                                                                                          03/11/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs March 5, 2019

         VERNON CHARLES PATTON V. STATE OF TENNESSEE

                Appeal from the Criminal Court for Shelby County
              No. 17-05076, 18-01030 John Wheeler Campbell, Judge
                      ___________________________________

                           No. W2018-01835-CCA-R3-HC
                       ___________________________________

Vernon Charles Patton, Petitioner, seeks habeas corpus relief from a pending indictment
for which he is being held on bail awaiting trial. The habeas corpus court summarily
dismissed the petition because the petition failed to comply with the mandatory
procedural requirements for filing for habeas corpus relief and failed to state a cognizable
claim. We affirm.


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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and ROBERT H. MONTGOMERY, JR., JJ., joined.

Vernon Charles Patton, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Stacy M. McEndree,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

      On March 1, 2018, the Shelby County Grand Jury indicted Petitioner for
aggravated rape. His bail was set at $100,000. Petitioner was incarcerated in the Shelby
County jail awaiting trial when he filed his petition for writ of habeas corpus. As best as
we can determine from his pro se petition and the muddled attachments thereto, Petitioner
claims that law enforcement acted without probable cause in obtaining a search warrant
and in arresting Petitioner for aggravated rape.1

       By order entered October 17, 2018, the habeas corpus court summarily dismissed
the petition, finding that the petition failed to state a cognizable claim and failed to
comply with the mandatory procedural requirements of Tennessee Code Annotated
section 29-21-107. Petitioner’s notice of appeal was filed prematurely, but pursuant to
Tennessee Rule of Appellate Procedure 4(d) we will treat it as filed after the order
denying his petition was entered.

        On appeal, Petitioner challenges the habeas corpus court’s order dismissing his
petition, asserting that his incarceration did not need to “be proven with ‘paperwork,’”
that the order “lack[ed] meaningful consideration of the facts presented” regarding his
arrest and subsequent indictment, and that habeas corpus relief is “available as a remedy
for constitutional due process violations.”

       As the State correctly avers in its brief:

              In Tennessee, “[a]ny person imprisoned or restrained of liberty,
       under any pretense whatsoever, . . . may prosecute a writ of habeas corpus,
       to inquire into the cause of such imprisonment and restraint.” Tenn. Code
       Ann. § 29-21-101(a). Although the language of the statute is broad,
       “successful prosecution of the writ . . . has long been limited to showing
       that the original judgment of conviction was void due to a lack of
       jurisdiction by the convicting court or to showing that the sentence has
       expired.” State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000).

        Habeas corpus relief may only be granted in limited circumstances. Edwards v.
State, 269 S.W.3d 915, 920 (Tenn. 2008). “[T]he 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. Newsome v. Henderson, 424 S.W.2d 186, 189 (Tenn.
1968)). The Tennessee Supreme court previously held that:

             [h]abeas corpus relief is available in Tennessee only when ‘it
       appears upon the face of the judgment or the record of the proceedings
       upon which the judgment is rendered’ that a convicting court was without



       1
         The documents attached to the petition consist of various Memphis Police Department records,
the arrest warrant, the search warrant, the search warrant affidavit, and a DNA Sample Release. The
documents contain numerous handwritten comments by Petitioner.
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      jurisdiction or authority to sentence a defendant, or that a defendant’s
      sentence of imprisonment or other restraint has expired.

Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (quoting State v. Galloway, 45 Tenn.
(5 Cold.) 326, 336-37 (1868)). A petitioner bears the burden of establishing by a
preponderance of the evidence that a judgment is void or that the confinement is illegal.
Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). A habeas corpus petition may be
summarily dismissed without a hearing when the 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). “Whether habeas corpus relief should be granted is a question
of law[,]” which we review de novo. Edwards, 269 S.W.3d at 919.

        Because a habeas corpus court may examine the record, including the indictment,
a petition for writ of habeas corpus may be used to challenge a defective indictment after
a judgment of conviction is entered to determine whether a judgment is void because “the
indictment was so defective as to deprive the court of jurisdiction.” Dykes v. Compton,
978 S.W.2d 528, 529 (Tenn. 1998).

       Petitioner did not attach to his petition any judgment depriving him of his liberty
because he has not been convicted of an offense and there is no such judgment.
Petitioner cannot establish that his sentence has expired because he has not been
sentenced. As the habeas corpus court stated, “Habeas [c]orpus is not available as a
substitute for trial.”

      Petitioner has failed to prove that the habeas corpus court erred in summarily
dismissing the petition. The judgment of the habeas corpus court is affirmed.


                                                _________________________________
                                                ROBERT L. HOLLOWAY, JR., JUDGE




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