        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               September 27, 2011 Session

               ASATA D. LOWE v. JAMES FORTNER, WARDEN

                    Appeal from the Circuit Court for Blount County
                       No. C-18295     David R. Duggan, Judge


                 No. E2011-00048-CCA-R3-HC - Filed March 30, 2012


The Petitioner, Asata D. Lowe, was convicted by a Blount County jury of two counts of first
degree premeditated murder, two counts of felony murder in the perpetration of a robbery,
two counts of felony murder in the perpetration of a theft, one count of especially aggravated
robbery, and one count of theft. Lowe subsequently filed a petition for a writ of habeas
corpus in the Blount County Circuit Court, which was dismissed after a hearing. On appeal,
Lowe argues that the judgments are void because numerous constitutional errors deprived
the trial court of authority to try and sentence him. He asserts that his right to a fair trial was
violated by the State’s failure to disclose evidence and the trial court’s failure to instruct the
jury properly, that his Fourth Amendment rights were violated by the seizure and admission
at trial of evidence, that his right to the effective assistance of counsel was violated by his
counsel’s performance at trial, and that his right against double jeopardy and due process
rights were violated by multiplicitous indictments. Upon review, we affirm the judgment of
the habeas court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and N ORMA M CG EE O GLE, J., joined.

Andy Long, Maryville, Tennessee, for the Petitioner-Appellant, Asata Lowe.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
Michael L. Flynn, District Attorney General; and Rocky Young, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                           OPINION
        Background. Following trial, the court merged the felony murder convictions with
the first degree premeditated murder convictions. It also merged the theft conviction with
the especially aggravated robbery conviction. Lowe received two concurrent life sentences
without the possibility of parole for his murder convictions. For especially aggravated
robbery, he received a sentence of twenty-five years, to be served consecutively to the life
sentences.

       Lowe argued on direct appeal, among other things, that (1) the trial court failed to
instruct the jury on lesser included offenses, (2) the trial court erred in admitting an
ammunition magazine into evidence, (3) his convictions for especially aggravated robbery
and theft violated his right against double jeopardy, and (4) the indictment was
constitutionally defective. State v. Asata Lowe, No. E2000-01591-CCA-R3-CD, 2002 WL
31051631, at *1 (Tenn. Crim. App., at Knoxville, Sept. 16, 2002), perm. app. denied (Tenn.
Feb. 3, 2003). This court affirmed the judgment of the trial court. Id. Lowe also filed a
petition for post-conviction relief claiming that newly discovered evidence of flaws in an
expert’s trial testimony and analysis of bullet lead entitled him to relief, that the State
violated the mandate of Brady v. Maryland in failing to turn over a witness’s bloody shorts
and to disclose a deal it reached with a witness and that his trial counsel rendered ineffective
assistance of counsel. Asata Lowe v. State, No. E2006-02028-CCA-MR3-PC, 2008 WL
631169, at *1 (Tenn. Crim. App., at Knoxville, Mar. 10, 2008), perm. app. denied (Tenn.
Aug. 25, 2008). The post-conviction court denied relief, and this court affirmed the post-
conviction court’s judgment on appeal. Id.

       In Lowe’s first petition for writ of habeas corpus, he argued that the judgments of
conviction were void based on the ineffective assistance of his trial counsel, “other alleged
errors at trial,” and because the statutes proscribing first degree murder and especially
aggravated robbery were unconstitutional as a violation of his right to commit such acts.
Asata D. Lowe v. State, No. M2009-00444-CCA-R3-HC, 2010 WL 143781, at *1 (Tenn.
Crim. App., at Nashville, Jan. 13, 2010). The habeas court summarily dismissed the petition,
and this court affirmed the habeas court’s judgment because Lowe “fail[ed] to assert a
cognizable claim for which habeas corpus relief may be granted.” Id.

       Lowe filed the instant petition for writ of habeas corpus and was appointed counsel.
After a hearing, the habeas court dismissed the petition, and this timely appeal followed.

        Analysis. On appeal, Lowe argues that “he is being illegally restrained of his liberty
due to the fact that the trial court lacked the authority to convict and sentence him due to the
violations of [his] constitutional rights that occurred at the trial of this cause.” Specifically,
he alleges that (1) Brady violations committed by the State deprived him of his constitutional
right to a fair trial, (2) the trial court’s failure to instruct the jury on lesser included offenses

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deprived him of his constitutional right to a fair trial, (3) the seizure and subsequent
admission at trial of an ammunition magazine deprived him of his Fourth Amendment rights,
(4) his counsel’s performance at trial deprived him of his constitutional right to the effective
assistance of counsel, and (5) multiplicitous indictments deprived him of his constitutional
right against double jeopardy and his due process rights.1 The State responds that the habeas
court properly dismissed Lowe’s petition. 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)). Therefore, our review of the habeas corpus court’s decision
is de novo. Hart, 21 S.W.3d at 903.

        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 to -130. 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) (quoting State v. Galloway, 45 Tenn.
326, 337 (1868)). “[T]he purpose of a habeas corpus petition is to contest void and not
merely voidable judgments.” 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 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, as the Tennessee Supreme Court stated in
Hickman v. State:

       [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.

        1
          Lowe raised a number of additional claims before the habeas court. Those claims not raised on
appeal, however, are waived.

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Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004) (internal citations, quotations, and
emphasis 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 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)).

          Here, the habeas court properly dismissed the petition because it failed to state a
cognizable claim for relief. An alleged failure to disclose evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963), is not a proper basis for a habeas corpus petition. Ronald
Eugene Gilmore v. Kenneth Locke, Warden, No. M2005-01235-CCA-R3-HC, 2006 WL
1097493, at *3 (Tenn. Crim. App., at Nashville, Mar. 30, 2006). Nor is a trial court’s failure
to instruct a jury concerning lesser included offenses cognizable in a petition for a writ of
habeas corpus. “Although the failure to instruct on appropriate lesser included offenses is
indeed an error of constitutional magnitude, omission of instructions on lesser included
offenses renders the conviction voidable rather than void.” Mathis T. Vaughn v. James
Worthington, Warden, No. E2007-00808-CCA-R3-HC, 2008 WL 58956, at *2 (Tenn. Crim.
App., at Knoxville, Jan. 4, 2008) (internal citations omitted); see also Kevin O. Hooks v.
Steven Dotson, Warden, No. W2009-02630-CCA-R3-HC, 2010 WL 2787694, at *2 (Tenn.
Crim. App., at Jackson, July 15, 2010) (holding that a claim based on jury instructions is not
cognizable in habeas corpus proceedings). Similarly, claims of Fourth Amendment
violations do not result in void judgments and are not cognizable under habeas corpus
review. See Archer, 851 S.W.2d at 160 n.2 (citing Stone v. Powell, 428 U.S. 465 (1976));
Ortega Wiltz v. Howard Carlton, Warden, No. E2010-02091-CCA-R3-HC, 2011 WL
2410337, at *2 (Tenn. Crim. App, at Knoxville, June 10, 2011) (“[A]n allegation that
evidence was unlawfully obtained in violation of the Fourth Amendment would merely
render such judgments voidable, not void.”). Claims of ineffective assistance of counsel
likewise are inappropriate for habeas corpus review. Passarella v. State, 891 S.W.2d 619,
627 (Tenn. Crim. App. 1994) (“When a prisoner contends that he was denied the
constitutional right to the effective assistance of counsel, the judgment is voidable, not void
. . . .”). Finally, a challenge to the indictments based on their multiplicitous nature could
result only in a voidable judgment and is not cognizable in a habeas corpus proceeding. See
Anthony Bowen v. Howard Carlton, Warden, No. E2007-01845-CCA-R3-HC, 2008 WL
450630, at *3 (Tenn. Crim. App., at Knoxville, Feb. 20, 2008) (citing Gary Lynn Vernon v.
Jim Dickman, Warden, No. M2003-02268-CCA-R3-HC, 2004 WL 1778480, at *2 (Tenn.
Crim. App., at Nashville, Aug. 9, 2004)), perm. app. denied (Tenn. May 5, 2008).




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        Additionally, we note that several of the claims Lowe raises in the current petition
were previously decided in earlier proceedings. See Asata Lowe, 2002 WL 31051631, at
*14-17 (holding that trial court’s failure to charge lesser included offenses was harmless
error); Asata Lowe, 2008 WL 631169, at *23-26, 27-30 (denying claim for post-conviction
relief based on alleged violation of Brady v. Maryland and ineffective assistance of counsel).
The Tennessee Supreme Court has held that pursuant to the law of the case doctrine, an
appellate court may not consider issues that have been previously determined on appeal.
Memphis Publ’g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303,
306 (Tenn. 1998) (“[U]nder the law of the case doctrine, an appellate court’s decision on an
issue of law is binding in later trials and appeals of the same case if the facts on the second
trial or appeal are substantially the same as the facts in the first trial or appeal.”). Even if
these claims were cognizable under a petition for writ of habeas corpus, the law of the case
doctrine would therefore preclude our review of the issues Lowe previously raised on appeal.

        Because Lowe included the entire record of his case, including the post-conviction
hearing transcript, as an exhibit to the current habeas petition, he argues that the errors, and
therefore the lack of the trial court’s authority, are apparent “upon the face of the judgment
or the record of the proceedings upon which the judgment is rendered.” Archer, 851 S.W.2d
at 164. This argument is misplaced. Habeas review does not encompass records of later
proceedings, such as post-conviction hearings, that serve to challenge the judgment by
developing facts not in the record of the trial proceedings. See State v. Ritchie, 20 S.W.3d
624 (Tenn. 2000) (limiting habeas review to the face of the judgment and the “original trial
record”). Furthermore, the writ of habeas corpus in Tennessee has long been considered not
to apply to general claims of error and broad collateral attacks such as those Lowe raises
here. See Archer, 851 S.W.2d at 161-64 (discussing the history of the application of habeas
corpus in Tennessee and the development of post-conviction procedures to provide for a
collateral attack on convictions that were properly denied under narrower habeas
proceedings); Potts, 833 S.W.2d at 62 (contrasting habeas corpus and post-conviction relief).

      Lowe has not established that his judgment is void or his sentence has expired.
Accordingly, the habeas court’s dismissal of the petition for a writ of habeas corpus relief
was proper.

                                       CONCLUSION

       We affirm the dismissal of the petition for writ of habeas corpus.


                                                    ______________________________
                                                    CAMILLE R. McMULLEN, JUDGE

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