                                                                                            02/05/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs January 24, 2018

             ASATA DIA LOWE v. SHAWN PHILLIPS, WARDEN

                   Appeal from the Circuit Court for Blount County
                       No. C25082 David R. Duggan, Judge


                             No. E2017-01109-CCA-R3-HC


The Petitioner, Asata Dia Lowe, appeals the Blount County Circuit Court’s summary denial
of his petition for a writ of habeas corpus from his 2000 convictions for two counts of first
degree murder and one count of especially aggravated robbery and his effective sentence of
life imprisonment without the possibility of parole plus twenty-five years. The Petitioner
contends that the habeas corpus court erred by summarily dismissing his petition. We affirm
the judgment of the habeas corpus court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., J., joined. D. KELLY THOMAS, JR., J., not participating.

Asata Dia Lowe, Wartburg, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; and Mike L. Flynn, District Attorney General, for the appellee, State of
Tennessee.

                                         OPINION

       The Petitioner received concurrent sentences of life imprisonment without the
possibility of parole for the murder convictions and an additional twenty-five years for the
especially aggravated robbery conviction. The Petitioner appealed his convictions, and this
court denied relief. See State v. Asata Lowe, No. E2000-01591-CCA-R3-CD, 2002 WL
31051631 (Tenn. Crim. App. Sept. 16, 2002), perm. app. denied (Tenn. Feb. 3, 2003).

       The Petitioner sought post-conviction relief, in relevant part, on the grounds that he
found exculpatory evidence, that the prosecution failed to disclose favorable evidence to the
defense, and that he received the ineffective assistance of counsel. The post-conviction court
denied relief, and this court affirmed the post-conviction court’s determinations. See Asata
Lowe v. State, No. E2006-02028-CCA-MR3-PC, 2008 WL 631169 (Tenn. Crim. App. Mar.
10, 2008), perm. app. denied (Tenn. Aug. 25, 2008). The Petitioner unsuccessfully sought to
reopen the post-conviction proceedings. See Asata Lowe v. State, No. E2011-01640-CCA-
R28-PC (Tenn. Crim. App. Sept. 16, 2011) (order), perm. app. denied (Tenn. Nov. 17,
2011).
        The Petitioner unsuccessfully sought habeas corpus relief, and he appealed the denial
of relief. However, the Petitioner failed to file an appellate brief, and this court dismissed
the appeal for want of prosecution. See Asata D. Lowe v. State, No. M2008-01291-CCA-R3-
HC (Tenn. Crim. App. Dec. 9, 2008) (order). The Petitioner subsequently sought habeas
corpus relief, alleging that he was entitled to relief because he received the ineffective
assistance of counsel and because of various trial-related errors. The habeas corpus court
summarily dismissed the petition without a hearing, and this court affirmed the dismissal
because the Petitioner failed to state a cognizable claim for relief. See Asata D. Lowe v.
State, No. M2009-00444-CCA-R3-HC, 2010 WL 143781 (Tenn. Crim. App. Jan. 13, 2010).
 The Petitioner later filed a third petition for a writ of habeas corpus on the grounds that his
right to a fair trial was violated by the State’s failure to disclose favorable evidence and by
the trial court’s failure to instruct the jury properly, that his Fourth Amendment rights were
violated by an unlawful search and seizure, that he received the ineffective assistance of
counsel, and that the indictment was multiplicitous. The habeas corpus court denied relief
after a hearing, and this court affirmed the habeas corpus court’s determinations. See Asata
D. Lowe v. James Fortner, Warden, No. E2011-00048-CCA-R3-HC, 2012 WL 1080274
(Tenn. Crim. App. Mar. 30, 2012).

        On April 13, 2017, the Petitioner filed the present petition for a writ of habeas corpus,
alleging that the State unlawfully detained him for the purpose of collecting evidence, that
“the State illegally issued a warrant against [him] without the aid of counsel to help prepare a
defense,” that the State unlawfully presented “perjured and/or false statements to obtain an
indictment, conviction, judgment, and sentence,” and that the “indictments, convictions,
judgments, and sentences are void . . . for interfering with [his] rights and privileges.” The
Petitioner also submitted additional pleadings, including but not limited to, a motion for a
restraining order, a request for the habeas corpus court or court clerk to issue writs and
subpoenas, a motion for the production of documents, and a motion for the appointment of
counsel. On April 20, 2017, the Petitioner wrote a letter to the habeas corpus judge entitled,
“Letter to Cease and Decease [sic] violation of Federal Rights.” The Petitioner’s letter
alleged that the court and the court clerk were “intentionally failing to process [his] court
filings as required by the law” and were depriving him of “rights, privileges, and immunities
secured and protected by the constitution.”

       On May 1, 2017, the habeas corpus court summarily denied relief. The court initially
noted the Petitioner’s continuous filings challenging his underlying convictions. Relative to
the present petition, the court found that the allegations raised in the petition had been
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previously litigated and that the Petitioner failed to show that his judgments were void, that
his sentences had expired, and that he was being illegally detained. Relative to the
Petitioner’s allegations regarding his seventy-two hour initial detention in 1998 and his
criminal arrest warrant, the court found that the Petitioner’s present confinement was not
based upon his initial confinement and arrest but rather his conviction after a jury trial.
Relative to the Petitioner’s remaining allegations, the court found that Petitioner was
attempting to relitigate matters already determined by the trial and appellate courts. The
court determined that the Petitioner failed to state a cognizable claim for habeas corpus
relief. This appeal followed.

        The Petitioner contends that the habeas corpus court erred by summarily dismissing
his petition. He argues that he raised colorable claims for relief, including that the State
failed to present him before a magistrate without unnecessary delay, that the State deprived
him of his constitutional right to counsel at the initial appearance or preliminary hearing,
which occurred in his absence, that he received the ineffective assistance of counsel, and that
evidence obtained in violation of his constitutional protection against unreasonable searches
and seizures was presented at the trial. The State responds that the habeas corpus court
properly dismissed the petition. We agree with the State.

        Habeas corpus relief is generally available to “[a]ny person imprisoned or restrained
of liberty” whose judgment is void or whose sentence has expired. T.C.A. § 29-21-101
(2012); see Tucker v. Morrow, 335 S.W.3d 116, 119-20 (Tenn. Crim. App. 2009). A
petitioner has the burden of proving by a preponderance of the evidence that a judgment is
void or that a sentence has expired. State v. Davenport, 980 S.W.2d 407, 409 (Tenn. Crim.
App. 1998). A void judgment exists if it appears from the face of the judgment or the record
that the convicting court lacked jurisdiction or authority to sentence the defendant or that the
defendant’s sentence has expired. Archer, 851 S.W.2d at 161; see Moody v. State, 160
S.W.3d 512, 515 (Tenn. 2005). In contrast, “[a] voidable judgment is one that is facially
valid and requires proof beyond the face of the record or judgment to establish its invalidity.”
 Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007); see State v. Ritchie, 20 S.W.3d 624,
630 (Tenn. 2000).

       Post-conviction relief, not habeas corpus relief, is the appropriate avenue of relief for
certain voidable judgments. T.C.A. § 40-30-103 (2012); see Vaughn v. State, 202 S.W.3d
106, 115 (Tenn. 2006). A habeas corpus court may dismiss a petition for relief without an
evidentiary hearing or the appointment of counsel when the petition fails to state a
cognizable claim. Yates v. Parker, 371 S.W.3d 152, 155 (Tenn. Crim. App. 2012); see
T.C.A. § 29-21-109 (2012). The question of whether habeas corpus relief should be granted
is a question of law, and this court will review the matter de novo without a presumption of
correctness. Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005).

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        Relative to the Petitioner’s allegation regarding his initial detention, we conclude that
the Petitioner is not entitled to relief. It is established law that an “illegal arrest or detention
does not void a subsequent conviction.” Gerstein v. Pugh, 420 U.S. 103, 119 (1975).
Although a criminal defendant “who is presently detained may challenge the probable cause
for that confinement, a conviction will not be vacated on the ground that the defendant was
detained pending trial without a determination of probable cause.” Id. The Petitioner has
failed to state a cognizable claim for habeas corpus relief.

        Relative to the Petitioner’s allegations that the State deprived him of his right to
counsel at his initial appearance or preliminary hearing, that a preliminary hearing was held
in his absence, and that he received the ineffective assistance of counsel, we note that claims
alleging these types of constitutional violations are properly raised in post-conviction
proceedings. See Luttrell v. State, 644 S.W.2d 408, 409 (Tenn. Crim. App. 1982); see also
Fredrick B. Zonge v. State, No. 03C01-9903-CR-00094, 1999 WL 1191542, at *1 (Tenn.
Crim. App. Dec. 16, 1999) (stating generally that “[a]lleged violations of constitutional
rights are addressed in post-conviction, not habeas corpus, proceedings”), perm. app. denied
(Tenn. June 26, 2000). The Petitioner sought post-conviction relief, and the denial of relief
was affirmed on appeal. See T.C.A. § 40-30-102(c) (2012) (The Post-Conviction Procedure
Act “contemplates the filing of only one (1) petition for post-conviction relief. In no event,
may more than one (1) petition for post-conviction relief be filed attacking a single
judgment.”). We note that the Petitioner sought post-conviction relief, in relevant part, on the
basis that he received the ineffective assistance of counsel. See Asata Lowe v. State, 2008
WL 631169. Likewise, the Petitioner raised this issue in his previous habeas corpus
petitions, and this court determined that “[c]laims of ineffective assistance of counsel . . . are
inappropriate for habeas corpus review” because such allegations, even if true, would render
a judgment voidable, not void. Asata D. Lowe, 2012 WL1080274, at *3. We conclude that
the Petitioner has failed to state a cognizable claim for habeas corpus relief. The Petitioner is
not entitled to relief on this basis.

        Relative to the Petitioner’s allegation that unlawfully obtained evidence was presented
at his trial, we conclude that the Petitioner has failed to state a cognizable claim for habeas
corpus relief. The Petitioner raised in a previous habeas corpus petition that his Fourth
Amendment rights were violated by an unlawful search and seizure, and this court
determined that “claims of Fourth Amendment violations do not result in void judgments and
are not cognizable under habeas corpus review.” Asata D. Lowe, 2012 WL1080274, at *3.
The Petitioner is not entitled to relief on this basis.
        In consideration of the foregoing and the record as a whole, we affirm the judgment of
the habeas corpus court.




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______________________________________
ROBERT H. MONTGOMERY, JR., JUDGE




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