        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE

             BRIAN EDWARD OWEN v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Hickman County
                                    No. 12CV49


               No. M2012-02467-CCA-R3-CO- Filed February 13, 2013


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. Petitioner, Brian Edward Owen, has appealed the habeas corpus court’s
order summarily 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 summarily
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 Trial Court
       Affirmed Pursuant to Rule 20, Rules of the Court of Criminal Appeals

J ERRY L. S MITH, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
R OBERT W. W EDEMEYER, JJ. joined.

Brian Edward Owen, Pro Se, Nashville, Tennessee.

Robert E. Cooper, Jr., Attorney General & Reporter, and Rachel E. Willis, Assistant Attorney
General, for the appellee, State of Tennessee.

                              MEMORANDUM OPINION

       Petitioner pled guilty to two counts of rape of a child stemming from sexual contact
with his niece. State v. Brian Edward Owen, No. M2007-02069-CCA-R3-CD, 2008 WL
1839142, at *2 (Tenn. Crim. App., at Nashville, Apr. 24, 2008), perm. app. denied, (Tenn.
Aug. 25, 2008). After holding a sentencing hearing, the trial court sentenced Petitioner to
two, eighteen-year sentences and ordered that they be run consecutively for an effective
sentence of thirty-six years. Id. at *5. Petitioner was unsuccessful on appeal to this Court,
and we upheld the effective thirty-six year sentence as imposed by the trial court. Id. *7.
       Petitioner filed the current petition for writ of habeas corpus in Hickman County on
August 31, 2012. On October 3, 2012, the habeas corpus court summarily dismissed the
petition because Petitioner failed to file his petition in the court nearest his place of
confinement, Davidson County, and he failed to attach a copy of the judgment from which
he was appealing. Petitioner appeals the dismissal of his petition.

                                         ANALYSIS

        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, 283
(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. For the benefit of individuals such as the
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:

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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:

       (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;

       (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, is 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.


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.

       Petitioner’s writ of habeas corpus does not meet the mandatory statutory requirements.
The State argues that Petitioner filed his petition in the wrong court. Petitioner is
incarcerated at the Charles B. Bass Correctional Complex, Nashville, Tennessee in Davidson
County. He filed his writ in Hickman County. Under Tennessee Code Annotated section
29-21-105, “[t]he 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.” Petitioner has presented no argument as to why he filed his
petition for writ of habeas corpus in Hickman County as opposed to Davidson County.
Petitioner has failed to comply with Tennessee Code Annotated section 29-21-105, and this
alone is an adequate basis for the habeas corpus court to dismiss his petition. See Clifford



                                               -3-
W. Rogers v. State, No. W2002-02268-CCA-R3-CO, 2003 Tenn. Crim. App. LEXIS 326
(Tenn. Crim. App., at Jackson, Mar. 25, 2003)

       In addition to this failing, Petitioner failed to attach the judgment from which he was
appealing. Again, failure to comply with the statutory requirements of Tennessee Code
Annotated section 29-21-105 is a basis of summary dismissal. Summers, 212 S.W.3d at 260;
see also Hickman, 153 S.W.3d at 21.

       Therefore, the habeas corpus court acted properly in summarily dismissing the
petition.

                                      CONCLUSION

       Rule 20 of the Rules of the Court of Criminal Appeals provides:


              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:

              (1)(a) 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, and we affirm the judgment of the habeas
corpus court.




                                                   ____________________________________
                                                   JERRY L. SMITH, JUDGE




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