                                                                                          08/14/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 5, 2019

        ROOSEVELT BIGBEE, JR. v. JONATHAN LEBO, WARDEN

                Appeal from the Circuit Court for Lauderdale County
                       No. 7062     Joe H. Walker, III, Judge
                     ___________________________________

                           No. W2019-00051-CCA-R3-HC
                       ___________________________________


The pro se Petitioner, Roosevelt Bigbee, Jr., appeals the summary dismissal of his
petition for writ of habeas corpus. Following our review, we affirm the summary
dismissal of the petition for failure to state a cognizable claim for habeas corpus relief.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL
and TIMOTHY L. EASTER, JJ., joined.

Roosevelt Bigbee, Jr., Henning, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Mark E. Davidson, District Attorney General, for the appellee, State of
Tennessee.


                                        OPINION

                                         FACTS

       The Petitioner was convicted by a Sumner County Criminal Court jury of the
December 28, 1988 first degree felony murder of a convenience store clerk and sentenced
to death. Our supreme court affirmed his conviction but reversed and remanded for
resentencing, finding that the combination of improper prosecutorial argument and
admission of evidence of the Petitioner’s previous felony murder conviction of another
store clerk “resulted in plain error that affected the substantial rights of the defendant.”
State v. Bigbee, 885 S.W.2d 797, 800 (Tenn. 1994). The Petitioner was subsequently
resentenced to life imprisonment, to be served consecutively to the life plus eleven year
sentence he had received for the previous felony murder and robbery convictions in
Montgomery County. The sentence was affirmed by this court on direct appeal, and our
supreme court denied his application for permission to appeal. State v. Roosevelt Bigbee,
No. 01C01-9601-CR-00045, 1997 WL 13738, at *1 (Tenn. Crim. App. Jan. 16, 1997),
perm. app. denied (Tenn. Sept. 15, 1997).

       The Petitioner’s conviction was based on his participation with three men in an
attempted armed robbery of a convenience store in Hendersonville in which the victim
store clerk was beaten and shot to death. Bigbee, 885 S.W.2d at 800. No money was
missing from the store, and $82.00 was found in the victim’s wallet. Id. However, the
State’s key witness, the Petitioner’s co-defendant, Joe T. Baker, who had earlier pled
guilty to the victim’s murder, testified that although none of the men had any money
when they entered the market, another accomplice, Joel Hoosier, tried to give Mr. Baker
some money when the men returned to their vehicle after the crime. Id. at 801.

       In August 2016, the Petitioner filed a petition for writ of habeas corpus in which
he alleged that “because he was not separately indicted for attempted robbery, the
underlying felony in the felony murder indictment, he did not receive adequate notice of
the charges against him.” Roosevelt Bigbee v. Jonathan Lebo, Warden, No. W2016-
01997-CCA-R3-HC, 2017 WL 838482, at *1 (Tenn. Crim. App. Mar. 3, 2017), perm.
app. denied (Tenn. May 24, 2017). The habeas corpus court summarily dismissed the
petition for failure to state a cognizable claim for relief, and this court affirmed the
summary dismissal of the petition. Id.

       On December 11, 2018, the Petitioner filed the petition for writ of habeas corpus
that is at issue in this case. In this second petition, the Petitioner alleges that his
conviction is void because he was tried for an offense not charged in the indictment, and
the indictment “was illegally broadened by the evidence submitted at trial.” Specifically,
he argues that the State constructively amended the indictment by presenting the “false
and misleading testimony” of co-defendant Baker in support of a completed robbery,
when the indictment charged the Petitioner with murder during an attempted, rather than
completed, robbery.

       On December 12, 2018, the habeas corpus court summarily dismissed the petition
on the basis that it failed to state a cognizable claim for habeas corpus relief. In its order
of dismissal, the court noted that “issues with regard to the indictment were ruled on in a
prior petition” and that the Petitioner’s complaints about witnesses and the sufficiency of
the evidence did not entitle him to habeas corpus relief, which is warranted only when the
convicting court is without jurisdiction or the sentence has expired. Thereafter, the
Petitioner filed a timely notice of appeal to this court.

                                            -2-
                                        ANALYSIS

       It is well-established in Tennessee that the remedy provided by a writ of habeas
corpus is limited in scope and may only be invoked where the judgment is void or the
petitioner’s term of imprisonment has expired. Faulkner v. State, 226 S.W.3d 358, 361
(Tenn. 2007); State v. Ritchie, 20 S.W.3d 624, 629 (Tenn. 2000); State v. Davenport, 980
S.W.2d 407, 409 (Tenn. Crim. App. 1998). A void, as opposed to a voidable, judgment
is “one that is facially invalid because the court did not have the statutory authority to
render such judgment.” Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (citing
Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)). A challenge to the sufficiency
of an indictment may be brought in a habeas corpus proceeding if “the indictment is so
defective as to deprive the court of jurisdiction.” Dykes, 978 S.W.2d at 529.

       A petitioner bears the burden of establishing a void judgment or illegal
confinement by a preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000). Furthermore, when a “habeas corpus petition fails to establish that a
judgment is void, a trial court may dismiss the petition without a hearing.” Summers,
212 S.W.3d at 260 (citing Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005)). Whether
the petitioner is entitled to habeas corpus relief is a question of law. Id. at 255; Hart v.
State, 21 S.W.3d 901, 903 (Tenn. 2000). As such, our review is de novo with no
presumption of correctness given to the habeas court's findings and conclusions.
Summers, 212 S.W.3d at 255.

       We find no error in the habeas corpus court’s summary dismissal of the petition.
Although worded slightly differently, the Petitioner raises the same complaints about the
alleged insufficiency of the indictment that he raised in his first petition for writ of habeas
corpus. As we have previously explained, neither the fact that the Petitioner was not
separately charged with attempted robbery, nor that the Petitioner was charged with and
acquitted of aggravated robbery, “renders his felony murder indictment void under
Tennessee law.” Bigbee, 2017 WL 838482 at *2.

                                      CONCLUSION

        Because the Petitioner has failed to state a cognizable claim for habeas corpus
relief, we affirm the summary dismissal of the petition for writ of habeas corpus.




                                               ____________________________________
                                               ALAN E. GLENN, JUDGE
                                             -3-
