         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


       JEFFERY YATES v. STATE OF TENNESSEE, TOMMY MILLS,
                            WARDEN

                     Direct Appeal from the Circuit Court for Lake County
                       No. 07-CR-9086-HC       R. Lee Moore, Jr., Judge



                    No. W2007-02868-CCA-R3-HC - Filed August 27, 2008



        The Petitioner, Jeffery Yates, appeals the trial court's denial of his petition for habeas corpus
relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals. We conclude that the State's motion
is meritorious. Accordingly, we grant the State's motion and affirm the judgment of the lower court.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of the
Court of Criminal Appeals

ALAN E. GLENN , J., delivered the opinion of the court, in which J. C. MCLIN and CAMILLE R.
MCMULLEN , JJ., joined.

Jeffery D. Yates, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; J. Ross
Dyer, Assistant Attorney General, for the appellee, State of Tennessee.


                                   MEMORANDUM OPINION


        In 2003, the Petitioner, Jeffrey Yates, was convicted of aggravated robbery resulting from
an incident occurring in 2001. See State v. Jeffrey Yates, No. W2003-02422-CCA-MR3-CD (Tenn.
Crim. App., at Jackson, July 21, 2005), perm. to appeal denied, (Tenn., Dec. 19, 2005). For this
offense, the Petitioner received a thirty-year sentence as a range III career offender. This Court
affirmed the Petitioner’s judgment of conviction and resulting sentence on direct appeal. Id. Prior
to this conviction and sentence, the Petitioner had been convicted in 1993 of criminal attempt to


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commit aggravated robbery, especially aggravated kidnapping, and aggravated kidnapping. For these
1993 convictions, the Petitioner received an effective sentence of eighteen years incarceration. In
1994, the Petitioner was convicted of aggravated assault, two counts of unlawful possession of
cocaine with intent to sell, and four counts of aggravated assault. For these 1994 convictions, the
Petitioner received an effective sentence of ten years incarceration.

       On November 14, 2007, the Petitioner filed, in the Lake County Circuit Court, a petition for
habeas corpus relief. As grounds for relief, the Petitioner alleged that the 1994 convictions used to
enhance his status to that of a career offender were void. Specifically, the Petitioner argued that,
since he was released on bail when he committed the crimes leading to these 1994 convictions, the
sentences for the 1994 convictions should have been served consecutively to the 1993 convictions.
By order entered December 10, 2007, the lower court denied habeas corpus relief.

       The State has filed a motion requesting that this Court affirm the lower court's denial of relief
pursuant to Rule 20, Rules of the Tennessee Court of Criminal Appeals. The State asserts that the
Petitioner has completed service of all of the sentences from his 1994 convictions, and, therefore,
is not under restraint by those sentences. In this regard, the State contends that the Petitioner is not
entitled to habeas corpus relief as the conviction under which he is currently restrained is not void
and has not expired.

       The determination of whether to grant habeas corpus relief is a question of law. As such, we
will review the habeas corpus court's findings de novo without a presumption of correctness.
Moreover, it is the petitioner's burden to demonstrate, 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).

        Article I, section 15 of the Tennessee Constitution guarantees an accused the right to seek
habeas corpus relief. See 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 that the convicting court
was without jurisdiction to convict or sentence the defendant or that the defendant is still imprisoned
despite the expiration of his sentence. Archer v. State, 851 S.W.2d 157, 164 (Tenn.1993); Poets v.
State, 833 S.W.2d 60, 62 (Tenn. 1992). In other words, habeas corpus relief may be sought only
when the judgment is void, not merely voidable. See Taylor, 995 S.W.2d at 83. “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.’ We have recognized that
a sentence imposed in direct contravention of a statute, for example, is void and illegal.” Stephenson
v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (quoting Taylor, 955 S.W.2d at 83).
       However, if after a review of the habeas petitioner's filings the habeas corpus court
determines that the petitioner would not be entitled to relief, then the petition may be summarily
dismissed. T .C.A. § 29-21-109; State ex rel. Byrd v. Bomar, 381 S.W.2d 280 (Tenn. 1964).
Further, a habeas corpus court may summarily dismiss a petition for writ of habeas corpus without
the appointment of a lawyer and without an evidentiary hearing if there is nothing on the face of the


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judgment to indicate that the convictions addressed therein are void. Passarella v. State, 891 S.W.2d
619 (Tenn. Crim. App. 1994), superceded by statute as stated in State v. Steven S. Newman, No.
02C01-9707-CC-00266 (Tenn. Crim. App., at Jackson, Mar. 11, 1998).


         The Petitioner is not entitled to habeas corpus relief. It is well-settled that “habeas corpus
relief is not available for expired sentences that are used solely to enhance a subsequent conviction.”
See Paul Wilson v. Stephen Dotson, Warden, No. W2005-02317-CCA-R3-HC (Tenn. Crim. App.,
at Jackson, May 4, 2006), perm. to appeal denied, (Tenn. Sept. 25, 2006). Indeed, in Hickman v.
State, 153 S.W.3d 15, 23 (Tenn. 2004), our supreme court explained:
        A person is not “restrained of liberty” for purposes of the habeas corpus statute
        unless the challenged judgment itself imposes a restraint upon the petitioner's
        freedom of action or movement. Use of the challenged judgment to enhance the
        sentence imposed on a separate conviction is not a restraint on liberty sufficient to
        permit a habeas corpus challenge to the original conviction long after the sentence
        on the original conviction has expired.
In Benson v. State, Benson pleaded guilty to several offenses in 1993. Benson, 153 S.W.3d 27, 32
(Tenn. 2004). All of the 1993 convictions were ordered to be served concurrently for an effective
sentence of eight years. These convictions were later used to enhance Benson’s status to a career
offender on a subsequent conviction. In 2002, Benson filed a habeas corpus petition, alleging that
three of these 1993 offenses were committed while he was released on bail. Pointing to Tennessee
Code Annotated section 40-20-111(b) and Tennessee Rule of Criminal Procedure 32(c)(3)(C),
Benson claimed that the trial court was required to impose consecutive sentences. Because the
concurrent sentences were illegally imposed, Benson argued that the judgments were void and he
should be allowed to withdraw his guilty pleas. The supreme court held that Benson was not
presently “imprisoned or restrained of liberty” by any of the 1993 convictions because the sentences
complained of were served and expired before Benson filed a habeas corpus petition to challenge
them. Benson, 153 S.W.3d at 32. We are unable to distinguish the present challenge to either the
supreme court’s ruling in Benson or the supreme court’s precedent in Hickman.

        The Petitioner is not currently restrained of his liberty as a result of the convictions of which
he now complains. He is not entitled to habeas corpus relief from a sentence fully served. Rather,
a petitioner may only seek habeas corpus relief “when the challenged judgment itself imposes a
restraint upon the petitioner’s freedom of action or movement.” Hickman, 153 S.W.3d at 22.

        When an opinion would have no precedential value, the Court of Criminal Appeals may
affirm the judgment or action of the trial court by memorandum opinion when the judgment is
rendered or the action taken in a proceeding without a jury and such judgment or action is not a
determination of guilt, and the evidence does not preponderate against the finding of the trial judge.
See Tenn. Ct. Crim. App. R. 20. We conclude that this case satisfies the criteria of Rule 20.
Accordingly, it is ordered that the State's motion is granted. The judgment of the trial court is



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affirmed in accordance with Rule 20 , Rules of the Court of Criminal Appeals.




                                                    ___________________________________
                                                              ALAN E. GLENN, JUDGE




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