                                                                                           12/27/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 14, 2017

            MICHAEL V. MORRIS v. BLAIR LEIBACH, WARDEN

                 Appeal from the Circuit Court for Trousdale County
                   No. 2017-CV-4612 John D. Wootten, Jr., Judge
                      ___________________________________

                           No. M2017-00811-CCA-R3-HC
                       ___________________________________


The Petitioner, Michael V. Morris, appeals the Trousdale County Circuit Court’s denial
of his petition for writ of habeas corpus in which the Petitioner challenged his
classification as a career offender. We conclude that the Petitioner has failed to establish
that he is entitled to habeas corpus relief, and we affirm the denial of his petition in
accordance with Rule 20, Rules of the Court of Criminal Appeals.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Michael V. Morris, Hartsville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel;
and Tom P. Thompson, Jr., District Attorney General, for the appellee, State of
Tennessee.

                              MEMORANDUM OPINION

        In 2006, the Petitioner was convicted of an aggravated robbery that occurred in
August 2004 and was sentenced as a career offender to thirty years of incarceration at
sixty percent. This court affirmed the Petitioner’s conviction on direct appeal. See State
v. Michael V. Morris, No. M2006-02738-CCA-R3-CD, 2008 WL 544567, at *1 (Tenn.
Crim. App. Feb. 25, 2008), perm. app. denied (Tenn. Aug. 25, 2008). The Petitioner
filed a petition for post-conviction relief, which the post-conviction court denied, and this
court affirmed the post-conviction court’s judgment on appeal. Michael V. Morris v.
State, No. M2010-02069-CCA-R3-PC, 2012 WL 76905, at *1 (Tenn. Crim. App. Jan. 6,
2012), perm. app. denied (Tenn. Apr. 20, 2012).

        The Petitioner has since filed multiple habeas corpus petitions challenging his
status as a career offender, all of which have been unsuccessful. See Michael V. Morris
v. State, No. M2008-02113-CCA-R3-HC, 2010 WL 2075933, at *1, 4 (Tenn. Crim. App.
May 25, 2010), perm. app. denied (Tenn. Aug. 26, 2010); Michael V. Morris v. James
Fortner, No. M2008-01022-CCA-R3-HC, 2009 WL 690304, at *1-3 (Tenn. Crim. App.
Feb. 26, 2009).

        On March 24, 2017, the Petitioner filed a third petition for writ of habeas corpus in
which he again challenged his status as a career offender. He argued that Tennessee
Code Annotated section 40-35-108, the career offender statute, is unconstitutionally
vague and overbroad and conflicts with Tennessee Code Annotated section 40-35-117(c),
which addresses the applicability of the sentencing provisions to convictions committed
prior to July 1, 1982. On April 7, 2017, the habeas corpus court entered an order finding
that the Petitioner failed to adhere to the mandatory requirements for filing a petition for
writ of habeas corpus and summarily denying the petition. The Petitioner filed a timely
notice of appeal.

                                       ANALYSIS

       Article I, section 15 of the Tennessee Constitution provides that “the privilege of
the writ of Habeas Corpus shall not be suspended, unless when in case of rebellion or
invasion, the General Assembly shall declare the public safety requires it.” Habeas
corpus may be sought by “[a]ny person imprisoned or restrained of liberty ... to inquire
into the cause of such imprisonment and restraint.” T.C.A. § 29-21-101(a). The
application for the writ must be made by petition and verified by affidavit. T.C.A. § 29-
21-107(a). The granting or denial of a petition for habeas corpus relief is a question of
law reviewed de novo with no presumption of correctness afforded to the trial court’s
findings or conclusions. Edwards v. State, 269 S.W.3d 915, 919 (Tenn. 2008).

       While the statutory language “appears broad, in fact, ‘[h]abeas corpus under
Tennessee law has always been, and remains, a very narrow procedure.’” Id. (quoting
Archer v. State, 851 S.W.2d 157, 162 (Tenn. 1993)). In order to merit relief, a petitioner
must establish that the challenged judgment is not merely voidable, but void. Hogan v.
Mills, 168 S.W.3d 753, 755 (Tenn. 2005). A judgment is voidable when it 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). A void judgment, on
the other hand, is “one that is facially invalid because the court did not have the statutory
authority to render such judgment.” Id. “[T]he question of whether a judgment is void
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‘is always one of jurisdiction, that is, whether the order, judgment or process under attack
comes within the lawful authority of the court or judge rendering or issuing it.’”
Edwards, 269 S.W.3d at 920 (quoting State ex rel. Anglin v. Mitchell, 575 S.W.2d 284,
287 (Tenn. 1979), overruled on other grounds by Archer, 851 S.W.2d at 162-64).

       Relief is only available 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, 851 S.W.2d at 164
(quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37 (Tenn. 1868)). The habeas
corpus court has the authority to dismiss the petition if the petition shows that the
petitioner “would not be entitled to any relief.” T.C.A. § 29-21-109. Accordingly, if the
petition fails to establish that the judgment is void, the habeas corpus court is not
obligated to hold a hearing on the allegations. Hogan, 168 S.W.3d at 755.

       The Petitioner challenges the trial court’s authority to consider convictions prior to
1982 in finding him to be a career offender. The Petitioner does not list what pre-1982
convictions that the trial court considered. Rather, the Petitioner maintains that
Tennessee Code section 40-35-108 is unconstitutionally vague and overbroad and
conflicts with section 40-35-117(c), which he asserts prohibits trial courts from
considering convictions prior to 1982 in calculating career offender status.

       However, in filing his habeas petition, the Petitioner failed to verify the petition by
affidavit as required by Tennessee Code Annotated section 29-21-107(a). The procedural
requirements for habeas corpus relief are mandatory and must be scrupulously followed.
Hickman v. State, 153 S.W.3d 16, 19-20 (Tenn. 2004); 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. Because the
Petitioner failed to follow the statutory procedural requirements, the habeas corpus court
properly denied the Petitioner’s petition.

       Furthermore, this court has rejected the arguments raised by the Petitioner
regarding the constitutionality of Tennessee Code Annotated section 40-35-108. See
Allen Gary Lord v. State, No. 03C01-9610-CR-00384, 1997 WL 789843, at *2-3 (Tenn.
Crim. App. Dec. 23, 1997). Rather, this court concluded that the statute “clearly
indicate[s] that all felony convictions during a defendant’s lifetime may be considered
when deciding whether to classif[y] him as a career offender.” Id. at *3; see State v.
Wright, 836 S.W.2d 130, 136 (Tenn. Crim. App. 1992). Accordingly, the Petitioner is
not entitled to habeas corpus relief.



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       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 is taken in a proceeding without a jury, such
judgment or action is not a determination of guilt, and the evidence does not preponderate
against the findings of the trial judge. See Tenn. Ct. Crim. App. R. 20. We conclude that
this case satisfies the criteria of Rule 20. The judgment of the trial court is affirmed in
accordance with Rule 20, Rules of the Court of Criminal Appeals.




                                             ____________________________________
                                             JOHN EVERETT WILLIAMS, JUDGE




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