        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 25, 2014

             HAROLD TOLLEY v. SHARON TAYLOR, WARDEN

                 Appeal from the Criminal Court for Johnson County
                    No. CC-13-CV-89 Robert E. Cupp, Judge


                 No. E2013-01988-CCA-R3-HC - Filed March 11, 2014


The Petitioner, Harold Tolley, appeals the Johnson County Criminal Court’s summary
dismissal of his petition for habeas corpus relief from his 1998 conviction for first degree
murder and his resulting life sentence. The Petitioner contends that the trial court erred by
summarily denying relief because he was denied his right to defend himself at the trial by
presenting an intoxication defense to show he had diminished capacity. We affirm the
judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J AMES C URWOOD W ITT,
J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Harold Tolley, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; and
Anthony Wade Clark, District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

        According to this court’s opinion in the appeal of the Petitioner’s conviction, the
evidence at the trial showed that on March 1, 1997, the Petitioner crossed an open pasture,
crawled between the strands of a barbed wire fence, and walked to where the victim was
talking to Jerry and Cleon Price. Jerry Price testified that the Petitioner approached the
group, pulled a gun, and shot the victim in the left temple. He said that after the victim fell,
the Petitioner stood over the victim and shot him three more times. He said the Petitioner put
the gun in his back pocket and walked to his truck. Although the Defendant testified that he
shot the victim because the victim cursed him, hit him, and knocked him to the ground, Mr.
Price testified that no argument occurred, and Dr. William McCormick, who performed the
victim’s autopsy, testified that the victim’s hands had no injuries that were consistent with
the Petitioner’s claim that the victim hit him.

      The Petitioner was convicted of first degree murder and received a life sentence. He
appealed his conviction, and this court affirmed it. State v. Harold Tolley, No. 03C01-9811-
CR-00386 (Tenn. Crim. App. Jan. 14, 2000), perm. app. denied (Tenn. Sept. 5, 2000).

       In 2001, the Petitioner filed a petition for post-conviction relief, contending that he
received the ineffective assistance of counsel. Harold Tolley v. State, No. E2005-02260-
CCA-MR3-PC (Tenn. Crim. App. Dec. 21, 2006), perm. app. denied (Tenn. Apr. 23, 2007).
He argued that counsel was ineffective in advising him to forego the State’s plea offer and
in presenting his defense. Id. at 8. The trial court denied relief, and this court affirmed the
denial. Id. at 9.

       The Petitioner filed a petition for a declaratory judgment in Davidson County
Chancery Court, arguing that Tennessee Code Annotated section 40-35-501(i) was
unconstitutional as applied to his life sentence. Harold Tolley v. Attorney General of
Tennessee, No. M2012-00551-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2012), perm. app.
denied (Tenn. Mar. 5, 2013). The trial court granted the Department of Correction’s motion
to dismiss, and the Tennessee Court of Appeals affirmed the dismissal. Id.

        In his present habeas corpus petition, the Petitioner contended that he was denied his
rights to due process and equal protection because he suffered from a “mental disease or
defect” and could not form the culpable mental state required for a first degree murder
conviction. He argued that he was prescribed numerous medications to treat his mental
illness, that he had consumed one quart of “moonshine” whiskey on the day of the incident,
and that he had diminished capacity because of the combination of the medications and the
alcohol, which made premeditation impossible.

       The State filed a motion to dismiss the petition, arguing that the Petitioner’s claim was
“essentially a sufficiency argument, which is not cognizable in habeas corpus,” and that this
court previously determined the evidence at the trial was sufficient to support the conviction.
The trial court granted the motion and summarily dismissed the petition for relief. This
appeal followed.

       The Petitioner contends that he was denied his right to defend himself at the trial by
presenting an intoxication defense to show he had diminished capacity. He argues that at the
time of the offense, he was being treated by a physician, was prescribed “Lortab, Soma 350,
and Prozac,” and was drinking whiskey. He argues that he had diminished capacity because
of the drug and alcohol combination and that he had no memory of the offense. The State

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responds that the trial court properly dismissed the petition because the Petitioner failed to
establish his judgment was void. We agree with the State.

        The determination of whether habeas corpus relief should be granted is a question of
law that is reviewed de novo with no presumption of correctness. State v. Livingston, 197
S.W.3d 710, 712 (Tenn. 2006); Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2001). In
Tennessee, habeas corpus relief is available only when it appears on the face of the judgment
or the record that the trial court was without jurisdiction to convict or sentence the defendant
or that the sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). When
applicable, the purpose of the habeas corpus petition is to contest a void, not merely a
voidable, judgment. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999); State ex rel. Newsom
v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968).

        A void, as opposed to a voidable, judgment is “one that is facially invalid because the
court did not have the statutory authority to render such judgment.” Summers v. State, 212
S.W.3d 251, 256 (Tenn. 2007). A voidable judgment “is one that is facially valid and
requires proof beyond the face of the record or judgment to establish its invalidity.” Id. at
255-56. The burden is on the petitioner to establish that the judgment is void or that the
sentence has expired. State ex rel. Kuntz v. Bomar, 381 S.W.2d 290, 291-92 (Tenn. 1964).
The trial court, however, may dismiss a petition for writ of habeas corpus without a hearing
and without appointing a lawyer when the petition does not state a cognizable claim for
relief. Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004); State ex rel. Edmondson v.
Henderson, 421 S.W.2d 635, 636-37 (Tenn. 1967); see T.C.A. § 29-21-109 (2010).

        Regarding the Petitioner’s claim that he was denied his right to present an intoxication
defense to show that he lacked the capacity of premeditation, “[t]he Sixth Amendment and
the Due Process Clause of the Fourteenth Amendment clearly guarantee a criminal defendant
the right to present a defense which includes the right to present witnesses favorable to the
defense.” State v. Brown, 29 S.W.3d 427, 432 (Tenn. 2000). However, this court has
recognized that challenges to convictions based upon constitutional violations in the
conviction proceedings are issues for post-conviction relief rather than habeas corpus relief.
Luttrell v. State, 644 S.W.2d 408, 409 (Tenn. Crim. App. 1982); see Fredrick B. Zonge v.
State, No. 03C01-9903-CR-00094, slip op. at 2 (Tenn. Crim. App. Dec. 16, 1999) (stating
“[a]lleged violations of constitutional rights are addressed in post-conviction, not habeas
corpus, proceedings”), perm. app. denied (Tenn. June 26, 2000). The Petitioner is not
entitled to relief.




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        In consideration of the foregoing and the record as a whole, we affirm the judgment
of the trial court.




                                          ___________________________________
                                          JOSEPH M. TIPTON, PRESIDING JUDGE




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