           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                 Assigned on Briefs September 12, 2007

                      DEMARCUS SMITH v. STATE OF TENNESSEE

                     Direct Appeal from the Circuit Court for Lauderdale County
                              No. 6119 Joseph H. Walker, III, Judge



                        No. W2007-00540-CCA-R3-HC - Filed August 18, 2008


The petitioner, Demarcus Smith, pro se, appeals the summary dismissal of his “petition for writ of
habeas corpus to correct illegal sentence.” He contends his sentence is illegal because a Range I,
standard offender cannot be required to serve one hundred percent before release eligibility. After
review, we conclude the judgment is facially valid and the summary dismissal is affirmed.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID H. WELLES and
ALAN E. GLENN , JJ., joined.

Demarcus Smith, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
and D. Michael Dunavant, District Attorney General, for the appellee, State of Tennessee.

                                                        OPINION

        The judgment under attack reveals the petitioner, at age nineteen, pled guilty to second
degree murder (Class A felony) and received a sentence of seventeen years and six months in the
Tennessee Department of Correction. The judgment designates the petitioner as a violent offender
and requires one hundred percent service of his sentence before he is eligible for release. The
petitioner contends he is a Range I, standard offender and, therefore, cannot be required to serve one
hundred percent of his sentence.1

        The petitioner unsuccessfully petitioned for post-conviction relief. Demarcus Sheriff Smith
v. State, No. W2001-01353-CCA-R3-PC, 2002 Tenn. Crim. App. LEXIS 189, *17 (Tenn. Crim.
App. Mar. 8, 2002, at Jackson). On May 2, 1999, the petitioner shot the victim and pointed the
murder weapon at a second victim. On July 20, 1999, the petitioner pled guilty to second degree
murder and aggravated assault.

       1
           It is difficult to decipher the petitioner’s brief and petition because he is a pro se litigant.
                                              Analysis

         Under Tennessee’s sentencing system, a petitioner’s prior convictions may require service
of more time and extend the percentage of time served before release eligibility can be obtained.
T.C.A. § 40-35-114(1). However, the range classification of one pleading or found guilty of second
degree murder only relates to the minimum amount of time to be served, not the percentage of time
to be served before reaching eligibility for release. The percentage of service required before one
is eligible for release on a charge of second degree murder is one hundred percent, as provided in
Tennessee Code Annotated section 40-35-501(b)(i)(1).

         “Any 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 (2000). Tennessee courts have
long held that the writ of habeas corpus may be granted only when the petitioner has established a
lack of jurisdiction for the order of confinement or is otherwise entitled to immediate release because
of the expiration of his sentence. State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37 (1868). Relief
is available 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. Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). The purpose of a state habeas
petition is to contest a void, not merely a voidable, judgment. Summers v. State, 212 S.W.3d 251,
261 (Tenn. 2007).

        The judgment under attack is facially valid and correct, given the petitioner’s conviction.
The petitioner’s allegations do not allege a void judgment; therefore, the habeas corpus court did not
err in dismissing his claim.

                                             Conclusion

        Based on the foregoing and the record as a whole, we affirm the summary dismissal of the
petition.




                                                       ___________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




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