         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs July 24, 2007

           JERMAINE HUNTER v. HOWARD CARLTON, WARDEN

                  Direct Appeal from the Circuit Court for Johnson County
                             No. 4934 Robert E. Cupp, Judge



                  No. E2007- 00438-CCA-R3-HC - Filed September 27, 2007


The petitioner, Jermaine Hunter, appeals from the circuit court’s summary dismissal of his pro se
petition for writ of habeas corpus. Following our review of the record and applicable law, we affirm
the dismissal of the petition.

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

J.C. MCLIN , J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER and D. KELLY
THOMAS, JR., JJ. joined.

Jermaine Hunter, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe and Benjamin A. Ball,
Assistant Attorneys General; and Victor S. Johnson III, District Attorney General, for the appellee,
State of Tennessee.

                                             OPINION

       In 1995, the petitioner was convicted by jury of first degree murder, and he received a
sentence of life imprisonment with the possibility of parol after service of 25 years. The petitioner’s
convictions and sentences were affirmed on direct appeal. State v. Jermaine Hunter, No.
01C01-9506-CR-00176, 1996 WL 473999 (Tenn. Crim. App., at Nashville, Aug. 22, 1996), perm.
app. denied (Tenn. Feb. 3, 1997). The petitioner was denied post-conviction relief. Jermaine
Lejuane Hunter v. State, No. 01C01-9809-CR-00397, 1999 WL 695555 (Tenn. Crim. App., at
Nashville, Sept. 9, 1999).

       In August 2006, petitioner filed a pro se petition for habeas corpus relief, alleging that his
conviction and sentence was void on the following grounds:

       (1) Tennessee Code Annotated sections 39-13-201 and -202 (1993) (first degree
       murder) were unconstitutionally vague at the time of his conviction and sentence
       because the sections were not “clarified by the addition of the culpable mental state
       element”; (2) the same code provisions were unconstitutional and void because the
       “the state’s power to prosecute first degree murder occurring in a federally-
       subsidized, government-sponsored low income housing project is preempted by
       federal law”; (3) these same code provisions were unconstitutionally vague because
       “the body of the Act is broader than its restrictive caption[,] the Act encompasses
       more than one subject[,] and the body of the Act is in direct conflict with the
       caption”; (4) these same code provisions were unconstitutional “due to the failure of
       the Tennessee General Assembly to read and pass upon them, on three separate days,
       and the failure of the respective speakers of each house to sign the bills in open
       session, with each date appearing in the journal of the House and Senate; (5) his
       conviction and sentence were imposed by a judge not authorized by Article VI,
       section 4 of the Tennessee Constitution to do so because the judge was not a resident
       of the judicial district within the past year or a resident of the state within the past
       five years; (6) and the “use of at-large, circuit-wide elections for judges of the 20th
       Judicial Circuit of Tennessee in 1993 diluted the voting strength of African-
       American residents of Davidson County and had a discriminatory result that
       permeated this entire trial and rendered the judgment void.”

In its order, the Johnson County Circuit Court dismissed the petition, finding no cognizable claim
for relief. The petitioner appealed.

         Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas corpus
relief. Tennessee Code Annotated sections 29-21-101 through 29-21-130 codify the applicable
procedures for seeking a writ. However, the grounds upon which a writ of habeas corpus may be
issued are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A writ of habeas corpus
is available only when it appears on the face of the judgment or the record of the proceedings upon
which the judgment was rendered that a court was without jurisdiction to convict or sentence the
defendant or that the defendant is still imprisoned despite the expiration of his sentence. See
Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007); Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). The purpose of a habeas corpus petition is
to contest void and not merely voidable judgments. Archer, 851 S.W.2d at 163. A void judgment
is a facially invalid judgment, clearly showing that a court did not have statutory authority to render
such judgment; whereas, a voidable judgment is facially valid, requiring proof beyond the face of
the record or judgment to establish its invalidity. See Taylor, 995 S.W.2d at 83. The burden is on
the petitioner to establish, 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). Moreover, it is
permissible for a court to summarily dismiss a petition for habeas corpus relief, without the
appointment of counsel and without an evidentiary hearing, if the petitioner does not state a
cognizable claim. See Summers, 212 S.W.3d at 260; Hickman v. State, 153 S.W.3d 16, 20 (Tenn.
2004).




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        Upon review, we determine that the petitioner is not entitled to habeas corpus relief. It is
clear that the petitioner has not met his burden of proof in showing either a void judgment or an
expired sentence. Each of the petitioner’s six claims require proof beyond the judgment of
conviction. Moreover, nothing in the available record supports the petitioner’s claims. As noted:

       The petitioner bears the burden of providing an adequate record for summary review
       of the habeas corpus petition, including consideration of whether counsel should be
       appointed. In the case of an illegal sentence claim based on facts not apparent from
       the face of the judgment, an adequate record for summary review must include
       pertinent documents to support those factual assertions. When such documents from
       the record of the underlying proceedings are not attached to the habeas corpus
       petition, a trial court may properly choose to dismiss the petition without the
       appointment of counsel and without a hearing.

Summers, 212 S.W.3d at 261. Again, the judgment must be void on its face before it can be attacked
by a petition for writ of habeas corpus. See, e.g., Passarella v. State, 891 S.W.2d 619 (Tenn. Crim.
App. 1994). As the petitioner failed to assert a claim that would entitle him to habeas corpus relief,
the circuit court’s summary dismissal of the petitioner’s habeas corpus petition was proper.

       Upon due consideration of the pleadings, the record, and the applicable law, this court
concludes that the petitioner has not established a cognizable claim for habeas corpus relief. The
judgment dismissing the petition for writ of habeas corpus is affirmed.




                                                       ___________________________________
                                                       J.C. McLIN, JUDGE




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