         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE

              JOSEPH B. THOMPSON v. RICKY BELL, WARDEN

                    Appeal from the Criminal Court for Sullivan County
                            No. C49,575   R. Jerry Beck, Judge



                    No. E2005-00005-CCA-R3-HC - Filed October 7, 2005


The petitioner, Joseph B. Thompson, filed a petition for a writ of habeas corpus in the Sullivan
County Criminal Court. The trial court summarily dismissed the petition for failure to meet
procedural requirements, which dismissal the petitioner appeals. The State filed a motion requesting
that this Court affirm the trial court’s denial of relief pursuant to Rule 20, Rules of the Court of
Criminal Appeals. Upon review of the record and the parties’ briefs, we conclude that the petition
was properly dismissed. Accordingly, the State’s motion is granted and the judgment of the trial
court is affirmed.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JAMES CURWOOD WITT , JR., J., joined.

Kristi M. Davis, Knoxville, Tennessee, for the appellant, Joseph B. Thompson.

Paul G. Summers, Attorney General and Reporter; and Michelle Chapman McIntire, Assistant
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

       In 2001, the petitioner was convicted by a jury in the Sullivan County Criminal Court of
aggravated robbery and aggravated kidnapping, and he received a total effective sentence of forty
years. This court affirmed his convictions and sentences on direct appeal. See State v. Joseph B.
Thompson, No. E2002-00061-CCA-R3-CD, 2003 WL 1202979, at *1 (Tenn. Crim. App. Mar. 17,
2003). The petitioner was incarcerated in Davidson County.

        Thereafter, while serving the aforementioned sentence, the petitioner filed a petition for a
writ of habeas corpus in the Sullivan County Criminal Court. He alleged that in 1990, he was
convicted of aggravated assault, a Class C felony, and he received a two-year sentence. The
petitioner argues that the statutory minimum sentence he could have received for that offense was
three years; accordingly, his sentence for aggravated assault was void.1 As proof supporting his
allegations, the petitioner included with his petition a “TOMIS” letter from the Tennessee
Department of Correction, showing his conviction and the length of the accompanying sentence.

        The State answered, contending that the petitioner had not met the formal requirements of
a habeas corpus petition. Specifically, the State noted that the petitioner failed to file his petition in
Davidson County, the court closest to where the petitioner was incarcerated. Additionally, the State
claimed that the petitioner did not attach a copy of the contested judgment with his petition, nor did
he verify the petition by affidavit.

        The petitioner responded that he filed in the convicting court because, as a layman, he was
unaware that he must file within the court closest to him. He also responded that he did not include
his judgment of conviction because, despite his efforts, he was unable to obtain a copy of the
judgment. Finally, the petitioner alleged that he did not verify the petition by affidavit because he
had no money and “with no money you can get nothing [notarized].” The petitioner also filed a
“Motion to Alert the Court,” in which he alleged that he had attempted to obtain a copy of his
judgment of conviction to no avail. The petitioner also submitted a verified affidavit to accompany
his habeas corpus petition. Finally, the petitioner alleged that he filed in the convicting court because
that court had all of the relevant records concerning the petitioner’s sentence.

      Upon consideration of the motions, the trial court found that the State’s motion to dismiss
was well taken. Thus, the court dismissed the petitioner’s petition for habeas corpus relief without
conducting an evidentiary hearing. The petitioner now appeals this dismissal.

        The determination of whether to grant habeas corpus relief is a question of law. McLaney
v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). 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).

        Article I, § 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 (2000). 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) (citations omitted).


        1
            See Tenn. Code Ann. § 40-35-112(a)(3) (2003).

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        The procedural requirements for a petition for habeas corpus relief are contained in
Tennessee Code Annotated section 29-21-107 (2000). “Without question, 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). Our review of the record reveals that although the petitioner
verified his application for habeas corpus relief by including an affidavit with a copy of his petition
which he attached to his “Motion to Alert the Court,” he nevertheless failed to include his judgment
of conviction with his petition. Tenn. Code Ann. § 29-21-107(a) and (b)(2). Additionally, the
petitioner failed to file his petition in the court closest to him. Tenn. Code Ann. § 29-21-105 (2000).
Thus, the trial court was authorized to summarily dismiss the habeas corpus petition.

        Moreover, it appears that the petitioner does not contest the legality of his 1990 conviction
for aggravated assault, merely the sentence imposed. However, the record before us reflects that the
petitioner has already served the contested sentence. The petitioner is currently serving a sentence
for a different conviction. Our supreme court has recently held that “a person is not ‘restrained of
liberty’ for purposes of the habeas corpus statute unless the challenged judgment itself imposes a
restraint upon the petitioner’s freedom of action or movement.” Hickman v. State, 153 S.W.3d 16,
23 (Tenn. 2004). Therefore, as the petitioner’s liberty is no longer restrained by the contested
sentence, he may not seek habeas corpus relief from that sentence.

         Finally, we note that the “TOMIS” report the petitioner included in the record indicates that
the contested sentence was imposed in 1990 for an offense which occurred on July 28, 1989. The
1989 Sentencing Reform Act, which provides that the minimum sentence for a Class C felony is
three years, did not go into effect until November 1, 1989. See Tenn. Code Ann. § 40-35-112,
Sentencing Commission Comments (1990). Thus, the petitioner’s sentence was governed by the
Criminal Sentencing Reform Act of 1982. As such, the appellant’s Class C felony conviction for
aggravated assault was punishable by a sentencing range not less than two nor more than ten years
incarceration. See Tenn. Code Ann. § 39-2-101(d) (1988). Ergo, the petitioner would not be entitled
to relief on the merits of his claim.

       Accordingly, the State’s motion is granted. The judgment of the trial court is affirmed
pursuant to Rule 20, Rules of the Court of Criminal Appeals.


                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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