                                                                                           10/01/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs June 26, 2018

  STEVEN ANDERSON v. ESCO JARNIGAN, SHERIFF, and STATE OF
                        TENNESSEE

                Appeal from the Criminal Court for Hamblen County
                       No. 17-CR-441 Alex Pearson, Judge


                             No. E2017-02534-CCA-R3-HC


The Petitioner, Steve Anderson, appeals from the Hamblen County Criminal Court’s
dismissal of his petition for a writ of habeas corpus from his 1985 convictions for receiving
and concealing stolen property, possession of engines and transmissions with altered
numbers, arson of an automobile, and escape and his forty-two-year sentence. The Petitioner
contends that the habeas corpus court erred by dismissing his petition and by finding him in
contempt of court, which resulted in a ten-day sentence in confinement. Although the habeas
corpus court erred by dismissing the petition pursuant to the mootness doctrine, we conclude
that the petition fails to state a colorable claim for habeas corpus relief. Furthermore, we
reverse the judgment of the habeas court relative to the contempt determination and dismiss
the charge.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
                    in Part; Reversed in Part; Dismissed in Part

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, J., joined. JOHN EVERETT WILLIAMS, P.J., filed a separate opinion concurring in
part and dissenting in part.

Steven Anderson, Morristown, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant Attorney
General; and Dan E. Armstrong, District Attorney General; and Kim Morrison, Assistant
District Attorney General, for the appellee, State of Tennessee.




                                        OPINION
        The record reflects that the Petitioner was convicted in 1985 of “[b]uying or
possessing vehicle engine and transmission, lack of serial number, carrying burglary
instruments, arson of a vehicle, alternating serial numbers, and escape” and that he received a
forty-two-year sentence.1 The Petitioner received parole in 1995 but was placed in federal
custody until July 1998, at which time he was released from confinement and began
reporting to the Morristown parole office. The Petitioner complied with the terms of his
release until his April 2016 arrest, in relevant part, for driving under the influence (DUI) and
for violating the implied consent law. The Petitioner reported his arrest to his parole officer
within forty-eight hours, and although the DUI charge and the implied consent violation
were ultimately dismissed, the parole board initiated revocation proceedings as a result of the
arrest. The record shows that the determinations of the hearing officer at the first revocation
hearing were overturned on appeal and that at the subsequent revocation hearing on April 21,
2017, the hearing officer determined that the Petitioner consumed alcohol to excess,
recommended revocation of his parole, and agreed to revisit the revocation in July 2017.
The Petitioner states he learned the following month that the parole board followed the
recommendation of the hearing officer and revoked his parole.

        On September 26, 2017, the Petitioner filed the instant petition for a writ of habeas
corpus, which stated that he was “not attacking his sentence” or the rules of parole. The
Petitioner conceded that the habeas corpus court did not have jurisdiction over the Board of
Parole. The petition stated that the Petitioner’s parole officer who testified at the revocation
hearing violated the Petitioner’s constitutional rights. The Petitioner alleged that his parole
officer failed to interview him before submitting a violation report to the parole board and
had ex parte communications with the hearing officer presiding during the first revocation
hearing, which resulted in the Petitioner’s witnesses not being permitted to testify. The
Petitioner asserted that he was “not attacking the parole system . . . however the people doing
their job is what [was] being addressed.” He alleged that he should have received notice
from the parole board before the board met at the county jail and the opportunity to meet
with the members. The Petitioner stated that he was attacking the “personal duties of each
officer of the Parole Board” and alleged that he was denied due process of law after having
been on parole for twenty-one years.


       The habeas corpus court appointed counsel to represent the Petitioner, but the
Petitioner declined counsel’s assistance at an initial court appearance and sought to represent
himself in the habeas corpus proceedings. He informed the habeas corpus court that
although he had again received parole three or four weeks before his initial court appearance,
1
 Although the judgments of conviction were not attached to the petition for relief, transcripts from the Petitioner’s parole
revocation hearings reflect the conviction offenses and effective sentence.

                                                            -2-
he had not been released from confinement and had been confined for eighteen months. The
habeas corpus court scheduled the evidentiary hearing for approximately one month later.

       At the evidentiary hearing, the Petitioner told the habeas corpus court that he had
since been released from confinement and had been returned to parole. When the court
inquired about what relief the Petitioner desired, the Petitioner stated that he wanted the
court to “vacate his sentence.” The Petitioner argued that he was arrested based upon an
“illegal parole violation.” He alleged that “they” had ex parte communications, conspired
against him, and told one of his witnesses that the Petitioner would not be released before the
hearing occurred “because the decision [had] already been made.” He argued that it was
unlawful to determine the outcome of a matter before the hearing was held.

       The habeas corpus court attempted to clarify the “charge” for which the Petitioner
sought a dismissal, and the Petitioner stated that he was not seeking a dismissal of the
charges that led to the parole revocation because he knew those charges had been dismissed.
 The Petitioner said, “I’m talking about the charge of the parole violation . . . The forty-one,
forty-two years for escape. That they violated on it.” The court asked whether the Petitioner
sought a dismissal of the “whole underlying case” for which the Petitioner was on parole,
and the Petitioner responded, “That’s it; that’s all you can do. . . . But when they violated the
laws that put in there, the first charge is what they violated.” He said he had done nothing to
warrant the revocation of his parole.

        The habeas corpus court dismissed the petition for relief pursuant to the mootness
doctrine. The court stated that even if the parole board acted improperly, granting habeas
corpus relief relative to the underlying convictions for which the Petitioner was now on
parole was not appropriate. The court found that the Petitioner had been released from
confinement and had been granted parole by the time of the evidentiary hearing and that as a
result, the Petitioner was not illegally detained. The court found that the Petitioner’s
supporting documentation showed that the Petitioner received a forty-one-year sentence in
1985 and that even if the parole board mishandled the parole violation, habeas corpus relief
was not warranted.

        After the habeas corpus court announced its ruling, the judge told the Petitioner that
he could appeal the court’s determination. The Petitioner stated that he would appeal the
ruling and that everyone would meet again in federal court. The judge stated, “Good Luck to
you, sir,” and the Petitioner responded, “Oh, I’ll need a lot of that. Crooks.” The judge asked
the Petitioner if he wanted to go to jail, but without a response from the Petitioner, the judge
found the Petitioner in contempt of court and instructed the court officer to place the
Petitioner in custody. The judge found that the Petitioner had committed direct contempt of
court, stated he would not tolerate such assertions, and sentenced the Petitioner to ten days’
confinement. This appeal followed.
                                               -3-
                                I.      Habeas Corpus Relief

        The Petitioner asserts that the habeas corpus court erred by dismissing his petition.
The State responds that the court properly denied relief because the petition failed to comply
with the statutory procedural requirements when filing a petition for habeas corpus relief and
failed to state a colorable claim for habeas corpus 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 a
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 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 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).

        As a preliminary matter, the State correctly notes in its brief that the Petitioner did not
attach to his petition the 1985 judgments of conviction for which the Petitioner sought relief.
The formal requirements for a petition for habeas corpus relief are “mandatory and must be
followed scrupulously.” Archer, 851 S.W.2d at 165; see Hickman v. State, 153 S.W.3d 16,
21 (Tenn. 2004). Tennessee Code Annotated section 29-21-107(b) (2012), requires a
petitioner to attach to the petition for habeas corpus relief the judgments of conviction, and
“when such documents from the record of the underlying proceedings are not attached to the
habeas corpus petition, a . . . court may properly choose to dismiss the petition[.]” Summers,
212 S.W.3d at 261.


                                                -4-
        However, the State did not seek a dismissal in the habeas corpus court on the basis
that the Petitioner failed to comply with the statutory procedural requirements. Likewise, the
State did not file a written response to the petition, and its only argument at the evidentiary
hearing was that the petition should be dismissed on the basis of mootness because the
Petitioner was no longer confined. The habeas corpus court never discussed the statutory
procedural requirements at the evidentiary hearing and did not provide the Petitioner with the
opportunity to comply with the requirements. Although a habeas corpus court is permitted to
summarily dismiss a petition for failure to comply with the statutory procedural requirements
or to provide a petitioner an opportunity to comply with the requirements, the court “may
properly choose to adjudicate the petition on the merits.” Hickman, 153 S.W.3d at 21. The
record does not reflect that the court considered the statutory procedural requirements.

       The initial issue before this court is whether the Petitioner’s serving his sentence on
parole renders his petition for a writ of habeas corpus moot or whether serving a sentence on
parole constitutes a restraint of liberty, entitling the Petitioner to seek habeas corpus relief.
The record reflects that the Petitioner had been granted parole and had been released from
confinement before the evidentiary hearing. Upon this court’s own motion, supplemental
briefing was ordered to address the issue. The States concedes in its supplemental brief that
the habeas corpus court erred by determining that the petition for relief was moot because the
Petitioner was no longer confined. We agree with the State.

        In order to obtain habeas corpus relief, a petitioner must be “imprisoned or restrained
of liberty.” T.C.A. § 29-21-101(a). “‘Imprisoned’ refers to actual physical confinement or
detention.” Summers, 212 S.W.3d at 257. “‘Restrained of liberty’ is a broader term and
encompasses situations beyond actual custody.” Id. Our supreme court has acknowledged
that, within the federal courts, “restrained of liberty” has been interpreted to include a
petitioner released on parole because although such a petitioner is not physically imprisoned,
parole “imposes conditions which significantly confine and restrain . . . freedom.” Hickman,
153 S.W.3d at 22-23; see Jones v. Cunningham, 371 U.S. 236, 243 (1963); Wales v. Whitney,
114 U.S. 564, 572 (1885). In Benson v. State, 153 S.W.3d 27, 31 (Tenn. 2004), our supreme
court explained by citing Hickman that “[t]he phrase ‘restrained of liberty’ has generally
been interpreted to include any limitation placed upon a person’s freedom of action,
including such restraints as conditions of parole or probation, or an order requiring a person
to remain in one city.” (emphasis added). “A statutory prerequisite for eligibility to seek
habeas corpus relief is that the petitioner must be ‘imprisoned or restrained of liberty’ by the
challenged convictions.” Benson, 153 S.W.3d at 31; see T.C.A. § 29-21-107(b). The
requirement that a petitioner show he or she is “‘imprisoned or restrained of liberty’ by the
challenged conviction is . . . a requirement that a petitioner have standing . . . [that] operates
independently of a petitioner’s substantive claim of voidness.” James Gregory Watson v.
Howard Carlton, Warden and State of Tennessee, No. E2009-02500-CCA-R3-HC, 2011 WL
862036, at *4 (Tenn. Crim. App. Mar. 14, 2011), perm. app. denied (Tenn. Feb. 15, 2012).
                                               -5-
       In Timmy Herndon v. State, No. W2011-01435-CCA-R3-HC, 2012 WL 5868932, at
*4 (Tenn. Crim. App. Nov. 12, 2012), perm. app. denied (Tenn. Apr. 9, 2013), a panel of this
court determined that the habeas corpus court erred by dismissing a petition for relief as
moot on the ground that the petitioner was serving his sentence on parole at the time the
petition was filed. In relying on Benson and Hickman, the panel determined that the petition
was filed when the petitioner was restrained of his liberty, establishing his standing to pursue
habeas corpus relief for the relevant convictions. Id. We agree with the panel’s
determination and conclude in the present case that the Petitioner’s serving his sentence on
parole does not render his habeas corpus petition moot and that the habeas corpus court erred
by dismissing the petition on this basis.

       Although the State requests in its supplemental brief that this court affirm the habeas
corpus court’s dismissal on the grounds that the Petitioner failed to comply with the statutory
procedural requirements, we have determined that the court did not consider the statutory
procedural requirements when dismissing the petition. Likewise, the State did not argue in
the habeas corpus proceedings that the petition should have been dismissed on this ground.
The only argument by the State at the evidentiary hearing was that the petition was moot
because the Petitioner had been released on parole.

        However, we conclude that the petition for habeas corpus relief fails to state a
colorable claim for relief. The Petitioner stated at the evidentiary hearing that he was not
seeking a dismissal of the parole revocation but rather a dismissal of his underlying
convictions for which he is on parole. The Petitioner alleged that he was arrested upon an
illegal parole violation and that at the revocation hearing, improper conduct occurred and
procedural rules were not followed. However, even if the Petitioner’s allegations were true,
he would not be entitled to habeas corpus relief because these allegations would not render
the underlying judgments of conviction void. Likewise, the Petitioner has failed to show that
the convicting court lacked jurisdiction to impose sentences. As a result, we conclude that
although the habeas corpus court erred by dismissing the petition pursuant to the mootness
doctrine, the Petitioner failed to state a colorable claim for habeas corpus relief. The
Petitioner is not entitled to relief on this basis.


                                 II.    Contempt of Court

       The Petitioner contends that the habeas corpus court erred by finding him in contempt
of court. He argues that the court was dishonest about what the Petitioner said at the end of
the evidentiary hearing. The State responds that the court acted within its discretion by
finding the Petitioner in contempt of court.

                                              -6-
        Tennessee Code Annotated section 29-9-102 (2012), provides the authority to punish
contemptuous conduct in limited circumstances, which includes “willful misbehavior of any
person in the presence of the court, or so near thereto as to obstruct the administration of
justice,” “willful misbehavior of any of the officers of such courts, in their official
transactions,” “willful disobedience or resistance of any officer of the such courts, party,
juror, witness, or any other person, to any lawful writ, process, order, rule, decree, or
command of such courts,” “[a]buse of, or unlawful interference with, the process or
proceedings of the court, “[w]illfully conversing with jurors in relation to the merits of the
cause in the trial of which they are engaged, or otherwise tampering with them,” and “[a]ny
other act or omission declared a contempt by law.” T.C.A. § 29-9-102. “[C]ourts
universally agree that summary contempt powers should be used sparingly, and even then
only in cases of ‘exceptional circumstances.’” State v. Turner, 914 S.W.2d 951, 956-57
(Tenn. Crim. App. 1995) (quoting Harris v. United States, 382 U.S. 162, 164-65 (1965)).
“On appeal following a finding of contempt, . . . the defendant must overcome the
presumption of guilt by demonstrating that the evidence preponderates against the trial
court’s findings.” Daniels v. Grimac, 342 S.W.3d 511, 517 (Tenn. Ct. App. 2010).

        Direct criminal contempt occurs in the presence of the court and may be subject to
summary disposition. Black v. Blount, 938 S.W.2d 394, 398 (Tenn. 1996); State v. Maddux,
571 S.W.2d 819, 821 (Tenn. 1978). In order to impose punishment summarily, the judge
must “[certify] that he or she saw or heard the conduct constituting contempt” and enter a
signed order reciting the facts of the conduct. Tenn. R. Crim. P. 42(a). The conduct
resulting in direct criminal contempt “must have been ‘willful,’ and it must have caused an
actual obstruction to the administration of justice.” Turner, 914 S.W.2d at 956 (internal
citation omitted). Examples of conduct supporting a direct criminal contempt finding
include “disrespectful, unreasonable or contemptuous conduct,” “clamorous and violent
language,” “turbulent conduct . . . as to interrupt the proceedings,” and “loud speaking or
making any noise in the courtroom . . . as to interfere with the procedure of the court[.]” Id.
at 958 (internal citations omitted).



       The habeas corpus court entered a “mittimus” on November 27, 2017, stating the
following relative to the contempt determination:

       The court finds Mr. Steve Anderson in direct contempt for saying that you all
       are “a bunch of crooks” after the court dismissed his habeas corpus petition for
       being moot. The court sentences Mr. Anderson to 10 days in jail for said
       direct contempt.


                                              -7-
        The mittimus entered by the habeas corpus judge failed to comply with the mandate in
Tennessee Criminal Procedure Rule 42(a) requiring the judge to certify that he personally
heard the Petitioner say “that you all are ‘a bunch of crooks’” and that the conduct occurred
in the judge’s presence. A court’s non-compliance with the requirements of Rule 42(a) may
result in an appellate court dismissing a contempt finding based upon insufficient evidence.
See Varley v. Varley, 934 S.W.2d 659, 664 (Tenn. Ct. App. 1996) (dismissing contempt
finding because the record did not specify the contemptuous conduct and because the judge
did not certify that he or she saw or heard the conduct); see also State v. Charles Johnston,
No. E2002-02028-CCA-R3-CD, 2003 WL 23094414, at *4-5 (Tenn. Crim. App. Dec. 30,
2003) (declining to dismiss a contempt finding when the order failed to state whether the
judge saw or heard the contemptuous conduct and whether the conduct occurred in the
judge’s presence as required by Rule 42(a) because the record contained the judge’s “oral
statements” in which the judge identified the “contemptuous conduct and certified that it was
committed in his presence”).

      However, the transcript at the evidentiary hearing reflects the following relevant
conduct:

       THE COURT: . . . So, Mr. Anderson, your petition for habeas corpus is found
       to be moot at this time.
              The Court declines to dismiss the underlying conviction that placed you
       on parole.
              You certainly are free to appeal that decision if you feel like that the
       Court of Appeals---
       THE DEFENDANT: Oh, I’ll appeal it, We’ll all meet again in Federal Court.
       THE COURT: That’ll be all right.
       THE DEFENDANT: Ain’t nothing better.
       THE COURT: Good luck to you, sir.
       THE DEFENDANT: Oh, I’ll need a lot of that. Crooks.
       THE COURT: Do you want to go to the jail? I find Mr. Anderson in
       contempt. Place him in custody.
       THE BAILIFF: Go ahead and have a seat over there (indicating), sir.
       THE COURT: I find Mr. Anderson in direct contempt of this Court. The
       Court will not tolerate such assertions, ten days in custody. All right. Court’s
       adjourned.

        The habeas corpus court’s mittimus stating the conduct for which it found the
Petitioner in contempt is not supported by the transcript from the evidentiary hearing, and the
discrepancy is neither minor nor “technical.” Charles Johnston, 2003 WL 23094414, at *5;
see In re Brown, 470 S.W.3d 433, 450 (Tenn. Ct. App.) (determining that a one-day delay in
entering the contempt order, which “contain[ed] the requisite factual basis,” did not warrant a
                                              -8-
dismissal of the contempt finding pursuant to Rule 42(a)). Tennessee Rule of Appellate
Procedure 24(f) regarding the approval of the record by a trial court judge states the
following:

                The trial judge shall approve the transcript or statement of the evidence
       and shall authenticate the exhibits as soon as practicable after the filing thereof
       . . . . Otherwise the transcript or statement of the evidence and the exhibits
       shall be deemed to have been approved and shall be so considered by the
       appellate court, except in cases where such approval did not occur by reason
       of death or inability to act by the trial judge.

The transcript in this case does not reflect the habeas corpus judge’s signature of approval.
However, the transcript is deemed to have been approved by the judge and to be an accurate
depiction of the statements made by the parties and the judge at the evidentiary hearing. See
T.R.A.P. 24(f).

        The transcript does not reflect that the Petitioner stated “that you all are ‘a bunch of
crooks.’” The Petitioner only said, “Crooks,” and no explanation was provided relative to
whom the Petitioner referred because the court found the Petitioner in contempt without
further inquiry from the Petitioner. The Petitioner states in his brief that he thought about the
Board of Parole and about the previous eighteen months before he said crooks aloud slightly
after the hearing had ended. The Petitioner alleges in his brief that three or four minutes
elapsed after he said, “Oh, I’ll need a lot of that,” but before he said, “Crooks.” Although the
Petitioner’s assertion in his brief is not evidence, it is illustrative of the fact that the transcript
does not reflect the time at which any statement was made during the hearing.

      Because the transcript is inconsistent with the habeas corpus court’s mittimus, we
conclude that the record is insufficient to support court’s determination of direct contempt,
and we dismiss the charge.

      In consideration of the foregoing and the record as a whole, we affirm the habeas
corpus court’s denial of relief, although on an alternative ground, and we reverse the
judgment of the habeas corpus court relative to the contempt determination and dismiss the
charge.


                                               ______________________________________
                                               ROBERT H. MONTGOMERY, JR., JUDGE




                                                 -9-
