        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 3, 2015

              FREDERICK MOORE v. MIKE PARRIS, WARDEN

                     Appeal from the Circuit Court for Lake County
                     No. 14-CV-9999    R. Lee Moore, Jr., Judge



               No. W2014-02128-CCA-R3-HC - Filed March 27, 2015



The Petitioner, Frederick Moore, appeals the Lake County Circuit Court‟s denial of his
pro se petition for writ of habeas corpus. On appeal, he asserts that his indictment is void
and illegal and deprives the trial court of jurisdiction because the State illegally amended
it and improperly obtained a superseding indictment. He further asserts that he is entitled
to habeas corpus relief because he was denied due process when he was not afforded a
second preliminary hearing. Upon review, we affirm the the trial court‟s denial of the
petition.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ALAN E. GLENN, JJ., joined.

Frederick Moore, Tiptonville, Tennessee, pro se.

Herbert H. Slatery, III, Attorney General and Reporter; Tracy L. Adcock, Assistant
Attorney General; Phillip Bivens, District Attorney General; and Rachel E. Willis, Senior
Counsel, for the Appellee, State of Tennessee.

                                        OPINION

       Following a jury trial, the Petitioner, Frederick Moore, was convicted of first
degree premeditated murder, first degree felony murder, aggravated kidnapping, and two
counts of tampering with evidence. See State v. Frederick Lamont Moore, No. W2009-
01266-CCA-R3-CD, 2011 WL 856379, at *1 (Tenn. Crim. App. Mar. 9, 2011), perm.
app. denied (Tenn. July 14, 2011). The trial court merged the first degree premeditated
murder conviction with the felony murder conviction and sentenced the Petitioner to an
effective sentence of life imprisonment plus twenty years. See id. The Petitioner
subsequently filed a petition for post-conviction relief, alleging ineffective assistance of
counsel, which was denied by the post-conviction court. See Frederick Moore v. State,
No. W2012-02189-CCA-R3-PC, 2013 WL 6001928, at *1 (Tenn. Crim. App. Nov. 6,
2013), perm. app. denied (Tenn. Mar. 5, 2014). This court affirmed the post-conviction
court‟s denial of relief on appeal. See id.

        On September 15, 2014, the Petitioner filed a pro se petition for writ of habeas
corpus relief. In the petition, he alleged that his indictment is void and illegal, rendering
his convictions and sentences void and illegal. He also argued that he was denied due
process because he was not granted a second preliminary hearing prior to the return of the
superseding indicment. On October 17, 2014, the trial court entered an order denying
relief. This timely appeal followed.

                                       ANALYSIS

        On appeal, the Petitioner asserts that his convictions and sentences are void and
illegal. Specifically, he asserts that (1) the State illegally amended his indictment without
his consent; (2) the State impermissibly obtained a superseding indictment and failed to
dispose of the original indictment; and (3) he was denied due process because he was not
afforded a seconed preliminary hearing before the superseding indictment was returned.
The State responds that the trial court properly denied relief. We agree with the State.

       “The determination of whether habeas corpus relief should be granted is a question
of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21
S.W.3d 901, 903 (Tenn. 2000)). Accordingly, our review is de novo without a
presumption of correctness. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (citing
State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006)).

       A prisoner is guaranteed the right to habeas corpus relief under Article I, section
15 of the Tennessee Constitution. Tenn. Const. art. I, ' 15; see T.C.A. '' 29-21-101 to -
130. The grounds upon which a writ of habeas corpus may be issued, however, 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) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 337 (1868)). A habeas
corpus petition challenges void and not merely voidable judgments. Summers, 212
S.W.3d at 255 (citing Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992)). “A void judgment
is one in which the judgment is facially invalid because the court lacked jurisdiction or
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authority to render the judgment or because the defendant‟s sentence has expired.”
Taylor, 995 S.W.2d at 83 (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998);
Archer, 851 S.W.2d at 161-64). However, a voidable judgment “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) (citing Dykes, 978 S.W.2d at 529).
Thus, “[i]n 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.” State v. Ritchie, 20 S.W.3d 624, 633 (Tenn. 2000). 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 this burden is met, the Petitioner is entitled to immediate release. State v.
Warren, 740 S.W.2d 427, 428 (Tenn. Crim. App. 1986) (citing Ussery v. Avery, 432
S.W.2d 656, 658 (Tenn. 1968)).

        “Generally, defenses and objections based on a defective indictment must be
raised prior to trial or they are waived.” Wyatt v. State, 24 S.W.3d 319, 322-23 (Tenn.
2000) (citing Tenn. R. Crim. P. 12(b)(2), (f)). However, “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 Tennessee Supreme Court has stated that an indictment
is valid if it contains sufficient information “(1) to enable the accused to know the
accusation to which answer is required, (2) to furnish the court adequate basis for the
entry of a proper judgment, and (3) to protect the accused from double jeopardy.” State
v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (citing State v. Byrd, 820 S.W.2d 739, 741
(Tenn. 1991); VanArsdall v. State, 919 S.W.2d 626, 630 (Tenn. Crim. App. 1995); State
v. Smith, 612 S.W.2d 493, 497 (Tenn. Crim. App. 1980)).

       “The power to seek a superseding indictment lies within the broad discretion of
the State.” State v. Harris, 33 S.W.3d 767, 771 (Tenn. 2000) (citation omitted). The
Tennessee Supreme Court explained,

      A superseding indictment is an indictment obtained while another
      indictment is still pending. Where there has been no jeopardy on the first
      indictment, a grand jury may return a new indictment against an accused
      even though another indictment is pending. 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. Thus, 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.
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Id. (citations omitted).

       In the case sub judice, the Petitioner first asserts that his indictment is void
because the State illegally amended the indictment without his consent and submitted it
to the wrong grand jury. The record establishes that the Petitioner was originally indicted
on June 30, 2008, on indictment number 08-379 for first degree murder and two counts of
tampering with evidence. On February 2, 2009, he was indicted again on indictment
number 09-77 for first degree murder, first degree felony murder, aggravated kidnapping,
and two counts of tampering with evidence. The State has broad authority to seek a
superseding indictment from a new grand jury and chose to do so in this case. See
Harris, 33 S.W.3d at 771. We fail to see how the State‟s decision to bring a superseding
indictment renders the Petitioner‟s judgments void.

        Additionally, the Petitioner alleges that he was forced to proceed to trial on two
indictments because the original indictment was never dismissed, subjecting him to
double jeopardy. However, as noted, after seeking a superseding indictment, the original
indictment need not be dismissed and the State may choose the indictment under which to
proceed to trial. See Harris, 33 S.W.3d at 771. The Petitioner attached judgments to his
petition for writ of habeas corpus that reflect that he was convicted on February 9, 2009,
of all counts charged in indictment number 09-77. Thus, it is clear that the State chose to
proceed to trial under the superseding indictment. Further, the Petitioner‟s claims
regarding double jeopardy are not cognizable in a habeas corpus proceeding. See
Summers, 212 S.W.3d at 261 (stating that “the habeas corpus statutes are for the purpose
of challenging a void judgment” while “a post-conviction petition may challenge a
conviction or sentence that is alleged to be void or voidable because of the abridgement
of constitutional rights”); Ricky Lynn Hill v. Tony Parker, Warden, No.
W2010-01423-CCA-R3-HC, 2011 WL 287343, at *4 (Tenn. Crim. App. Jan. 24, 2011)
(stating that a claim of double jeopardy renders a judgment voidable, not void); Bobby
James Mosley v. Wayne Brandon, Warden, No. M2006-02398-CCA-R3-HC, 2007 WL
1774309, at * 5 (Tenn. Crim. App. June 20, 2007) (reiterating that a claim of double
jeopardy is not a cognizable claim for habeas corpus relief); Ralph Phillip Claypole, Jr.
v. State, No. M1999-02591-CCA-R3-PC, 2001 WL 523367, at *2 (Tenn. Crim. App.
May 16, 2001) (stating that the petitioner=s claim of double jeopardy, if true, would
render the convictions Avoidable, not void.@). The Petitioner is not entitled to relief on
this issue.

       Finally, the Petitioner asserts that his judgments are void because his due process
rights were violated when he was denied his right to a second preliminary hearing.
However, this claim, even if proven, would not render the Petitioner‟s judgments void but
merely voidable. See Phillip Reed Bryan v. State, No. W2011-00743-CCA-R3-HC, 2011
WL 5829557, at *3 (Tenn. Crim. App. Nov. 17, 2011) (“[T]he denial of or any other
                                            -4-
allegation of infirmity or flaw in a preliminary hearing would not afford habeas corpus
relief.” (citing State v. ex rel. Reed v. Heer, 403 S.W.2d 310, 314 (Tenn. 1966) (holding
that claims relating to the denial or propriety of a preliminary hearing are not cognizable
in a habeas corpus proceeding); Ortega Wiltz v. Howard Carlton, Warden, No. E2010-
02091-CCA-R3-HC, 2011 WL 2410337, at *2 (Tenn. Crim. App. June 10, 2011))).
Accordingly, this claim is not cognizable in a habeas corpus proceeding, and the
Petitioner is not entitled to relief on this issue.

                                        CONCLUSION

        Based on the foregoing authorities and analysis, we affirm the judgment of the
trial court.

                                                  _________________________________
                                                  CAMILLE R. MCMULLEN, JUDGE




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