        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE

                ERIC C. PENDLETON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                                    No. 87-S-777


                  No. M2010-01494-CCA-R3-HC - Filed May 10, 2011


This matter is before the Court upon the State’s motion to dismiss or in the alternative to
affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules
of the Court of Criminal Appeals. Petitioner, Eric C. Pendleton, has appealed the trial court’s
order dismissing his petition for writ of habeas corpus in which Petitioner alleged that the
indictments upon which he was convicted were void for failing to name all the essential
elements of the crimes. Upon a review of the record in this case, we are persuaded that the
trial court was correct in dismissing the petition for habeas corpus relief and that this case
meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal
Appeals. Accordingly, the State’s motion is granted, and the judgment of the trial court is
affirmed.


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

JERRY L. SMITH , J., delivered the opinion of the court, in which THOMAS T. WOODALL and ROBERT
W. WEDEMEYER, JJ. joined.

Eric D. Pendleton, Pro Se, Nashville, Tennessee.

Robert E. Cooper, Jr., Attorney General & Reporter, and Mark A. Fulks, Assistant Attorney General,
for the appellee, State of Tennessee.

                                 MEMORANDUM OPINION

       Petitioner is no stranger to the judicial process. This case presents an extensive
procedural posture starting with Petitioner’s convictions for first degree murder and
aggravated assault in 1987, for which he received an effective life sentence. State v. Eric
Cordell Pendleton, No. 87-189-III, 1988 WL 99743, at *1 (Tenn. Crim. App., at Nashville,
Sept. 28, 1988), perm. app. denied, (Tenn. Dec. 27, 1988). Petitioner’s convictions were
affirmed on appeal, and the supreme court denied permission to appeal. Id.
        Subsequently, Petitioner sought post-conviction relief for the first time on May 24,
1989, alleging ineffective assistance of counsel. His petition was denied by the post-
conviction court. The denial of relief was upheld by this Court on appeal. Eric Pendleton
v. State, No. 01C019001CR00008, 1990 WL 109112 (Tenn. Crim. App., at Nashville, Aug.
3, 1990), perm. app. denied, (Tenn. Nov. 13, 1990).

       Petitioner filed a second petition for post-conviction relief on September 24, 1991, in
which he argued that the trial court erred by denying him an evidentiary hearing and delayed
appeal regarding issues appellate counsel failed to raise. See Eric Pendleton v. State, No.
01C01-9305-CR-00149, 1994 WL 142301, at *1 (Tenn. Crim. App., at Nashville, Apr. 21,
1994), perm. app. denied, (Tenn. Nov. 6, 1995), reh’g granted, (Tenn. Feb. 5, 1996).
Specifically, he complained that the trial court failed to give him an opportunity to prove that
he did not waive the issues in the first post-conviction proceeding. This Court remanded the
matter to the trial court for a hearing regarding waiver. Id. After a hearing, the trial court
again dismissed the petition. Petitioner again sought an appeal. The dismissal of the second
petition for post-conviction relief was affirmed. Eric Pendleton v. State, No. 01C01-9305-
CR-00149, 1996 WL 134214 (Tenn. Crim. App., at Nashville, Mar. 22, 1996), perm. app.
denied, (Tenn. Oct. 21, 1996). This Court determined that under House v. State, 911 S.W.2d
705 (Tenn. 1995), Petitioner’s allegations did not “provide justification for his failure to
present these issues in his previous post-conviction cases.” Eric Pendleton v. State, 1996 WL
134214, at *2.

        While the second petition for post-conviction relief was on appeal, Petitioner sought
habeas corpus relief. The trial court treated the petition as a petition for post-conviction
relief and found it time-barred. This Court affirmed the dismissal on appeal. Eric C.
Pendleton v. State, No. 01C01-9604-CR-00158, 1997 WL 59501 (Tenn. Crim. App., at
Nashville, Feb. 13, 1997), perm. app. denied, (Tenn. Oct. 13, 1997).

       Petitioner also filed a petition for writ of error coram nobis in 2003, which was denied
by the trial court. The denial of relief was affirmed on appeal. State v. Eric C. Pendleton,
No. M2003-01762-CCA-R3-CD, 2004 WL 1144040 (Tenn. Crim. App., at Nashville, May
20, 2004), reh’g denied, (Tenn. Crim. App. June 25, 2004), perm. app. denied, (Tenn. Nov.
8, 2004), reh’g denied, (Tenn. Dec. 20, 2004).

       On February 22, 2010, Petitioner filed his second writ of habeas corpus, the subject
of the appeal herein. The trial court determined that Petitioner did not present a proper
ground for obtaining habeas corpus relief and denied the petition for relief. Petitioner sought
a timely appeal from the denial of relief.

                                           Analysis

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       Petitioner claims that he is being held illegally and is entitled to habeas corpus relief
because the indictments against him were constitutionally defective. Specifically, he claims
the indictments failed to allege all the elements of the crimes charged. As a result of the
deficiencies, Petitioner suggests that his convictions and sentences are void. The State
disagrees.

        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
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 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).

       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. 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.




                                              -3-
        Although in most instances a challenge to the sufficiency of an indictment is not a
proper claim to raise in a habeas corpus proceeding, see Haggard v. State, 475 S.W.2d 186,
187-88 (Tenn. Crim. App. 1971), “the validity of an indictment and the efficacy of the
resulting conviction may be addressed in a petition for habeas corpus when the indictment
is so defective as to deprive the court of jurisdiction.” Dykes v. Compton, 978 S.W.2d 528,
529 (Tenn. 1998). An indictment meets constitutional requirements if it provides sufficient
information: (1) to enable the accused to know the accusation to which an answer is required,
(2) to furnish the court an adequate basis for the entry of a proper judgment; and (3) to
protect the accused from double jeopardy. State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997).
In addition, an indictment must state the facts of the offense in ordinary and concise language
“in a manner so as to enable a person of common understanding to know what is intended.”
T.C.A. § 40-13-202.

      The trial court herein determined that the indictments, even if faulty, would render the
judgments voidable, not void. The indictment in Count One stated that Petitioner and a co-
defendant:

       [W]ith force and arms, in the County aforesaid, unlawfully, feloniously,
       willfully, deliberately, premeditatedly and maliciously, did make an assault
       upon the body of one Don Thomas Moore and the said [Petitioner and co-
       defendant] then and there did unlawfully, feloniously, willfully, deliberately,
       premeditatedly, and of their malice aforethought, kill and murder the said Don
       Thomas Moore against the peace and dignity of the State of Tennessee.

The indictment in Count Two stated that Petitioner and a co-defendant:

       [W]ith force and arms, in the County aforesaid, unlawfully, and feloniously did
       attempt to cause or willfully or knowingly cause[d] bodily injury to Mamie
       Williams with a deadly weapon and to wit a pistol and did thereby commit the
       crime and felony of aggravated assault in violation of section 39-2-101
       Tennessee Code Annotated and against the peace and dignity of the State of
       Tennessee.

The language of the indictments closely tracks the language of the statutes that were in effect
at the time of Petitioner’s crimes. See T.C.A. § 39-2-201 (1986); T.C.A. § 39-2-101 (1986).
Having reviewed the indictments contained in the record on appeal, we cannot conclude that
the trial court erred in its assessment that the indictments were sufficient and that Petitioner
has failed to demonstrate that he is entitled to habeas corpus relief by failing to show that the
judgments are void. Petitioner is not entitled to relief on this issue.



                                              -4-
                                        Conclusion

       Rule 20, Rules of the Court of Criminal Appeals provides inter alia:

       The Court, with the concurrence of all judges participating in the case, when
       an opinion would have no precedential value, may affirm the judgment or
       action of the trial court by memorandum opinion rather than by formal opinion,
       when:

       The judgment is rendered or the action taken in a proceeding before the trial
       judge 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 . . . .

      We determine that this case meets the criteria of the above-quoted rule and, therefore,
we grant the State’s motion filed under Rule 20. We affirm the judgment of the trial court.




                                                  ____________________________________
                                                  JERRY L. SMITH, JUDGE




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