        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON

 MARCUS TERRY, a.k.a MARCUS BENSON, a.k.a. TORIAN BENSON v.
                  TONY PARKER, WARDEN

                    Appeal from the Circuit Court for Lake County
                      No. 11CR9554 R. Lee Moore, Jr., Judge




              No. W2011-00890-CCA-R3-HC - Filed December 20, 2011


The Petitioner, Marcus Terry, appeals the Circuit Court of Lake County’s denial of his pro
se petition for writ of habeas corpus. The State has filed a motion requesting that this Court
affirm the trial court’s denial pursuant to Rule 20 of the Rules of the Court of Criminal
Appeals. Following our review, we grant the State’s motion and affirm the judgment of the
trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and A LAN E. G LENN, JJ., joined.

Marcus Terry, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General, for the Appellee, State of Tennessee.

                              MEMORANDUM OPINION

       On May 11, 1986, the Petitioner pled guilt to four counts of larceny and six counts of
robbery and received an effective sentence of five years. On March 6, 1989, he entered a
guilty plea to two counts of larceny and one count of aggravated assault and received an
effective sentence of three years. On January 4, 1993, the Petitioner pled guilty to theft of
property over $10,000 and was sentenced to four years imprisonment. On April 23, 1993,
he pled guilty to possession of a controlled substance with intent to sell and received an
eight-year sentence. On September 3, 1993, he entered a guilty plea to two counts of
possession of a controlled substance and was sentenced to eight years for one count and four
years for the other count.      All of the 1993 convictions were ordered to be served
concurrently.

        On August 17, 1997, the Petitioner was convicted of two counts of vehicular
homicide. The trial court found the Petitioner to be a career offender and sentenced him to
fifteen years for each conviction. The court ordered the fifteen-year sentences to be served
consecutively to each other and another four-year sentence.

        In August 2002, the Petitioner filed three separate petitions for writs of habeas corpus
challenging the validity of the 1986, 1989, and 1993 convictions. The trial court dismissed
the petitions. The Tennessee Supreme Court affirmed the trial court’s judgment holding that
the challenged convictions and sentences did not constitute a restraint on the Petitioner’s
liberty for purposes of the habeas corpus statute because the sentences expired before he
sought habeas corpus relief. Benson v. State, 153 S.W.3d 27, 32 (Tenn. 2004).

       In May 2006, the Petitioner filed a petition for writ of habeas corpus challenging his
1997 convictions for vehicular homicide and his resulting sentence. He maintained the prior
convictions relied upon by the trial court in enhancing his sentence were void. The trial court
denied the Petitioner’s request for habeas corpus relief, and this Court affirmed the trial
court’s judgment. See Marcus Terry v. Tommy Mills, Warden, No. W2006-01802-CCA-R3-
HC, 2007 Tenn. Crim. App. LEXIS 879 (Tenn. Crim. App., at Jackson, Nov. 20, 2007).

        The Petitioner subsequently filed a petition for writ of habeas corpus claiming that his
1997 convictions for vehicular homicide were void because, in his view, the jury instructions
as to punishment were erroneous, the sentences were enhanced based upon void prior
convictions, and habeas corpus relief was available for sentences that he had completed. The
trial court denied the petition, and this Court affirmed the denial. See Marcus Terry v. Tony
Parker, Warden, No. W2009-00710-CCA-R3-HC, 2009 Tenn. Crim. App. LEXIS 745 (Tenn.
Crim. App., at Jackson, Sept. 3, 2009), perm. to appeal denied (Tenn. Apr. 19, 2010).

       In March 2011, the Petitioner filed a petition for writ of habeas corpus challenging his
1997 convictions and sentences for vehicular homicide. He maintained that the sentences
were based upon void prior convictions and that the trial court erroneously instructed the jury
as to punishment. On March 23, 2011, the trial court entered an order denying the petition.
This appeal followed.

       A prisoner is guaranteed the right to habeas corpus relief under Article I, section 15
of the Tennessee Constitution. See also T.C.A. § 29-21-101, et seq. 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). “Habeas corpus relief is available in Tennessee only when ‘it

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appears upon the face of the judgment or the record of the proceedings upon which the
judgment is rendered’ that a convicting court was without jurisdiction or authority to
sentence a defendant, or that a defendant’s sentence of imprisonment or other restraint has
expired.” Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). “[T]he purpose of a habeas
corpus petition is to contest void and not merely voidable judgments.” Id. at 163. 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.” Taylor, 995 S.W.2d at 83. In contrast,

       a voidable judgment is facially valid and requires the introduction of proof
       beyond the face of the record or judgment to establish its invalidity. Thus, 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.

Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004) (internal citation and quotations omitted);
see also Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (citations omitted). Moreover,
it is the petitioner’s burden to demonstrate, by a preponderance of the evidence, that the
judgment is void or that the confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000).

        If the habeas corpus court determines from the petitioner’s filings that no cognizable
claim has been stated and that the petitioner is not entitled to relief, the petition for writ of
habeas corpus may be summarily dismissed. See Hickman, 153 S.W.3d at 20. Further, the
habeas corpus court may summarily dismiss the petition without the appointment of a lawyer
and without an evidentiary hearing if there is nothing on the face of the judgment to indicate
that the convictions are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.
1994), superseded by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC-
00266, 1998 Tenn. Crim. App. LEXIS 282 (Tenn. Crim. App., at Jackson, Mar. 11, 1998).

       This Court has previously addressed the claims raised by the Petitioner in this appeal
and held that he was not entitled to relief. See Marcus Terry, 2009 Tenn. Crim. App. LEXIS
745, at **10-11. The Petitioner’s claim relating to the propriety of his classification as a
career offender would at most render his sentences voidable, not void. Id. (citing Robert L.
Moore v. Glenn Turner, Warden, No. W2005-01995-CCA-R3-HC, 2006 Tenn. Crim. App.
LEXIS 183, at **7-8 (Tenn. Crim. App., at Jackson, Feb. 28, 2006)). Moreover, habeas
corpus relief is not available for a claim of erroneous jury instructions. Id. at *10 (citing
Bobby A. Davis v. Howard Carlton, Warden, No. E2007-01279-CCA-R3-HC, 2008 Tenn.
Crim. App. LEXIS 64, at **10-11 (Tenn. Crim. App., at Knoxville, Feb. 4, 2008), perm. to
appeal denied (Tenn. Apr. 28, 2008)). The trial court properly denied the Petitioner’s

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petition for writ of habeas corpus.

        When an opinion would have no precedential value, the Court of Criminal Appeals
may affirm the judgment or action of the trial 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 trial judge. 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 trial court is affirmed in accordance with Rule 20, Rules of the Court
of Criminal Appeals.




                                                     _________________________________
                                                     CAMILLE R. McMULLEN, JUDGE




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