                                                                                           09/06/2019
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs July 9, 2019

              ANTONIO Q. CLIFTON v. STATE OF TENNESSEE
                    Appeal from the Criminal Court for Shelby County
                    No. 98-03191    Jennifer Johnson Mitchell, Judge



                              No. W2018-02289-CCA-R3-HC
                        _____________________________

In 1998 and 1999, the Petitioner pleaded guilty to three different drug offenses. State v.
Antonio Clifton, No. W2016-00175-CCA-R3-CD, 2016 WL 6427862, at *1 (Tenn. Crim.
App., at Jackson, Oct. 31, 2016), no Tenn. R. App. P. 11 application filed. Several years
later, the Petitioner filed a petition for a writ of habeas corpus and a motion to correct an
illegal sentence, both of which were denied based on the fact that his sentences had
expired. The Petitioner filed this, his second petition for a writ of habeas corpus. The
habeas corpus court denied the petition for failure to comply with procedural
requirements and because the Petitioner’s sentence had expired. On appeal, we affirm
the habeas corpus court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which JAMES
CURWOOD WITT, JR., and J. ROSS DYER, JJ., joined.

Antonio Q. Clifton, Forrest City, Arkansas, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Senior
Assistant Attorney General; and Amy P. Weirich, District Attorney General, for the
appellee, State of Tennessee.

                                        OPINION

                                          I. Facts

       This case arises from the Petitioner’s multiple drug convictions between 1998 and
1999. While the record is scant, it appears that the Petitioner pleaded guilty on October
26, 1998, to a Class C felony cocaine possession charge and received a sentence of three
years in the county workhouse. He subsequently pleaded guilty on March 2, 1999, to
another Class C felony cocaine possession charge and again received a sentence of three
years in the county workhouse. The trial court ordered that the sentences run
concurrently. The Petitioner served his sentences and was released. Thereafter, the
Petitioner was tried and convicted on federal charges, and he filed multiple filings
contending that his state sentences were illegal because the trial court ordered them to be
served concurrently rather than consecutively. He asserts that they should have been
ordered to run consecutively because he was out on bond for the first offense when he
committed the second offense.

       We reviewed one of the Petitioner’s filings, a Tennessee Rule of Criminal
Procedure 36.1 motion to correct an illegal sentence filed on March 10, 2015, sixteen
years after his conviction. Clifton, 2016 WL 6427862, at *1. In that motion, the
Petitioner contended that his sentences were illegal because the trial court ordered that he
serve the sentences concurrently rather than consecutively. Id. The trial court denied the
motion, finding that the Petitioner’s sentences had expired, citing State v. Brown, 479
S.W.3d 200 (Tenn. 2015). On appeal, this court affirmed, stating that Brown is clear that
Rule 36.1 does not authorize the correction of expired illegal sentences. Clifton, 2016
WL 6427862, at *1. Because the Petitioner’s sentences were clearly expired, we
affirmed the trial court’s holding.

        The Petitioner filed his second petition for a writ of habeas corpus. In it he alleges
that he is not challenging an expired sentence. Instead, he contends he is challenging that
his judgment of conviction lists that he pleaded guilty to possession of cocaine with intent
to sell when in fact he pleaded guilty only to possession of cocaine. He contends that he
is currently incarcerated on an eleven-year sentence based solely because of this error on
his judgment form.

       The habeas corpus court denied the Petitioner’s petition. It noted that the
Petitioner had been sentenced to concurrent sentences of three years and that the
judgment sheets reflected that the sentences were ordered to be served concurrently. It
found that the Petitioner went into custody after entering his plea, served nine months for
both sentences, and was released on parole. The trial court further found:

       On October 11, 2012, [the] [P]etitioner filed a Petition for Habeas Corpus
       Relief petitioning this Court to vacate the sentence or withdraw the guilty
       plea because the sentences were illegal. On December 6, 2012, this Court
       entered an order dismissing the petition because the sentence had expired.
       In 2013, the [P]etitioner pled guilty and [was] sentenced in federal court.
       The U.S. District Court used the illegal sentence entered in State court to
       sentence him to 292 months. [The] Petitioner filed a Motion in this court,
       on October 11, 2012, to Correct an Illegal Sentence. An order was entered
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      denying the petition for failure to state a colorable claim because the
      sentence had expired and his liberty was no longer being restrained by the
      State of Tennessee. The [P]etitioner appealed this decision and Court of
      Criminal Appeals affirmed this trial court’s denial. Petitioner then filed this
      second Petition for Habeas Corpus Relief on June 22, 2018.

             [The] Petitioner does not state in his petition that he had filed (1)
      prior Petition for Writ of Habeas Corpus Relief that was denied. That is
      required by statute. T.C.A. § 29-21-107 . . . .

            Here it appears that the [P]etitioner has filed a Petition for Habeas
      Corpus relief to attack an expired sentence. And although the [P]etitioner is
      in custody, he is not in the custody of the State of Tennessee. The
      judgment and sentence entered by this Court have long since expired.

              T.C.A. § 29-21-101(b)(1) states that persons restrained of their
      liberty pursuant to a guilty plea and negotiated sentence are not entitled to
      the benefits of this writ on any claim that:

             (1) The petitioner received concurrent sentencing where there
                 was a statutory requirement for consecutive sentencing.

            Furthermore, the sentence that he is attacking is a sentence that
      should have been served consecutively by statute but was served
      concurrently.

      On these grounds, the habeas corpus court denied the petition. It is from this
judgment that the Petitioner now appeals.

                                       II. Analysis

        On appeal, the Petitioner contends that he pleaded guilty to “possession of
cocaine” and not “possession with intent” to sell cocaine and that his judgments of
conviction inaccurately reflect the crime to which he pleaded guilty. The State counters
that the Petitioner waived this issue by failing to include his judgments of conviction in
the record. It further contends that the Petitioner’s sentences are expired, so he is not
entitled to relief. We agree with the State.

      Article I, section 15 of the Tennessee Constitution guarantees the right to seek
habeas corpus relief. See Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007).
Although the right is guaranteed in the Tennessee Constitution, the right is governed by
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statute. T.C.A. §§ 29-21-101, -130 (2014). The determination of whether habeas corpus
relief should be granted is a question of law and is accordingly given de novo review with
no presumption of correctness given to the findings and conclusions of the court below.
Smith v. Lewis, 202 S.W.3d 124, 127 (Tenn. 2006) (citation omitted); Hart v. State, 21
S.W.3d 901, 903 (Tenn. 2000). Although there is no statutory limit preventing a habeas
corpus petition, the grounds upon which relief can be granted are very narrow. Taylor v.
State, 995 S.W.2d 78, 83 (Tenn. 1999).

        It is the petitioner’s burden to demonstrate by a preponderance of the evidence that
“the sentence is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319,
322 (Tenn. 2000). In other words, the very narrow grounds upon which a habeas corpus
petition can be based are as follows: (1) a claim there was a void judgment which was
facially invalid because the convicting court was without jurisdiction or authority to
sentence the defendant; or (2) a claim the petitioner’s sentence has expired. Stephenson
v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000); Archer v. State, 851 S.W.2d 157, 164
(Tenn. 1993). “An illegal sentence, one whose imposition directly contravenes a statute,
is considered void and may be set aside at any time.” May v. Carlton, 245 S.W.3d 340,
344 (Tenn. 2008) (citing State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978)). In
contrast, a voidable judgment or sentence is “one which is facially valid and requires the
introduction of proof beyond the face of the record or judgment to establish its
invalidity.” Taylor, 995 S.W.2d at 83 (citations omitted); see State v. Ritchie, 20 S.W.3d
624, 633 (Tenn. 2000). The petitioner bears the burden of showing, by a preponderance
of the evidence, that the conviction is void or that the prison term has expired. Passarella
v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). Furthermore, the procedural
requirements for habeas corpus relief are mandatory and must be scrupulously followed.
Summers v. State, 212 S.W.3d 251, 260 (Tenn. 2007); Archer, 851 S.W.2d at 165.

       The Petitioner contends on appeal that he is currently incarcerated because his
federal sentence was enhanced based upon his judgments of conviction stating that he
pleaded guilty to possession with intent to sell cocaine rather than simple possession. He
has attached to his brief a transcript of the hearing on his Rule 36.1 motion. During the
hearing, he testified and agreed that he served nine months in jail for his concurrent
sentences, was released and completed parole, and then was not incarcerated for ten
years. At the time of his guilty plea for these charges, he knew he was pleading guilty to
a felony. After ten years, he was arrested on federal charges, convicted, and is
incarcerated on a lengthy sentence. During the hearing on the Rule 36.1 motion, the trial
court stated that when it had sentenced the Petitioner, it had questioned him and
sentenced him for possession with the intent to sell, as reflected by the judgments of
conviction. The trial court found no merit in the Petitioner’s argument.

       The procedural requirements for habeas corpus relief are mandatory and must be
                                             4
scrupulously followed. Summers v. State, 212 S.W.3d 251, 260 (Tenn. 2007). The
formal requirements include “[t]hat it is the first application for the writ, or, if a previous
application has been made, a copy of the petition and proceedings thereon shall be
produced, or satisfactory reasons be given for the failure to so do.” T.C.A. § 29-21-107.
A habeas court may dismiss a petition for habeas corpus relief that fails to comply with
these procedural requirements. Hickman v. State, 153 S.W.3d 16, 21 (Tenn. 2004).

       Having reviewed the record, we note that the Petitioner’s application for writ of
habeas corpus is not included in the technical record. The Petitioner attached it to his
brief. Having reviewed that unofficial copy of his application, we conclude that the
Petitioner failed to assert that he had previously filed an application for writ of habeas
corpus and that he also failed to attach his judgments of conviction. As such, the habeas
corpus court properly dismissed his petition.

                                      III. Conclusion

      In accordance with the foregoing reasoning and authorities, we affirm the habeas
corpus court’s judgment.

                                                   _________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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