         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE


           COREY ADAMS KENNERLY v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Wayne County
                            No. 13812    Jim T. Hamilton, Judge



                  No. M2006-00813-CCA-R3-HC - Filed December 21, 2006


This matter is before the Court upon the State’s motion to affirm the judgment of the habeas corpus
court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.
The Petitioner has appealed the habeas corpus court’s order dismissing the petition for writ of habeas
corpus. Upon a review of the record in this case, we are persuaded that the habeas corpus court was
correct in dismissing the habeas corpus petition and that this case meets the criteria for affirmance
pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. Accordingly, the State’s motion
is granted and the judgment of the habeas corpus court is affirmed.

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

Robert W. Wedemeyer, J., delivered the opinion of the court, in which David H. Welles and Jerry
L. Smith, JJ., joined.

Corey Adams Kennerly, Clifton, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney
General; Mike Bottoms, District Attorney General; P. Robin Dixon, Jr., Assistant District Attorney
General; for the Appellee, State of Tennessee.


                                  MEMORANDUM OPINION


        The Petitioner was charged with felony murder, aggravated rape, and especially aggravated
robbery. He pled guilty to felony murder and especially aggravated robbery, and the aggravated rape
charge was dismissed. The trial court imposed a life sentence for the felony murder charge and
twenty years for the aggravated robbery charge, to be served concurrently. The Petitioner then filed
a post-conviction relief petition, which was dismissed by the trial court. On appeal, that judgment
was affirmed. See Corey Adams Kennerly v. State, No. 01C01-9806-CC-00252, 1999 WL 270357
(Tenn. Crim. App., at Nashville, Apr. 29, 1999), perm. to app. denied (Tenn. Sept. 20, 1999). The
Petitioner then filed a petition for writ of habeas corpus alleging that his conviction for especially
aggravated robbery was void because the indictment, guilty plea form, and the trial court judgment
lacked the signature of the trial court clerk. Additionally, he alleged the indictment did not run in
the name of the State of Tennessee. The trial court dismissed that petition, and this Court affirmed
that judgment. See Corey A. Kennerly v. Myers, No. M2003-02270-CCA-R3-HC, 2004 WL 508496
(Tenn. Crim. App., at Nashville, Mar. 16, 2004), perm. to app. denied (Tenn. Aug. 30, 2004). Then,
on July 21, 2005, the Petitioner filed a second petition for writ of habeas corpus alleging that the
indictment for felony murder was void because it failed to state an offense. The State filed a motion
to dismiss, asserting that the indictment complied with the statutory requirements. Thus, the State
argued, the Petitioner did not establish either a void judgment or an expired sentence. Finding the
State’s motion well taken, the trial court summarily denied the petition.

        In Tennessee, “[a]ny person imprisoned or restrained of his liberty, under any pretense
whatsoever, except [those held under federal authority], may prosecute a writ of habeas corpus to
inquire into the cause of such imprisonment and restraint.” Church v. State, 987 S.W.2d 855, 857
(Tenn. Crim. App. 1998) (citing State ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn.
1968)). A writ of habeas corpus may be granted only when the petitioner has established lack of
jurisdiction for the order of confinement or that he is otherwise entitled to immediate release because
of the expiration of his sentence. See Ussery v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel.
Wade v. Norvell, 443 S.W.2d 839 (Tenn. Crim. App. 1969). 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, 291-91 (Tenn. 1964). A “habeas corpus petition may be dismissed without a
hearing, and without the appointment of counsel for a hearing” if the petition does not allege facts
showing the Petitioner is entitled to relief. State ex rel. Edmondson v. Henderson, 421 S.W.2d 635,
636 (Tenn. 1967) (citing State ex rel. Byrd v. Bomar, 381 S.W.2d 280 (Tenn. 1964)).

        On appeal, the Petitioner somewhat modifies his claim. Now, the Petitioner argues his
conviction for felony murder is void because the felony upon which it was based (the aggravated
rape) was retired pursuant to the plea agreement. Essentially, the Petitioner is claiming that the
indictment was void because it should have specified the facts to support a “knowing” killing
because there could be no “reckless” killing once the underlying felony was dismissed. This claim
is completely without merit. The Petitioner does not present any legal authority to support his
conclusion that this would result in a void judgment. Additionally, because the Petitioner did not
raise this issue with the trial court, it has been waived.

       Any claim from his original petition alleging the indictment failed to meet the statutory
requirements is also without merit. The indictment was proper pursuant to Tenn. Code Ann. § 40-
13-202 et seq. The Legislature does not require the specific mens rea to be contained in the
indictment, and, therefore, the indictment is not required to state it. Tipton v. State, 28 S.W.2d 635
(Tenn. 1930).




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        This Court has stated, “If the court rendering a judgment has jurisdiction of the person, the
subject matter, and has the authority to make the challenged judgment, the judgment is voidable, not
void; and the judgment may not be collaterally attacked in a suit for habeas corpus relief.” Passarella
v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). The trial court correctly found that the
Petitioner proved nothing which would make his judgment void.

        Upon due consideration of the pleadings, the record, and the applicable law, the court
concludes that the Petitioner has not established that he is entitled to habeas corpus relief based on
a void judgment. Accordingly, the State’s motion is granted. The judgment of the trial court is
affirmed in accordance to Rule 20, Rule of the Court of Criminal Appeals.




                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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