         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs January 8, 2008

      ANTHONY D. CLEMENT v. CHERRY LINDAMOOD, WARDEN

                   Direct Appeal from the Circuit Court for Wayne County
                            No. 14226    Robert Holloway, Judge



                     No. M2007-01684-CCA-R3-HC - Filed April 18, 2008


The pro se petitioner, Anthony D. Clement, appeals the dismissal of his petition for writ of habeas
corpus, arguing that the habeas court erred in summarily dismissing the petition without appointing
counsel. Following our review, we affirm the judgment of the habeas court dismissing the petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and J.C. MCLIN ,
JJ., joined.

Anthony D. Clement, Clifton, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Cameron L. Hyder, Assistant Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

                                               FACTS

        In February 2005, the petitioner was indicted by the Hickman County Grand Jury for rape
of a child, a Class A felony. Pursuant to a negotiated plea agreement, he entered a nolo contendere
plea to statutory rape, a Class E felony, and was sentenced as a career offender to six years at sixty
percent release eligibility. On June 6, 2007, the petitioner filed a petition for writ of habeas corpus
in which he asserted that he lacked a prior felony record and was therefore illegally sentenced as a
career offender. The State responded with a motion to dismiss, arguing that the petition failed to
assert a ground that would entitle the petitioner to habeas corpus relief. The habeas court entered
an order on July 16, 2007, granting the State’s motion for summary dismissal, and the petitioner
thereafter filed a timely notice of appeal to this court.
                                            ANALYSIS

        The petitioner argues that the habeas court erred in summarily dismissing his petition without
the appointment of counsel, violating his due process rights and acting in contempt of Tennessee
Supreme Court Rule 13. The State argues that summary dismissal of the petition was proper because
the petitioner has not met his burden of establishing that the judgment is void or his sentence
expired. We agree with the State.

        Whether the petitioner is entitled to habeas corpus relief is a question of law. Summers v.
State, 212 S.W.3d 251, 255 (Tenn. 2007); Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000). As such,
our review is de novo with no presumption of correctness given to the trial court’s findings and
conclusions. Id.

        It is well-established in Tennessee that the remedy provided by a writ of habeas corpus is
limited in scope and may only be invoked where the judgment is void or the petitioner’s term of
imprisonment has expired. Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007); State v. Ritchie,
20 S.W.3d 624, 629 (Tenn. 2000); State v. Davenport, 980 S.W.2d 407, 409 (Tenn. Crim. App.
1998). The judgment of a court of general jurisdiction is conclusive and presumed to be valid, and
such a judgment can only be impeached if the record affirmatively shows that the rendering court
was without personal or subject matter jurisdiction. Archer v. State, 851 S.W.2d 157, 162 (Tenn.
1993). 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, 212 S.W.3d at 256 (citing
Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)). A petitioner bears the burden of
establishing a void judgment or illegal confinement by a preponderance of the evidence. Wyatt v.
State, 24 S.W.3d 319, 322 (Tenn. 2000). Furthermore, when “a habeas corpus petition fails to
establish that a judgment is void, a trial court may dismiss the petition without a hearing.” Summers,
212 S.W.3d at 260 (citing Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005)).

         The petitioner asserts that he has no prior felonies and, thus, was illegally sentenced as a
career offender. However, as the State points out, the “TOMIS Offender Sentence Letter,” upon
which the petitioner relies in support of this claim, recites only the details of his statutory rape
sentence; it does not list the petitioner’s criminal record or indicate that he has no prior felonies.
There is also no indication from the record that the petitioner did not consent to be sentenced as a
career offender as part of his negotiated plea agreement. Offender classification and release
eligibility are non-jurisdictional and legitimate bargaining tools in plea negotiations between the
State and a defendant. Hoover v. State, 215 S.W.3d 776, 779-80 (Tenn. 2007). In sum, there is
nothing on the face of the judgment or the record of the underlying proceedings to indicate that the
trial court was without jurisdiction to sentence the petitioner as a career offender.

       The petitioner also argues that the habeas court violated Rule 13 of the Rules of the
Tennessee Supreme Court, which governs the appointment, qualifications, and compensation of
counsel for indigent defendants, by summarily dismissing his petition without the appointment of
counsel or holding an evidentiary hearing. However, as our supreme court explained in Summers,
Rule 13, which sets forth the mechanism for the appointment of counsel for indigent defendants,

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does not alter the fact that habeas corpus statutes provide that the appointment of counsel in a habeas
corpus proceeding is within the court’s discretion:

       We clarify, however, that Rule 13 does not create rights; it merely contains the
       procedural mechanism for implementing them. Therefore, an indigent petitioner
       does not have a right to appointed counsel in habeas corpus action except to the
       extent that appointment of counsel is found to be “necessary” within the meaning of
       Tennessee Code Annotated section 40-14-204.

Summers, 212 S.W.3d at 260-61 (citations omitted). Accordingly, we conclude that the habeas court
did not err by dismissing the petition without the appointment of counsel.

                                          CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the summary dismissal of the
petition for writ of habeas corpus.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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