        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs April 9, 2013

       ANTHONY LEROY HARRIS V. HENRY STEWARD, WARDEN

                 Direct Appeal from the Circuit Court for Lake County
                     No. 12-CR-9767      R. Lee Moore, Jr., Judge


                 No. W2012-02461-CCA-R3-HC - Filed May 16, 2013


The petitioner, Anthony Leroy Harris, appeals the summary denial of his petition for a writ
of habeas corpus. The petitioner is currently serving an effective ninety-year sentence in the
Department of Correction following convictions for aggravated kidnapping and armed
robbery. In his petition, he alleges he is entitled to habeas corpus relief because his sentences
are disproportionate to the severity of the offenses he committed. On appeal, he contends
that the habeas corpus court erred in its denial because proportionality of a sentence has been
recognized as a habeas corpus claim in the United State Court of Appeals for the Sixth
Circuit. Following review of the record, we conclude no viable habeas corpus claim was
presented and affirm the denial of the petition.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R. and J EFFREY S. B IVINS, JJ., joined.

Anthony Leroy Harris, Tiptonville, Tennessee, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General, for the appellee, Henry Steward, Warden.


                                          OPINION




                      Procedural History and Factual Background
        Following a jury trial in 1990, the petitioner was convicted of aggravated kidnapping
and armed robbery. Following a sentencing hearing, the trial court sentenced the petitioner,
as a career offender, to consecutive sentences of sixty and thirty years, for an effective term
of ninety years in the Department of Correction. The petitioner filed a direct appeal to this
court challenging only the sufficiency of the evidence. In a Rule 20 opinion, this court
affirmed the convictions. State v. Anthony Leroy Harris, No. 01C01-9102CR00028, 1991
WL 181417 (Tenn. Crim. App., at Nashville, Sept. 16, 1991).

        On October 12, 2012, the petitioner filed a pro se petition for a writ of habeas corpus
challenging the legality of his sentences upon grounds that the sentences were grossly
disproportionate to the severity of the offenses he committed in violation of his right to be
protected from cruel and unusual punishment. The habeas corpus court thereafter entered
a written order summarily denying the petition, finding that the petitioner had failed to state
a basis for relief because he failed to establish that either sentence was void or expired. The
petitioner has filed a timely notice of appeal.

                                          Analysis

       On appeal, the petitioner contends that the court’s summary denial of his petition was
error because “proportionality of sentence has been recognized as a habeas corpus claim in
the Sixth Circuit.” He bases his argument on the case of Thomas D. Smith v. Jack Morgan,
Warden, No. 05-6669, 371 Fed. Appx. 575 (6th Cir., Mar. 29, 2010).

       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, et seq, (2010). 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). “[T]he purpose of a habeas
corpus petition is to contest void and not merely voidable judgments.” Id. at 163 (internal
quotations omitted). 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. In contrast,

       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

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       voidable, and a Tennessee court cannot issue the writ of habeas corpus under
       such circumstances.

Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004) (internal citations and quotations
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 the habeas corpus court determines from the petitioner’s filings that no cognizable
claim has been stated and that the petitioner is not entitled to relief, the petition for writ of
habeas corpus may be summarily dismissed. Hickman, 153 S.W.3d at 20. Further, the
habeas corpus court may summarily dismiss the petition without the appointment of a lawyer
and without an evidentiary hearing if there is nothing on the face of the judgment to indicate
the convictions are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

       Initially, we must address the petitioner’s asserted argument. As noted, the petitioner
bases his assertions of error upon the Sixth Circuit case of Smith v. Morgan. However, the
petitioner misinterprets that case and confuses federal and state habeas corpus law. The cited
case involved a federal habeas corpus claim challenging a Tennessee state sentence as
disproportionate. See Smith v. Morgan, 371 Fed. Appx. at 577-78. The question at issue in
that case was whether the petitioner had exhausted all avenues for state relief with regard to
his constitutional proportionality claim. Id. We agree with the petitioner that the United
States Court of Appeals for the Sixth Circuit concluded that the petitioner in that case had
exhausted his state remedies and remanded the case to the district court for a habeas corpus
hearing on the merits of the proportionality issue. Id. However, a reading of the subsequent
appellate opinion filed after that habeas hearing makes clear the distinction which the
petitioner overlooks:

               Under 28 U.S.C. § 2254(d), a petitioner may not obtain federal habeas
       corpus relief with respect to any claim that was adjudicated on the merits in
       state court proceedings unless the adjudication of the claim:

              (1) resulted in a decision that was contrary to, or involved an
              unreasonable application of, clearly established Federal law, as
              determined by the Supreme Court of the United States; or

              (2) resulted in a decision that was based on an unreasonable
              determination of the facts in light of the evidence presented in
              the State court proceeding.



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Thomas D. Smith v. John Howerton, Warden, No. 11-6517 2012 WL 6700323, at *3 (6th
Cir., Dec. 27, 2012). The petitioner’s argument ignores that the standard for habeas corpus
relief in federal and state courts is different. The petitioner’s avenues to challenge the
proportionality in the courts of Tennessee were through a direct appeal or petition for post-
conviction relief, avenues which petitioner Smith availed himself of prior to seeking federal
habeas corpus relief.

        Turning to the state habeas corpus law for Tennessee, the petitioner has failed to
establish that the habeas court committed error in summarily denying the petition. As noted
by the court, habeas corpus relief is only available where the sentence is illegal on its face
or the sentence has expired. See Archer, 851 S.W.2d at 164. The court noted that the sixty
and thirty year sentences were within the range for the appropriate class of felony and
sentencing classification and, further, that neither sentence had expired. There was nothing
on the face of the judgments or the record which would indicate that the sentences imposed
were illegal. Thus, the habeas court correctly determined that the petitioner had failed to
state a cognizable basis for habeas corpus relief. As such, the petitioner is entitled to no
relief.

                                      CONCLUSION

       Based upon the foregoing, the summary denial of habeas corpus relief is affirmed.




                                                   _________________________________

                                                   JOHN EVERETT WILLIAMS, JUDGE




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