        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs January 6, 2015

       THOMAS EDWARD KOTEWA v. BRENDA JONES, WARDEN

                 Appeal from the Circuit Court for Lauderdale County
                      No. 6765    Joe H. Walker, III, Judge



               No. W2014-01290-CCA-R3-HC - Filed March 19, 2015



Pro se petitioner, Thomas Edward Kotewa, appeals the summary dismissal of his petition
for habeas corpus relief by the Lauderdale County Circuit Court. In this appeal, the
Petitioner argues that the habeas corpus court erred in denying his petition because the
trial court lacked subject matter jurisdiction to accept his plea of guilty. Upon our
review, we affirm the judgment of the habeas court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ALAN E. GLENN
and ROGER A. PAGE, JJ., joined.

Thomas Edward Kotewa, Henning, Tennessee, pro se.

Robert E. Cooper, Attorney General and Reporter; Michelle Consiglio-Young, Assistant
Attorney General; Mike Dunavant, District Attorney General; and Sandra N. Donaghy,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

        On December 10, 2005, the Petitioner shot and killed Lashaun Terrance Mims,
the victim, in an apparent dispute over drugs. Sometime later, in a statement taken by
investigating detectives, the Petitioner admitted to killing the victim and claimed self-
defense. On November 6, 2006, the Petitioner pleaded guilty to second-degree murder
and received a sentence of fifteen years‟ incarceration. Nearly eight years later, on June
20, 2014, the Petitioner filed a twelve-page, handwritten petition seeking habeas corpus
relief. As grounds for habeas relief, the Petitioner argues that his indictment was void
because exculpatory evidence was withheld from the grand jury in violation of Brady v.
Maryland, 373 U.S. 83 (1963); therefore, the trial court lacked subject matter jurisdiction
to accept his guilty plea. He further argues that his guilty plea was not knowingly and
voluntarily entered because he was not aware of this information prior to his guilty plea.
The information the Petitioner alleges was improperly withheld includes various
statements from eyewitnesses, narrative police reports, crime scene measurements, non-
specified crime scene photos, DNA and 911 reports, and the autopsy report. The State
argues that the trial court properly dismissed the petition, and we agree.

       “The determination of whether habeas corpus relief should be granted is a question
of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21
S.W.3d 901, 903 (Tenn. 2000)). Therefore, our review of the habeas corpus court‟s
decision is de novo. Hart, 21 S.W.3d at 903.

       A prisoner is guaranteed the right to habeas corpus relief under Article I, section
15 of the Tennessee Constitution. Tenn. Const. art. I, § 15; see T.C.A. §§ 29-21-101 to –
130. 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 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) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 337 (1868)). “[T]he
purpose of a habeas corpus petition is to contest void and not merely voidable
judgments.” Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel. Newsom
v. Henderson, 424 S .W.2d 186, 189 (Tenn. 1968)). “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 (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998); Archer, 851
S.W.2d at 161–64). However, as the Tennessee Supreme Court stated in Hickman v.
State:

       [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.

153 S.W.3d 16, 24 (Tenn. 2004) (internal citations, quotations, and emphasis omitted);
see Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (citation omitted). Moreover,
it is the petitioner‟s burden to demonstrate, by a preponderance of the evidence, that the
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judgment is void or that the confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000). If this burden is met, the Petitioner is entitled to immediate release. State
v. Warren, 740 S.W.2d 427, 428 (Tenn. Crim. App. 1986) (citing Ussery v. Avery, 432
S.W.2d 656, 658 (Tenn. 1968)).

        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 WL 104492, at *1 n.2
(Tenn. Crim. App., at Jackson, Mar. 11, 1998). “The petitioner bears the burden of
providing an adequate record for summary review of the habeas corpus petition,
including consideration of whether counsel should be appointed.” Summers, 212 S.W.3d
at 261.

       Here, the habeas court properly dismissed the petition because it failed to state a
cognizable claim for relief. This court has repeatedly held that an alleged failure to
disclose evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), is not a proper
basis for a habeas corpus petition. See Lowe v. Fortner, No. E2011-00048-CCA-R3-HC,
2012 WL 1080274, at *3 (Tenn. Crim. App. Mar. 30, 2012); Ronald Eugene Gilmore v.
Kenneth Locke, Warden, No. M2005-01235-CCA-R3-HC, 2006 WL 1097493, at *3
(Tenn. Crim. App. Mar. 30, 2006). This is true because to prove such an allegation
requires proof beyond the face of the judgment, which is outside the scope of habeas
corpus review. The Petitioner additionally argues that the failure to disclose the alleged
exculpatory information resulted in an involuntary and unknowing guilty plea. However,
challenges to the validity of a guilty plea render a conviction voidable, not void. Luttrell
v. State, 644 S.W.2d 408, 409 (Tenn. Crim. App. 1982). The appropriate vehicle for
attacking a facially valid judgment based on a constitutional violation is a timely petition
for post-conviction relief, which the Petitioner apparently failed to pursue. See Luttrell,
644 S.W.2d at 409.

       The Petitioner has not established that his judgment is void or that his sentence has
expired. Accordingly, the habeas corpus court‟s summary dismissal of the petition for a
writ of habeas corpus relief was proper.




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                                 CONCLUSION

We affirm the dismissal of the petition for writ of habeas corpus.


                                           _________________________________
                                           CAMILLE R. MCMULLEN, JUDGE




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