        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON

     MARVIN ANTHONY MATTHEWS v. TONY PARKER, WARDEN

                    Appeal from the Circuit Court for Lake County
                     No. 09-CR-9350     R. Lee Moore, Jr., Judge


                No. W2009-02177-CCA-R3-HC - Filed August 17, 2010


The petitioner, Marvin Anthony Matthews, appeals pro se the Circuit Court of Lake County’s
order dismissing his petitions for habeas corpus relief. The petitioner claims he is being
illegally detained because his sentence for third degree burglary has expired. The State filed
a motion requesting this court to affirm the trial court’s order pursuant to Rule 20 of the
Rules of the Court of Criminal Appeals. Following our review, we grant the State’s motion
and affirm the judgment of the trial court.

    Tenn. R. App. P. 3 Appeal as Right; Judgment of the Circuit Court Affirmed
              Pursuant to Rule 20 of the Court of Criminal Appeals

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and
J. C. M CL IN, JJ., joined.

Marvin Anthony Matthews, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General, for the Appellee, State of Tennessee.

                              MEMORANDUM OPINION

       The petitioner pled guilty to second degree burglary on April 2, 1984, case number
91091. He was sentenced as a persistent offender to fifteen years in the Tennessee
Department of Correction. The judgment form states that the petitioner was allowed 110
days of jail credit. On August 7, 1984, the petitioner pled guilty to third degree burglary,
case number 8402495. He was sentenced as a persistent offender to ten years in the
Tennessee Department of Correction. The trial court ordered this sentence to run
consecutively to the fifteen-year sentence for second degree burglary. The petitioner
received a combined sentence of twenty-five years. He did not challenge either conviction
on direct appeal.
       The petitioner was subsequently convicted of grand larceny in 1988.1 See Marvin
Anthony Matthews v. State, 1990 WL 2862, at *1 (Tenn. Crim. App., at Jackson, Jan. 17,
1990). He received a life sentence as a habitual offender. Id. This court summarized the
petitioner’s lengthy procedural history following the conviction in Marvin Anthony
Matthews v. Tony Parker, Warden, No. W2010-00442-CCA-R3-HC, 2010 WL 2490773, at
*1-2 (Tenn. Crim. App., at Jackson, June 21, 2010).

       This appeal concerns the petitioner’s convictions for second degree burglary and third
degree burglary. The petitioner filed a petition for writ of habeas corpus on September 8,
2009. The petition alleged that the sentence for second degree burglary expired on August
22, 1997. As an attachment, the petitioner included a printout from the Tennessee Offender
Management Information System (TOMIS). The printout lists the sentence expiration date
as August 22, 1997, and the final expiration date as January 29, 2001.

       The petitioner filed a second petition for writ of habeas corpus on September 18,
2009, with the same docket number as the September 8 petition. The latter petition argued
that the sentence for third degree burglary expired on March 1, 2004, and therefore the
petitioner was being illegally detained. The petition also asserted that the institutional record
did not contain a certified copy of any new sentence. The petitioner attached another printout
from TOMIS, which is dated July 10, 2007. The printout lists the sentence expiration date
as March 1, 2004, and the final expiration date as November 13, 2010. Neither of the
petitions for writ of habeas corpus mention the life sentence for grand larceny.

        The trial court dismissed both petitions in a single order. The order stated:

                In both of these petitions, petitioner states that his sentences have
        expired. He states that he is entitled to be released immediately and the only
        basis for the release is that the sentences have expired. He alleges that some
        employee of the TDOC advised him that the first sentence expired on August
        22, 1997, and that he assumed that the employee would continue to take the
        necessary steps to bring the expired sentence to the attention of the central
        office. In his second petition, he alleges that he learned from an employee of
        TDOC that his ten year sentence had expired on March 1, 2004. He again
        states that he was under the impression that the employee had taken necessary



        1
         The grand larceny occurred after the petitioner escaped from jail on August 9, 1987. See State v.
Marvin Anthony Matthews, No. 02-C-019105CC00082, 1991 WL 248445, at *1 (Tenn. Crim. App., at
Jackson, Nov. 27, 1991). He was returned to the custody of the Tennessee Department of Correction on
September 14, 1989. Id.

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       steps to report this matter to the central office at the TDOC. He feels that he
       is entitled to immediate release.

              The petitioner provides the Court with a copy of his indictment on both
       charges and a copy of his judgment. He also provides a copy of his TOMIS
       report on each charge. No other information is provided.

              The petitioner does not provide the Court with a history of his sentences
       for the Court to know whether or not he has been paroled or had his parole
       revoked. The only thing that the Court has to go by in this case is that the
       TOMIS report on the second charge indicates that the final expiration date is
       November 13, 2010. Consequently, it appears from the information supplied
       by the petitioner that his total sentences have not expired. He, therefore, states
       no basis for habeas corpus relief at the present time. The petition is, therefore,
       denied.

After the trial court issued the order, the petitioner filed a timely notice of appeal.

        A prisoner is guaranteed the right to habeas corpus relief under Article I, section 15
of the Tennessee Constitution. See also T.C.A. § 29-21-101, et seq. However, the grounds
upon which a writ of habeas corpus may be issued 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). “[T]he purpose of a habeas
corpus petition is to contest void and not merely voidable judgments.” Id. at 163. 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.

       In contrast, 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.

Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004) (internal citation and quotations omitted);
see also Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (citations omitted).

                                              -3-
      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 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
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 argues that he is being unlawfully detained because his sentence for
third degree burglary expired. He relies exclusively on the judgment forms and the TOMIS
printouts. In response, the State claims the petitioner is not entitled to relief because he is
currently restrained under a life sentence for grand larceny. The State also argues that the
petitioner did not comply with the requirements of habeas corpus practice because he failed
to attach copies of prior petitions for habeas corpus relief.

        We agree with the State that the petitioner is not unlawfully detained. The petitioner
is serving a life sentence for grand larceny, which remains in effect. See Marvin Anthony
Matthews, 2010 WL 2490773, at *1. The petitioner also failed to demonstrate that his
sentence for third degree burglary expired. The record is limited to the judgment form and
the TOMIS printout from July of 2007. The petitioner argues that his sentence for third
degree burglary has expired because the TOMIS printout lists the sentence expiration date
as March 1, 2004. However, the printout states that the final expiration date is November
13, 2010. The difference between the two dates is that the sentence expiration date accounts
for sentence reduction credits. See Peter Greer v. Tennessee Department of Correction,
No. M2000-00222-COA-R3-CV, 2002 WL 598561, at *1 n. 2 (Tenn. Ct. App., Apr. 17,
2002). The record does not contain any documentation regarding sentence reduction credits,
and therefore it is unclear which expiration date is applicable.

       In the petitioner’s brief, he also claims that the trial court should have held a hearing
to determine if he was indigent for purposes of appointing counsel. He did not raise this
issue in either petition for writ of habeas corpus, and therefore it is waived. See George
Campbell, Jr. v. Bruce Westbrooks, Warden, No. W2002-02086-CCA-R3-CO, 2003 WL
22309471, at *3 (Tenn. Crim. App., at Jackson, Oct. 6, 2003) (citing State v. Turner, 919
S.W.2d 346, 356 (Tenn. Crim. App. 1995)); Kenneth Steele v. State, 1997 WL 211265, at
*1 (Tenn. Crim. App., at Nashville, Apr. 30, 1997); Ricks v. State, 882 S.W.2d 387, 393

                                               -4-
(Tenn. Crim. App. 1994). Waiver notwithstanding, the petitioner would not be entitled to
relief on this issue. As discussed above, the trial court can dismiss a petition for habeas
corpus relief without an evidentiary hearing and without the appointment of counsel if the
petitioner failed to state a cognizable claim. Jermaine Hunter v. Howard Carlton, Warden,
No. E2007-00438-CCA-R3-HC, 2007 WL 2792923, at *1 (Tenn. Crim. App., at Knoxville,
Sept. 27, 2007) (citing Summers, 212 S.W.3d at 260 and Hickman, 153 S.W.3d at 20). Here,
the petitioner has not presented a cognizable claim, and therefore the trial court was not
required to hold a hearing or to appoint counsel.

        We note that the petitioner failed to comply with the procedural requirements of the
habeas corpus statute. The procedural requirements are mandatory and must be strictly
followed. See Archer, 851 S.W.2d at 165 (citing Bateman v. Smith, 194 S.W.2d 336, 337
(Tenn. 1946)). Tennessee Code Annotated section 29-21-107(b)(4) mandates that copies of
prior petitions for writ of habeas corpus must be attached to the current petition unless a
satisfactory reason is provided. Here, the petitioner failed to include copies of two prior
petitions.2     See Marvin Anthony Matthews v. Alton Hesson, Warden, No.
02C01-9712-CC-00465, 1998 WL 100594, at *1 (Tenn. Crim. App., at Jackson, Mar. 10,
1998); Marvin Anthony Matthews v. David Mills, Warden, No. W2005-01504-CCA-R3HC,
2005 WL 3202546, at *1 (Tenn. Crim. App., at Jackson, Nov. 30, 2005). The petitioner gave
the following explanation for the absence of these petitions:

        [T]he reason petitioner has not annexed a copy of his previous writ to this
        petition is because the earlier writ for habeas corpus has through no fault of the
        petition . . . been misplaced through the institutional shakedown that takes
        place periodically through[]out the institution.

We do not find that this explanation alone provides a satisfactory reason for not including
the prior petitions. Their absence constitutes another basis for affirming the trial court’s
dismissal. See Jimmy Wayne Wilson v. State, No. 03C01-9806-CR-00206, 1999 WL
420495, at *2 (Tenn. Crim. App., at Knoxville, June 24, 1999).

        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.

        2
         The two prior petitions addressed the sufficiency of the indictments for the second and third degree
burglary. They did not cover the same issues raised in the current petitions.

                                                    -5-
The judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Court
of Criminal Appeals.


                                                 ___________________________________
                                                 CAMILLE R. McMULLEN, JUDGE




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