appears from the face of the judgment or
the record of the proceedings that a trial court was without jurisdiction to sentence a
defendant or that a defendant’s sentence of imprisonment or other restraint has expired.”
Wyatt, 24 S.W.3d at 322; see also Tenn. Code Ann. § 29-21-101. In other words, habeas
corpus relief may be sought only when the judgment is void, not merely voidable. 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, 995 S.W.2d at 83).

       Moreover, “the procedural provisions of the habeas corpus statutes are mandatory
and must be followed scrupulously.” Archer v. State, 851 S.W.2d 157, 165 (Tenn. 1993).
Specifically, Tennessee Code Annotated section 29-21-107 provides:

      (a) Application for the writ shall be made by petition, signed either by the
      party for whose benefit it is intended, or some person on the petitioner’s
      behalf, and verified by affidavit.

      (b) The petition shall 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

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       (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.

        In the instant case, the Peterson failed to attach the judgments of conviction to his
petition. Our supreme court has cautioned that when documents pertinent to establishing
a petitioner’s claim “are not attached to the habeas corpus petition, a trial court may
properly choose to dismiss the petition without the appointment of counsel and without a
hearing.” Summers, 212 S.W.3d at 261. The Court notes the Petitioner attached the
judgments of conviction to his reply to the State’s motion on appeal in an apparent attempt
to cure the error. However, “documents attached to an appellate brief but not included in
the record on appeal cannot be considered by this court as part of the record on appeal.”
Grover L. Dunigan v. State. No. E2005-01574-CCA-R3-PC, 2006 WL 433699, at *3
(Tenn. Crim. App., at Knoxville, Feb. 23, 2006); see also State v. Matthews, 805 S.W.2d
776, 783-84 (Tenn. Crim. App. 1990) (stating that Tennessee Rule of Appellate Procedure
28 “does not contemplate attaching a transcript of proceedings to a brief when the
transcript has not been made a part of the record”). Regardless of the procedural
deficiencies, the claims raised by the Petitioner are not cognizable for habeas corpus relief.
See Antonio D. Idellfonso-Diaz v. State, No. M2018-02233-CCA-R3-HC, 2019 WL
3782163 (Tenn. Crim. App. Aug. 12, 2019) (challenge to grand jury foreperson); Ronald L.
Allen v. State, No. W2014-00041-CCA-R3-HC, 2014 WL 2993861 (Tenn. Crim. App.
June 30, 2014) (challenge to counsel’s effectiveness). The Petitioner is not entitled to
relief.

      Accordingly, for these reasons, the order of the trial court is affirmed in accordance
with Court of Criminal Appeals Rule 20.



                                                         Judge Robert W. Wedemeyer




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