         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs June 18, 2008

                 JESSIE HODGES v. RICKY J. BELL, WARDEN

                   Appeal from the Chancery Court for Davidson County
                           No. 07-135-II Carol L. McCoy, Judge



                   No. M2007-01623-CCA-R3-HC - Filed December 2, 2008


Petitioner, Jessie Hodges, was convicted of robbery and sentenced as a persistent offender to twelve
years in incarceration. His conviction was affirmed on direct appeal. State v. Jessie Nelson Hodges,
No. W2001-00871-CCA-R3-CD, 2002 WL 927603, at *9 (Tenn. Crim. App., at Jackson, May 3,
2002), perm. app. denied (Tenn. Nov. 4, 2002). Petitioner unsuccessfully sought post-conviction
relief. Jessie Hodges v. State, No. W2005-01852-CCA-R3-PC, 2006 WL 211829, at *2 (Tenn.
Crim. App., at Jackson, Jan. 25, 2006), perm. app. denied (Tenn. May 30, 2006). Subsequently,
Petitioner sought habeas corpus relief in the Davidson County Chancery Court. The habeas corpus
court dismissed the petition. Petitioner appeals. We determine that the habeas corpus court properly
found that it lacked subject matter jurisdiction. Therefore, the judgment of the habeas corpus court
is affirmed.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ROBERT
W. WEDEMEYER , JJ., joined.

Jessie Hodges, Pro Se, Nashville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;
and Victor S. Johnson, District Attorney General, for the appellee, State of Tennessee.



                                            OPINION


               On December 1, 2000, Petitioner was convicted by a Lauderdale County Jury of
robbery. He was sentenced as a persistent offender to twelve years in incarceration. On direct
appeal, Petitioner challenged several aspects of his conviction, specifically the sufficiency of the
evidence; whether the evidence introduced at trial was illegally obtained in contravention of his
Fourth Amendment rights; whether Petitioner was deprived of an “independent analysis of the
evidence”; and whether the trial court improperly instructed the jury. Jessie Nelson Hodges, 2002
WL 927603, at *1. The facts, as summarized by this Court on direct appeal, revealed that Petitioner
robbed the H & A Quick Stop in Halls, Tennessee. Id. at *1-6. The cashier at the market identified
Petitioner as the robber in a photographic lineup. Id. at *3. There was also a video surveillance tape
of the crime which was shown to the jury. Id. This Court affirmed Petitioner’s conviction on appeal.
Id. at *9.

        Subsequently, Petitioner sought post-conviction relief. Jessie Hodges, 2006 WL 211829, at
*2. Apparently, Petitioner filed one petition for post-conviction relief which was dismissed.
Petitioner did not appeal from the denial of the first petition for post-conviction relief. Id. Almost
two years later, Petitioner filed a second petition for post-conviction relief, asserting that he was
denied an effective appeal of his first petition for post-conviction relief due to counsel’s failure to
file a notice of appeal. The post-conviction court denied relief on the basis that Petitioner had
refused the assistance of counsel and Petitioner failed to seek a timely appeal of the first petition for
post-conviction relief. Id. at *1. This Court affirmed the dismissal of the petition for post-
conviction relief as untimely. Id. at *2.

        In January of 2007, Petitioner filed the petition for habeas corpus relief which is the subject
of the appeal herein. At the time, Petitioner was incarcerated in the Riverbend Maximum Security
Prison in Nashville. He filed the petition for writ of habeas corpus in the Chancery Court for
Davidson County. In the petition, he argued that: (1) the trial court did not give jury instructions as
required by Tennessee Rule of Criminal Procedure 30(c); (2) the trial court did not give jury
instructions as required by Tennessee Rule of Criminal Procedure 30(d)(1) and (2); (3) the trial court
did not charge the jury with lesser included offenses required by Tennessee Code Annotated section
40-18-110(a); and (4) the trial court did not give any jury instructions. Petitioner contended that
these alleged insufficiencies of the trial court resulted in a void judgment.

        The habeas corpus court determined that the issues presented by Petitioner “should properly
have been addressed at the criminal trial court level” or on direct appeal. Furthermore, the trial court
determined that Petitioner filed the petition in the “wrong court.” As a result, the habeas corpus
court dismissed the petition.

       Petitioner filed a timely notice of appeal. He seeks review of the dismissal of his petition for
habeas corpus relief.

                                               Analysis

         On appeal, Petitioner contends that his judgment of conviction for robbery is void because
the trial court did not give any instructions to the jury. The State disagrees, arguing that the habeas
corpus court properly dismissed the petition because it did not have proper subject matter
jurisdiction. In the alternative, the State argues that Petitioner has failed to illustrate that his
judgment is void.


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         The determination of whether to grant habeas corpus relief is a question of law. See Hickman
v. State, 153 S.W.3d 16, 19 (Tenn. 2004). As such, we will review the habeas corpus court’s
findings de novo without a presumption of correctness. Id. Moreover, it is 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
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).

       However, if after a review of the habeas 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, 627 (Tenn. Crim. App. 1994), superceded 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 procedural requirements for habeas corpus relief are mandatory and must be scrupulously
followed. Summers v. State, 212 S.W.3d 251, 260 (Tenn. 2007); Hickman, 153 S.W.3d at 19-20;
Archer, 851 S.W.2d at 165. For the benefit of individuals such as Petitioner, our legislature has
explicitly laid out the formal requirements for a petition for a writ of habeas corpus at Tennessee
Code Annotated section 29-21-107:

       (a) Application for the writ shall be made by petition, signed either by the party for
       whose benefit it is intended, or some person on the petitioner’s behalf, and verified
       by affidavit.

       (b) The petition shall state:

       (1) That the person in whose behalf the writ is sought, is illegally restrained of
       liberty, and the person by whom and place where restrained, mentioning the name of
       such person, if known, and, if unknown, describing the person with as much
       particularity as practicable;


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       (2) The cause or pretense of such restraint according to the best information of the
       applicant, and if it be by virtue of any legal process, a copy thereof shall be annexed,
       or a satisfactory reason given for its absence;

       (3) That the legality of the restraint has not already been adjudged upon a prior
       proceeding of the same character, to the best of the applicant’s knowledge and belief;
       and

       (4) That it is the first application for the writ, or, if a previous application has been
       made, a copy of the petition and proceedings thereon shall be produced, or
       satisfactory reasons be given for the failure so to do.

Additionally, “the application should be made to 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.” T.C.A. § 29-21-105; see also Davis v. State, 261 S.W.3d 16, 20, (Tenn. Crim. App.,
at Nashville, Jan. 31, 2008), perm. app. denied (Tenn. June 30, 2008). A habeas corpus court
“properly may choose to summarily dismiss a petition for failing to comply with the statutory
procedural requirements.” Summers, 212 S.W.3d at 260; see also Hickman, 153 S.W.3d at 21.

        Tennessee Code Annotated section 29-21-101 states: “Any person imprisoned or restrained
of liberty, under any pretense whatsoever, except in cases specified in § 29-21-102, may prosecute
a writ of habeas corpus, to inquire into the cause of such imprisonment and restraint.” T.C.A. §
29-21-101. The writ of habeas corpus “may be granted by any judge of the circuit or criminal courts,
or by any chancellor in cases of equitable cognizance.” T.C.A. § 29-21-103 (emphasis added).

       In the context of its discussion of the concurrent jurisdiction of the circuit and
       chancery courts, the treatise Gibson’s Suits in Chancery addresses this limitation on
       the authority of the chancery court: “Chancery Court has no jurisdiction of criminal
       matters, and a Chancellor may not grant the writ to enquire into the restraint of
       prisoners or the validity of a criminal conviction. The limiting words ‘in cases of
       equitable cognizance’ refer to restraints not criminally imposed or sanctioned.”
       Gibson’s Suits in Chancery, § 1.08, fn.43 (8th ed. 2004). Thus, the chancery courts
       have jurisdiction over equitable matters but lack jurisdiction over criminal matters.
       See id.

Robert Roysden v. Glen Turner, Warden, No. W2007-01144-COA-R3-CV, 2007 WL 4404102, at
*2 (Tenn. Ct. App., at Jackson, Dec. 18, 2007); see also Anthony Dean v. Glen Turner, Warden, No.
W2007-00744-COA-R3-CV, 2007 WL 4404112, at *2 (Tenn. Ct. App., at Jackson, Dec. 18, 2007).

      In this case, Petitioner filed a petition for a writ of habeas corpus in the Chancery Court of
Davidson County, Tennessee. Clearly, he asked the habeas corpus court to inquire and consider



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the validity of a criminal conviction, a matter outside the jurisdiction of the Chancery Court of
Davidson County. Therefore, we affirm the dismissal of the petition for habeas corpus relief.

                                          Conclusion

       For the foregoing reasons, the judgment of the chancery court is affirmed.



                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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