         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs December 14, 2004

         PRESTON U. PENDERGRASS v. KEVIN MYERS, WARDEN

                   Direct Appeal from the Circuit Court for Wayne County
                            No. 13318    Jim T. Hamilton, Judge



                     No. M2004-00463-CCA-R3-HC - Filed March 1, 2005


The petitioner, Preston U. Pendergrass, appeals the summary dismissal of his petition for writ of
habeas corpus, arguing that the indictment, which charged him with two counts of attempted first
degree murder, failed to state the facts constituting an offense, thereby depriving the convicting court
of jurisdiction and rendering his judgments void. The petitioner further argues that the court erred
by not appointing appellate counsel as requested. Following our review, we affirm the judgment of
the trial court dismissing the petition for writ of habeas corpus.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JAMES
CURWOOD WITT, JR., J., joined.

Preston U. Pendergrass, South Central Correctional Center, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; and Richard H. Dunavant, Assistant Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

                            FACTS AND PROCEDURAL HISTORY

         On December 11, 2003, the petitioner filed a pro se petition for writ of habeas corpus,
alleging that he “is being deprived of his freedom for invalid and illegal reasons” and is “being held
involuntarily” at the South Central Correctional Center in Clifton, Tennessee, because the “State
failed to follow statutory guidelines in obtaining indictments in his cause” and the “indictment fails
to state an offense.” The State filed a “Motion to Dismiss” on January 15, 2004, and the trial court
summarily dismissed the petition on January 26, 2004. On February 14, 2004, the petitioner filed
a “Notice of Appeal” and a “Motion to Appoint Counsel for Appeal” in the Wayne County Circuit
Court, and on March 16, 2004, he filed a “Motion for Permission to Proceed in Forma Pauperis” and
a “Motion for the Appointment of Counsel” in this court. By order of this court filed April 6, 2004,
we remanded the latter two motions to the trial court for consideration. On April 12, 2004, the trial
court entered an “Order Allowing Filing on Pauper’s Oath” finding the petitioner indigent, and on
May 28, 2004, the trial court denied the appointment of counsel.

                                            ANALYSIS

        The petitioner raises two issues on appeal: (1) whether the indictment was void because it
failed to allege sufficient facts; and (2) whether the trial court erred by not appointing appellate
counsel. Because the determination of whether habeas corpus relief should be granted is a question
of law, our review is de novo with no presumption of correctness given to the trial court’s findings.
See McLaney v. Bell, 59 S.W.3d 90, 93 (Tenn. 2001); Hart v. State, 21 S.W.3d 901, 903 (Tenn.
2000).

        The remedy provided by a writ of habeas corpus is limited in scope and may only be invoked
where the judgment is void or the petitioner's term of imprisonment has expired. State v. Ritchie,
20 S.W.3d 624, 629 (Tenn. 2000); State v. Davenport, 980 S.W.2d 407, 409 (Tenn. Crim. App.
1998). A void, as opposed to a voidable, judgment is “one in which the judgment is facially invalid
because the court did not have the statutory authority to render such judgment.” Dykes v. Compton,
978 S.W.2d 528, 529 (Tenn. 1998); see also Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The
judgment of a court of general jurisdiction is conclusive and presumed to be valid, and such a
judgment can only be impeached if the record affirmatively shows that the rendering court was
without personal or subject matter jurisdiction. Archer v. State, 851 S.W.2d 157, 162 (Tenn. 1993).
Thus, habeas corpus relief is available 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 . .
. has expired.” Id. at 164 (citation omitted). 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 Tenn.
R. Crim. P. 12(b)(2); 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,
978 S.W.2d at 529.

        The petitioner’s essential argument is that the indictment in this case was fatally defective,
thereby robbing the convicting court of subject matter jurisdiction and rendering his convictions
void, because although the indictment alleged attempted first degree murder, it did not state “how
the Petitioner alleged [sic] attempted to kill [the victim]” and “[did] not tell what he did it with.”
The State argues that the indictment met all constitutional and statutory requirements of providing
notice to the accused. We agree with the State.




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        Initially, we note that the petitioner has failed to attach copies of the judgments to his
petition.1 “Without question, the procedural provisions of the habeas corpus statutes are mandatory
and must be followed scrupulously.” Archer, 851 S.W.2d at 165 (citing Bateman v. Smith, 183
Tenn. 541, 543, 194 S.W.2d 336, 337 (1946)). In view of the petitioner’s failure to comply with the
mandatory provisions of Tennessee Code Annotated section 29-21-107(b)(2) (2003), summary
dismissal of the petition was proper. State ex rel. Allen v. Johnson, 217 Tenn. 28, 394 S.W.2d 652,
653 (1965). Nonetheless, because the petitioner attached copies of the indictment to his petition, and
in the interest of judicial economy, we will address the merits of the petitioner’s appeal.

       An indictment must inform the accused of “the nature and cause of the accusation.” U.S.
Const. amend. VI; Tenn. Const. art. I, § 9. In addition, Tennessee Code Annotated section
40-13-202 requires that an indictment:

         state the facts constituting the offense in ordinary and concise language, without
         prolixity or repetition, in such a manner as to enable a person of common
         understanding to know what is intended, and with that degree of certainty which will
         enable the court, on conviction, to pronounce the proper judgment[.]

         An indictment that achieves its “overriding purpose of notice to the accused will be
considered sufficient to satisfy both constitutional and statutory requirements.” State v. Hammonds,
30 S.W.3d 294, 300 (Tenn. 2000). Our supreme court has held that an indictment is sufficient to
satisfy notice requirements if it “contains allegations that (1) enable the accused to know the
accusation to which answer is required; (2) furnish the trial court an adequate basis for entry of a
proper judgment; and (3) protect the accused from a subsequent prosecution for the same offense.”
Id. at 299 (citing State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997)).

        The indictment here clearly satisfied the overriding purpose of providing notice to the
petitioner of the offenses with which he was charged. Count one specifically charged that the
petitioner:

         on the 14th day of October, 1995, in Davidson County, Tennessee and before the
         finding of this indictment, did attempt to intentionally and with premeditation kill
         Robert Louis Meadows, in violation of Tennessee Code Annotated § 39-12-101, and
         against the peace and dignity of the State of Tennessee.



         1
           In fact, we have no record b efore us of any pro ceedings o ther than the habe as corpus p roceedings. In his
app ellate brief, the petitioner states that he was “charged with attempted first-degree murder he entered a plead [sic] of
NOT GUILTY and proceeded to trial, at which he was ultimately convicted.” In addition, the petitioner states that he
“appealed his sentence, which was affirmed.” Howe ver, we can find no record of the petitioner ever being before our
court in this matter prior to this habeas corpus proceeding. W e note that a Preston Pendergrass was before our court in
1987 on a conviction for armed robbery, and we affirmed the sentences imposed by the trial court. See State v. Faddie
Billingsley, Jr. and Preston Pendergrass, No. 956, 1987 WL 6382 (Tenn. Crim. App. Feb. 11, 1 987 ), perm. to appeal
denied (Tenn. M ay 11, 1987).

                                                           -3-
Count three of the indictment charged that the petitioner:

         on the 14th day of October, 1995, in Davidson County, Tennessee and before the
         finding of this indictment, did attempt to intentionally and with premeditation kill
         Marshall Stanton, in violation of Tennessee Code Annotated § 39-12-101, and
         against the peace and dignity of the State of Tennessee.

         As best we can tell, the petitioner argues essentially that the indictment was defective because
it failed to set forth certain facts such as how he attempted to commit first degree murder and what
type of weapon he may have used.

       In Wyatt v. State, 24 S.W.3d 319 (Tenn. 2000), a habeas corpus appeal, our supreme court
addressed a similar argument, that the indictment in that case “failed to allege an overt act.” Id. at
323. Except for grammatical structure, the indictment in Wyatt was remarkably similar to the
indictment in the present case:

         that WILLIAM TERRY WYATT on the 7th day of March, 1994, in Cumberland
         County, Tennessee, and before the finding of this indictment, did unlawfully,
         intentionally, deliberately2 and with premeditation attempt to kill [the victim] in
         violation of T.C.A. 39-12-101 . . . .

Id. at 324. The supreme court concluded that the indictment in Wyatt “satisfie[d] the[] minimum
requirements” of the United States and Tennessee Constitutions, as well as the statutory scheme
established by the legislature. Id. Although the court acknowledged that “did . . . attempt to kill”
is a “general description,” it concluded that “this language alleges an act as required by the criminal
attempt statute and was sufficient to notify Wyatt of the accused crime, to confer jurisdiction upon
the trial court, and to protect against double jeopardy.”3 Id. at 324-25 (citing Hill, 954 S.W.2d at
727). Finally, as we stated in State v. Griffis, 964 S.W.2d 577, 591 (Tenn. Crim. App. 1997), “it is
not necessary to amplify and encumber the charge by circumstantial detail and minute description.”

        As an additional matter, the petitioner asserts the trial court erred by not appointing appellate
counsel pursuant to Rule 13, section 1(d)(1) of the Tennessee Supreme Court Rules, which states
in pertinent part as follows:




         2
          Tennessee Cod e Anno tated section 39 -13-202 , our first degree murder statute, was amended, effective July
1, 1995, to omit the element of “deliberation” from the statute.

         3
            Although the court in W yatt “enco uraged” the State to “charge the crime of attempt in such a way that informs
the defendant of the precise act or acts against which he is being called upon to defend,” and urged defendants to move
for a bill of particulars pursuant to Tenn. R. Crim. P. 7(c) when the State failed to do so, such matters are best “resolved
by the trial courts, who are best qualified to make these determinations on a case-by-case basis.” 24 S .W .3d at 325 .

                                                            -4-
                In the following cases . . . the court . . . shall advise any party without counsel
       of the right to be represented throughout the case by counsel and that counsel will be
       appointed if the party is indigent and requests appointment of counsel.

               ....

              (C) Proceedings initiated by a petition for habeas corpus, early release from
       incarceration, suspended sentence, or probation revocation[.]

Tenn. Sup. Ct. R. 13, § 1(d)(1)(C).

       We have previously dealt with a similar claim by a petitioner in a habeas corpus appeal and
found it to be meritless:

               The petitioner primarily contends he, due [to] his status as an indigent, was,
       and continues to be, entitled to appointment of counsel. There is no federal or state
       constitutional right to assistance of appointed counsel in a habeas corpus proceeding.
       See Coleman v. Thompson, 501 U.S. 722, 755, 111 S. Ct. 2546, 115 L. Ed. 2d 640
       (1991); State ex rel. Hall v. Meadows, 215 Tenn. 668, 389 S.W.2d 256, 260 (1965).
       However, a trial court has a statutory duty to appoint counsel, but only "if necessary."
       Tenn. Code Ann. § 40-14-204. Although Rule 13, section 1(d)(4) of the Rules of the
       Supreme Court of Tennessee provides for the appointment of counsel in habeas
       corpus proceedings, we do not interpret the rule as requiring the appointment of
       counsel simply because a petition is filed. A habeas corpus petition may be
       dismissed without a hearing, and without appointment of counsel, unless it alleges
       facts that would justify relief. State ex rel. Edmondson v. Henderson, 220 Tenn. 605,
       421 S.W.2d 635, 636-37 (1967); William A. Ransom v. Kevin Meyers, Warden, and
       State of Tennessee, C.C.A. No. 01C01-97080-CC-00328, 1998 Tenn. Crim. App.
       LEXIS 1108, at *9-10 (Tenn. Crim. App. Oct. 23, 1998, at Nashville), perm. to app.
       denied (Tenn. 1999).

John C. Tomlinson v. State, No. M2001-02152-CCA-R3-CO, 2002 WL 1400051, at *3 (Tenn. Crim.
App. June 28, 2002). Because the petition in the present case failed to allege facts that would justify
relief, the petitioner was not entitled to a hearing or the appointment of counsel, either in the trial
court or on appeal. See also John H. Williams, Jr. v. Kevin Myers, Warden, No. M2002-00855-
CCA-R3-CO, 2002 WL 31852857 (Tenn. Crim. App. Dec. 20, 2002), perm. to appeal denied (Tenn.
May 12, 2003); State v. Charles Damien Darden, No. W2001-01833-CCA-R3-CD, 2002 WL
1482798 (Tenn. Crim. App. Feb. 12, 2002).




                                                   -5-
                                        CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the order of the trial court
dismissing the petition for writ of habeas corpus.


                                                     ___________________________________
                                                     ALAN E. GLENN, JUDGE




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