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

HERMAN SHURN v. STATE OF TENNESSEE AND WARDEN, T.D.O.C. /
N.W.C.X. AND DERRICK D. SCHOLFIELD, COMMISSIONER / T.D.O.C.
    AND CRIMINAL COURT FOR THE 30th JUDICIAL DISTRICT

                  Appeal from the Criminal Court for Shelby County
                      No. 06-09026    W. Mark Ward, Judge


              No. W2011-02220-CCA-R3-HC - Filed December 5, 2012


Pro Se Petitioner, Herman Shurn, appeals the Shelby County Criminal Court’s denial of his
petition for habeas corpus relief. The Petitioner was originally indicted for first degree
felony murder and especially aggravated robbery. A jury convicted the Petitioner of
criminally negligent homicide and aggravated robbery for which the Petitioner received an
effective sentence of fourteen years in the Department of Correction. On appeal, the
Petitioner contends that his indictment for aggravated robbery, as amended, is void. 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.

Herman Shurn, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Betsy Wiseman, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

       In a multiple count indictment, the Petitioner was charged with murder during the
perpetration of a felony to wit: the aggravated robbery of James Puckett. Count two of the
indictment, charged especially aggravated robbery of a different victim, Rodney Taylor, and
originally read, in pertinent part, as follows:
       [The Defendant] on February 28, 2006 in Shelby County, Tennessee, and
       before the finding of this indictment, did unlawfully, knowingly, and violently,
       by use of a deadly weapon, obtain from the person of RODNEY TAYLOR a
       sum of Money, of Value, proper goods and chattels of RODNEY TAYLOR
       and caused serious bodily injury to JAMES PUCKETT, in violation of T.C.A.
       39-13-403, against the peace and dignity of the State of Tennessee.

State v. Herman Shurn, No. W2009-00708-CCA-R3-CD, 2011 WL 198631*6 (Tenn. Crim.
App. Jan. 12, 2011), perm. app. denied (Tenn. May 25, 2011). Over the objection of the
Petitioner’s trial counsel, the trial court granted the State’s request to amend the indictment
for especially aggravated robbery prior to jury selection. The trial court reduced the
especially aggravated robbery to aggravated robbery by striking the words “and cause serious
bodily injury to JAMES PUCKETT, in violation of T.C.A.39-13-403” from count two of the
indictment. The jury subsequently found the Petitioner guilty of aggravated robbery, a Class
B felony, and criminally negligent homicide, a Class E felony, for which he received an
effective fourteen-year sentence.

        Following his convictions and sentence, the Petitioner filed a direct appeal
challenging, among other things, the court’s amendment of the especially aggravated robbery
indictment. State v. Herman Shurn, No. W2009-00708-CCA-R3-CD, 2011 WL 198631
(Tenn. Crim. App. Jan. 12, 2011), perm. app. denied (Tenn. May 25, 2011). This Court
affirmed his convictions and sentences. In concluding that the trial court did not err by
amending the indictment, we reasoned that aggravated robbery, as a lesser included offense
of especially aggravated robbery, was contemplated in the indictment. Accordingly, we held
 “that the amendment to the indictment did not charge an additional or different offense and
did not prejudice a substantial right of the [Petitioner].” Id. at *7.

        On July 21, 2011, the Petitioner filed his petition for writ of habeas corpus alleging
that the amended indictment for aggravated robbery was void. The Criminal Court of Shelby
County summarily dismissed the petition finding that the petition failed to state a cognizable
claim. This appeal followed.

                                         ANALYSIS

        On appeal, the Petitioner asserts that the trial court erred in denying his petition for
writ of habeas corpus because the amended indictment for aggravated robbery is void. The
State responds that the trial court properly dismissed the petition because it failed to state a
cognizable claim.




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       “The determination of whether habeas corpus relief should be granted is a question
of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21
S.W.3d 901, 903 (Tenn. 2000)). Accordingly, 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, as the
Tennessee Supreme Court stated in Hickman v. State:

       [A] voidable judgment is facially valid and requires the introduction of proof
       beyond the face of the record or judgment to establish its invalidity. Thus, in
       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.

153 S.W.3d 16, 24 (Tenn. 2004) (internal citations, quotations, and emphasis omitted); see
Summers, 212 S.W.3d at 256 (citation omitted). 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)).

       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

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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.

        As an initial matter, no amended indictment appears in the record, and the Petitioner
asserts that the trial court constructively amended the indictment for especially aggravated
robbery. As previously noted, in the Petitioner’s direct appeal, this court addressed and
rejected the Petitioner’s challenges to “the amendment to the indictment.” Shurn, 2011 WL
198631 at *5-7. It has been well established that habeas corpus proceedings “may not be
employed to raise and relitigate or review questions decided and disposed of in a direct
appeal from a conviction.” Gant v. State, 507 S.W.2d 133, 137 (Tenn. Crim. App.1973)
(citations omitted). On direct appeal, this Court noted that the indictment for first degree
murder referenced aggravated robbery, and “[b]oth counts of the indictment gave the
[Petitioner] notice of the facts constituting the offense and the victims involved . . . .” Shurn,
2011 WL 198631 at *7. Because this Court reviewed this issue on direct appeal and
concluded that the amended indictment charging aggravated robbery did not charge an
additional or different offense, the Petitioner is not entitled to habeas corpus relief.

                                       CONCLUSION

        Upon review of the record and applicable law, this court concludes that the Petitioner
is not entitled to habeas corpus relief and that the habeas court’s summary dismissal of the
petition was proper.




                                                     ______________________________
                                                     CAMILLE R. McMULLEN, JUDGE




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