        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON

             TONY SCOTT WALKER v. STATE OF TENNESSEE

             Appeal from the Circuit Court for Gibson (Trenton) County
                        No. 8563 Clayburn Peeples, Judge




              No. W2011-01668-CCA-R3-HC - Filed February 17, 2012


The Petitioner, Tony Scott Walker, appeals the Circuit Court of Gibson County’s dismissal
of his pro se petition for writ of habeas corpus. The State has filed a motion requesting that
this Court affirm the trial court’s judgment pursuant to Rule 20 of the Rules of the Court of
Criminal Appeals. Following our review, we grant the State’s motion and affirm the
judgment of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and C AMILLE R. M CM ULLEN, JJ., joined.

Tony Scott Walker, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Clark Bryan Thornton, Assistant
Attorney General for the Appellee, State of Tennessee.

                              MEMORANDUM OPINION

        The Petitioner was convicted of first degree felony murder for the 1995 killing of a
Milan grocery store owner during the perpetration of a robbery and was sentenced to life
imprisonment. This Court affirmed his conviction on appeal. See State v. Tony Scott
Walker, No. 02C01-9704-CC-00147, 1997 Tenn. Crim. App. LEXIS 1208 (Tenn. Crim.
App., at Jackson, Dec. 3, 1997), perm. to appeal denied (Tenn. Sept. 21, 1998). The
Petitioner subsequently sought post-conviction relief. The post-conviction court denied
relief, and this Court affirmed the post-conviction court’s judgment on appeal. See Tony S.
Walker v. State, No. W2001-02921-CCA-R3-PC, 2003 Tenn. Crim. App. LEXIS 187 (Tenn.
Crim. App., at Jackson, Feb. 28, 2003), perm. to appeal denied (Tenn. May 27, 2003). In
May 2004, the Petitioner filed a petition for writ of error coram nobis. The trial court
dismissed the petitioner, and this Court affirmed the dismissal. See Tony Scott Walker v.
State, No. W2009-00988-CCA-R3-CO, 2010 Tenn. Crim. App. LEXIS 325 (Tenn. Crim.
App., at Jackson, May 14, 2010), perm. to appeal denied (Tenn. Oct. 13, 2010).

        In May 2011, the Petitioner filed a petition for writ of habeas corpus in the Circuit
Court of Gibson County. He maintained that (1) the trial court did not read the indictment
to the jury before the trial commenced; (2) the State failed to prove that the offense occurred
prior to the indictment; (3) the trial court improperly instructed the jury regarding sentencing
and parole; (4) the search of his residence was illegal; and (5) his statement to the police was
involuntary. The State filed a motion to dismiss the petition. On July 7, 2011, the trial court
entered an order granting the State’s motion and dismissing the petition. This appeal
followed.

        A prisoner is guaranteed the right to habeas corpus relief under Article I, section 15
of the Tennessee Constitution. See also T.C.A. § 29-21-101, et seq. However, the grounds
upon which a writ of habeas corpus may be issued are very narrow. Taylor v. State, 995
S.W.2d 78, 83 (Tenn. 1999). “Habeas corpus relief is available in Tennessee only when ‘it
appears upon the face of the judgment or the record of the proceedings upon which the
judgment is rendered’ that a convicting court was without jurisdiction or authority to
sentence a defendant, or that a defendant’s sentence of imprisonment or other restraint has
expired.” Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). “[T]he purpose of a habeas
corpus petition is to contest void and not merely voidable judgments.” Id. at 163. 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.” Taylor, 995 S.W.2d at 83. In contrast,

       a voidable judgment is facially valid and requires the introduction of proof
       beyond the face of the record or judgment to establish its invalidity. Thus, in
       all cases where a petitioner must introduce proof beyond the record to establish
       the invalidity of his conviction, then that conviction by definition is merely
       voidable, and a Tennessee court cannot issue the writ of habeas corpus under
       such circumstances.

Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004) (internal citation and quotations omitted);
see also Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (citations omitted). Moreover,
it is the petitioner’s burden to demonstrate, by a preponderance of the evidence, that the
judgment is void or that the confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000).

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        If the habeas corpus court determines from the petitioner’s filings that no cognizable
claim has been stated and that the petitioner is not entitled to relief, the petition for writ of
habeas corpus may be summarily dismissed. See Hickman, 153 S.W.3d at 20. Further, the
habeas corpus court may summarily dismiss the petition 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 are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.
1994), superseded by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC-
00266, 1998 Tenn. Crim. App. LEXIS 282 (Tenn. Crim. App., at Jackson, Mar. 11, 1998).

        The procedural requirements for habeas corpus relief are mandatory and must be
scrupulously followed. Hickman, 153 S.W.3d at 19-20; Archer, 851 S.W.2d at 165. “A
habeas corpus court may properly choose to dismiss a petition for failing to comply with the
statutory procedural requirements.” Hickman, 153 S.W.3d at 21. Tennessee Code Annotated
section 29-21-105 provides that “[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.” Although the Petitioner is incarcerated in
Lauderdale County, he filed his petition in the Gibson County Circuit Court.

        The Petitioner maintains the filing of the petition in the Gibson County Circuit Court
is proper because it is the convicting court and is in possession of the records pertaining to
the sentence. This Court, however, has repeatedly held that this is not a sufficient reason for
filing in a court other than the one where the petitioner is located. See, e.g. Larry L.
Halliburton v. State, No. W2001-00755-CCA-R3-CO, 2002 Tenn. Crim. App. LEXIS 74
(Tenn. Crim. App., at Jackson, Jan. 30, 2002), perm. to appeal denied (Tenn. July 1, 2002);
Jimmy Wayne Wilson v. State, No. 03C01-9806-CR-00206, 1999 Tenn. Crim. App. LEXIS
620 (Tenn. Crim. App., at Knoxville, June 24, 1999), perm. to appeal denied (Tenn. Nov. 22,
1999); Charles Bryant v. State, No. 03C01-9803-CR-00115, 1999 Tenn. Crim. App. LEXIS
421 (Tenn. Crim. App., at Knoxville, May 4, 1999). The Petitioner’s failure to comply with
Tennessee Code Annotated section 29-21-105 alone is an adequate basis for the trial court
to dismiss his petition. See Clifford W. Rogers v. State, No. W2002-02268-CCA-R3-CO,
2003 Tenn. Crim. App. LEXIS 326 (Tenn. Crim. App., at Jackson, Mar. 25, 2003).

       The Petitioner also has failed to comply with the statutory requirements for seeking
habeas corpus relief. Specifically, the Petitioner failed to attach a copy of the judgment of
conviction and failed to state that the illegality of his restraint had not been adjudicated in a
prior proceeding and that this petition was the first application for the writ. See T.C.A. § 29-
21-107(b)(2)–(4).

        Moreover, the Petitioner has failed to establish that he is entitled to habeas corpus
relief. On appeal, the Petitioner claims that (1) the trial court “erred in reading the indictment

                                               -3-
after the evidence had been submitted to the jury”; and (2) the trial court did not properly
instruct the jury regarding sentencing and parole. The Petitioner has waived his first claim
by failing to raise it in the trial court. Furthermore, habeas corpus relief is not available for
a claim of erroneous jury instructions. See Jerry Dickerson v. Howard Carlton, Warden, No.
E2007-01967-CCA-R3-HC, 2008 Tenn. Crim. App. LEXIS, at *4 (Tenn. Crim. App., at
Knoxville, Mar. 10, 2008), perm. to appeal denied (Tenn. June 23, 2008). The trial court
properly dismissed the Petitioner’s petition for writ of habeas corpus.

        When an opinion would have no precedential value, the Court of Criminal Appeals
may affirm the judgment or action of the trial court by memorandum opinion when the
judgment is rendered or the action taken in a proceeding 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. See Tenn. Ct. Crim. App. R. 20. We conclude that this case
satisfies the criteria of Rule 20. Accordingly, it is ordered that the State’s motion is granted.
The judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Court
of Criminal Appeals.




                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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