        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON

                  CURTIS KELLER v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Lauderdale County
                         No. 6590 Joe H. Walker, III, Judge




              No. W2012-02076-CCA-R3-HC - Filed February 15, 2013


The Petitioner, Curtis Keller, appeals the Circuit Court of Lauderdale County’s denial 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

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

Curtis Keller, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Clarence E. Lutz, Assistant
Attorney General, for the Appellee, State of Tennessee.

                              MEMORANDUM OPINION

       A Shelby County jury convicted the Petitioner of three counts of aggravated robbery,
three counts of especially aggravated kidnapping, four counts of attempted aggravated
robbery, four counts of aggravated assault, and one count each of aggravated burglary and
intentionally evading arrest in a motor vehicle. The trial court merged the aggravated assault
convictions into the remaining convictions and ordered the Petitioner to serve an effective
sentence of 300 years as a persistent offender at 45%.

       On August 7, 2012, the Petitioner filed a petition for writ of habeas corpus in which
he alleged that his judgments of conviction were void because no affidavit of complaint was
issued and the State improperly obtained a superseding indictment against him. The
Petitioner also asserted that the State failed to file the presentence report and notice of
enhancement factors in a timely manner and that, as a result, the trial court’s reliance on the
pleadings in imposing the sentence was improper. On August 8, 2012, the trial court entered
an order denying relief. 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). 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).

        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).



                                               -2-
      The Petitioner asserts that his convictions are void because the prosecution was
commenced by an indictment and not by an arrest warrant accompanied by an affidavit of
complaint. An indictment, however, is one of the methods by which prosecution may
commence. See T.C.A. § 40-2-104. The issuance of an indictment requires a probable cause
determination by the grand jury. See Tenn. R. Crim. P. 6.

         With regard to the Petitioner’s claim that the State improperly obtained a superseding
indictment, we note that the power to seek a superseding indictment lies within the broad
discretion granted to the State. State v. Harris, 33 S.W.3d 767, 771 (Tenn. 2000). A
superseding indictment is obtained without the dismissal of a prior indictment. Id.
“Although the State may not bring a superseding indictment to harass or intimidate the
accused, a legitimate decision to bring a superseding indictment is uniquely within the State’s
authority.” Id. Therefore, “the State may obtain a superseding indictment at any time prior
to trial without dismissing the pending indictment and may then select the indictment under
which to proceed at trial.” Id. We fail to see how the State’s decision to bring a superseding
indictment renders the Petitioner’s judgments void. See Ervin Davis v. Warden Glenn
Turner, No. W2004-01985-CCA-R3-HC, 2005 Tenn. Crim. App. LEXIS 491, at **5-6
(Tenn. Crim. App., at Jackson, May 25, 2005). The Petitioner fails to establish an indictment
that is so defective that it deprived the trial court of jurisdiction and rendered the judgments
void.

        Similarly, the Petitioner’s complaint about the trial court’s use of the presentence
report and the application of enhancement factors is not cognizable in this habeas corpus
proceeding. See Cantrell v. Easterling, 346 S.W.3d 445, 451 (Tenn. 2011) (explaining that
alleged errors in application of mitigating and enhancement factors “are to be addressed on
direct appeal and not in a . . . habeas corpus proceeding”). There is no indication that the
Petitioner’s convictions are void or that his sentence of imprisonment has expired. See
Archer, 851 S.W.2d at 164. Accordingly, the Petitioner is not entitled to habeas corpus
relief.

        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.




                                               -3-
      _________________________________
      CAMILLE R. McMULLEN, JUDGE




-4-
