                                                                                           03/08/2019
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs February 12, 2019

               JOSEPH R. WIGGINS v. STATE OF TENNESSEE
                  Appeal from the Criminal Court for Davidson County
                   No. D-0885     Angelita Blackshear Dalton, Judge



                              No. M2018-00488-CCA-R3-HC
                        _____________________________

In 1983, while incarcerated on other charges, the Petitioner pleaded guilty to the rape of
another inmate. The trial court sentenced him to five years, to run concurrently with his
existing sentence. In 2002, the Petitioner obtained parole, but his parole was revoked
when he failed to register as a sex offender pursuant to the sex offender registry
requirements. Sometime before 2010, the Petitioner filed his first petition for habeas
corpus relief, alleging that his sentence for rape was illegal because the application of the
sex offender registry to his sentence violated ex post facto principles. The petition was
denied, and that decision was affirmed by this court on appeal. Joseph R. Wiggins v.
State, No. W2010-00091-CCA-R3-CD, 2010 WL 3075644, at *1 (Tenn. Crim. App., at
Jackson, Aug. 6, 2010), no Tenn. R. App. P. 11 application filed. The Petitioner filed
this, his second habeas corpus petition in 2010. The habeas corpus court again denied the
petition. 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 THOMAS T.
WOODALL and TIMOTHY L. EASTER, JJ., joined.

Jay Allen Umerley, Nashville, Tennessee, for the appellant, Joseph R. Wiggins.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Senior
Counsel; Glenn R. Funk, District Attorney General; Amy Hunter, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

      This case arises from the Petitioner’s rape of another inmate, a crime to which he
pleaded guilty in 1983. The indictment against him pursuant to which he pleaded guilty
alleged that, while the Petitioner was in jail, he forced the victim to submit to unlawful
sexual penetration while being aided by two other men. Count 2 of the indictment
alleged that the Petitioner then assisted another man in forcing sexual penetration of the
same victim. The Petitioner was indicted on these two counts while awaiting the
disposition of his charges for two counts of armed robbery and two counts of kidnapping.

      A jury subsequently convicted the Petitioner of two counts of robbery and two
counts of kidnapping, and the trial court sentenced him to sixty years of incarceration.
Wiggins, 2010 WL 3075644, at *1.

       On January 20, 1983, the Petitioner filed a petition to enter his plea of guilty. He
acknowledged that he had been charged with two counts of aggravated rape and that each
carried a maximum possible sentence of life imprisonment without the possibility of
parole. The Petitioner then expressed his desire to enter a plea of guilty to one count of
rape in exchange for an agreed sentence of five years to be served concurrently with his
other sentences.

       In 2002, the Petitioner was granted parole, but it was subsequently revoked when
the Petitioner failed to comply with the mandatory registry of sex offenders. Id. He
served some time and has since been rereleased.

        Sometime before 2010, the Petitioner filed a petition for habeas corpus relief
alleging that his sentence for rape was illegal. In it, he acknowledged that his sentence
for rape had expired on May 26, 1985, and that he was no longer incarcerated on that
sentence. He contended, however, that he was still restrained of liberty from that
conviction because it was a violation of the requirements of the sex offender registry that
led to his parole violation. This court rejected that argument, finding that “our supreme
court has recently addressed the registration requirements and held that those
requirements are ‘nonpunitive and . . . a collateral consequence of a guilty plea.’” Id.
(citing Marcus Ward v. State, 315 S.W.3d 461, 472 (Tenn. 2010)).

       The Petitioner filed a second petition for habeas corpus relief. In it, he alleged that
his guilty plea was not knowingly and voluntarily entered because he did not understand
the consequences of the sex offender registry requirements. The Petitioner included a
copy of the transcript of his guilty plea, during which the requirements of the sex
offender registry were not discussed by the parties.

       The habeas corpus court held:

             On January 20, 1983 the Petitioner pled guilty to rape and was
       sentenced to five years concurrent with another sentence he was serving in
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      the state penitentiary. Since the Petitioner entered a plea of guilty,
      Tennessee enacted the Tennessee Sexual Offender and Violent Sexual
      Offender Registration, Verification and Tracking Act of 2004. The
      Petitioner contends that this act is being retroactively applied to him which
      results in him having to register as a lifetime offender. The Petitioner also
      contends that he was not informed at the time of his plea of the requirement
      to register as a sex offender and that registering as such carries direct
      punitive consequences.

       The habeas corpus court went on to state that the sex offender registry statutes
have been widely upheld as non-punitive, and that Tennessee’s statute had survived
repeated ex post facto challenges. 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 maintains that the application of the Tennessee Sexual
Offender and Violent Sexual Offender Registration, Verification and Tracking Act of
2004 to his sentence for rape constitutes an ex post facto violation. The State counters
that the Petitioner is not entitled to relief because first, he is no longer restrained of
liberty pursuant to the judgment that he challenges and second, Tennessee’s sex offender
registry requirements have been repeatedly upheld against ex post facto challenges. 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
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
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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.

       In this habeas corpus petition, the Petitioner is again attacking whether the sex
offender registry’s application to him is an ex post facto violation. This court squarely
addressed this issue in State v. Larry Wade Gibson, No. E2003-02102-CCA-R3-CD,
2004 WL 2827000, at *2 (Tenn. Crim. App., at Knoxville, Dec. 9, 2004), Tenn. R. App.
P. 11 application denied (Tenn. Mar. 21, 2005). We held that the additional requirement
of the sexual offender registry, while retrospective in its application in that case, did not
violate ex post facto provisions because “Tennessee’s 1994 Sexual Offender Registration
and Monitoring Act was nonpunitive in nature, and its application to the [defendant
therein] did not violate either state or federal ex post facto prohibitions.” Id. at *6. Our
supreme court held the same in Ward, 315 S.W.3d at 470. In accordance with the law
and decisions of our state, we conclude that the application of the Sexual Offender
Registration and Monitoring Act to the Petitioner in this case does not violate ex post
facto provisions.

       As stated previously, a writ of habeas corpus may be granted only where it is
apparent from the face of the judgment or the record of the proceedings upon which the
judgment is rendered that a sentence is illegal. Stephenson, 28 S.W.3d at 91. The
judgment in this case does not reflect an illegal or void sentence. The trial court did not
err when it summarily dismissed the Petitioner’s petition for habeas corpus relief. The
Petitioner is not entitled to relief on this basis

                                  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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