         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


              ALLEN JEAN STEPHENS v. STATE OF TENNESSEE

                 Direct Appeal from the Circuit Court for Lauderdale County
                           No. 6259     Joe H. Walker, III, Judge



                    No. W2008-02492-CCA-R3-HC -               Filed April 15, 2009



         The Petitioner, Allen Jean Stephens, 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

J.C. MCLIN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and CAMILLE
R. MCMULLEN , JJ., joined.

Allen Jean Stephens, 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


        The Petitioner, Allen Jean Stephens, was convicted of one count of possession of more than
.5 grams of cocaine with intent to sell and one count of possession of drug paraphernalia. The trial
court sentenced the Petitioner as a range II offender to twenty-three years for the felony drug
conviction and eleven months, twenty-nine days for the misdemeanor possession conviction. This
Court affirmed the judgments of convictions and the sentences imposed by the trial court. See State
v. Allen Jean Stephens, No. W2004-00531-CCA-R3-CD (Tenn. Crim. App., at Jackson, Jun. 23,
2005), perm. to appeal denied, (Tenn. Dec. 5, 2005). Subsequently, the Petitioner sought post-

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conviction relief, alleging that trial counsel was ineffective. The lower court denied relief and this
Court affirmed the lower court’s denial. See Allen Jean Stephens v. State, No. W2006-02773-CCA-
R3-PC (Tenn. Crim. App., at Jackson, Oct. 3, 2007).

        On or about September 10, 2008, the Petitioner filed, in the Circuit Court of Lauderdale
County, a petition for habeas corpus relief. As grounds for relief, the Petitioner made the following
allegations:
        1. The State’s argument and proof in conjunction with the trial court’s jury
        instructions broadened the charged offense and thereby resulted in the constructive
        amendment of the indictment;
        2. The indictment was vague and failed to provide notice of the charged offense;
        3. The trial court violated his constitutional rights to a jury trial by making factual
        findings in support of certain enhancement factors and consecutive sentences;
        4. The grand jury and the petit jury were both unconstitutionally selected and
        impaneled;
        5. The trial court erred by permitting the prosecution to introduce testimony of prior
        bad acts;
        6. Counsel was ineffective at both the trial and appellate level; and
        7. The failure to elect a specific offense was a fatal defect.

By order entered September 18, 2008, the trial court denied habeas corpus relief. Specifically, the
lower court determined that the Petitioner’s sentence has not expired and that the court had
jurisdiction to sentence the Petitioner. A notice of appeal document was filed on October 14, 2008.

        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. As basis for its motion, the
State asserts that the Petitioner has failed to state a claim for which habeas corpus relief is available.

        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. See
Edwards v, State, 269 S.W.3d 915, 919 (Tenn. 2008). 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); Potts 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


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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). Habeas corpus
may not be used as a substitute for an appeal. See Edwards, 269 S.W.3d at 920. Thus, the
determinative issue in every habeas corpus proceeding is whether the challenged judgment is void.
Id.
       If after a review of the 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 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 makes numerous allegations in his present habeas petition. The Petitioner
asserts that the prosecutor’s argument and the trial court’s jury charge essentially amended the
indictment resulting in a void conviction. Even if the Petitioner’s allegations are true, such
allegations would merely render the judgment voidable, not void. Gary E. Aldridge v. State, No.
M2004-01861-CCA-R3-HC (Tenn. Crim. App., at Nashville, Apr. 28, 2006), perm. to appeal denied,
(Tenn. Nov. 27, 2006) (citing Donald Walton v. State, No. M2002-02044-CCA-R3-CO (Tenn. Crim.
App., at Nashville, Jan. 28, 2004), perm. to appeal denied, (Tenn. May 10, 2004)). The Petitioner
asserts that his convictions are void because he was sentenced in violation of Blakely v. Washington
and its progeny. This claim fails because, even if such defect occurred, the defect would only render
the judgment voidable, not void. See Gary E. Aldridge v. State, No. M2005-01861-CCA-R3-HC
(citing Francis L. Sanschargrin v. State, No. M2005-00304-CCA-R3-HC (Tenn. Crim. App., at
Nashville, Aug. 11, 2004)(“This Court has previously determined that even if a Blakely violation
occurred at the time of sentencing, such a violation would render the judgment voidable, and not
void....”)). The Petitioner alleges that he received the ineffective assistance of trial and appellate
counsel and that the trial court erred in permitting introduction of evidence of a prior bad act. Issues
that have been previously decided and disposed of in a direct appeal or on post-conviction may not
be raised and relitigated in a subsequent habeas corpus proceeding. Long v. State, 510 S.W.2d 83,
87 (Tenn. Crim. App. 1974). Moreover, these allegations in addition to the Petitioner’s claims that
the grand and petit jury were unconstitutionally empaneled and that the prosecution failed to elect
an offense, even if true, would not render the judgment of conviction void, but merely voidable. See
Passarella v. State, 891 S.W.2d 619, 627 (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); Luttrell v. State, 644 S.W.2d 408, 409 (Tenn. Crim. App. 1982). All of these claims would
require proof beyond the face of the record and appropriate findings to establish their validity and,
therefore, do not present a ground for relief which is cognizable in the habeas corpus forum. See
Taylor v. State, 995 S.W.2d 78, 83 (Tenn.1999) (observing that a voidable judgment is one that is


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“facially valid and requires the introduction of proof beyond the face of the record or judgment to
establish its invalidity”).


        The Petitioner further claims that the indictment charging him with over .5 grams of cocaine
with intent failed to provide him adequate notice of the charged offense. A valid indictment is an
essential jurisdictional element, without which there can be no prosecution. See State v. Hill, 954
S.W.2d 725, 727 (Tenn. 1997); State v. Stokes, 954 S.W.2d 729, 730 (Tenn.1997). “Because a
habeas corpus proceeding will allow us to examine the record-including the indictment-it is an
appropriate vehicle to determine whether a judgment is void.” Dykes v. Compton, 978 S.W.2d 528,
529 (Tenn. 1998). The indictment charged the Petitioner as follows:


       THE GRAND JURORS of Weakley County, Tennessee, duly empaneled and sworn
       upon their oaths, present that


                                   ALLEN JEAN STEPHENS
       on July 11, 2003, in Weakley County, Tennessee, . . . did unlawfully, feloniously and
       knowingly possess point five (.5) grams or more of a substance containing cocaine,
       a Schedule II controlled substance with intent to deliver such controlled substance
       in violation of T.C.A. § 39-17-417(a)(4), a Class B felony Possession of Controlled
       Substance with Intent,


                                        SECOND COUNT


               And the Grand Jurors aforesaid . . . present further than on the date aforesaid
       and in the aforesaid County, the aforesaid ALLEN JEAN STEPHENS did unlawfully
       and knowingly possess Marijuana, a controlled substance, in violation of T.C.A. §
       39-17-418(a), a Class A Misdemeanor Simple Possession,


                                         THIRD COUNT


               And the Grand Jurors aforesaid . . . present further that on the date aforesaid
       and in the aforesaid County, the aforesaid ALLEN JEAN STEPHENS did unlawfully
       and recklessly possess with intent to use drug paraphernalia to pack, store and
       contain a controlled substance in violation of T.C.A. § 39-17-425(a), a Class A
       Misdemeanor Unlawful Drug Paraphernalia Uses and Activities.




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An accused is constitutionally guaranteed the right to be informed of the nature and cause of the
accusation. State v. Lindsey, 208 S.W.3d 432, 437-438 (Tenn. Crim. App. 2006) (citing U.S. Const.
amend. 6, 14; Tenn. Const. art. I, § 9; see Wyatt v. State, 24 S.W.3d 319, 324 (Tenn. 2000)). Our
courts have interpreted this constitutional mandate to require an indictment to “1) provide notice to
the accused of the offense charged; 2) provide the court with an adequate ground upon which a
proper judgment may be entered; and 3) provide the defendant with protection against double
jeopardy.” Lindsey, 208 S.W.2d at 438 (citing Wyatt, 24 S.W.3d at 324). Further, an indictment
is statutorily required to “state the facts constituting the offense in ordinary and concise language,
without prolixity or repetition, in such a manner as to enable a person of common understanding to
know what is intended, and with that degree of certainty which will enable the court, on conviction,
to pronounce the proper judgment.” Id. (citing T.C.A.§ 40-13-202). The indictment in the present
case fully informs the Petitioner of the essential elements of the charged offenses. The indictment
names the Petitioner as the accused, the date of the offense, the actus reus, the mens rea, and
references to the applicable statute. The indictment clearly vests jurisdiction in the convicting court
and places the Petitioner on notice of the nature of the charge.


        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. R. Ct. Crim. App. 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
affirmed in accordance with Rule 20 , Rules of the Court of Criminal Appeals.




                                                        ___________________________________
                                                                          J.C. MCLIN, JUDGE




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