        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs May 10, 2016

               GREGORY EIDSON v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Sumner County
                No. 303-2012 and 410-2014    Dee David Gay, Judge



               No. M2015-01657-CCA-R3-HC – Filed August 10, 2016


In 2012, the Petitioner, Gregory Eidson, pleaded guilty to aggravated assault and
attempted second degree murder, and the trial court imposed consecutive sentences of
three and eight years, respectively, to be served on Community Corrections. The
Petitioner filed a timely petition for post-conviction relief, which the post-conviction
court denied. This Court affirmed the denial. Gregory Eidson v. State, No. M2012-
02482-CCA-R3-PC, 2013 WL 6405782, at *1 (Tenn. Crim. App., at Nashville, Dec. 6,
2013), perm. app. denied (Tenn. Mar. 5, 2014). In 2014, the Petitioner’s Community
Corrections sentence was revoked, and the trial court ordered the Petitioner to serve his
eleven-year sentence in confinement. After filing several motions and petitions, the
Petitioner filed a petition for writ of habeas corpus, which he also termed a second
motion to reopen his post-conviction petition, and a motion for correction of an illegal
sentence pursuant to Tennessee Rule of Criminal Procedure 36.1. The trial court entered
an order dismissing the petition and motion. We affirm the trial court’s judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and TIMOTHY L. EASTER, JJ., joined.

Gregory Eidson, Pikeville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; L.
Ray Whitley, District Attorney General, and C. Ronald Blanton, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                           I. Facts and Procedural History
      This Court summarized the facts and procedural history of this case in its 2013
opinion as follows:
              [I]t appears from the record that the Petitioner was indicted for
      aggravated assault, attempted premeditated first degree murder, and
      resisting arrest. On February 3, 2012, the Petitioner entered “best interest”
      pleas [FN1] to charges of aggravated assault and attempted second degree
      murder. Pursuant to the plea agreement, the charge of resisting arrest was
      dismissed. The Petitioner received an effective eleven-year sentence and
      was given credit for 469 days of pretrial incarceration. The remainder of
      the Petitioner’s sentence was to be served on community corrections.

             The following factual basis was provided to support the Petitioner’s
      pleas: In the early morning hours of October 23, 2010, the Petitioner
      attacked his uncle, Danny Suttle, outside the home of their mutual friend,
      Timmy Vanatta. As Mr. Suttle left the house, the Petitioner approached
      him and, without saying anything to him, began to beat and kick Mr. Suttle
      for approximately thirty minutes. The Petitioner then poured gasoline over
      Mr. Suttle and attempted to set him on fire, but was unable to find a lighter.
      Mr. Suttle crawled under a car to get away from the Petitioner and
      eventually crawled to his home where he called the police. Mr. Suttle
      suffered several broken ribs, a punctured lung, and a concussion from the
      Petitioner’s attack.

             [FN1] Because the judgments of conviction are not included
             in the appellate record it is unclear whether the Petitioner
             entered pleas of nolo contendere or “best interest” guilty pleas
             pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct.
             160, 27 L.Ed.2d 162 (1970).

             ....

             At the conclusion of the plea submission hearing, the Petitioner was
      released on community corrections. On April 25, 2012, the Petitioner filed
      a petition for post-conviction relief alleging that he received ineffective
      assistance from his trial counsel and that his “best interest” pleas were not
      knowingly and voluntarily entered.

             ....

             At the conclusion of the [post-conviction] hearing, the post-
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      conviction court dismissed the Petitioner’s petition for post-conviction
      relief. The post-conviction court concluded that the Petitioner was not a
      credible witness. The post-conviction court noted that the Petitioner had
      numerous prior convictions spanning twenty-two years and that the
      Petitioner had repeatedly “told different versions” of what happened with
      Mr. Suttle. The post-conviction court found the letters the Petitioner had
      written to both the prosecutor and trial counsel to be “very convincing” and
      that they made clear that the Petitioner “wanted to work toward . . . a
      settlement.” The post-conviction court concluded that it was “a strain to
      believe that [the Petitioner] did anything other than knowingly and
      voluntarily enter” his “best interest” pleas.

              The post-conviction court accredited the testimony of trial counsel
      over that of the Petitioner. The post-conviction court found that trial
      counsel thoroughly investigated the case and explored several possible
      defenses. The post-conviction court stated that it would not second guess
      trial counsel’s tactic of not calling witnesses during a preliminary hearing.
      The post-conviction court concluded that trial counsel was not ineffective.
      Instead the post-conviction court stated that trial counsel’s performance
      was “very good” and that he had “represented this client well.” The post-
      conviction court further concluded that had the Petitioner’s case gone to
      trial instead of accepting the plea agreement negotiated by trial counsel, the
      Petitioner likely “would have gone to the penitentiary for a substantially
      longer period of time instead of getting released on time served” with the
      remainder of his sentence to be served on community corrections.

Eidson, 2013 WL 6405782, at *1-4.

      On appeal, this Court affirmed the dismissal of the Petitioner’s petition for post-
conviction relief, stating:

      The evidence clearly demonstrates that the Petitioner wanted to enter into a
      plea agreement with the State so that he could be released from jail;
      therefore, trial counsel’s performance had no impact on the voluntariness of
      the Petitioner’s pleas. Furthermore, the evidence established that trial
      counsel thoroughly investigated the case and explored several possible
      defenses. The fact that trial counsel did not call any witnesses at the
      preliminary hearing was a sound trial tactic that we will not second guess
      on post-conviction review. The fact that three witnesses the Petitioner
      wanted to call at trial died before the plea submission hearing was outside
      the control of trial counsel.
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Id. at *5. Although not included in the record before us, it appears that the Petitioner
filed a petition for writ of habeas corpus on May 28, 2014. The trial court filed an order
on June 9, 2014, dismissing the petition, stating that the Petitioner’s judgments were not
void. On July 2, 2015, the Petitioner filed a document styled “2nd Petition for Writ of
Habeas Corpus and/or 2nd Motion to Reopen Post Conviction Notice of Illegal Sentence
pursuant to [Rule 36.1].” In it, he alleged that he had received the ineffective assistance
of counsel and that his guilty pleas had been entered involuntarily and unknowingly. The
trial court entered an order, stating the following:

                This Court has conducted two (2) separate evidentiary hearings
        concerning the [Petitioner’s] claims. He has not raised a colorable claim to
        Reopen his Petition for Post-Conviction Relief under T.C.A. § 40-30-117.
        Therefore, his 2nd Motion to Reopen the Post-Conviction Relief Petition is
        DENIED. . . . This Court finds that “there is no basis for a Writ of Habeas
        Corpus” and that “(T)he judgments in this case are not void”. [citing order
        dismissing May 28, 2014 petition for writ of habeas corpus.] . . . On
        February 3, 2012, the [Petitioner] agreed to accept sentences of three (3)
        years at 30% and eight (8) years at 30% to run consecutively to each as the
        result of a plea agreement. These sentences were authorized by the
        applicable statutes and in compliance with the law. The sentences were not
        illegal; therefore, [the] Petitioner’s Motion to Correct an Illegal Sentence is
        DENIED.1

It is from these judgments that the Petitioner now appeals.

                                                  II. Analysis

        On appeal, we discern the Petitioner’s issues to be as follows: (1) that he was
arrested in violation of his constitutional rights; (2) that he was not properly given his
Miranda warnings prior to giving a statement; (3) that the State presented evidence at the
preliminary hearing that was obtained illegally and thus deprived him of a fair trial; (4)
that he received the ineffective assistance of counsel at trial because counsel had a
conflict of interest; (5) that his guilty pleas were not knowingly and voluntarily entered;
and (6) that he was denied a full and fair hearing on his petition for post-conviction relief.
The State responds that none of the Petitioner’s claims are cognizable for habeas corpus
relief. The State further responds that the trial court did not abuse its discretion when it
dismissed the motion to reopen the post-conviction petition because the motion failed to
state any grounds for relief that had not already been decided on appeal. The State lastly
1
 According to the trial court’s order, the Petitioner’s Community Corrections sentence was revoked after a hearing
on May 9, 2014, and he was ordered to serve his eleven-year sentence in confinement.
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responds that the Petitioner has failed to demonstrate that his sentences were illegal
because they were authorized by statute, and the judgments are not void. The State
argues that the trial court’s judgment should be affirmed. We agree with the State.

                                    A. Habeas Corpus

        Article I, section 15 of the Tennessee Constitution guarantees the right to seek
habeas corpus relief. See Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007).
Although the right is guaranteed in the Tennessee Constitution, the right is governed by
statute. T.C.A. §§ 29-21-101, -130 (2014). The determination of whether habeas corpus
relief should be granted is a question of law and is accordingly given de novo review with
no presumption of correctness given to the findings and conclusions of the court below.
Smith v. Lewis, 202 S.W.3d 124, 127 (Tenn. 2006) (citation omitted); Hart v. State, 21
S.W.3d 901, 903 (Tenn. 2000). Although there is no statutory limit preventing a habeas
corpus petition, the grounds upon which relief can be granted are very narrow. Taylor v.
State, 995 S.W.2d 78, 83 (Tenn. 1999).

        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). In other words, the very narrow grounds upon which a habeas corpus
petition can be based are as follows: (1) a claim there was a void judgment which was
facially invalid because the convicting court was without jurisdiction or authority to
sentence the defendant; or (2) a claim the defendant’s sentence has expired. Stephenson
v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000); Archer v. State, 851 S.W.2d 157, 164
(Tenn. 1993). “An illegal sentence, one whose imposition directly contravenes a statute,
is considered void and may be set aside at any time.” May v. Carlton, 245 S.W.3d 340,
344 (Tenn. 2008) (citing State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978)). In
contrast, a voidable judgment or sentence is “one which is facially valid and requires the
introduction of proof beyond the face of the record or judgment to establish its
invalidity.” Taylor, 995 S.W.2d at 83 (citations omitted); see State v. Ritchie, 20 S.W.3d
624, 633 (Tenn. 2000). The petitioner bears the burden of showing, by a preponderance
of the evidence, that the conviction is void or that the prison term has expired. Passarella
v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). Furthermore, the procedural
requirements for habeas corpus relief are mandatory and must be scrupulously followed.
Summers v. State, 212 S.W.3d 251, 260 (Tenn. 2007); Archer, 851 S.W.2d at 165.

        The trial court found that there was no basis for the writ of habeas corpus because
the Petitioner’s judgments were not void. We conclude that the Petitioner has not met his
burden of establishing that his judgments are void or that his sentences have expired.
Furthermore, none of the Petitioner’s claims on appeal are cognizable for habeas corpus
relief. See Russell Leaks v. Bruce Westbrook, Warden, No. M2014-02324-CCA-R3-HC,
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2015 WL 8481926, at *2 (Tenn. Crim. App., at Nashville, Dec. 10, 2015) (stating that the
petitioner’s claim of unlawful arrest did not entitled him to habeas corpus relief), perm.
app. denied (Tenn. May 4, 2016); see also Michael Aaron Pounds v. Roland Colson,
Warden, No. M2012-02254-CCA-R3-HC, 2013 WL 6001951, at *5 (Tenn. Crim. App.,
at Nashville, Nov. 12, 2013) (“[T]he petitioner’s claim of ineffective assistance of
counsel, even if true, would render his judgment voidable rather than void; therefore,
such an allegation is not a cognizable claim for habeas corpus relief.”); Antonio J. Parker
v. Howard Carlton, Warden, No. E2008-01387-CCA-R3-HC, 2009 WL 3321440, at *2
(Tenn. Crim. App., at Knoxville, Oct. 15, 2009) (stating that a tainted confession would
not result in a void judgment); James Richard Jackson v. State, No. 03C01-9904-CC-
00164, slip op. at 2-3 (Tenn. Crim. App., at Knoxville, Jan. 27, 2000 (stating that claims
of the erroneous admission of evidence are not proper claims for habeas corpus relief).
Accordingly, we conclude that the trial court properly dismissed the petition. The
Petitioner is not entitled to habeas corpus relief.

                                  B. Motion to Reopen


        The Post-Conviction Procedure Act sets forth narrow circumstances in which a
petition for post-conviction relief may be reopened. “A petitioner has no appeal as of
right from the post-conviction court’s denial of a motion to reopen a post-conviction
proceeding.” Kenneth Ray Griffin v. State, No. 2015-00239-CCA-R3-PC, 2015 WL
5064068, at *2 (Tenn. Crim. App., at Knoxville, Aug. 27, 2015), perm. app. denied
(Tenn. Jan. 21, 2016) (citations omitted). The statute provides that a petitioner may only
file a petition to reopen if:

      (1) The claim in the motion is based upon a final ruling of an appellate
      court establishing a constitutional right that was not recognized as existing
      at the time of trial, if retrospective application of that right is required. The
      motion must be filed within one (1) year of the ruling of the highest state
      appellate court or the United States Supreme Court establishing a
      constitutional right that was not recognized as existing at the time of trial;
      or

      (2) The claim in the motion is based upon new scientific evidence
      establishing that the petitioner is actually innocent of the offense or
      offenses for which the petitioner was convicted; or

      (3) The claim asserted in the motion seeks relief from a sentence that was
      enhanced because of a previous conviction and the conviction in the case in
      which the claim is asserted was not a guilty plea with an agreed sentence,

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       and the previous conviction has subsequently been held to be invalid, in
       which case the motion must be filed within one (1) year of the finality of
       the ruling holding the previous conviction to be invalid[.]

T.C.A. § 40-30-117(a)(1)-(3) (2014).

        The trial court found that the Petitioner’s claims did not meet the criteria of
Tennessee Code Annotated section 40-30-117 for reopening a previous petition. We
agree that the Petitioner did not establish that his claims were based upon either a newly
established constitutional right, new scientific evidence, or that his sentence was
enhanced by invalid convictions. The Petitioner’s argument that he was denied the right
to a full and fair post-conviction hearing does not demonstrate that he is entitled to relief
on any of the grounds listed in section 40-30-117(a). Thus, we conclude that the criteria
necessary to reopen a previous petition were not present in the Petitioner’s case and has
not been presented on appeal and that the trial court properly denied his motion to reopen
his petition. See T.C.A. § 40-30-117.

                                         C. Rule 36.1

       Tennessee Rule of Criminal Procedure 36.1 provides in pertinent part that:

       (a) Either the defendant or the state may, at any time, seek the correction of
       an illegal sentence by filing a motion to correct an illegal sentence in the
       trial court in which the judgment of conviction was entered. For purposes
       of this rule, an illegal sentence is one that is not authorized by the
       applicable statutes or that directly contravenes an applicable statute.

       (b) Notice of any motion filed pursuant to this rule shall be promptly
       provided to the adverse party. If the motion states a colorable claim that
       the sentence is illegal, and if the defendant is indigent and is not already
       represented by counsel, the trial court shall appoint counsel to represent the
       defendant. The adverse party shall have thirty days within which to file a
       written response to the motion, after which the court shall hold a hearing on
       the motion, unless all parties waive the hearing.

Tenn. R. Crim. P. 36.1(a), (b) (2014).

       A “colorable claim” within the language of Rule 36.1 is defined as “a claim that, if
taken as true and viewed in a light most favorable to the moving party, would entitle the
moving party to relief under Rule 36.1.” State v. Brown, 479 S.W.3d 200, 213 (Tenn.
2015) (citing State v. Wooden, 478 S.W.3d 585, 595-96 (Tenn. 2015)).

                                              7
       The trial court found that the Petitioner’s sentence was authorized by the
applicable statutes and in compliance with the law and was therefore not illegal. We
conclude that the Petitioner has not presented a colorable claim under Rule 36.1. The
Petitioner also argues that his guilty plea was not “knowingly and voluntarily entered.”
We find that this claim is also not colorable under Rule 36.1. State v. Dusty Ross
Binkley, No. M2014-01173-CCA-R3-CD, 2015 WL 2148950, at *4 (Tenn. Crim. App.
May 7, 2015) (Rule 36.1 does not apply to constitutional challenges) no perm. app. filed;
State v. Jonathan T. Deal, No. E2014-02623-CCA-R3-CD, 2014 WL 2802910, at *2
(Tenn. Crim. App. June 17, 2014) (“[T]he rule is directed at the sentence finally imposed,
not the methodology by which it is imposed.”), no perm. app. filed.

                                    III. Conclusion

       After a thorough review of the record and the applicable law, we affirm the trial
court’s judgment.

                                                _________________________________
                                                ROBERT W. WEDEMEYER, JUDGE




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