        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs January 15, 2014

          CHARLES DAMIEN DARDEN v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Robertson County
            No. 74CC-1995-CR937 (9676A) John H. Gasaway, III, Judge


                No. M2013-01328-CCA-R3-PC - Filed March 13, 2014


The Petitioner, Charles Damien Darden, appeals the Robertson County Circuit Court’s denial
of his “Petition for Writ of Habeas Corpus in Alternative Petition for Post-Conviction Relief
in Alternative Petition[] for Writ of Error Coram Nobis” requesting relief from his 1996
conviction for felony murder and his resulting life sentence. The Petitioner contends that his
life sentence violates the Eighth Amendment to the United States Constitution as discussed
in Miller v. Alabama, 567 U.S. —, 132 S.Ct. 2455 (2012). We affirm the judgment of the
trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J ERRY L. S MITH and
T HOMAS T. W OODALL, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Charles Damien Darden.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; John Wesley Carney, Jr., District Attorney General; and B. Dent Morriss, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

      According to this court’s opinion in the appeal of the Petitioner’s convictions, the
evidence at the trial showed that:

              On January 14, 1995, Michael and Hannah Westerman were traveling
       from their home in Kentucky to Springfield, Tennessee, to do some shopping
       and have dinner. From the back of the Westermans’ Chevrolet pick-up truck
       flew a Confederate battle flag, which was attached to a pole mounted on the
truck’s tool box. On their way to Springfield, the Westermans stopped at
Janie’s Market in Guthrie, Kentucky, to get some gas. Mr. Westerman paid for
the gas, and while he and Mrs. Westerman sat in the truck talking, Mrs.
Westerman noticed a black man in a dark blue car pointing at them.

       Mr. Westerman pulled the truck onto the road, and as they crossed into
Tennessee, Mrs. Westerman noticed two (2) cars, one light blue and the other
dark blue, following them. Mr. Westerman passed a car in front of them, and
both blue cars were able to catch up with the Westermans. Although the
Westermans’ truck was traveling at approximately 85 miles per hour, the light
blue car began to pass them on the left. Mr. Westerman pushed Mrs.
Westerman on the floorboard of the truck as the car passed them. After the car
passed, Mrs. Westerman sat up in her seat, and Mr. Westerman told her that
he had been shot.

        Mrs. Westerman climbed over to the driver’s side so that she could
drive the truck. Suddenly, the light blue car came to a complete stop in the
middle of the road in front of the Westermans’ truck, and Mrs. Westerman saw
a black man sitting in the car pointing a gun at the truck. The dark blue car
which had been following the Westermans completely stopped behind the
Westerman vehicle, and Mrs. Westerman was forced to drive through a ditch,
across an embankment and into a parking lot in an attempt to flee the scene.
However, because the two cars had blocked her access to the paved driveways
into the parking lot, Mrs. Westerman had to cross another ditch in order to exit
the parking lot. Mrs. Westerman then proceeded in the opposite direction,
towards Guthrie, in an effort to seek medical attention for her husband and
avoid further confrontation with the individuals in the blue cars.

      Mr. Westerman died the next day at Vanderbilt Hospital as a result of
a gunshot wound to the heart.

        Shortly after the incident, the police developed appellant Darden as a
suspect in the shooting. While law enforcement authorities were conducting
an interview with Darden concerning the incident, appellant Morrow appeared
at the police station and confessed to the shooting. In his statement to the
police, Morrow acknowledged that he was a passenger in Darden’s car when
he shot several times at the Westermans’ truck. He stated that they chased the
Westermans after someone in the truck shook the Confederate flag at them and
shouted a racial epithet.



                                      -2-
       At the time the incident occurred, both Morrow and Darden were
seventeen (17) years of age. Tony Andrews and Marcus Merriweather, other
passengers in Darden’s car during the incident, were also juveniles. Andrews
was seventeen (17) years of age, and Merriweather was fifteen (15) years of
age. All four were charged in juvenile court with the delinquent act of
premeditated first degree murder, and upon a transfer hearing in that court,
were transferred to the Robertson County Circuit Court to be tried as adults.

       Subsequently, Darden, Morrow, Andrews and Merriweather were each
indicted on one (1) count of civil rights intimidation, one (1) count of
premeditated first degree murder, one (1) count of felony murder and one (1)
count of attempted aggravated kidnapping. Andrews entered into a plea
agreement with the state wherein he pled guilty to criminally negligent
homicide and was placed on diversion for two (2) years. Merriweather was
tried on the instant offenses in a joint trial with Morrow and Darden.

       At trial, Andrews testified for the state. Andrews stated that on the
afternoon of the incident, he and Darden were driving around Guthrie in
Darden’s light blue car. Merriweather and Morrow eventually joined them,
and they went to a friend’s house so that Darden could collect some money
owed to him. While they were sitting in the car, they noticed a red pick-up
with a Confederate flag on its toolbox driving by. Subsequently, they saw the
pick-up truck parked at Janie’s. Darden remarked that he wanted to fight the
people in the truck and drove to a local hangout to inform others that he
intended to fight the occupants of the truck. The group went back to Janie’s,
and the truck was still in the parking lot. The truck then began to pull out of
the parking lot, and when the truck was beside Darden’s car, Morrow rolled
his window down and began pointing at the flag. Andrews testified that he
then saw someone reach out of the truck’s back window and shake the
Confederate flag.

       Darden’s car then pulled out of Janie’s parking lot and alongside a car
containing Robert Bell, Ricky Williams and Michael Mimms. Octavius Burks
and Marcus Darden were in another car behind Bell’s. When the Westerman
truck began to exit Janie’s, Appellant Darden remarked, “there it goes.” Bell
and Burks began to follow the truck, and the Darden car turned around and
followed as well. The Darden car was approximately four (4) cars behind the
Westerman truck, and Morrow told Darden to “catch” Bell. At this point,
Morrow informed the other occupants of the car that he was armed.



                                      -3-
        The Darden car caught up with Burks and Bell and eventually passed
both cars, putting them directly behind the Westerman truck. Darden’s car was
traveling approximately 70 to 80 miles per hour, and the truck began to speed
up in front of them. Darden began to speed up, and Andrews heard shots fired
from the back seat on the driver’s side, where Morrow was sitting. Andrews
turned around and saw Morrow leaning out of the window firing his gun. Bell
was following the Darden car approximately three (3) to four (4) car lengths
behind.

       Because Morrow’s gun jammed, he began fumbling with the weapon.
Morrow then told Darden to pass the Westerman truck, and as they started to
pass the truck on the left side, Andrews heard another shot fired from the same
direction. When the car pulled alongside the Westerman truck, Andrews heard
another shot fired from the back passenger seat. After they passed the truck,
Andrews noticed that the truck slowed down. Darden began to slow down and
then stopped his vehicle in the middle of the road. The truck stopped behind
them, and Morrow leaned out of his window, pointed his gun at the truck and
exclaimed, “[I’ve] got them now.” The truck veered off into a ditch, and
Morrow continued to fire his gun. Eventually, the truck was able to maneuver
through the ditch, out of the parking lot and back onto the road proceeding in
the opposite direction.

       Morrow testified on his own behalf at trial. He stated that on the day of
the incident, he was carrying a gun for protection because his life had been
threatened. He testified that they followed the Westerman truck because all of
the occupants in the car were “looking for a fight.” Although he
acknowledged that they wanted to fight because someone in the truck waved
the Confederate flag, he insisted that he did not shoot at the truck because of
the flag. Instead, he testified that as Darden began to pass the Westerman
truck, Darden, Merriweather and Andrews started yelling, “shoot!” Because
of the “pressure” from the others in the car, he started firing his gun into the
air. He stated that he never told Darden to stop his car in the road and did not
point his gun at the truck when the car was stopped. He further testified that
he never intended to harm anyone during the incident.

       Appellant Darden also testified for the defense at trial. He claimed that
no one in the car discussed fighting with the occupants of the truck. He was
offended when someone in the truck shook the flag, but had no intention of
shooting anyone. He was chasing the truck to “mess” with its occupants and
did not know that Morrow was armed. He denied that anyone in the car

                                      -4-
       coerced Morrow into shooting his weapon. When he heard the gunshots, he
       assumed that the truck was merely “backfiring.” He further denied stopping
       in the roadway or attempting to “box in” the Westermans’ truck.

State v. Freddie Morrow and Damien Darden, No. 01C01-9612-CC-00512, slip op. at 3-7
(Tenn. Crim. App. Dec. 22, 1998), aff’d, 12 S.W.3d 455 (Tenn. 2000).

       Based on this evidence, the trial court found the Petitioner guilty of first degree
murder in the perpetration of an attempted aggravated kidnapping, attempted aggravated
kidnapping, and civil rights intimidation. He was sentenced to life imprisonment for the first
degree murder conviction, four years for the attempted aggravated kidnapping conviction,
and three years for the civil rights intimidation conviction. The three- and four-year
sentences were ordered to run concurrently with each other but consecutively to the life
sentence. This court affirmed the convictions, and the Tennessee Supreme Court affirmed
this court’s decision. State v. Darden, 12 S.W.3d 455 (Tenn. 2000); Freddie Morrow and
Damien Darden, slip op. at 3. In the current appeal, the Petitioner does not address his
attempted aggravated kidnapping and civil rights intimidation convictions or the sentences
for those convictions.

        On February 5, 2001, the Petitioner filed a pro se “Petition for Writ of Habeas Corpus
or in the Alternative For Post-Conviction Relief” in Lake County Circuit Court. The court
denied the habeas corpus petition and determined that it did not have jurisdiction to address
the post-conviction issues arising from the Petitioner’s Robertson County convictions. State
v. Charles Damien Darden, No. W2001-01833-CCA-R3-CD (Tenn. Crim. App. Feb. 12,
2002). This court agreed with the trial court’s determination that it did not have jurisdiction
concerning the post-conviction issues but reversed and remanded the case for the
determination of indigency and the appointment of counsel regarding the Petitioner’s
challenge to the validity of the indictment. Id.

       On December 30, 2004, the Petitioner filed a petition for habeas corpus relief in Lake
County Circuit Court. He argued that his judgments were void due to a defective indictment
and that he was denied due process in juvenile court. He also argued the felony murder
judgment was facially invalid because the life sentence imposed by the trial court was
contrary to the 1989 Sentencing Act and because the judgment showed that he was a Range
I offender subject to 30% service. The court found that no defect rendering the indictment
void existed and that the juvenile court transfer order was proper. The court noted that
although the other judgments were proper, the felony murder judgment form showed that the
Petitioner was sentenced to life imprisonment but that the “block for ‘standard 30% Range
I’” was marked. The court conducted a hearing to determine if the Robertson County Circuit
Court had amended the judgment to reflect 100% service. The State filed a motion to

                                              -5-
dismiss, arguing that the issue had been adjudicated previously and that the Petitioner failed
to provide documentation as to the outcome of that proceeding. The court denied habeas
corpus relief. The hearing transcript was not included in the appellate record, and this court
presumed that the trial court properly ruled on the petition. Charles Damien Darden v. Tony
Parker, Warden, No. W2005-00982-CCA-R3-HC (Tenn. Crim. App. Nov. 30, 2005) (mem.),
perm. app. denied (Tenn. Apr. 24, 2006).

       On February 11, 2013, the Petitioner, proceeding pro se, filed the current petition,
which was titled “Petition for Writ of Habeas Corpus in Alternative Petition for Post-
Conviction Relief in Alternative Petition[] for Writ of Error Coram Nobis,” and asserted that
he was entitled to relief pursuant to the statutes governing post-conviction, habeas corpus,
and coram nobis. He contended that he was being illegally restrained and that his sentence
was cruel and unusual and violated the United States and Tennessee Constitutions pursuant
to Miller, 567 U.S. —, 132 S. Ct. 2455. He also contended that he received the ineffective
assistance of counsel and that Martinez v. Ryan, — U.S. —, 132 S.Ct. 1309 (2012), allowed
him to establish cause for his “procedural default” to allow the court to hear the issue.

        Following the appointment of counsel, the Petitioner filed an “Initial Brief” in the trial
court in support of his petition. Although the Petitioner conceded that nothing in the petition
indicated any newly discovered facts required coram nobis consideration and that the coram
nobis claim should be stricken, he did not state whether he wanted to proceed with his
petition as one for post-conviction relief or one for habeas corpus relief. He conceded that
Martin did not offer habeas corpus relief in Tennessee but in federal claims. He argued that
in Miller, the United States Supreme Court insisted trial courts have options when sentencing
a juvenile for a first degree murder conviction and that in his case, the trial court was
required to sentence him to life imprisonment because the State did not seek life without
parole. In his conclusion, he did not specifically request post-conviction or habeas corpus
relief but states that in this case, “Tennessee’s mandated life imprisonment with the
possibility of parole” is unconstitutional because the court did not have the option to impose
a lesser sentence.

        The Petitioner was not present when the trial court ruled on the petition. Counsel
conceded the petition concerned a question of law. In its oral findings, the court noted that
a juvenile’s sentence would violate the Eighth Amendment if the juvenile was subjected to
a situation where only the maximum sentence could be imposed and where the court had no
discretion to order a sentence below the maximum. The court determined that because the
Petitioner was not exposed to a life sentence without the possibility of parole or death, his
life sentence was less than he could have received and was not a constitutional infringement.
The court denied the petition.



                                               -6-
        When counsel asked the trial court for clarification regarding its position on whether
it had the authority to order a sentence below the mandatory minimum when the defendant
was a juvenile, the court stated that after the Petitioner was transferred from juvenile court,
tried, and convicted of first degree felony murder, three sentences were possible by law:
death, life without the possibility of parole, and life imprisonment. The court determined that
because the State did not seek the death penalty or life without parole, the Petitioner was
subjected to and received the least severe sentence for his conviction. The court stated that
it had no discretion by law to impose anything other than a life sentence.

        The trial court’s written order denying relief was titled “Order Denying Petition for
Writ of Habeas Corpus, for Post-Conviction Relief and for Writ of Error Coram Nobis.” The
court found that the Petitioner sought relief based on Miller, which stood for the proposition
that a juvenile who was transferred to adult court and tried for first degree murder could not
face a sentence of life without parole. The court noted that the Petitioner did not face a
possible sentence of life without the possibility of parole but was sentenced to “life with [the]
possibility of parole” and determined that Miller was not pertinent to this case. This appeal
followed.

       In his appellate brief, the Petitioner states only that this appeal addresses a question
of law. He does not state if he is proceeding under one type of petition or under all the
alternatives he listed in his original petition. He notes in his brief that the trial court’s May
24, 2013 order denied his “petition for post-conviction relief.”

        The Petitioner asserts that Tennessee’s mandatory minimum sentencing structure for
juveniles tried as adults and convicted of first degree murder violates the Eighth Amendment
to the United States Constitution, citing Miller. He argues that Miller requires that a trial
court have options other than a mandatory life sentence without parole when sentencing a
juvenile for first degree murder and that the court must have the opportunity to consider
mitigating factors before imposing the harshest possible sentence. He argues that a life
sentence was the only sentence the trial court could apply and that he should have been
allowed to have a sentencing hearing to show which mitigating factors apply to his
conviction. The State responds that the appeal is not properly before this court because the
Petitioner abandoned his coram nobis claim in the trial court, he never argued his judgments
were void for habeas corpus relief, he filed the petition in the wrong trial court for habeas
corpus relief, his post-conviction claim is time-barred, and he failed to comply with the
requirements to appeal a denial of a motion to reopen his petition for post-conviction relief.
In the alternative, the State asserts that the Petitioner’s sentence does not violate Miller. We
agree with the State that the Petitioner’s sentence does not violate Miller.




                                               -7-
        Regarding the State’s argument that the Petitioner’s appeal is not properly before this
court as one for coram nobis relief, we note the Petitioner conceded in his “Initial Brief” filed
in the trial court that nothing in the petition indicated any newly discovered facts requiring
coram nobis consideration and struck the coram nobis claim. The petition does not allege
proper grounds for coram nobis relief, and we will not consider the petition as one for coram
nobis relief.

       Regarding the State’s argument that the Petitioner’s appeal is not properly before this
court as one for habeas corpus relief, we note that the Petitioner argued in his original
petition that his judgment was void. Regarding the location of the petition’s filing,
Tennessee Code Annotated section 29-21-105 (2012) states that an application for habeas
corpus relief should be filed with “the court or judge most convenient in point of distance to
the applicant, unless a sufficient reason be given in the petition for not applying to such court
or judge.” Although the Petitioner is incarcerated in Lake County and filed his petition in
Robertson County, the trial court did not dismiss the petition on procedural grounds, and we
will not rely on this deficiency in determining whether the trial court erred in denying the
petition. See Brian Roberson v. Howard Carlton, Warden, No. E2006-01551-CCA-R3-HC,
slip op. at 4 (Tenn. Crim. App. July 12, 2007) (unless a trial court dismisses a petition for
habeas corpus due to noncompliance with procedural requirements, an appellate court should
not rely on procedural deficiencies to defeat an appeal), perm. app. denied (Tenn. Nov. 19,
2007).

       In Tennessee, habeas corpus relief is available only when it appears on the face of the
judgment or the record that the trial court was without jurisdiction to convict or sentence the
defendant or that the sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993). The purpose of the habeas corpus petition is to contest a void, not merely a voidable,
judgment. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999); State ex rel. Newsom v.
Henderson, 424 S.W.2d 186, 189 (Tenn. 1968). 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). A voidable
judgment “is one that is facially valid and requires proof beyond the face of the record or
judgment to establish its invalidity.” Id. The burden is on the petitioner to establish that the
judgment is void or that the sentence has expired. State ex rel. Kuntz v. Bomar, 381 S.W.2d
290, 291-92 (Tenn. 1964).

       An illegal sentence results in a void judgment and is a cognizable claim for habeas
corpus relief. See Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000). An illegal
sentence is a “jurisdictional defect,” and the petitioner must show that the “jurisdictional
defect appears in the record of the original trial, thereby creating a void judgment.” Luther
E. Fowler v. Howard Carlton, Warden, No. E2004-01346-CCA-R3-HC, slip op. at 4 (Tenn.

                                               -8-
Crim. App. Mar. 21, 2005), perm. app. denied (Tenn. June 27, 2005). The petitioner must
show, based on the record of the trial, that the trial court lacked jurisdiction to sentence him.
See Stephenson, 28 S.W.3d 910; see also Luther E. Fowler, slip op. at 4.

        We note that Tennessee Code Annotated section 29-21-107(b)(4) (2012) requires a
petitioner to attach to his habeas corpus petition copies of his previous habeas corpus
petitions and the proceedings thereon. The Petitioner attached this court’s decisions in his
previous cases to his “Initial Brief” filed in the trial court but failed to include his previous
habeas corpus petitions or the proceedings on those petitions. However, the record does not
show that the State moved to dismiss the petition for failure to comply with the requirement,
and the trial court denied relief without addressing the procedural deficiency. Our supreme
court has concluded that dismissal is not required for failure to comply with section 29-21-
107 and that a trial court may choose to adjudicate the petition on its merits. Hickman v.
State, 153 S.W.3d 16, 21 (Tenn. 2004). We conclude that the court properly adjudicated the
petition for relief on the merits.

        The Petitioner contends that his sentence is unconstitutional pursuant to Miller. Life
imprisonment is a statutorily authorized punishment for the Petitioner’s felony murder
conviction, and the trial court was statutorily empowered to impose the life sentence pursuant
to Tennessee Code Annotated section 39-13-202(c) (2010). “[T]he writ of habeas corpus
is not, per se, a vehicle for enforcing constitutional rights.” Luther E. Fowler, slip op. at 5;
see Summers, 212 S.W.3d at 261 (contrasting post-conviction proceedings, which “may
challenge a conviction or sentence that is alleged to be void or voidable because of the
abridgement of constitutional rights,” to habeas corpus procedures, which are for the narrow
purpose of challenging a void judgment). His claim of an unconstitutional sentence renders
the judgment voidable, not void, and is not cognizable in a habeas corpus petition. We
conclude that the Petitioner is not entitled to habeas corpus relief.

       Regarding the State’s argument that the Petitioner’s appeal is not properly before this
court as one for post-conviction relief, post-conviction relief may only be given if a
conviction or sentence is void or voidable because of a violation of a constitutional right.
T.C.A. § 40-30-103 (2012). The Post-Conviction Procedure Act allows for only one petition
attacking a single judgment, which must be filed within one year of the final action by the
highest state appellate court to which an appeal is made or, if no appeal is taken, within one
year of the trial court’s judgment becoming final. T.C.A. § 40-30-102(a), (c) (2012). If a
previous petition is resolved on the merits by a court of competent jurisdiction, a “subsequent
petition shall be summarily dismissed.” Id. at § 40-30-102(c).




                                               -9-
       The State argues that if the original petition was a motion to reopen the Petitioner’s
previous post-conviction petition, the appeal is not properly before this court because the
Petitioner did not file an application seeking permission to appeal as required by Tennessee
Code Annotated section 40-30-117(c) (2012). The Petitioner previously filed a pro se
petition captioned “Petition for Writ of Habeas Corpus or in the Alternative For Post-
Conviction Relief” in Lake County Circuit Court. Although the court denied the habeas
corpus petition, it determined that it did not have jurisdiction to address the post-conviction
issues arising from the Petitioner’s Robertson County convictions, and this court agreed.
Charles Damien Darden, slip op. at 1. The previous post-conviction petition was not
resolved on the merits by a court of competent jurisdiction, and the Petitioner is not barred
from seeking post-conviction relief.


       Regarding the State’s argument that a post-conviction petition is time-barred, the
Petitioner’s convictions became final on February 7, 2000, and the current petition was filed
over thirteen years later on February 11, 2013. On its face, the petition is barred by the post-
conviction statute of limitations and contains no allegation why it is not time-barred.
Counsel was appointed to represent the Petitioner, but still no argument was made as to why
the petition is not time-barred as a post-conviction claim.


        Tennessee Code Annotated Section 40-30-102(a) (2012) provides that a person must
petition for post-conviction relief within one year of the date on which the judgment became
final to prevent consideration of the petition being time-barred. The statute emphasizes that
“[t]ime is of the essence of the right to file a petition for post-conviction relief . . . , and the
one-year limitations period is an element of the right to file such an action and is a condition
upon its exercise.” Id. A petition filed after the limitations period expires shall not be
considered unless one of three exceptions applies. See T.C.A. § 40-30-102(b)(1)-(3). The
only relevant exception provides that


       (1) The claim in the petition 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 petition
       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[.]


Id. at § 40-30-102(b)(1). The Petitioner’s claim is based on the United States Supreme
Court’s decision in Miller, establishing that a mandatory life sentence without parole is


                                               -10-
unconstitutional for defendants who were juveniles at the time of the offense. The petition
was filed within one year of the Court’s decision.


       The United States Supreme Court has not addressed the retroactive application of
Miller. The Tennessee Supreme Court recently concluded that the retroactivity of new
constitutional rules in post-conviction proceedings should be determined using Tennessee
Code Annotated section 40-30-122 (2012). Derrick Brandon Bush v. State, — S.W.3d —,
—, No. M2011-02133-SC-R11-PC, slip op. at 16 (Tenn. Jan. 28, 2014). That section states
that


       a new rule of constitutional criminal law is announced if the result is not
       dictated by precedent existing at the time the petitioner’s conviction became
       final and application of the rule was susceptible to debate among reasonable
       minds. A new rule of constitutional criminal law shall not be applied
       retroactively in a post-conviction proceeding unless the new rule places
       primary, private individual conduct beyond the power of the criminal law-
       making authority to proscribe or requires the observance of fairness safeguards
       that are implicit in the concept of ordered liberty.


T.C.A. § 40-30-122. The court noted in Bush that state courts are “not ‘bound by federal
retroactivity analysis when a new federal rule is involved.’” Bush, slip op. at 12 n.6.
Whether Miller requires retroactive application is a question of law, which we review de
novo with no presumption of correctness. State v. White, 362 S.W.3d 559, 565 (Tenn. 2012).
We must determine first whether Miller announced a “new rule.” Bush, slip op. at 16. If
Miller announced a new rule, we must then determine if the rule requires retroactive
application. Id.


        Tennessee Code Annotated section 40-30-122 states that “a new rule of constitutional
criminal law is announced if the result is not dictated by precedent existing at the time the
petitioner’s conviction became final and application of the rule was susceptible to debate
among reasonable minds.” Although the majority in Miller held that mandatory life
imprisonment without parole for juvenile offenders is unconstitutional, one justice filed a
concurring opinion, and three justices filed dissenting opinions. Miller, 567 U.S. —, 132 S.
Ct. 2455 (Breyer, J., concurring), (Roberts, J., dissenting), (Thomas, J., dissenting), (Alito,
J., dissenting). Further, Justice Scalia joined each of the dissenting opinions, although he did
not write separately. The fact that Miller resulted in a split panel and that the majority’s
decisions reversed two state appellate courts’ decisions shows that the ruling was not dictated


                                              -11-
by precedent. Also, the Court’s separate opinions show that the ruling was susceptible to
debate among reasonable minds. We conclude that Miller announced a new rule of
constitutional criminal law and was not dictated by precedent.


        Tennessee Code Annotated section 40-30-122 states that a new rule of constitutional
criminal law can be applied retroactively only if “the new rule places primary, private
individual conduct beyond the power of the criminal law-making authority to proscribe” or
if the new rule “requires the observance of fairness safeguards that are implicit in the concept
of ordered liberty.” The retroactivity standard of Code section 40-30-122 is similar to the
federal standard of Teague v. Lane, 489 U.S. 288 (1989). Bush, slip op. at 19. In Teague,
the Supreme Court stated that a new rule of federal constitutional law is to be applied in
cases on collateral review if it (1) “places certain kinds of primary, private individual conduct
beyond the power of the criminal law-making authority to proscribe” or (2) requires the
observance of procedures implicit in the concept of ordered liberty. Teague, 489 U.S. at 307
(internal quotations omitted). Our supreme court concluded that the statutory “fairness
safeguards” are the equivalent of the Teague standard’s “watershed rules of criminal
procedure” or “those new procedures without which the likelihood of an accurate conviction
is seriously diminished.” Bush, slip op. at 21 (citing Teague, 489 U.S. at 313). We note that
the language in section 40-30-122 and Teague concerning new rules that place conduct
beyond the power of the criminal law-making authority is identical, and we use them as
guides in determining whether Miller should be applied retroactively as a rule placing
conduct beyond the power of the state to proscribe.


        In Van Tran v. State, 66 S.W.3d 790, 811 (Tenn. 2001), our supreme court determined
that its holding prohibiting the execution of intellectually disabled defendants should be
applied retroactively because it “materially enhance[d] the integrity and reliability of the fact
finding process of the trial.” (citing the Teague federal standard for retroactivity). The Van
Tran holding is instructive because like Miller, it concerns prohibiting a category of
punishment for a class of defendants. In Van Tran, the court quoted the United States
Supreme court, stating, “‘[T]he first exception set forth in Teague should be understood to
cover not only rules forbidding criminal punishment of certain primary conduct but also rules
prohibiting a certain category of punishment for a class of defendants because of their status
or offense.’” Van Tran, 66 S.W.3d at 811 (quoting Penry v. Lynaugh, 492 U.S. 302, 330
(1989)). We conclude that the Miller rule is a new rule of constitutional criminal law that
should be applied retroactively because it forbids the criminal punishment of a mandatory
sentence of life imprisonment without parole for a certain class of defendants because of
their status as juveniles. We review the petition as one for post-conviction relief.




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        The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2012). The question of
whether the Petitioner’s sentence is unconstitutional is a question of law, which we review
de novo. Fields v. State, 40 S.W.3d 450,457-58 (Tenn. 2001).


       Unlike the Arkansas and Alabama statutes discussed in Miller that only allowed for
sentences of death or life imprisonment without parole for first degree murder, Tennessee
defendants convicted of first degree murder may be sentenced to death, life imprisonment
without the possibility of parole, or life imprisonment. T.C.A. § 39-13-202(c) (2010). A
defendant transferred from juvenile court before being convicted may not be sentenced to
death. T.C.A. § 37-1-134(a)(1) (Supp. 2013). Life imprisonment in Tennessee does not
condemn a juvenile offender to die in prison as the life-without-parole sentences
contemplated by Miller. In Tennessee, a defendant sentenced to life imprisonment must
serve 85% of sixty years, or fifty-one years, before becoming eligible for release. T.C.A. §
40-35-501(i)(1) (2010); see also Vaughn v. State, 202 S.W.3d 106 (Tenn. 2006); Tenn. Op.
Att’y Gen., No. 97-098 (1997). Miller addressed the need for discretion in imposing a
sentence of life without the possibility of parole. Miller, 567 U.S. —, 132 S. Ct. at 2460.
Because the Petitioner received a life sentence with release eligibility after fifty-one years’
imprisonment, we conclude that the Petitioner is not entitled to post-conviction relief.


        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.




                                           ____________________________________
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




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