        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs January 11, 2011

                  LEVI BATTLE III v. STATE OF TENNESSEE

              Direct Appeal from the Circuit Court for Hickman County
                     No. 10-CV-5030      Jeffrey S. Bivins, Judge




                No. M2010-01670-CCA-R3-HC - Filed February 8, 2011


A Davidson County jury convicted the Petitioner, Levi Battle, III, of possession of twenty-six
grams or more of cocaine with intent to sell or deliver, and the trial court sentenced him to
thirty years, at 60%, in the Tennessee Department of Correction. The Petitioner filed a
petition for habeas corpus relief, in which he alleged that his sentence was illegal because
he was sentenced outside of his sentencing range. The habeas corpus court dismissed the
petition, and the Petitioner appeals the habeas corpus court’s judgment. After careful review,
we affirm the judgment of the habeas corpus court.

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

R OBERT W. W EDEMEYER, delivered the opinion of the Court, in which D AVID H. W ELLES and
J ERRY L. S MITH, JJ., joined.

Levi Battle III, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; Kim Helper, District Attorney General, for the Appellee, State of
Tennessee.

                                         OPINION

                                          I. Facts
                                      A. Background

        This case arises from the Petitioner’s sale of cocaine in August 2002. A jury
convicted the Defendant of possession of twenty-six grams or more of cocaine with the intent
to sell or deliver, a Class B felony, and he filed a direct appeal with this Court, presenting
only one issue. State v. Levi Battle, III, No. M2006-00288-CCA-0R3-CD, 2007 WL 957207,
at *1 (Tenn. Crim. App., at Nashville, Mar. 29, 2007), perm. app. denied (Tenn. Aug. 13,
2007). The sole issue the Petitioner presented was whether the trial court erred when it
denied his motion to suppress. Id. In our opinion affirming the trial court’s denial of the
motion to suppress, we recited the underlying facts as follows:

               This case arises from the discovery of cocaine and crack cocaine in the
       Defendant’s vehicle while in the parking lot of the Music City Motor Inn in
       Davidson County. The Defendant was indicted for possession with the intent
       to sell or deliver 300 grams or more of cocaine, a Class A felony. See Tenn.
       Code Ann. § 39-17-417(j)(5). The Defendant filed a motion to suppress, and
       the trial court held a hearing to determine the validity of the search and seizure
       of the evidence.

             At the motion to suppress hearing, Officer Justin Fox of the Nashville
       Metropolitan Police Department testified about his encounter with the
       Defendant on August 22, 2002:

                     I was sitting at the Music City Motor Inn on
              Murfreesboro Road at Fesslers, and I was sitting in a parking
              lot, which is a high drug and prostitution area. I mean, it was
              shut down due to that [shortly after this incident occurred].

                      I was sitting there observing vehicles and people and I
              observed the [D]efendant . . . sitting in his vehicle [for about
              five minutes] at which point I [then] observed him get out of his
              vehicle, look back at myself and another officer who was sitting
              there, and he looked at the officers and walked away from his
              vehicle.

                     At that point, he walks back to his vehicle, looks at the
              officers, and stood at his door and started to get in and didn’t,
              and walked back away and walked back and then opens his door
              and does a throwing motion in his car, as though he threw
              something down in his car.

                     This whole time, he is watching the officers. He then
              walks away from his car, starts walking back towards the
              stairwell, which goes up to the second level. The whole time, he
              keeps looking over at us. He walks up the stairs, doesn’t talk to

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anybody, doesn’t make an effort to go to the office, walks up to
the second level, doesn’t stop at a door, knock on a door or
nothing, starts-keeps-like when he gets to the top level, he is
walking back towards the back, which it levels back out where
you don’t have to take stairs. Just the road goes up to it. He is
still looking at the officers, still doesn’t talk to anybody, doesn’t
stop at any room or anything. He keeps going, walking back.
He is still looking back at us like this, at which point he comes
to the level part up on the top, which is well, you know, a well
amount of ways from the office, because the office was back up
front.

       At that point in time, he was about to make it around the
side of the thing, of the building near the back to where I
couldn’t see, so I pulled up there. I get out. I said, come here.
I asked him if he is staying there. He says no. I like [sic] do you
have a buddy here? At which time, he said-at first, he said no,
and then he looked around and he said yeah, that guy over there.

        Security came over there. The guy who he had said
didn’t know who he was. Security came over and said there is
a trespass waiver on file. If he ain’t got a room here, he is
trespassing at which point, I placed him into cuffs. I sat him
there. I got his ID out after I patted him down. All he had on
him was some money he said that he had. I got his ID, ran him
through warrants. He didn’t have warrants. I ran him through
his history. He had a history of not going to court at which point
I then walked him back down to where his car was because I had
seen him throw something down, and at that point in time, the
doors were closed. They weren’t locked, but I looked in the
vehicle. Yes, there was a mild tint on it. You could still see. It
was lit up. You could see two plastic baggies, and one large
baggie over on the passenger side seat of a rock substance.

        At that time, I turned on my flashlight to look in there at
it, at which time it was what I observed. I then opened the
vehicle and extracted the items.

        There was two plastic baggies right there where the gear
shifter was, and then there was the large plastic baggie, and also

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       a Crown Royal bag which had other baggies in it.

              I believe it was 308, approximately 307 or 8 grams of
       crack cocaine, and the rest was powder cocaine. And it did field
       test positive for a cocaine base.

       The Defendant also testified at the motion to suppress hearing regarding
the events bringing rise to the indictment:

              Well, I was going down Murfreesboro Road. I was going
       to go get me a room, and as I got right there at McDonald’s, Mr.
       Fox got behind me. I was headed to the hotel anyway, so I
       didn’t pay no attention. I just went on to the room, so I pulled
       in my car. He parks over to the side. I get out of my car. I walk
       up the steps. I look back. My lights are on, so I go back and cut
       my lights off.

                I walk up. I was going to go and check out if this way,
       if this place is worth me getting a room, because I’ve never been
       there before or anything before I knew anything about it, so
       before I could get to the top of the hill, Mr. Fox pulls up. He
       says what are you doing trespassing? I said I’m not trespassing.
       I’m fixing to get me a room. He said, no, you are trespassing.
       What you got in that car? I said ain’t nothing in my car. What
       my car got to do with this? He said, well, are you going to give
       me permission to search that car? I said, no, do you have a
       search warrant? He said, no, and he snatched my keys out of my
       hand, put me in the car, doesn’t read me no rights, don’t tell me
       I’m under arrest or anything, and he pulls back down to my car,
       so by this time, I guess the security man comes. I hear him ask
       him is there any kind of way he could get me for trespass, and
       he said, yeah, I guess if he don’t have a room, so he goes and
       looks around my car and around my car. I guess it’s like, what,
       10:30, eleven o’clock that night. It’s real dark. He says he sees
       something sitting on my seat. I was already sitting in the car,
       but I wasn’t handcuffed or anything, so he comes back and tells
       me I’m under arrest . . . .

        Along with his explanation of the events, the Defendant also testified
that the tinting on the windows of his car was very dark, “like a limousine,”

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       and would not allow anyone to see inside the vehicle as Officer Fox claimed
       he did. The Defendant also testified that he lived about seven to eight miles
       from the motel, that he was seeking a motel room because he and his wife
       were arguing. He admitted that he may have passed many motels between his
       home and the Music City Motor Inn but stated that he chose this motel because
       “you can just jump on the Interstate and get off at Fessler’s Lane.”

             After hearing the evidence, the trial court orally denied the Defendant’s
       motion to suppress . . . .

Battle, 2007 WL 957207, at *1-2.

       The Petitioner then filed a petition for post-conviction relief in which he alleged that
he received the ineffective assistance of counsel at trial. The post-conviction court dismissed
the petition, and this Court affirmed that dismissal. State v. Levi Battle, III, No.
M2009-00949-CCA-R3-PC, 2010 WL 1930953, at *1 (Tenn. Crim. App., at Nashville, May
12, 2010), perm. app. denied (Tenn. Oct. 13, 2010).

        The Petitioner then filed a petition for habeas corpus relief, which is the subject of this
appeal, in which he alleged that his sentence was illegal because he was sentenced outside
of the sentencing range applicable to him. The State filed a motion to dismiss the petition,
alleging that the Petitioner failed to adhere to the strict procedural requirements of the habeas
corpus statute. The State further argued in its motion that none of the Petitioner’s factual
allegations, even if proven, would establish that the Petitioner’s judgment was void or his
sentence had expired. The habeas corpus court granted the State’s motion to dismiss, and
the Petitioner appeals that judgment.

                                          II. Analysis

       On appeal, the Petitioner contends first that he did in fact comply with the procedural
requirements of the habeas corpus statute when he submitted his habeas corpus petition. He
further asserts he is entitled to habeas corpus relief because that the trial court directly
contravened state statute by improperly sentencing him as a career offender. The State
counters that the Petitioner failed to comply with procedural requirements of the habeas
corpus statute and, further, that he has failed to demonstrate that the judgment against him
is void or that his sentence is illegal.

       Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas
corpus relief. See Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007). Although the right
is guaranteed in the Tennessee Constitution, the right is governed by statute. T.C.A. §§

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29-21-101 (2006). The determination of whether habeas corpus relief should be granted is
a question of law and is accordingly given de novo review. Smith v. Lewis, 202 S.W.3d 124,
127 (Tenn. 2006); Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000). Although there is no
statutory limit preventing a habeas corpus petition, the grounds upon which relief can be
granted are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). It is the burden
of the petitioner 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). In
other words, the very narrow grounds upon which a habeas corpus petition can be based are
as follows: (1) a claim there was a void judgment which was facially invalid because the
convicting court was without jurisdiction or authority to sentence the defendant; or (2) a
claim the defendant’s sentence has expired. Stephenson v. Carlton, 28 S.W.3d 910, 911
(Tenn. 2000); Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). “An illegal sentence, one
whose imposition directly contravenes a statute, is considered void and may be set aside at
any time.” May v. Carlton, 245 S.W.3d 340, 344 (Tenn. 2008) (citing State v. Burkhart, 566
S.W.2d 871, 873 (Tenn. 1978)). In contrast, a voidable judgment is “one that is facially valid
and requires the introduction of proof beyond the face of the record or judgment to establish
its invalidity.” Taylor, 995 S.W.2d at 83; see State v. Ritchie, 20 S.W.3d 624, 633 (Tenn.
2000).

        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 nothing on the face
of the judgment indicates that the convictions addressed therein are void. Passarella v. State,
891 S.W.2d 619 (Tenn. Crim. App. 1994).

                   A. Failure to Adhere to Procedural Requirements

        The Petitioner contends that trial court improperly dismissed his petition based upon
a failure to adhere to the procedural requirements of a habeas corpus petition because “along
with his petition there was attached a copy of his judgment order.” The State maintains that
the Petitioner’s petition was properly dismissed because he failed to attach to his petition the
judgment by which he was restrained or give a reason for its absence.

       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 the
Petitioner herein, our Legislature has explicitly laid out the formal requirements for a petition
for a writ of habeas corpus at Tennessee Code Annotated § 29-21-107:

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       (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:

                      ....

               (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;

                     ....
“A habeas corpus court may properly choose to dismiss a petition for failing to comply with
the statutory procedural requirements . . . .” Summers, 212 S.W.3d at 260 (emphasis added);
Hickman, 153 S.W.3d at 21.

        In the case under submission, the Petitioner’s petition, filed June 17, 2000, comprises
the first twenty-seven pages of the technical record. The attachments to the Petitioner’s
habeas corpus petition include: (1) an affidavit that the petition is filed on his behalf; (2) an
affidavit that he has filed no other claims or lawsuits; (3) the State’s notice of enhanced
punishments; (4) a chart of sentence ranges and release eligibility dates; (5) a copy of a
Federal case purportedly supporting the Petitioner’s petition; (6) a motion by the Petitioner
to modify his sentence; (7) a letter from the Petitioner to the Petitioner’s attorney dated
January 19, 2006; (8) a letter from the Petitioner to the Petitioner’s attorney dated January
31, 2006; and (9) an affidavit of indigency. The attachments do not include a copy of the
judgment by which the Petitioner is restrained The Petitioner, however, attached a copy of
this judgment to his notice of appeal. The habeas corpus statute clearly requires that the
judgment be attached to the habeas corpus petition, and this failure, in and of itself, is a
sufficient basis upon which the habeas corpus court may summarily dismiss the petition. See
Summers, 212 S.W.3d at 260; Hickman, 153 S.W.3d at 21.

        While this alone would be a sufficient basis to dismiss the petition, it is not clear from
the final order whether, in fact, the habeas corpus court dismissed the petition based upon the
Petitioner’s failure to attach the judgment or based upon the fact that the court found that the
petition lacked merit. The final order dismissing the petition, which was drafted by the State,
reads:

               This case came before the court for review upon the petition for writ of

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       habeas corpus and the respondent’s motion to dismiss, after which the Court
       is of the opinion that the respondent’s motion is well-taken and should be
       granted . . . .

Handwritten by the judge at the end of that sentence is “for all the reasons set forth in the
Motion,” presumably referring to the State’s motion to dismiss. (emphasis added). The
State’s motion to dismiss argued, first, that the Petitioner failed to follow the procedural
requirements of the habeas corpus statute and, second, that the petition should also be
dismissed because the “petition has not alleged any grounds which could potentially result
in a void judgment or expired sentence.” Because the trial court stated that it was dismissing
the Petitioner’s petition for “all” the reasons enumerated in the State’s petition, we must now
turn to address whether the Petitioner’s petition presented any grounds that would entitle him
to habeas corpus relief.

                          B. Merit of the Habeas Corpus Petition

        The Petitioner, citing Edwards v. State, 269 S.W.3d 915 (Tenn. 2008), asserts that the
trial court improperly classified him as a Career Offender and, therefore, improperly
sentenced him outside his proper sentencing range, that of a Range II Offender. The State
counters first that there is an inadequate record for review because the Petitioner failed to
attach any documentation of his prior convictions apart from the State’s notice to seek
enhanced punishment. Further, the State asserts that the Petitioner’s challenge to his
offender classification is not a proper basis for a claim for habeas corpus relief.

        The State is correct that the only documentation provided by the Petitioner in support
of his argument is the State’s notice to seek enhanced punishment. The State’s notice to seek
enhanced punishment is not a certified copy of the Petitioner’s previous convictions and may
not include all of the Petitioner’s previous convictions. Therefore, this Court cannot base its
determination of whether the Petitioner was properly classified as a Career Offender on this
document. Because the record does not otherwise establish the number and offense levels
of the Petitioner’s previous convictions, we simply cannot determine, based upon the record,
whether the Petitioner does, in fact, qualify as a Career Offender.

        In the event of further review, we note that the law is settled that, even if the Petitioner
were improperly classified, he would not be entitled to habeas corpus relief. In Edwards, the
Tennessee Supreme Court addressed whether a petitioner was entitled to habeas corpus relief
in the event he had been improperly classified as a Persistent Offender by the trial court for
purposes of sentencing. 269 S.W.3d at 925. In that case, the petitioner had participated in
a burglary of a car dealership, and the trial court sentenced him on the burglary conviction,
as a Persistent Offender and imposed a Range III, nine-year sentence. The Supreme Court

                                                -8-
held, “After careful consideration we conclude that, even assuming the trial court erroneously
classified [the petitioner] as a persistent offender for sentencing, this non-jurisdictional error
renders the judgment voidable, not void, and does not entitle [the petitioner] to habeas corpus
relief.” Id. at 915. The Court noted that its holding comported with other holdings by our
Court. Id. at 925 n.8 1

      In accordance with the Edwards holding, and the previous holdings of this Court, we
conclude that, even were the Petitioner to prove he was improperly classified, his judgment
would not be rendered void. He would not, therefore, be entitled to habeas corpus relief.


        1
          The Edwards Court cited the following cases: Jasper Lee Vick v. State, No.
W2006-02172-CCA-R3-HC, 2008 WL 80580 (Tenn. Crim. App., at Jackson, Jan. 8, 2008) (describing
petitioner’s challenge to his Multiple Offender classification was not cognizable in a habeas corpus
proceeding), no Tenn. R. App. P. 11 application filed; Timothy E. Higgs v. State, No.
E2005-02712-CCA-R3-HC, 2006 WL 3628074 (Tenn. Crim. App., at Knoxville, Dec. 14, 2006) (affirming
summary dismissal of Higgs’s petition challenging his Persistent Offender classification on the grounds that
he lacked the requisite number of prior convictions to qualify as a Persistent Offender), perm. app. denied
(Tenn. Mar. 12, 2007) ; Dwayne E. Anderson v. Bell, No. M2006-01223-CCA-R3-HC, 2006 WL 3290826
(Tenn. Crim. App., at Nashville, Nov. 13, 2006) (affirming summary dismissal and stating that the
petitioner’s challenge to his Career Offender classification would at most render his twelve-year sentences
voidable, not void), perm. app. denied (Tenn. Jan. 29, 2007); Jubal Carson v. Mills, No.
W2005-00745-CCA-R3-HC, 2006 WL 16306, at *5 (Tenn. Crim. App., at Jackson, Jan. 4, 2006) (holding
that any error in classifying the petitioner for sentencing purposes would render the resulting judgments
merely voidable, not void, and not subject to attack in habeas corpus), no Tenn. R. App. P. 11 application
filed; Robert L. Moore v. Turner, No. W2005-01995-CCA-R3-HC, 2006 WL 473725 (Tenn. Crim. App., at
Jackson, Feb. 28, 2006) (affirming summary dismissal and stating that the petitioner’s challenge to his Career
Offender classification would render his thirty-year sentence voidable, not void), no Tenn. R. App. P. 11
application filed; Gregory Scott Spooner v. State, No. E2004-02160-CCA-R3-HC, 2005 WL 1584357 (Tenn.
Crim. App., at Knoxville, July 7, 2005) (affirming summary dismissal of a habeas corpus petition and stating
that petitioner’s claim that he lacked the requisite number of prior convictions to support his Multiple
Offender classification would render the judgment voidable, not void), perm. app. denied (Tenn. Dec. 5,
2005); Quentin Lewis v. Parker, No. W2004-00465-CCA-R3-HC, 2004 WL 3021127 (Tenn. Crim. App., at
Jackson, Dec. 30, 2004) (opining that an erroneous determination that petitioner’s prior record of convictions
qualified him for sentencing as a career offender neither results in a void judgment nor establishes that the
trial court lacked jurisdiction to sentence the petitioner), no Tenn. R. App. P. 11 application filed; Cecil
Collins v. State, No. 03C01-9805-CR-00192, 1999 WL 544658 (Tenn. Crim. App., at Knoxville, July 28,
1999) (stating that a challenge to the legality of a Range II multiple offender sentence is not cognizable in
a habeas corpus proceeding), perm. app. denied (Tenn. Nov. 22, 1999); George Edward French v. Bell, No.
01C01-9801-CR-00022, 1999 WL 8277 (Tenn. Crim. App., at Nashville, Jan. 12, 1999) (affirming summary
dismissal of a habeas corpus petition alleging that the sentencing court lacked authority to classify and
sentence the petitioner as a persistent offender because the petitioner lacked the requisite number of prior
felony convictions to support the classification), perm. app. denied (Tenn. Jun. 21, 1999); Marvin Anthony
Mathews v. Raney, No. 02C01-9512-CC-00366, 1997 WL 206771 (Tenn. Crim. App., at Jackson, Apr. 28,
1997) (affirming summary dismissal of a habeas corpus petition alleging that the trial court erroneously
classified the petitioner as a persistent offender), perm. app. denied (Tenn. July 7, 1997)).

                                                     -9-
The Petitioner is not entitled to relief on this issue.

                                        III. Conclusion

       After a thorough review of the record and the applicable law, we conclude the habeas
corpus court properly dismissed the Petitioner’s petition for habeas corpus relief.


                                                      _________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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