        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 13, 2015

          MICHAEL WHITE v. BRUCE WESTBROOKS, WARDEN

                 Appeal from the Criminal Court for Davidson County
                         No. 4818 Monte D. Watkins, Judge



                 No. M2014-02459-CCA-R3-HC – Filed June 23, 2015


The Petitioner, Michael White, appeals the Davidson County Criminal Court’s dismissal of
his petition for habeas corpus relief from his 2005 convictions for five counts of rape and his
fifty-five-year sentence. The Petitioner contends that the habeas corpus court erred by
summarily denying relief. He argues that his convictions are void because his constitutional
right to a jury trial was violated by the trial court’s applying erroneous sentencing
enhancement factors and that principles of double jeopardy were violated by the court’s
merging his convictions. We affirm the judgment of the habeas corpus court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Michael White, Nashville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Glenn Funk, District Attorney General; and Roger Moore, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

       The Petitioner was convicted by a jury of five counts of rape, and the trial court
imposed consecutive sentences of eleven years for each conviction, for an effective fifty-five
years. On appeal, this court affirmed the convictions and the sentences. See State v. Michael
White, No. M2005-01659-CCA-R3-CD, 2006 WL 1931749 (Tenn. Crim. App. July 13,
2006), perm. app. denied (Tenn. Nov. 20, 2006). The Petitioner sought post-conviction
relief, contending that he received the ineffective assistance of counsel. The post-conviction
court denied relief, and this court affirmed the denial. See Michael White v. State, No.
M2007-02157-CCA-R3-PC, 2008 WL 4170028 (Tenn. Crim. App. Sept. 8, 2008).

        In his present habeas corpus petition, the Petitioner contended that his sentences were
illegal and that he had been wrongfully convicted because the prosecution failed to prove
each element of rape relative to each count in the indictment. He also contended that the trial
court illegally merged his convictions, applied improper enhancement factors, and sentenced
him beyond the statutory maximum. Relative to sentencing, he argued that two of the
enhancement factors were elements of the crime and that three factors were “never included
to the jury.” As a result, he claimed he was denied his constitutional right to a trial by jury
and was subjected to “the vulnerability of double jeopardy.” The habeas corpus court
summarily denied relief after finding that the Petitioner failed to show that the judgments
were void or illegal. This appeal followed.

        The Petitioner contends that the habeas corpus court erred by summarily denying
relief. He argues that the trial court sentenced him beyond the statutory maximum by
applying improper enhancement factors and that the court failed to “instruct the jury to
consider these enhancement factors for the purposes of sentencing.” As a result, he asserts
he was denied his constitutional right to a trial by jury. He also contends that the trial court
violated principles of double jeopardy by improperly merging his convictions. The State
responds that the habeas corpus court properly denied relief.

Habeas corpus relief is generally available to “[a]ny person imprisoned or restrained of
liberty” whose judgment is void or whose sentence has expired. T.C.A. § 29-21-101 (2012);
see Tucker v. Morrow, 335 S.W.3d 116, 119-20 (Tenn. Crim. App. 2009). A petitioner has
the burden of proving by a preponderance of the evidence that a judgment is void or that a
sentence has expired. State v. Davenport, 980 S.W.2d 407, 409 (Tenn. Crim. App. 1998). A
void judgment exists if it appears from the face of the judgment or the record that the
convicting court lacked jurisdiction or authority to sentence the defendant or that the
defendant’s sentence has expired. Archer v. State, 851 S.W.2d 157, 161 (Tenn. 1993); see
Moody v. State, 160 S.W.3d 512, 515 (Tenn. 2005). In contrast, “[a] voidable judgment is
one that is facially valid and requires proof beyond the face of the record or judgment to
establish its invalidity.” Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007); see s26 State
v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000).

       Post-conviction relief, not habeas corpus relief, is the appropriate avenue of relief for
certain voidable judgments. T.C.A. § 40-30-103 (2012); see Vaughn v. State, 202 S.W.3d
106, 115 (Tenn. 2006). A habeas corpus court may dismiss a petition for relief without an
evidentiary hearing or the appointment of counsel when the petition fails to state a cognizable
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claim. Yates v. Parker, 371 S.W.3d 152, 155 (Tenn. Crim. App. 2012); see T.C.A. § 29-21-
109 (2012). The question of whether habeas corpus relief should be granted is a question of
law, and this court will review the matter de novo without a presumption of correctness.
Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005).

       The Petitioner’s challenges to his convictions and sentences are based on alleged
constitutional violations of his right to a jury trial and his protection against double jeopardy.
However, this court has recognized that challenges to convictions based on constitutional
violations in the conviction proceedings are issues that should be raised in a petition for post-
conviction relief rather than a habeas corpus petition. Luttrell v. State, 644 S.W.2d 408, 409
(Tenn. Crim. App. 1982); see Fredrick B. Zonge v. State, No. 03C01-9903-CR-00094, 1999
WL 1191542, at *1 (Tenn. Crim. App. Dec. 16, 1999) (stating “[a]lleged violations of
constitutional rights are addressed in post-conviction, not habeas corpus, proceedings”),
perm. app. denied (Tenn. June 26, 2000). The Petitioner has failed to state a cognizable
habeas corpus claim, and he is not entitled to relief.

       In consideration of the foregoing and the record as a whole, we affirm the judgment of
the habeas corpus court.



                                             ______________________________________
                                             ROBERT H. MONTGOMERY, JR., JUDGE




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