        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                    Assigned on Briefs June 24, 2014 at Knoxville

    MIKE SETTLE a/k/a MICHAEL DEWAYNE SETTLE v. JERRY
           LESTER, WARDEN, STATE OF TENNESSEE

                Appeal from the Circuit Court for Lauderdale County
                     No. 6710    Joseph H. Walker, III, Judge


                 No. W2013-02609-CCA-R3-HC - Filed August 4, 2014


The Petitioner, Mike Settle a/k/a Michael Dewayne Settle, appeals the Lauderdale County
Circuit Court’s dismissal of his petition seeking a writ of habeas corpus. The Petitioner
contends that, because his sentence is illegal because it was ordered to run concurrently with
a federal sentence he had received in another case rather than consecutively, the habeas
corpus court erred when it dismissed his petition. Upon a review of the record in this case,
we are persuaded that the habeas corpus court properly dismissed the petition. Accordingly,
the judgment of the habeas corpus court is affirmed.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and D. K ELLY T HOMAS, JR., J., joined.

Mike Settle a/k/a Michael Dewayne Settle, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; and
Mike Dunavant, District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION
                             I. Facts and Procedural History

      This is the Petitioner’s fifth petition for habeas corpus relief. In our earlier cases
addressing his claims, this Court summarized the facts and procedural history as follows:

              [The] Petitioner is no stranger to the legal process. In January of 2001,
       [the] Petitioner pled guilty in Madison County Circuit Court to one count of
       felony escape, one count of especially aggravated kidnapping, one count of
aggravated robbery, and two counts of aggravated assault. The underlying
facts that led to the convictions arose when [the] Petitioner became ill and was
transported from the Hardeman County Correctional Facility to a hospital in
Jackson, Tennessee. [The] Petitioner was eventually admitted to the hospital
for further treatment. Two days later, he overpowered a guard, took the
officer’s weapon, and pointed it at the guard’s head. [The] Petitioner
ultimately escaped from the hospital with a hostage in a stolen car. He was
recaptured and returned to prison. As a result of the plea agreement, [the]
Petitioner received a sentence of six years for the felony escape conviction,
twenty-five years for the especially aggravated kidnapping conviction,
twenty-five years for the aggravated robbery conviction, and fifteen years for
each aggravated assault conviction. The sentences were ordered to be served
concurrently with each other and with a federal sentence as well as a sentence
in a separate Madison County case. The sentences were ordered to be served
consecutively to sentences for several prior convictions from Shelby County.

        In September of 2001, [the] Petitioner filed his first petition for writ of
habeas corpus. The petition was filed in the Morgan County Criminal Court
and alleged that the Department of Correction violated the terms of [the]
Petitioner’s plea agreement by refusing to run his sentences concurrently with
his federal sentence. The trial court treated the petition as a petition for writ
of certiorari and transferred the matter to the Madison County Circuit Court.
The petition was dismissed for failing to state a colorable claim for
post-conviction relief. See Mike Settle v. State, No. W2003-01261-CCA-R3-
PC, 2004 WL 1656481, at *1 (Tenn. Crim. App., at Jackson, Jul. 23, 2004).

       [The] Petitioner has also sought habeas corpus relief in federal district
court. At least two petitions have been dismissed as untimely. See Mike Settle
v. Ricky Bell, Warden, No. 3:09-0560 (M.D. Tenn., Nov. 10, 2009); Mike
Settle v. Ricky J. Bell, No. 06-1092 (W.D. Tenn. Sept. 4, 2009). [The]
Petitioner has also filed for relief in the form of extradition in the Eastern
District of Tennessee. In that case, the court treated the petition as a petition
for writ of habeas corpus and dismissed it. See Mike Settle v. David R.
Osborne, Warden, No. 3:11 -cv00127.

       [The] Petitioner filed a second petition for writ of habeas corpus in
Davidson County. The petition was dismissed for failure to pay court costs at
the time of filing. [The] Petitioner appealed. On appeal, this Court upheld the
dismissal and affirmed. Mike Settle v. State, No. M2004-00411-CCA-R3-HC,
2005 WL 2978974, at *1 (Tenn. Crim. App., at Nashville, Nov. 7, 2005),

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       perm. app. denied, (Tenn. Mar. 27, 2006).

              Then, [the] Petitioner filed another petition for writ of habeas corpus in
       the Morgan County Criminal Court. This petition was also dismissed. This
       Court affirmed the dismissal on appeal. See Mike Settle v. State, No. E2010-
       00945-CCA-R3-HC, 2010 WL 5276980, at *1 (Tenn. Crim. App., at
       Knoxville, Dec. 17, 2010), perm. app. denied, (Tenn. Mar. 9, 2011).

              On January 10, 2011, [the] Petitioner filed the petition for writ of
       habeas corpus applicable herein. The State filed a motion to dismiss. [The]
       Petitioner opposed the motion. The habeas court dismissed the petition
       without a hearing on February 14, 2011. [The] Petitioner filed a notice of
       appeal on April 1, 2011. The certificate of service on the final order indicates
       that copies were not mailed by the Circuit Court Clerk until April 1, 2011.

Mike Settle v. David Osborne, Warden, No. E2011-00766-CCA-R3-HC, 2012 WL 344937, at *1-2
(Tenn. Crim. App., at Knoxville, Feb. 3, 2012), perm. app. denied (Tenn. Apr. 11, 2012) (footnote
omitted).

        On October 24, 2013, the Petitioner filed the petition for habeas corpus relief that is
the subject of this appeal. In it, he asserted that he was entitled to habeas corpus relief
because the trial court was “without jurisdiction or authority to sentence the [P]etitioner[’s]
state sentence concurrent with [his] federal sentence because [of the requirements in] T.C.A
§ 39-16-605(d), [which states] any sentence received for a violation of this section shall be
ordered to be served consecutively to the sentence being served or federal sentence received
for the charge for which the petitioner was being held at the time of the escape.” He asserted
that the face of his judgment showed that his sentence for escape was ordered to run
concurrently with his federal sentence, in direct contravention of this statute, which rendered
his judgment void.

       The habeas corpus court summarily dismissed the petition, filing a written order. In
that order, the habeas corpus court found as follows:

              The [P]etitioner filed for Habeas Corpus on October 24, 2013, alleging
       that he is currently incarcerated in Lauderdale County with TDOC for a
       conviction from Madison County.

             [The] Petitioner alleges he entered a plea of guilty to especially
       aggravated kidnapping and felony escape and other offenses and was
       sentenced to 25 years at 100%. He alleges he pled guilty “pursuant to

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       negotiated plea agreement that 25 years concurrent with federal sentence.” He
       now alleges it should have been consecutive.

              The judgment form indicates the escape is consecutive to multiple
       convictions from Shelby County which the [P]etitioner was serving at the time
       of the escape.

              ....

              In Settle v. State, 2004 [Tenn. Crim. App.] Lexis 669, the [P]etitioner
       maintained that his negotiated sentences provided that his Madison County
       sentences would be served concurrent with outstanding federal sentences but
       consecutive to outstanding Shelby County sentences. The record indicated that
       [the Petitioner’s] Shelby County sentences had yet to be served.

        After reviewing the applicable law, the habeas corpus court found that “the
[P]etitioner ha[d] failed to show upon the face of the judgment or record of the proceedings
that the conviction is void.” It is from this judgment that the Petitioner now appeals.

                                        II. Analysis

        On appeal, the Petitioner maintains that his sentence is illegal. He asserts that the
statute criminalizing escape requires that his sentence “shall” be ordered to be served
consecutively to the sentence being served or sentence received for the charge for which the
person was being held at the time of the escape. The Petitioner contends that, because he
was in federal custody at the time of his escape and because he took a weapon during the
escape, an offense for which he received a federal sentence, the plea agreement providing
that his sentence would run concurrently to his federal sentence was illegal. The State cites
to the relevant portion of Tennessee Code Annotated section 39-16-605(d), and states that
the Petitioner was serving a sentence at the Hardeman County Correctional Facility when he
was transported for medical care, so he was not in federal custody when he committed the
offense of escape. The State further notes that the Petitioner had failed to comply with the
procedural requirements of the habeas corpus statute because he failed to attach copies of all
his previous habeas corpus petitions, as required by the law.

       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 statute. T.C.A. §§ 29-
21-101, -130 (2012). 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

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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 burden of the petitioner 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 defendant’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. Archer, 851 S.W.2d at 165.
It is also permissible for a habeas corpus court to summarily dismiss a petition of habeas
corpus 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 addressed therein are
void.      See Passarella, 891 S.W.2d at 627; Rodney Buford v. State, No.
M1999-00487-CCA-R3-PC, 2000 WL 1131867, at *2 (Tenn. Crim. App., at Nashville, July
28, 2000), perm. app. denied (Tenn. Jan. 16, 2001).

        We first agree with the State that the Petitioner has failed to scrupulously follow the
procedural requirements for habeas corpus relief, which are mandatory. See Archer, 851
S.W.2d at 165. Tennessee Code Annotated section 29-21-107(b)(4) (2012) requires a
petitioner to attach to his habeas corpus petition copies of his previous habeas corpus
petitions and the proceedings thereon. The Petitioner failed to attach any of his previous
petitions for habeas corpus relief to the petition for habeas corpus relief that is the subject of
this case. This alone is a sufficient basis upon which the trial court could have dismissed his
petition. The record does not show that the State moved to dismiss the petition for failure
to comply with the requirement, and the trial court denied relief without addressing the

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procedural deficiency. Our Supreme Court has concluded that dismissal is not required for
failure to comply with section 29-21-107 and that a trial court may choose to adjudicate the
petition on its merits. Hickman v. State, 153 S.W.3d 16, 21 (Tenn. 2004). We therefore turn
to address the issue on its merits.

        The Petitioner contends that he was in federal custody at the time of his escape charge,
which would require that his sentence for his escape conviction run consecutively to his
federal sentence. An illegal sentence results in a void judgment and is a cognizable claim
for habeas corpus relief. See Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000). An
illegal sentence is a “jurisdictional defect,” and the petitioner must show that the
“jurisdictional defect appears in the record of the original trial, thereby creating a void
judgment.” Luther E. Fowler v. Howard Carlton, Warden, No. E2004-01346-CCA-R3-HC,
2005 WL 645206, at *3 (Tenn. Crim. App., at Knoxville, Mar. 21, 2005), perm. app. denied
(Tenn. June 27, 2005). The petitioner must show that, based on the record of the trial, the
trial court lacked jurisdiction to sentence him. See Stephenson, 28 S.W.3d 910; see also
Fowler, 2005 WL 645206, at *3.

       The Petitioner alleges that his sentence is illegal because it was ordered to run
concurrently with his federal sentence rather than consecutively. He states that he was in
federal custody when he committed the escape. Neither the face of his judgment nor the
record indicate whether the Petitioner was in federal custody at the time that he escaped and,
further, the record supports that he was in State custody. Reviewing the judgment, we agree
with the habeas corpus court that the Petitioner has not met his burden of proving that his
judgment was void or his sentence expired. As such, the Petitioner is not entitled to habeas
corpus relief.

                                       III. Conclusion

       In accordance with the aforementioned reasoning and authorities, we conclude that
the Petitioner has failed to show that his sentence has expired or that his judgment is void.
As such, we affirm the judgment of the habeas court.


                                                    _________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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