            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   Assigned on Briefs July 15, 2015

               RUSSELL LEAKS v. BRUCE WESTBROOKS, WARDEN

                 Direct Appeal from the Criminal Court for Davidson County
                            No. 4836    Mark J. Fishburn, Judge



                   No. M2014-02324-CCA-R3-HC – Filed December 10, 2015



The Petitioner, Russell Leaks, filed a petition for habeas corpus relief. He contended that
he was entitled to relief because he was arrested without a warrant while he was on
probation. The habeas corpus court summarily dismissed the petition, and the Petitioner
appealed. Upon review, we affirm the judgment of the habeas corpus court.

    Tenn. R. App. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ALAN E. GLENN, JJ., joined.

Russell Leaks, Nashville, Tennessee, Pro se.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Glenn Funk, District Attorney General; and Roger Moore, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                                  OPINION

                                         I. Factual Background

       According to the Petitioner,1 on August 29, 2008, he pled guilty to theft of
property valued more than $1,000 but less than $10,000 and was sentenced to eight years
in the Tennessee Department of Correction (TDOC), which sentence was suspended to
probation. Thereafter, the Petitioner violated the terms of his probation and was taken
into custody on December 8, 2011.

1
    The Petitioner did not attach the judgments of conviction to his petition.
       On October 8, 2012, the Petitioner pled guilty to two counts of identity theft, theft
of property valued more than $1,000 but less than $10,000, and automobile burglary.
State v. Russell Leaks, No. W2013-01136-CCA-R3-CO, 2014 WL 10316777, at *1
(Tenn. Crim. App. at Jackson, May 15, 2014). The Petitioner was sentenced as a career
offender to a total effective sentence of twelve years, which was to be served
concurrently with the aforementioned eight-year sentence. Id.

        In his petition, the Petitioner maintained that on December 30, 2013, TDOC
officials offered him an opportunity to shorten his sentence by participating in a new
program, the “Probation Technical Violator‟s Unit.” After the Petitioner completed the
program, he was issued a “Probation Certificate,” stating that he was to be released for
the eight-year sentence and the twelve-year sentence on June 19, 2014. He was released
on probation on June 19, 2014.

        Thereafter, the Petitioner received a letter, dated July 3, 2014, from Derrick D.
Schofield, the commissioner of the TDOC. The letter, which was hand-delivered by
TDOC officers, advised the Petitioner that the department had determined that he was not
eligible to participate in the program and should turn himself in or he would be
considered to be an escapee.

       The officers informed the Petitioner that they were there to take him into custody.
The Petitioner asked to see an arrest warrant, and the officers advised the Petitioner that
they did not have a warrant. The Petitioner was returned to the custody of the TDOC that
day.

       Subsequently, the Petitioner filed a petition for a writ of habeas corpus, alleging
that he was illegally seized without a warrant and without a hearing and that he remained
incarcerated. The habeas corpus court summarily dismissed the petition, holding that the
Petitioner had failed to allege that the convicting court was without jurisdiction or
authority to sentence him or that his sentence had expired. On appeal, the Petitioner
challenges the habeas corpus court‟s ruling.

                                       II. Analysis

       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, we will review the trial
court‟s findings de novo without a presumption of correctness. Id. Moreover, it is the
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).

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       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).

       The State argues that the petition should be dismissed because the Petitioner failed
to attach copies of the judgments of conviction as mandated by Tennessee Code
Annotated section 29-21-107. Generally, “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). However, despite the Petitioner‟s failure to comply with the
mandatory requirements for a habeas corpus petition, the habeas corpus court did not
dismiss the petition for procedural noncompliance; instead, the habeas corpus court
addressed the petition on the merits. “A habeas corpus court may properly choose to
dismiss a petition for failing to comply with the statutory procedural requirements;
however, dismissal is not required. The habeas corpus court may . . . choose to
adjudicate the petition on its merits.” Hickman v. State, 153 S.W.3d 16, 21 (Tenn. 2004)
(footnote omitted) (citing Tenn. Code Ann. § 29-21-109). Therefore, this court will
address the merits of the Petitioner‟s complaints.

       The Petitioner claims that he should be granted habeas corpus relief because he
was “illegally” returned to the custody of the Tennessee Department of Correction
following a warrantless arrest and after he was denied a hearing. We acknowledge that
our code provides that when an offender is released from custody after successfully
completing a technical violator program, the release may be revoked by the trial court‟s
issuing a warrant for the offender‟s arrest. Tenn. Code Ann. ' 40-20-303; see Tenn.
Code Ann. ' 41-1-117(b) (providing that “[u]pon proper showing by the department that
a prisoner was released in error, the sentencing judge or the judge in the county from
which the individual was released may issue a warrant for the retaking of the prisoner”).
Therefore, the police should have had an arrest warrant before taking the Petitioner into
custody.

       Nevertheless, the Petitioner‟s claim of unlawful arrest, even taken as true, would
not entitle him to habeas corpus relief. This court has explained that “[i]t has long been
established in this jurisdiction that there is no constitutional immunity from an unlawful
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arrest. The fact that an accused has been unlawfully arrested only becomes relevant when
evidence tainted by the arrest is sought to be introduced by the State.” State v.
Dulsworth, 781 S.W.2d 277, 282-83 (Tenn. Crim. App. 1989) (footnote omitted); see
State ex rel. Wood v. Johnson, 393 S.W.2d 135, 136 (Tenn. 1965); Marvin A. Mathews
v. State, No. 02C01-9206-CC-00141 1993 WL 84559, at *1 (Tenn. Crim. App. Mar. 24,
1993). “Consequently, the mere fact an accused‟s arrest was unconstitutional, invalid, or
illegal, standing alone, will not afford the accused relief from his conviction.” State v.
Marvin Kale Ferguson, No. 03C01-9406-CR-00234, 1995 WL 412430, at *1 (Tenn.
Crim. App. at Knoxville, July 12, 1995) (citations omitted); see Jason Martindill v.
Dwight Barbee, Warden, No. W2012-02624-CCA-R3-HC, 2013 WL 6050748, at *3
(Tenn. Crim. App. at Jackson, Nov. 13, 2013); see also Young v. State, 477 S.W.2d 220,
221 (Tenn. Crim. App. 1971) (stating that “a claim of unlawful arrest is not of itself a
violation of a constitutional right requiring an evidentiary hearing” in a post-conviction
proceeding). As the habeas corpus court found, nothing in the record reflects that the
Petitioner‟s sentences have expired or that the trial court was without jurisdiction or
authority to sentence him. Accordingly, we conclude that the habeas corpus court did not
err by summarily denying the petition for habeas corpus relief.

                                    III. Conclusion

      Finding no error, we affirm the judgment of the habeas corpus court.


                                                 _________________________________
                                                 NORMA MCGEE OGLE, JUDGE




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