                                                                                         01/10/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs October 3, 2017

                JULIUS PERKINS v. MIKE PARRIS, WARDEN

                   Appeal from the Circuit Court for Lake County
                    No. 16-CR-10262 R. Lee Moore, Jr., Judge
                     ___________________________________

                           No. W2016-02341-CCA-R3-HC
                       ___________________________________

The Petitioner, Julius Perkins, appeals the Lake County Circuit Court’s summary denial
of his petition for a writ of habeas corpus, seeking relief from his conviction of first
degree felony murder and resulting life sentence. On appeal, the Petitioner alleges that
his conviction is void because of a faulty indictment and that the court erred by
dismissing his petition without appointing counsel. Based upon the record and the
parties’ briefs, we affirm the judgment of the habeas corpus court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ALAN E. GLENN, JJ., joined.

Julius Perkins, Mountain City, Tennessee, Pro se.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; and C. Phillip Bivens, District Attorney General, for the appellee, State
of Tennessee.

                                       OPINION

                                I. Factual Background

       In March 2002, the Davidson County Grand Jury indicted the Petitioner for first
degree premeditated murder and first degree felony murder. With regard to the felony
murder charge, the indictment alleged that on December 9, 2001, the Petitioner “did kill
Ron Palmer during the perpetration of or attempt to perpetrate robbery, in violation of
Tennessee Code Annotated § 39-13-202, and against the peace and dignity of the State of
Tennessee.” In October 2002, a jury found the Petitioner guilty of that offense but
acquitted him of first degree premeditated murder. This court affirmed the Petitioner’s
conviction on direct appeal, State v. Julius Q. Perkins, No. M2003-01761-CCA-R3-CD,
2005 WL 49339 (Tenn. Crim. App. at Nashville, Jan. 6, 2005), perm. app. denied, (Tenn.
Oct. 31, 2005), and the post-conviction court’s denial of his petition for post-conviction
relief, Julius Perkins v. State, No. M2011-00522-CCA-R3-PC, 2012 WL 1484193 (Tenn.
Crim. App. at Nashville, Apr. 24, 2012), perm. app. denied, (Tenn. Aug. 15, 2012).

        On September 29, 2016, the Petitioner filed a pro se petition for a writ of habeas
corpus, asserting that he was entitled to relief because the indictment failed to allege that
he committed first degree felony murder “with the intent to commit the enumerated
offense[]” as required by the felony murder statute or, in the alternative, failed to cite the
statutory subsections for first degree felony murder, Tennessee Code Annotated section
39-13-202(a)(2) and (b). The Petitioner also asserted that he was entitled to relief
because the indictment failed to cite the statutory code for the underlying felony of
robbery and failed to charge him with a separate count of robbery. The Petitioner
claimed that the indictment was so defective as to deprive the trial court of jurisdiction,
thus, rendering his conviction void. In support of his claim, he attached the indictment to
the petition. On October 25, 2016, the habeas corpus court summarily denied the
petition, stating that the indictment “does not appear to be void or illegal.”

                                        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).

       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).
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       Typically, challenges to an indictment are not proper for a habeas corpus action.
Haggard v. State, 475 S.W.2d 186, 187-88 (Tenn. Crim. App. 1971). However, our
supreme court has held that “the validity of an indictment and the efficacy of the resulting
conviction may be addressed in a petition for habeas corpus when the indictment is so
defective as to deprive the court of jurisdiction.” Dykes v. Compton, 978 S.W.2d 528,
(Tenn. 1998). It is undisputed that a valid indictment is essential to establish jurisdiction
for prosecution. Id. Generally, an indictment is valid if the information contained therein
provides sufficient information “(1) to enable the accused to know the accusation to
which answer is required, (2) to furnish the court adequate basis for the entry of a proper
judgment, and (3) to protect the accused from double jeopardy.” State v. Hill, 954
S.W.2d 725, 727 (Tenn. 1997). Moreover, our supreme court has concluded that there is
no need to conform to traditionally strict pleading requirements which are fraught with
empty technicalities. Id. at 727-28.

        The Petitioner maintains on appeal that the indictment was fatally defective
because it (1), failed to allege that he committed first degree felony murder “with the
intent to commit the enumerated offense” of robbery or, in the alternative, failed to cite
the statutory subsections for first degree felony murder, Tennessee Code Annotated
section 39-13-202(a)(2) and (b); (2), failed to cite the statutory code for the underlying
felony of robbery; and (3), failed to charge him with a separate count of robbery. As
noted by the State, though, this court addressed similar claims in Edgar Bailey, Jr. v.
Dwight Barbee, Warden, No. W2012-01729-CCA-R3-HC, 2013 WL 865329, at *4
(Tenn. Crim. App. at Jackson, Mar. 5, 2013). In that case, this court “observed ‘that a
felony murder indictment must allege that the killing was committed during the
perpetration of a felony, but specific allegations of the elements and facts of the
underlying felony are unnecessary.’. . . The State [is] not required to charge the elements
of robbery or cite to those statutes in the indictment.” (quoting State v. Alfonzo E.
Anderson, No. W2000-00737-CCA-R3-CO, 2002 WL 1558491, at *2 (Tenn. Crim. App.
at Jackson, Jan. 9, 2002). Moreover, when a petitioner has been indicted for felony
murder committed during the commission of a robbery, “the requisite intent can be
gleaned from the robbery statute.” Id.

        Like the indictment in Edgar Bailey, Jr., the indictment in the present case tracked
the language of the felony murder statute, specifically referred to the statute, named the
underlying felony, stated the date of the offense, and identified the victim; thus, it
satisfied the constitutional and statutory requirements of Hill. Id. Accordingly, the
Petitioner was notified of the offense charged, and the habeas corpus court properly
denied the petition. See id.



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        The Petitioner also contends that the court erred by dismissing his petition without
appointing counsel. However, a petition that fails to state a cognizable claim may be
summarily dismissed by the habeas corpus court “without appointment of counsel,
without an evidentiary hearing, and without the opportunity to amend the petition, if,
from the face of the petition, the reviewing court finds nothing to indicate that the
appellant’s challenged convictions might be void.” Earl Thomas Mitchell, Jr. v. Howard
Carlton, Warden, No. 03C01-9704–CR-0125, 1998 WL 8505, at *2 (Tenn. Crim. App. at
Knoxville, Jan. 12, 1998) (citing Tenn. Code Ann. § 29-21-109). Therefore, the court did
not err by summarily denying the petition.

                                     III. Conclusion

      Based upon the record and the parties’ briefs, we affirm the judgment of the
habeas corpus court.



                                                 _________________________________
                                                 NORMA MCGEE OGLE, JUDGE




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