        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs January 28, 2014

                 ROGER JOSEPH v. DAVID SEXTON, WARDEN

                   Appeal from the Circuit Court for Bradley County
                    No. M-01-010    Amy Armstrong Reedy, Judge


                No. E2013-02191-CCA-R3-HC - Filed February 12, 2014


Roger Joseph (“the Petitioner”) filed a petition for writ of habeas corpus, asserting, among
other claims, that, due to mental illness, he could not have formed the requisite intent for first
degree murder. The habeas corpus court dismissed his petition without a hearing. The
Petitioner now appeals. After a thorough review of the record and the applicable law, we
affirm the habeas corpus court’s judgment dismissing the Petitioner’s habeas corpus petition.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R. and N ORMA M CG EE O GLE, JJ., joined.

Roger Joseph, pro se, Mountain City, Tennessee, as the appellant.

Robert E. Cooper, Jr., Attorney General and Reporter; and Deshea Dulaney Faughn,
Assistant Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                           Factual and Procedural Background

        On April 25, 2001, the Petitioner pleaded guilty to first degree murder, and the trial
court sentenced the Petitioner to life imprisonment. On February 17, 2010, the Petitioner
filed a pro se petition for post-conviction relief, claiming ineffective assistance of counsel
and that his plea was invalid. The post-conviction court summarily dismissed the petition,
concluding that the petition was untimely and that the Petitioner had filed a previous post-
conviction petition. This Court affirmed the post-conviction court’s summary dismissal. See
Roger Joseph v. State, No. E2010-01891-CCA-R3-PC, 2012 WL 187040, at *4 (Tenn. Crim.
App. Jan. 23, 2012).

       On March 12, 2013, the Petitioner filed for habeas corpus relief, claiming that he had
been denied the right to counsel, due process, and equal protection with respect to his
conviction for first degree murder. He also asserted that, due to mental illness, he could not
have formed the requisite intent for first degree murder. The State filed a motion to dismiss
the Petitioner’s habeas corpus petition, and the habeas corpus court granted the State’s
motion on August 20, 2013. The Petitioner timely filed a notice of appeal.

                                           Analysis

       The decision to grant habeas corpus relief is a question of law, and, thus, our Court’s
standard of review is de novo, with no presumption of correctness. Faulkner v. State, 226
S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000);
Killingsworth v. Ted Russell Ford, Inc., 205 S.W.3d 406, 408 (Tenn. 2006)).

        Under the United States and Tennessee Constitutions, a convicted criminal enjoys the
right to pursue habeas corpus relief. U.S. Const. art. 1, § 9, cl. 2; Tenn. Const. art. I, § 15.
In Tennessee, however, this right has been governed by statute for over a century. See
Ussery v. Avery, 432 S.W.2d 656, 657 (Tenn. 1968); Tenn. Code Ann. § 29-21-101(a) (Supp.
2009) (“Any person imprisoned or restrained of liberty, under any pretense whatsoever,
except in cases specified in subsection (b) and in cases specified in § 29-21-102, may
prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and
restraint.”).

        In Tennessee, the “grounds upon which habeas corpus relief will be granted are very
narrow.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). Moreover, “the 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 v. State, 851 S.W.2d 157, 161-64 (Tenn. 1993)). On
the other hand, “[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) (citing Dykes, 978 S.W.2d at 529). A petitioner must prove that his
or her judgment is void or sentence has expired by a preponderance of the evidence. Wyatt
v. State, 24 S.W.3d 319, 322 (Tenn. 2000).



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       A habeas corpus court may dismiss a petition for habeas corpus relief summarily
“[w]hen the habeas corpus petition fails to demonstrate that the judgment is void.” Hickman
v. State, 153 S.W.3d 16, 20 (Tenn. 2004) (citing Tenn. Code Ann. § 29-21-109 (2000);
Dixon v. Holland, 70 S.W.3d 33, 36 (Tenn. 2002)).

         On appeal, the Petitioner first argues that “the appellate courts of Tennessee have
misconstrued the habeas corpus statutes with the express purpose of denying state and federal
constitutional guarantees.” However, the Petitioner failed to raise this issue in his petition
for habeas corpus relief. Accordingly, this issue is waived. See State v. Turner, 919 S.W.2d
346, 356-57 (Tenn. Crim. App. 1995) (“A party may not raise an issue for the first time in
the appellate court.”); Timmy Charles McDaniel v. David Sexton, E2012-01443-CCA-R3-
HC, 2013 WL 1190813, at *7 (Tenn. Crim. App. Mar. 25, 2013) (concluding that the
petitioner waived an issue on appeal by failing to raise it in his petition for habeas corpus
relief).

        The Petitioner also asserts that his mental illness prevented him from being able to
form the mental state necessary for first degree murder. The State responds that the
Petitioner’s argument does not entitle him to habeas corpus relief. We agree with the State.
The Petitioner’s contention, even if true, at the most would result in a voidable, and not a
void, judgment. As stated above, “[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, 212 S.W.3d at 256 (citing Dykes, 978 S.W.2d at 529). Thus, the Petitioner has
failed to establish that he is entitled to habeas corpus relief. Accordingly, the habeas corpus
court did not err in summarily dismissing the petition.

                                      CONCLUSION

        The Petitioner has not presented any claim which entitles him to habeas corpus relief.
Accordingly, we affirm the habeas corpus court’s order dismissing the Petitioner’s claim for
relief.


                                           ________________________________
                                           JEFFREY S. BIVINS, JUDGE




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