        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs September 28, 2010

        DOUGLAS MARSHALL MATHIS v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                         No. 4207    Steve R. Dozier, Judge


                No. M2010-00730-CCA-R3-HC - Filed January 19, 2011


The Petitioner, Douglass Marshall Mathis, filed in the Davidson County Criminal Court a
petition for a writ of habeas corpus, seeking relief from his conviction for first degree murder
and accompanying life sentence. The habeas corpus court dismissed the petition, finding that
the Petitioner’s conviction and sentence were not void. Upon review, we affirm the
judgment of the habeas corpus court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which JAMES C URWOOD
W ITT, J R., and C AMILLE R. M CM ULLEN, JJ., joined.

Douglas Marshall Mathis, Nashville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                  I. Factual Background

        On November 15, 1999, the Petitioner was indicted for first degree murder and second
degree murder. Douglas Marshall Mathis v. State, No. M2006-02525-CCA-R3-PC, 2008
WL 1850800, at *1 (Tenn. Crim. App. at Nashville, Apr. 25, 2008). On May 18, 2000, the
Petitioner pled guilty to second degree murder in exchange for a sentence of fifteen years,
one hundred percent of which was to be served in confinement, and the State’s agreement
to nolle prosequi the first degree murder count. Id. Thereafter, the Petitioner filed a petition
for post-conviction relief, seeking to set aside his guilty plea. Id. At the post-conviction
hearing, the State agreed the Petitioner was entitled to post-conviction relief. Id. The post-
conviction court vacated the Petitioner’s conviction for second degree murder and set the
case for trial. Id. On March 15, 2002, at the conclusion of the new trial, the jury found the
appellant guilty of first degree murder, and the Petitioner received a life sentence. Id. at *2.
The Petitioner appealed his conviction, which this court affirmed. State v. Douglas Marshall
Mathis, No. M2002-02291-CCA-R3-CD, 2004 WL 392710, at *1 (Tenn. Crim. App. at
Nashville, Mar. 3, 2004). Thereafter, the Petitioner pursued post-conviction relief, alleging,
among other things, that his trial counsel was ineffective. Mathis, No. M2006-02525-CCA-
R3-PC, 2008 WL 1850800, at *1. On appeal, this court affirmed the judgment of the post-
conviction court denying relief.

        Subsequently, the Petitioner filed a petition for a writ of habeas corpus, alleging that
his first degree murder conviction and life sentence are illegal because the post-conviction
court failed to make the proper finding “that a constitutional violation occurred during the
plea proceedings.” Therefore, he argues, the post-conviction court was not authorized to
vacate his plea and conviction and retry him on the first degree murder charge. Accordingly,
the Petitioner maintains that his first degree murder conviction and life sentence are illegal,
should be set aside, and his guilty plea to second degree murder with the fifteen-year
sentence be reinstated.

       The habeas corpus court dismissed the petition without a hearing, finding that

              the petitioner has not demonstrated that his judgment is void or
              that he is being illegally detained. The petitioner had the
              opportunity to appeal the grant of his post conviction petition in
              2001 if he believed it was invalid but did not. The Court
              believes he is filing this claim because he did not receive the
              outcome he had desired in a full and lawful jury trial. The Court
              finds there is no evidence that the defendant’s sentence or
              judgment are void, illegal or expired.

       The Petitioner now appeals, arguing that the habeas corpus court should have granted
him relief in the form of vacating his first degree murder conviction and life sentence and
reinstating his guilty plea to second degree murder with a fifteen-year sentence. The State
maintains that the habeas corpus court correctly dismissed the petition.

                                         II. Analysis

       Initially, we note that the determination of whether to grant habeas corpus relief is a
question of law. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). As such, we will

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review the trial court’s findings de novo without a presumption of correctness. Id. Moreover,
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).

        Article I, section 15 of the Tennessee Constitution guarantees an accused the right to
seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). However,
“[s]uch relief is available only when it appears from the face of the judgment or the record
of the proceedings that a trial court was without jurisdiction to sentence a defendant or that
a defendant’s sentence of imprisonment or other restraint has expired.” Wyatt, 24 S.W.3d
at 322; see also Tenn. Code Ann. § 29-21-101 (2000). In other words, habeas corpus relief
may be sought only when the judgment is void, not merely voidable. Taylor, 995 S.W.2d at
83. “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.’ We have recognized that a sentence imposed in direct contravention of a
statute, for example, is void and illegal.” Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn.
2000) (quoting Taylor, 995 S.W.2d at 83).

       “Without question, the procedural provisions of the habeas corpus statutes are
mandatory and must be followed scrupulously.” Archer v. State, 851 S.W.2d 157, 165
(Tenn. 1993). Specifically, Tennessee Code Annotated section 29-21-107 provides:

              (a) Application for the writ shall be made by petition, signed
              either by the party for whose benefit it is intended, or some
              person on the petitioner’s behalf, and verified by affidavit.

              (b) The petition shall state:

              (1) That the person in whose behalf the writ is sought, is
              illegally restrained of liberty, and the person by whom and place
              where restrained, mentioning the name of such person, if
              known, and, if unknown, describing the person with as much
              particularity as practicable;

              (2) The cause or pretense of such restraint according to the best
              information of the applicant, and if it be by virtue of any legal
              process, a copy thereof shall be annexed, or a satisfactory reason
              given for its absence;

              (3) That the legality of the restraint has not already been

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              adjudged upon a prior proceeding of the same character, to the
              best of the applicant’s knowledge and belief; and

              (4) That it is 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 so to do.

Further, we note that “[t]he petitioner bears the burden of providing an adequate record for
summary review of the habeas corpus petition.” Summers, 212 S.W.3d at 261. To this end,

              [i]n the case of an illegal sentence [or conviction] claim based
              on facts not apparent from the face of the judgment, an adequate
              record for summary review must include pertinent documents to
              support those factual assertions. When such documents from
              the record of the underlying proceedings are not attached to the
              habeas corpus petition, a trial court may properly choose to
              dismiss the petition without the appointment of counsel and
              without a hearing.

Id.

       In the instant case, the Petitioner did not attach his judgment of conviction for first
degree murder nor did he include the post-conviction proceedings during which the post-
conviction court set aside his guilty plea and granted him a new trial. Thus, the habeas
corpus court’s dismissal of the petition could have been supported by this procedural failure
alone. We agree with the habeas corpus court that the Petitioner’s best, and possibly only,
avenue of relief would have been to appeal the 2001 judgment of the post-conviction court,
not to wait almost nine years until the new trial he admittedly actively sought produced an
unfavorable outcome which he twice appealed unsuccessfully. Therefore, we conclude that
the habeas corpus court did not err in dismissing the petition.

                                      III. Conclusion

       Finding no error, we affirm the judgment of the habeas corpus court.




                                                   _________________________________
                                                   NORMA McGEE OGLE, JUDGE

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