        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON

     MARVIN ANTHONY MATTHEWS v. TONY PARKER, WARDEN

                Direct Appeal from the Circuit Court for Lake County
                        No. 10-CR-9401 R. Lee Moore, Judge




                 No. W2010-00442-CCA-R3-HC - Filed June 21, 2010


The petitioner, Marvin Anthony Matthews, appeals the lower court’s denial of his petition
for writ of habeas corpus. The state has filed a motion requesting that this court affirm the
lower court’s denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals.
We conclude that the state’s motion is meritorious. Accordingly, we grant the state’s motion
and affirm the judgment of the lower court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS and
C AMILLE R. M CM ULLEN, JJ., joined.

Marvin Anthony Matthews, Pro Se, Tiptonville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; and Clarence E. Lutz, Assistant
Attorney General, for the appellee, State of Tennessee.

                                MEMORANDUM OPINION

       The instant case represents a long history of litigation. On December 13, 1988, a jury
found the petitioner guilty of grand larceny. See Marvin Anthony Matthews v. State, No. 16,
1990 WL 2862, at *1 (Tenn. Crim. App., at Jackson, Jan. 17, 1990), perm. app. denied
(Tenn. May 14, 1990). The jury further found the petitioner to be a habitual criminal
offender under the provisions of the habitual criminal act (now repealed), and, as a result, the
petitioner was sentenced to life imprisonment. Id. This court affirmed the petitioner’s
conviction and sentence on direct appeal. See id. In 1991, the petitioner filed a habeas
corpus petition arguing inter alia that the court did not enter his verdict and sentence in
compliance with Tennessee statutes and that the Mittimus Writ of Confinement was void.
See Marvin Anthony Matthews v. Charles C. Noles, Warden, No. 02 C01-9206-CC-00140,
1993 WL 46546, at *1 (Tenn. Crim. App., at Jackson, Feb. 24, 1993), perm. app. denied
(Tenn. June 1, 1993). The lower court found that the Mittimus Writ of Confinement was
valid on its face, and that the petitioner was properly adjudged guilty and sentenced. Id. This
court affirmed the decision of the lower court. Id. This court also noted that “[t]echnical
violations related to the judgment forms and committal documents, even if they existed,
would not render the petitioner’s confinement illegal as long as a valid conviction and
resultant legal sentence were imposed.” Id. at *2. Subsequently, the petitioner filed
numerous petitions for post-conviction relief. In an opinion filed on February 24, 1993, this
court reversed eight of the thirteen prior felony convictions used by the state to prove the
petitioner’s habitual criminal status.           See Marvin A. Matthews v. State, No.
02C01-9204-CR-00091, 1993 WL 46525, at *2 (Tenn. Crim. App., at Jackson, Feb. 24,
1993). However, in a different opinion, this court noted that the requisite number of
qualifying convictions remained to satisfy the petitioner’s classification as an habitual
criminal. See Marvin Matthews v. State, No. W1999-00833-CCA-R3-PC, 2001 WL 394868,
at *2 (Tenn. Crim. App., at Jackson, April 17, 2001). This court also held that the
petitioner’s petition was barred by the statute of limitations. Id. at *1. Thereafter, the
petitioner unsuccessfully sought further post-conviction relief. See, e.g., Marvin Anthony
Matthews v. State, No. W2000-01893-CCA-R3-PC, 2002 WL 1482780, at *2 (Tenn. Crim.
App., at Jackson, Feb. 8, 2002) (post-conviction petition barred by statute of limitations);
Marvin Anthony Matthews v. State, No. W2003-02980-CCA-R3-PC, 2004 WL 1159585, at
*1 (Tenn. Crim. App., at Jackson, May 21, 2004) (post-conviction petition barred by statute
of limitations); Marvin Anthony Matthews v. State, No. W2007-00295-CCA-R3-PC, 2007
WL 4146262, at *1 (Tenn. Crim. App., at Jackson, Nov. 20, 2007) (post-conviction petition
barred by statute of limitations).

        The petitioner also repeatedly but unsuccessfully challenged his conviction and
sentence via petitions for writ of habeas corpus. See, e.g., Marvin A. Matthews v. State, No.
02-C-01-9206-CC-00141, 1993 WL 84558, at *1 (Tenn. Crim. App., at Jackson, Mar. 24,
1993) (noting that habitual criminal laws were constitutional and denying habeas corpus
relief for failure to state cognizable claim). In one habeas petition, the petitioner alleged that
his judgment of conviction for grand larceny was void because it was not entered on a
uniform judgment document in violation of statute. See Marvin Anthony Matthews v. David
Mills, Warden, No. W2004-02209-CCA-R3-HC, 2005 WL 578821, at *1 (Tenn. Crim. App.,
at Jackson, Mar. 11, 2005), perm. app. denied (Tenn. Oct. 24, 2005). The lower court
summarily dismissed the petition, and this court affirmed the dismissal by memorandum
opinion. Id. In doing so, this court specifically noted that “the failure to utilize the uniform
judgment document . . . would merely render a conviction voidable, not void.” Id. at *2. In
2007, the petitioner again collaterally attacked his conviction and sentence via petition for
writ of habeas corpus. Marvin Anthony Matthews v. State, No. W2007-00936-CCA-R3-HC,

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2007 WL 4146253, at *1 (Tenn. Crim. App., at Jackson, Nov. 20, 2007). The petitioner
alleged that the indictment underlying his grand larceny conviction and habitual criminal
status was invalid because the court of criminal appeals had set aside certain convictions.
Id. The lower court summarily dismissed the petition, and this court affirmed the dismissal
by memorandum opinion. Id. In doing so, this court concluded that the indictment at issue
properly vested the convicting court with jurisdiction, and the petitioner’s habitual criminal
status had been previously determined to be valid. Id. at *2.

        On May 30, 2008, the petitioner again sought habeas corpus relief, contending that
his institutional file did not contain the judgment for the December 13, 1988 larceny
conviction, only the Mittimus Writ Of Confinement, which was void. See Marvin Anthony
Matthews v. Tony Parker, Warden, No. W2008-01495-CCA-R3-HC, 2008 WL 4756676, at
*2 (Tenn. Crim. App., at Jackson, Oct. 28, 2008). The lower court summarily dismissed the
petition, and this court affirmed the dismissal by memorandum opinion. Id. at *3. In doing
so, this court noted that we had “previously and repeatedly held that the Mittimus Writ of
Confinement and ‘court’s minute entry’ showing the petitioner was convicted of grand
larceny and sentenced as [a] habitual offender to life imprisonment constitutes a valid
judgment of conviction.” Id. We further noted that “[t]echnical violations related to the
judgment forms and committal documents, even if they existed, would not render the
petitioner’s confinement illegal as long as a valid conviction and resultant legal sentence
were imposed.” Id. This court then upheld the lower court’s summary dismissal of the
petition because the petitioner failed to prove that his judgment was facially void or that his
effective sentence had expired. Id.

       The petitioner again sought habeas corpus relief in a petition filed November 5, 2008,
alleging that his jail credits had been miscalculated. See Marvin Anthony Matthews v. Henry
Steward, Warden, No. W2008-02595-CCA-R3-HC, 2009 WL 2047592, at *3 (Tenn. Crim.
App., at Jackson, July 15, 2009). The lower court summarily dismissed the petition, and this
court affirmed the dismissal by a memorandum opinion. Id. at *4. This court noted that the
petitioner’s “proper avenue for relief regarding the application of jail credit [was] through
the Uniform Administrative Procedures Act.” Id. at *3. Additionally, we noted that the
petitioner asked this court to look beyond the face of the judgment or record, in contravention
of Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004). Id. at *4.

      The petitioner filed the instant petition for habeas corpus relief on January 7, 2010.
The lower court summarily dismissed the petition on February 12, 2010. The petitioner has
appealed.

       Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas
corpus relief and Tennessee Code Annotated sections 29-21-101 et seq. codify the applicable

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procedures for seeking a writ. However, the grounds upon which a writ of habeas corpus
may be issued are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A writ of
habeas corpus is available only when it appears on the face of the judgment or the record of
the proceedings upon which the judgment was rendered that a 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). The purpose of a habeas corpus petition is to contest void
and not merely voidable judgments. Archer, 851 S.W.2d at 163. A void judgment is a
facially invalid judgment, clearly showing that a court did not have statutory authority to
render such judgment; whereas, a voidable judgment is facially valid, requiring proof beyond
the face of the record or judgment to establish its invalidity. See Taylor, 995 S.W.2d at 83.
The burden is on the petitioner to establish, 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). Moreover, it is permissible for a court to summarily dismiss a petition for
habeas corpus relief, without the appointment of counsel and without an evidentiary hearing,
if the petitioner does not state a cognizable claim. See Hickman, 153 S.W.3d at 20.

                                      I. Summary Dismissal
        First, the petitioner argues that the habeas corpus court erred by summarily dismissing
his petition without determining whether the petitioner was indigent for purposes of
appointing counsel. “There is no federal or state constitutional right to counsel in a habeas
corpus proceeding.” Summers, 212 S.W.3d 251, 260 (Tenn. 2007). However, Tennessee
Supreme Court Rule 13 provides that indigent petitioners in habeas corpus proceedings may
be appointed counsel, and Tennessee Code Annotated section 40-14-204 provides that the
habeas court “shall determine the question of indigency and appoint counsel, if necessary[.]”
Under Hickman, if the petitioner does not state a cognizable claim, then the appointment of
counsel is not necessary. See Hickman, 153 S.W.3d at 20. Because the petitioner did not
state a cognizable claim, he was not entitled to the appointment of counsel. We conclude that
it was not error for the habeas corpus court to not determine whether the petitioner was
indigent for purposes of appointing counsel. See Summers, 212 S.W.3d at 260.

                                        II. Judgment Void
        The petitioner further complains that his life sentence is illegal because he did not
receive pretrial jail credit for time served between July 12, 1988 and September 14, 1989.
This claim is nearly identical to the petitioner’s most recent habeas corpus proceeding, in
which this court affirmed the summary dismissal of the habeas corpus proceeding because
the petitioner did not state a cognizable claim for relief. Matthews, 2009 WL 2047592, at
*4. In the previous petition, the petitioner alleged that he should have received pretrial jail
credit for his incarceration between July 23, 1989 and September 14, 1989. Id. at *3. In this
case, the petitioner presents documentation demonstrating that the Shelby County Sheriff

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arrested him on July 12, 1988. The judgment of conviction, as evidenced in the court’s
minutes, is dated December 13, 1988. The judgment of conviction does not indicate whether
the petitioner received any pretrial jail credit. However, “[t]he Mittimus Writ of
Confinement contains a hand-written notation, indicating that the petitioner was given
pretrial jail credit from July 13, 1988 to July 23, 1989.” Matthews, 2009 WL 2047592, at *3.
As this court has previously stated, “to the extent that the petitioner was denied a portion of
his jail credit by mistake of calculation or by oversight, the proper avenue for relief regarding
the application of jail credit is through the Uniform Administrative Procedures Act.” Id.
(citing Tenn. Code Ann. §§ 4-5-101 to -325; Carroll v. Raney, 868 S.W.2d 721, 723 (Tenn.
Crim. App. 1993); Brigham v. Lack, 755 S.W.2d 469, 471 (Tenn. Crim. App. 1988)). The
petitioner’s life sentence has not expired, and he has not shown that his sentence was illegal
or that his judgment is facially void. Cf. Matthews, 2009 WL 2047592, at *4 (“It is clear that
the petitioner has not demonstrated that his judgment is facially void or that his effective
sentence has expired.”). We conclude that the habeas corpus court did not err by summarily
dismissing the petition for failure to state a cognizable claim for relief.

                                    III. Henry and Grimes
        The petitioner contends that his case requires the same relief that this court granted
in State v. Henry, 946 S.W.2d 833 (Tenn. Crim. App. 1997) and Mark Grimes v. State, No.
W2007-00169-CCA-R3-HC, 2008 WL 141129 (Tenn. Crim. App., at Jackson, Jan. 14,
2008). In Henry, the trial court resentenced the petitioner after the supreme court reversed
his sentences and ordered his consecutive sentences to run concurrently. Henry, 946 S.W.2d
at 833-34. Upon resentencing, the trial court only applied pretrial jail credits to one of the
petitioner’s sentences. Id. at 834. This court ruled that the pretrial jail credits issue was
properly before the trial court under the unique circumstances of the case. Id. This court
remanded to the trial court to determine how many, if any, credits to apply to the petitioner’s
concurrent sentence and to amend the judgment as appropriate. Id. at 834-35.

        Following Henry, this court in Grimes concluded that the circumstances were similar
enough to warrant the same relief. Grimes, 2008 WL 141129, at *4. The petitioner in
Grimes was also resentenced following a reversal and remand by this court, and, likewise,
the trial court denied pretrial jail credits to one of the petitioner’s concurrent sentences. Id.
at *3. The facts of this case are not similar to either Henry or Grimes.

        Here, this court reversed several of the petitioner’s convictions but ruled that the
petitioner’s remaining convictions supported his status as a habitual criminal. See Matthews,
1993 WL 46525, at *2; Matthews, 2001 WL 394868, at *2. No court has improperly denied
pretrial jail credits upon resentencing the petitioner; therefore, the circumstances of his case
do not warrant relief under Henry and Grimes. We conclude that the petitioner is without
relief in this matter.

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                                          Conclusion

        When an opinion would have no precedential value, the Court of Criminal Appeals
may affirm the judgment or action of the lower court by memorandum opinion when the
judgment is rendered or the action taken in a proceeding without a jury and such judgment
or action is not a determination of guilt, and the evidence does not preponderate against the
finding of the lower court. See Tenn. Ct. Crim. App. R. 20. We conclude that this case
satisfies the criteria of Rule 20. Accordingly, it is ordered that the state’s motion is granted.
The judgment of the lower court is affirmed in accordance with Rule 20, Rules of the Court
of Criminal Appeals.




                                                   ___________________________________
                                                   J. C. McLIN, JUDGE




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