        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs January 26, 2010

            ROBERT M. WINTERS v. JIM MORROW, WARDEN

                   Appeal from the Circuit Court for Bledsoe County
                    No. 2009-CR-17 Thomas W. Graham, Judge


                  No. E2009-01334-CCA-R3-HC - Filed June 7, 2010


The pro se Petitioner, Robert M. Winters, appeals as of right from the Bledsoe County
Circuit Court’s order summarily dismissing his petition for a writ of habeas corpus attacking
his convictions for felony murder and aggravated robbery. He alleges that his indictment is
void for failing to charge an offense. Following our review, we affirm the judgment of the
habeas corpus court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and N ORMA M CG EE O GLE, J., joined.

Robert M. Winters, Pikeville, Tennessee, Pro Se.

Robert E. Cooper, Attorney General and Reporter; and Leslie E. Price, Assistant Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

       The Petitioner was convicted by a Hamilton County jury of premeditated first degree
murder, felony murder and aggravated robbery. The trial court merged the murder
convictions and imposed concurrent sentences of life imprisonment and twelve years. On
direct appeal, this court reversed the premeditated first degree murder conviction but
affirmed the remaining convictions for felony murder and aggravated robbery, as well as the
sentence. State v. Winters, 137 S.W.3d 641 (Tenn. Crim. App. 2003). The Petitioner filed
an untimely petition for post-conviction relief, which was dismissed by the trial court. This
court affirmed the dismissal on appeal. Robert Michael Winters v. State, No. E2005-01349-
CCA-R3-PC, 2005 WL 3479506 (Tenn. Crim. App. Dec. 20, 2005), perm. app. denied
(Tenn. May 1, 2006).
       The Petitioner filed his first petition for a writ of habeas corpus alleging, in part, that
his indictment for aggravated robbery and felony murder failed to state an offense.
Following a summary dismissal by the habeas corpus court, this court concluded relative to
the sufficiency of the indictment that the petition failed to state a cognizable claim and
affirmed the dismissal. Robert M. Winters v. Cherry Lindamood, Warden, and State of
Tennessee, No. M2007-02699-CCA-R3-HC, 2009 WL 774479, at *3 (Tenn. Crim. App.
Mar. 25, 2009).

       The Petitioner filed this second petition on May 26, 2009. In this petition, the
Petitioner makes the same claims regarding the insufficiency of the indictment that were
raised in the first petition. Accordingly, the habeas corpus court summarily dismissed the
petition on June 10, 2009. This timely appeal followed.

        In Tennessee, the grounds upon which habeas corpus relief may be granted are very
narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The writ will issue only when the
petitioner has established lack of jurisdiction for the order of confinement or that he is
otherwise entitled to immediate release because of the expiration of his sentence. See Ussery
v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell, 443 S.W.2d 839
(Tenn. Crim. App. 1969). The purpose of the habeas corpus petition is to contest a void, not
merely a voidable, judgment. State ex rel. Newsome v. Henderson, 424 S.W.2d 186, 189
(Tenn. 1968). A void, as opposed to a voidable, judgment is “one that is facially invalid
because the court did not have the statutory authority to render such judgment.” Summers
v. State, 212 S.W.3d 251, 256 (Tenn. 2007). A petitioner bears the burden of establishing
a void judgment or illegal confinement by a preponderance of the evidence. See Wyatt v.
State, 24 S.W.3d 319, 322 (Tenn. 2000). A court may summarily dismiss a petition for
habeas corpus relief, without the appointment of counsel and without an evidentiary hearing,
if the petition does not state a cognizable claim. See Hickman v. State, 153 S.W.3d 16, 20
(Tenn. 2004).

        “[I]t is a fundamental principle of law that the remedy of habeas corpus may not be
used to resurrect and relitigate matters which have been raised and determined in a prior suit
for habeas corpus, a prior suit for post-conviction relief, or on direct appeal unless a change
in the law renders the petitioner’s conviction void.” Freddie Olden v. David Mills, Warden
and the State of Tennessee, No. 332, 1991 WL 59366, at *2 (Tenn. Crim. App. at Knoxville
Apr. 12, 1991) (citing State ex rel. Brown v. Newell, 391 S.W.2d 667, 670 (Tenn. 1965);
State ex rel. Leighton v. Henderson, 448 S.W.2d 82, 89 (Tenn. Crim. App. 1969); State ex
rel. Smith v. Henderson, 447 S.W.2d 880, 882 (Tenn. Crim. App. 1969); Morgan v. State,
445 S.W.2d 477, 478 (Tenn. Crim. App. 1969); State ex rel. Carroll v. Henderson, 443
S.W.2d 689, 692 (Tenn. Crim. App. 1969)). There has been no such change of law which

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would render the Petitioner’s judgment or conviction void in this case.

                                      CONCLUSION

       Accordingly, upon due consideration of the pleadings, the record, and the applicable
law, the court concludes that the Petitioner has not established that he is entitled to habeas
corpus relief. The judgment of the habeas corpus court is affirmed.




                                           _______________________________________
                                                 D. KELLY THOMAS, JR., JUDGE




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