        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs May 1, 2012

               TIMMY HERNDON v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                    No. 98-06543    James M. Lammey, Jr., Judge


              No. W2011-01435-CCA-R3-HC - Filed November 20, 2012




The Petitioner, Timmy Herndon, appeals from the Criminal Court of Shelby County’s
summary dismissal of his petition for habeas corpus relief. In 1999, the Petitioner was
convicted of aggravated robbery and received a fifteen-year sentence. Two months before
his parole was set to expire, the Petitioner, acting pro se, filed a twenty-two page petition for
habeas corpus relief alleging a variety of issues all related to the constitutionality of the
aggravated robbery statute upon which he was convicted. The habeas corpus court dismissed
the petition as moot because, at the time of the hearing, the Petitioner’s sentence and parole
had expired. In this appeal, the Petitioner presents the following issues for our review: (1)
whether he is entitled to a hearing because he filed his petition for habeas corpus relief prior
to the expiration of his sentence and parole; (2) whether his claim presents “a present and
live, controversy”; (3) whether “‘potential’ merits” to his claim exist which entitle him to
appointed counsel; and (4) whether the habeas corpus court’s order summarily dismissing his
petition is void because the court “acted without subject matter jurisdiction.” Upon review,
we affirm the judgment of the habeas corpus court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and D. K ELLY T HOMAS, J R., JJ., joined.

Timmy Herndon, Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Ross Dyer, Assistant District
Attorney General, for the Appellee, State of Tennessee.

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                                                OPINION

        Background. In 1999, the Petitioner was convicted of aggravated robbery after a jury
trial, and in 2000, he was sentenced as a Range II, multiple offender to fifteen years
imprisonment. In the Petitioner’s direct appeal, which was affirmed by this court in State v.
Timmy Herndon, No. W2000-01228-CCA-MR3-CD, 2001 WL 846033 (Tenn. Crim. App.,
July 20, 2001) (Herndon I), the sole issue presented for review was a challenge to the
sufficiency of the evidence supporting his conviction. In 2003, the Petitioner appealed the
denial of his “Motion to Rectify Clerical Mistakes Pursuant to Rule 36 of the Tennessee
Rules of Criminal Procedure” alleging that his sentence classification was in error due to
convictions that had not been properly “purged” from his criminal history. State v. Timmy
Herndon, No. W2001-02981-CCA-R3-CD, 2003 WL 21339297 at *1 (Tenn. Crim. App.,
May 2, 2003) (concluding no appeal of Rule 36 motion and dismissing for failure to comply
with strict procedural requirements of habeas corpus or certiorari relief) (Herndon II). In
2003, the Petitioner filed his first petition for writ of habeas corpus claiming that his
aggravated robbery conviction violated principles of double jeopardy because the general
sessions criminal court had conducted a preliminary hearing in the case. This Court affirmed
the habeas corpus court’s summary dismissal of the petition by memorandum opinion.
Timmy Herndon v. Glen Turner, Warden, No. W2003-00839-CCA-R3-CO, 2003 WL
23100814 (Tenn. Crim. App., Dec. 31, 2003) (Herndon III).

        On December 13, 2010, the Petitioner filed his second pro se petition for writ of
habeas corpus, the case sub judice, in the Shelby County Circuit Court claiming that his
conviction was void because it was based on an unconstitutional criminal statute. At that
time, he was on parole and provided a residential address for himself. Upon the State’s
motion, the circuit court transferred the matter to the Criminal Court of Shelby County,
which dismissed the petition following brief argument of the State and the Petitioner on June
10, 2011. In its order, the habeas corpus court stated that the Petitioner was “no longer
restrained of his liberty by his 2000 conviction for aggravated robbery” and dismissed the
petition as moot. This appeal followed.

                                               ANALYSIS

       I. Justiciability.1 Although the Petitioner concedes that his sentence and parole have
now expired, he contends, relying primarily upon our opinion affirming the summary
dismissal of his first habeas petition, Herndon III, that his sentence is not moot because he

       1
           For clarity, we have combined the Petitioner’s issues under one heading.

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filed his petition seeking habeas relief before his sentence expired. In response, the State
contends that the habeas corpus court properly dismissed the petition because “the scope of
the writ of habeas corpus in Tennessee does not permit inquiry into facts outside of the
original trial record, [and] the [petitioner] is not entitled to a hearing to introduce extrinsic
evidence collaterally attacking the jurisdiction of the convicting court.” State vs. Richie, 20
S.W.3d 624, 630 (Tenn. 2000) (quoting Archer v. State, 851 S.W.2d 157, 158 (Tenn. 1993)).

        In determining whether to grant habeas corpus relief, our review is de novo without
a presumption of correctness. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (citing
State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006)). A prisoner is guaranteed the right
to habeas corpus relief under Article I, section 15 of the Tennessee Constitution. Tenn.
Const. art. I, § 15; see T.C.A. §§ 29-21-101 to -130. The grounds upon which a writ of
habeas corpus may be issued, however, are very narrow. Taylor v. State, 995 S.W.2d 78, 83
(Tenn. 1999). “Habeas 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 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, 337 (1868)). “[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. 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, 851
S.W.2d at 161-64)). However, a voidable judgment “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). Thus, “[i]n all cases
where a petitioner must introduce proof beyond the record to establish the invalidity of his
conviction, then that conviction by definition is merely voidable, and a Tennessee court
cannot issue the writ of habeas corpus under such circumstances.” State v. Ritchie, 20
S.W.3d 624, 633 (Tenn. 2000). Moreover, it is the petitioner’s burden to demonstrate, by a
preponderance of the evidence, that the judgment is void or that the confinement is illegal.
Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). If this burden is met, the Petitioner is
entitled to immediate release. State v. Warren, 740 S.W.2d 427, 428 (Tenn. Crim. App.
1986) (citing Ussery v. Avery, 432 S.W.2d 656, 658 (Tenn. 1968)).

      Pursuant to Tennessee Code Annotated section 29-21-101(a), habeas corpus relief is
only available if the petitioner is “imprisoned or restrained of liberty.” The term
“imprisoned” means “actual physical confinement or detention.” Hickman v. State, 153
S.W.3d 16, 22 (Tenn. 2004). However, a petitioner is “restrained of liberty” if “the

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challenged judgment itself imposes a restraint upon the petitioner’s freedom of action or
movement,” even if “the petitioner is not physically confined or detained.” Id. (citations
omitted); see Benson v. State, 153 S.W.3d 27, 31 (Tenn. 2004). “The phrase ‘restrained of
liberty’ has generally been interpreted to include any limitation placed upon a person’s
freedom of action, including such restraints as conditions of parole or probation, or an order
requiring a person to remain in one city.” Benson, 153 S.W.3d at 31 (citing Hickman, 153
S.W.3d 16, 22-23 (Tenn. 2004)). The requirement that a petitioner be “imprisoned or
restrained of liberty” by the challenged conviction is basically a requirement that a petitioner
have standing to bring a habeas corpus proceeding, and this standing requirement operates
independently of a petitioner’s substantive claim of voidness. See Benson, 153 S.W.3d at
31 (“A statutory prerequisite for eligibility to seek habeas corpus relief is that the petitioner
must be ‘imprisoned or restrained of liberty’ by the challenged convictions.”); see also
T.C.A. § 29-21-107(b) (2006).

        If the habeas corpus court determines from the petitioner’s filings that no cognizable
claim has been stated and that the petitioner is not entitled to relief, the petition for writ of
habeas corpus may be summarily dismissed. See Hickman, 153 S.W.3d at 20. Further, the
habeas corpus court may summarily dismiss the petition without the appointment of a lawyer
and without an evidentiary hearing if there is nothing on the face of the judgment to indicate
that the convictions are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.
1994), superseded by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC-
00266, 1998 WL 104492, at *1 n.2 (Tenn. Crim. App., at Jackson, Mar. 11, 1998). “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.”
Summers, 212 S.W.3d at 261.

        In this case, the Petitioner contends, and the State concedes, that he has complied with
the procedural requirements for filing habeas corpus relief. Additionally, there is no question
that the Petitioner was on parole when he filed the instant petition and that his parole had
expired by the time the petition was scheduled to be heard by the habeas court. The
Petitioner argues that the habeas court erred in denying him a hearing on the merits of the
petition, because, as in Herndon III, he filed his petition prior to the expiration of his
sentence while he was in “constructive custody” and “restrained of his liberty.” In response,
the State contends that the summary dismissal was proper because the Petitioner was no
longer restrained of his liberty, his movement was not restricted, and there was no risk of
further incarceration based on the conviction itself.

       We agree with the Petitioner and conclude that the habeas corpus court erred in
summarily dismissing the petition seeking habeas corpus relief because it was moot. The
Petitioner was released on parole when he filed his petition for habeas relief on December

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13, 2010. His parole was not set to expire until February 7, 2011, almost two months later.
In Herndon III, this Court recognized that

                       While the normal function of the writ is to provide for
                those persons physically imprisoned, the application of the writ
                has been expanded to persons who are determined to be in
                constructive custody. In other words, the writ is available to
                persons who may later lose their liberty and be eventually
                incarcerated. A parolee is deemed in constructive custody until
                the expiration of the parole period.

Id. at *1 (internal citations omitted). Moreover, Tennessee courts have considered parole to
be a restraint on liberty for purposes of filing a habeas petition. See Benson, 153 S.W.3d
at 31; Hickman, 153 S.W.3d at 22-23.2 The fact that the petition was not scheduled to be
heard by the habeas corpus court until after the Petitioner’s parole had expired was not due
to the Petitioner’s failure to act. Accordingly, based on the above authority, we conclude that
the habeas court erroneously dismissed the petition as moot.

        Although the habeas corpus court erred in invoking the “mootness” rule, we conclude
that the Petitioner is not entitled to relief. The Petitioner asserts that his judgment is void
because it “references an unconstitutional criminal statute.” Here, the Petitioner alleges that
the Tennessee General Assembly failed to include an “enacting clause” in Tennessee Code
Annotated Section 39-13-402, the aggravated robbery statute, as required by the Tennessee
Constitution. In order to prove his point, the Petitioner attached to his petition some three
hundred pages which include a copy of the handwritten Tennessee Constitution and portions
of the Tennessee Senate and House journals. The State notes, and we agree, that the
documents the Petitioner attached to his petition “were not part of the record in the
convicting court and are clearly beyond the face of the judgment.” “[A] petitioner is not
entitled to habeas corpus relief unless that petitioner can show from the record or the face of
the judgment that the court of conviction lacked jurisdiction or is otherwise void.” State v.
Ritchie, 20 S.W.3d 624, 631 (Tenn. 2000) (stating that “the scope of the writ of habeas
corpus in Tennessee does not permit inquiry into facts outside of the original trial record” and
denying petitioner a hearing to introduce extrinsic evidence collaterally attacking the

        2
          Additionally, courts should “refrain from dismissing an appeal as moot when collateral
consequences remain following the dismissal of the appeal. . . . Such collateral consequences can include
the continued effect of an order that has expired or is invalid.” Hudson v. Hudson, 328 S.W.3d 863, 865-66
(Tenn. 2010) (citing May v. Carlton, 245 S.W.3d 340, 344 & n. 3 (Tenn. 2008) (citing Carafas v. LaVallee,
391 U.S. 234, 239, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968)) (holding as a collateral consequence restrictions
on voting, holding public office, or serving as a juror that remain following an invalid conviction for which
the petitioner is no longer in custody).

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jurisdiction of the convicting court). Accordingly, the Petitioner has failed to establish that
his judgment is facially invalid because the trial court lacked jurisdiction or authority to
render the judgment.

        Finally, as we understand the Petitioner’s argument, he attempts to collaterally attack
his conviction by challenging the jurisdiction of the habeas corpus court. He argues that the
habeas corpus court’s order summarily dismissing his petition was “void” because that court
lacked subject matter jurisdiction. Here, the Shelby County Criminal Court clearly had
jurisdiction over the Petitioner’s habeas corpus claim. See T. C. A. §29-21-103 (2000)
(authorizing any judge of the circuit or criminal courts to grant a writ of habeas corpus). This
issue is without merit.

                                      CONCLUSION

        Based on the above authority and analysis, we conclude that the habeas court erred
in dismissing the petition for habeas corpus relief as moot. Nevertheless, we conclude that
the Petitioner is not entitled to relief because he has failed to establish that the convicting
court was without jurisdiction to sentence him. Accordingly, the judgment of the habeas
court is affirmed.

                                                   ______________________________
                                                   CAMILLE R. MCMULLEN, JUDGE




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