         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 16, 2005

      JIMMY JENNETT, JR., A/K/A MICHAEL BREWER v. STATE OF
                            TENNESSEE

                     Appeal from the Circuit Court for Rutherford County
                                No. 54027     Don Ash, Judge



                       No. M2004-01414-CCA-R3-HC - Filed May 6, 2005


The petitioner, Jimmy Jennett, Jr., appeals the trial court's dismissal of his petition for writ of habeas
corpus. In this appeal, he asserts that the trial court erred by dismissing the petition because he is
"restrained of his liberty" by virtue of a 1977 Tennessee conviction that was used to increase his
sentence for a 1985 Mississippi conviction. The judgment of the trial court is affirmed.

                   Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T.
WOODALL, JJ., joined.

Gerald L. Melton, District Public Defender, for the appellant, Jimmy Jennett, Jr.

Paul G. Summers, Attorney General & Reporter; David E. Coenen, Assistant Attorney General; and
William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee.

                                               OPINION

        On July 1, 1977, the petitioner, under the name Jimmy Jennette, Jr., entered guilty pleas to
passing worthless checks in case numbers 6760, 6761, and 6977 in Rutherford County. The
judgment forms indicate that the petitioner received concurrent sentences of five years, suspended
upon the payment of costs and repayment of the amount of each check. On January 30, 1985, the
petitioner was convicted in Mississippi under the name Michael Brewer of one count of aggravated
assault upon a law enforcement officer. He was sentenced to thirty years' incarceration as an habitual
offender. The prior convictions utilized for the habitual offender finding were a 1983 Mississippi
conviction for kidnapping and the Tennessee conviction for passing a worthless check in case
number 6760. In Michael Brewer a/k/a Jimmy Jennette, Jr. v. State, 497 So. 2d 821 (Miss. 1986),
the Mississippi supreme court affirmed the petitioner's assault conviction and the habitual offender
sentence.
        On May 2, 2003, the petitioner filed a petition for writ of habeas corpus in case numbers
6760, 6761, and 6977, alleging that the judgments were void because the trial court was without
jurisdiction. He claimed that he did not personally appear before the court, did not sign the guilty
plea and waiver of rights forms, and did not actually enter guilty pleas in those cases. He asserted
that because he did not personally appear, the trial court was without personal jurisdiction to accept
the pleas or impose the sentences. The trial court held an abbreviated hearing solely for the purpose
of determining whether a full evidentiary hearing would be necessary. Neither the state nor the
petitioner presented any proof and the petition was dismissed:

                 I have reviewed this and I do not feel that a hearing is required. I think in
       looking at this document, I'm to look at the face of the judgment and it does not show
       that it's void on its face. . . . So, I'm going to dismiss this petition for habeas corpus.

        In this appeal, the petitioner renews his complaint that the trial court was without personal
jurisdiction because he did not personally appear before the court. The state submits that the trial
court did not err because the petitioner is no longer "restrained of his liberty" as required by statute
and is thus not entitled to habeas corpus relief. The petitioner contends that he is restrained of his
liberty because the prior conviction was used to enhance the sentence he received in Mississippi.

        The writ of habeas corpus is guaranteed by Article 1, section 15 of the Tennessee
Constitution, which provides that "the privilege of the writ of Habeas Corpus shall not be suspended,
unless when in case of rebellion or invasion, the General Assembly shall declare the public safety
requires it." Tenn. Const. art. I, § 15. Although the writ of habeas corpus is constitutionally
guaranteed, it has been regulated by statute for more than a hundred years. See Ussery v. Avery, 222
Tenn. 50, 432 S.W.2d 656, 57 (1968). Our current code provides that "[a]ny person imprisoned or
restrained of liberty, under any pretense whatsoever, except in cases specified in § 29-21-102, may
prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and restraint."
Tenn. Code Ann. § 29-21-101.

         Although the language of the statute is broad, the courts of this state have long held that a
writ of habeas corpus may be granted only when the petitioner has established a lack of jurisdiction
for the order of confinement or that he is otherwise entitled to immediate release because of the
expiration of his sentence. See Ussery, 432 S.W.2d at 658; State ex rel. Wade v. Norvell, 1 Tenn.
Crim. App. 447, 443 S.W.2d 839 (1969). Unlike the federal writ of habeas corpus, relief is available
in this state 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 petitioner or that the sentence of imprisonment has
otherwise expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d
60, 62 (Tenn. 1992). Unlike the post-conviction petition, which would afford a means of relief for
constitutional violations, such as the deprivation of the effective assistance of counsel, the purpose




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of the habeas corpus petition is to contest a void, not merely a voidable, judgment.1 State ex rel.
Newsome v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189 (1969). A petitioner cannot attack a
facially valid conviction in a habeas corpus proceeding. Potts, 833 S.W.2d at 62; State ex rel.
Holbrook v. Bomar, 211 Tenn. 243, 364 S.W.2d 887, 888 (1963).

        The policy behind limiting habeas corpus relief to facially void convictions is "grounded on
the strong presumption of validity that attaches to final judgments of courts of general jurisdiction."
State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000). In Ritchie, our supreme court reiterated the
limited nature of habeas corpus relief:

                 In all cases where a petitioner must introduce proof beyond the record to
         establish the invalidity of his conviction, then that conviction by definition is merely
         voidable, and a Tennessee court cannot issue the writ of habeas corpus under such
         circumstances. Unlike the procedures governing the availability of the federal writ
         of habeas corpus, our procedures do not contemplate that a petitioner may relititgate
         facts in a habeas corpus proceeding. Because a conviction is either void on its face
         for want of jurisdiction, or it is not, the need for an evidentiary hearing in a habeas
         corpus proceeding should rarely arise . . . .

Id.

       As indicated, the petitioner asserts that his convictions are void because he did not personally
appear before the trial court. He claims that because he did not personally appear, the trial court was
without personal jurisdiction. It is his contention that he is restrained of his liberty because the
conviction in case number 6760 was used as one of the predicate offenses to establish his 1985
Mississippi sentence as an habitual offender.

        Recently, in Hickman v. State, 153 S.W.3d 16 (Tenn. 2004), our supreme court addressed
whether a petitioner was entitled to seek habeas corpus relief from a judgment when the sentence
had been fully served but the conviction was used to enhance the sentence for a subsequent offense.
In Hickman, the petitioner pled guilty to one count of possession of marijuana in 1986 and received
a ten-day suspended sentence and a fifty-dollar fine. Some sixteen years later, after being convicted
of a subsequent crime and facing possible sentence enhancement in the United States District Court,
the petitioner filed a petition for writ of habeas corpus, contending that the possibility of sentence
enhancement based upon the 1986 conviction was a restraint on his liberty. Our supreme court


         1
            The Post-Conviction Procedure Act codified at Tennessee Code Annotated sections 40-30-101 thru 40-30-122
describes the procedure for filing a petition for post-conviction relief. The original Post-Conviction Procedure Act of
1967 did not include a statute of limitations. In 1986, the General Assembly adopted a three-year statute of limitations.
See Tenn. Code Ann. § 40-30-102 (repealed 1995). In 1995, our legislature amended the Post-Conviction Procedure
Act such that under our current law, a petitioner must seek post-conviction relief "within one (1) year of the date of the
final action of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year
of the date on which the judgment became final." Tenn. Code Ann. § 40-30-102(a) (2003). Accordingly, a petition for
post-conviction relief is time-barred in this case.

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affirmed the trial court's dismissal of the petition, holding that while a person may be restrained of
liberty without being physically confined, the possibility of future sentence enhancement was not a
restraint of liberty sufficient to permit the filing of a petition for writ of habeas corpus. Id. at 22.
Our high court ruled that a petitioner may seek habeas corpus relief only "when the challenged
judgment itself imposes a restraint upon the petitioner's freedom of action or movement." Id.
Further, the high court held that "[u]se of the challenged judgment to enhance the sentence imposed
on a separate conviction is not a restraint of liberty sufficient to permit a habeas corpus challenge
to the original conviction long after the sentence on the original conviction has expired." Id. at 23.

         In our view, this case is indistinguishable from Hickman. The petitioner, incarcerated for a
Mississippi conviction for which he received a sentence as an habitual offender, seeks habeas corpus
relief from his 1977 Tennessee convictions. The five-year sentence has long since expired. Because
the petitioner is no longer restrained of his liberty as a result of the 1977 convictions, he may not
seek habeas corpus relief. See id.

         In any event, the petitioner has failed to establish that his conviction is void, a requirement
for the grant of habeas corpus relief. He claims that he did not personally appear in the trial court,
insists that he never actually pled guilty to the charges, and asserts that he assumed that they had
been dismissed by virtue of his consent to pay the worthless checks.

         In Ritchie, our supreme court confirmed that "an absence of jurisdiction is cognizable in a
habeas corpus proceeding, and that if the court of conviction was actually without . . . jurisdiction,
then the [petitioner's] conviction is void." Ritchie, 20 S.W.3d at 631. Our high court cautioned,
however, that the petitioner must demonstrate the lack of jurisdiction from the face of the judgment
or record. Id. The high court held that "when a judgment of conviction is alleged to be void for want
of territorial jurisdiction, that fact must appear clearly and indisputably either on the face of the
judgment or in the original trial record." Id. at 633. "[W]hen a court is one of general jurisdiction,
'there is a presumption that nothing shall be intended to be out of its jurisdiction except that which
so appears upon the face of the judgment or in the record of the case in which that judgment is
rendered.'" Id. (quoting Bomar v. State ex rel. Stewart, 201 Tenn. 480, 483, 300 S.W.2d 885, 887
(1957)) (emphasis added by Ritchie).

       In this case, the judgment forms indicate that the defendant personally appeared before the
convicting court. Further, the written plea of guilty provides as follows:

                The defendant appearing in person in this cause, and having been fully
       advised by the Court of the crime charged against him, the punishment which could
       be meted out if the defendant is found guilty, and of his Constitutional rights therein,
       hereby voluntarily pleads guilty to the offense of passing worthless checks 3 cases.
                The defendant also states to the Court that he has been fully informed of all
       of his rights and that after a full explanation of these rights, the defendant wants to
       voluntarily enter a plea of guilty.



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Because it does not "clearly and indisputably" appear from the face of the judgment or the record that
the convicting court was without personal jurisdiction, the convictions are not void. See id. In
consequence, the petitioner, even if he were restrained of his liberty, would not be entitled to habeas
corpus relief.

       Accordingly, the judgment of the trial court is affirmed.



                                                       ___________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




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