            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                             Assigned on Briefs January 5, 2010

                      CORY MYERS v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Gibson County
                            No. 8393    Donald Harris, Judge


                  No. W2009-00814-CCA-R3-HC - Filed March 24, 2010


The Petitioner, Cory Myers,1 appeals pro se from the Circuit Court for Gibson County’s
dismissal of his petition for writ of habeas corpus. The judgment form in this case shows that
Myers originally pled guilty to first degree murder for which he received a life sentence.
However, in this appeal, Myers argues that the trial court lacked jurisdiction to sentence him
because another form, entitled “Plea of Guilty and Waivers of Jury Trial and Appeal”
(hereinafter “plea agreement form”), shows that he pled guilty to the offense of “felony
homicide.” Based on the plea agreement form, Myers claims his conviction is void because
“felony homicide” does not exist under Tennessee law. Upon review, we affirm the
judgment dismissing the petition for writ of habeas corpus.

   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 A LAN E. G LENN, J.,
joined. J. C. M CL IN, J., not participating.

Cory Myers, Pro Se, Only, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel W. Harmon, Assistant
Attorney General; Garry G. Brown, District Attorney General; and Jason C. Scott, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                              OPINION



        1
         The record contains inconsistent spellings of the petitioner’s first name. The judgment form and
the opinion from the petitioner’s post-conviction appeal refer to the petitioner as Cory Myers. Other
documents in the technical record refer to the petitioner as Corey Myers. This opinion will refer to the
petitioner as Cory Myers.
       Background. The petitioner “confessed to killing a former mayor of Trenton,
Tennessee during perpetration of a burglary.” See Cory Myers v. State, No. 02C01-9810-
CC-00309, 1999 WL 596459, at *1 (Tenn. Crim. App., at Jackson, Aug. 9, 1999) app. for
perm. to appeal denied (Tenn. Jan. 24, 2000). He was later indicted for first degree felony
murder, especially aggravated burglary, and attempted especially aggravated robbery.2 On
October 10, 1997, the petitioner pled guilty to first degree felony murder, and the trial court
sentenced him to life. He later unsuccessfully filed for post-conviction relief in which he
claimed that “the trial court erred by denying post-conviction relief because (1) he suffered
the ineffective assistance of counsel prior to and during the guilty plea hearing, and (2) his
guilty plea was not knowing and voluntary due to such ineffective assistance.” Id. In
affirming the denial of post-conviction relief, this court concluded that the petitioner’s guilty
plea was “knowing and intelligent.” This court relied, in part, on the following testimony
from the guilty plea hearing:

       THE COURT: Do you fully understand what you’re doing?

       MR. MYERS: Yes, sir.

       THE COURT: Have you discussed the matter fully and thoroughly with your
       attorney, Mr. Crider, of the Public Defender’s Office?

       MR. MYERS: Yes, sir.

       THE COURT: Do you understand the nature of these charges and have you
       discussed with him fully any possible defenses that might be raised on your
       behalf?

       MR. MYERS: Yes, sir.

       THE COURT: . . . Do you understand that you’ve been charged with first
       degree murder and what is known as felony murder; that is, the commission of
       a homicide during the commission of a felony?

       MR. MYERS: Yes, sir.

       THE COURT: Do you understand that the range of punishment for first degree
       murder in the State of Tennessee could be death by electrocution?



       2
           The record does not include a copy of the indictment or the transcript from the guilty plea hearing.

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        MR. MYERS: Yes, sir.

Id. at 5.

         The petitioner subsequently filed a pro se petition for writ of habeas corpus in Gibson
County. The petition stated that the petitioner was incarcerated in Hickman County and
raised two claims regarding an error in the plea agreement form. He argued that the trial
court lacked jurisdiction to sentence him, and that his guilty plea was not voluntary. In
response, the State filed a motion to dismiss the habeas corpus petition and claimed that the
petitioner did not comply with Tennessee Code Annotated section 29-21-107(c).
Specifically, the State asserted that the petitioner “failed to make an affirmation that the
claim of illegality of the restraint has not previously been brought and that the application is
a first application for the writ, or if not, that a copy of any previous petition and proceedings
is presented.” Second, the State claimed the petitioner did not comply with section 29-21-
105 because he did not file his petition with the most convenient court in terms of distance,
or provide a sufficient reason for applying in Gibson County. Lastly, in addressing the merits
of the petitioner’s claim, the State argued “the fact that his plea agreement form referred to
the offense as felony homicide does not result in a void judgment.”

        The motion to dismiss was granted on April 21, 2009. The order indicates that the
case “was heard on April 9, 2009.”3 The record does not include a transcript from the
hearing. The order found, without additional comment, that “the Defendant’s Petition does
not state any claims upon which relief can be granted and the same should be and is hereby
dismissed.” Apparently, the petitioner prematurely filed his notice of appeal on April 9, the
date of the hearing. The notice of appeal will be treated as filed after entry of the order
dismissing the habeas corpus petition. See T.R.A.P. 4(d) (“A prematurely filed notice of
appeal shall be treated as filed after the entry of the judgment from which the appeal is taken
and on the day thereof.”).

                                           ANALYSIS

       The petitioner argues the trial court erred in dismissing his habeas corpus petition
because his original judgment was void. He claims that a plea agreement form shows that
he pled guilty to the non-existent offense of felony homicide, and therefore the trial court
lacked jurisdiction to sentence him. The State provides several reasons why the petition was
properly dismissed. It argues that “the petitioner failed to follow the procedural requirements
of [Tennessee Code Annotated] § 29-21-107(c), failed to file his petition in the proper forum,

        3
        There is some confusion as to whether there was a hearing in this case. The State contends the
matter was summarily dismissed.

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and failed to show that his judgment is void or his sentence has expired[.]” Upon review, we
conclude that the petitioner did not prove that his judgment was void, and therefore the
petition was properly dismissed.

        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. 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. 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 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 citation and quotations omitted);
see also Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (citations omitted).

      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. See 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
that the convictions are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.
1994), superseded by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC-
00266, 1998 WL 104492, at *1 n. 2 (Tenn. Crim. App., at Jackson, Mar. 11, 1998).



                                               -4-
        Procedural Requirements. The State asserts that the petitioner did not comply with
two procedural requirements for habeas corpus petitions. First, the State argues the petitioner
violated Tennessee Code Annotated section 29-21-107(c). Presumably, the State was
referring to sections 29-21-107(b)(3) and (4), which state:

       (b) The petition shall state:

              (3) That the legality of the restraint has not already been adjudged upon
              a prior proceeding of the same character, to the best of the applicant’s
              knowledge and belief; and

              (4) That it is the 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.

Our review of the petition reveals that the petitioner did comply with sections (b)(3) and (4).
The petition asserted that it was his first application for writ of habeas corpus, and that the
legality of his restraint had not been previously adjudged.

        Next, the State argues the petitioner violated section 29-21-105 because he did not file
his petition with the most convenient court in terms of distance, or provide a sufficient reason
for applying in Gibson County. Section 29-21-105 states:

       The application should be made to the court or judge most convenient in point
       of distance to the applicant, unless a sufficient reason be given in the petition
       for not applying to such court or judge.

According to the petition, the petitioner is incarcerated at the Turney Center Industrial Prison
in Hickman County. The petition was filed with the convicting court in Gibson County. The
petition provided the following reason for filing with the convicting court:

       The Petitioner contends that the Crim. Court of Gibson County, TN is most
       convenient to this petition, and trial judge is the judge that sentenced the
       Petitioner and due to the illegal sentence imposed, the trial judge may correct
       an illegal sentence, as opposed to a merely erroneous sentence at any time even
       if it has become final. See State v. Burkhart.
       ....
       This court has the convenience of having the records present providing a
       sufficient reason for this court to exercise its jurisdiction despite the terms of

                                              -5-
       TCA 29-21-105, which states that the habeas corpus application should be
       made to the court or judge most convenient in point of distance to applicant.
       See Davis v. State.

        In Davis v. State, this court examined when, under section 29-21-105, a petition for
writ of habeas corpus can be filed with the convicting court, rather than the most convenient
court in terms of distance. 261 S.W.3d 16, 21-22 (Tenn. Crim. App. 2008). The Davis court
resolved a conflict within the unpublished decisions of this court and held:

       [W]hen a habeas corpus petitioner asserts that his sentence is illegal, the fact
       that the convicting court possesses relevant records and retains the authority
       to correct an illegal sentence at anytime is a sufficient reason under Tennessee
       Code Annotated section 29-21-105 for the petitioner to file in the convicting
       court rather than the court closest in point of distance. See Jones, 2000 WL
       1520012, at *2; see also Burkhart, 566 S.W.2d at 873.

Id.

       In consideration of Davis, the petitioner provided a sufficient reason for filing in
Gibson County. The judgment form shows that the petitioner was convicted in Gibson
County. Additionally, Gibson County possesses the relevant records and has the potential
authority to correct the petitioner’s sentence at any time. See State v. Burkhart, 566 S.W.2d
871, 873 (Tenn. 1978) (“As a general rule, a trial judge may correct an illegal, as opposed
to a merely erroneous, sentence at any time, even if it has become final.”). The petitioner
included these reasons in his petition, and therefore he complied with section 29-21-105.

        Plea Agreement Form. In substance, the petitioner claims the plea agreement form
constitutes a guilty plea to a non-existent offense; therefore, the trial court lacked jurisdiction
to sentence him. The judgment form in this case has handwritten in the offense and
Tennessee Code Annotated sections of the form, “murder in the first degree” and “39-13-202
(a)(2)”, respectively. The “Offense[s] Pleading To” section of the plea agreement form
states “felony homicide” and the “Punishment” section states “life with parole eligibility.”
Tennessee Code Annotated section 39-13-202 is commonly referred to as the “felony
murder” statute, and defines first degree murder as follows:

               (a) First degree murder is:

               (1) . . .




                                                -6-
              (2) A killing of another committed in the perpetration of or attempt to
              perpetrate any first degree murder, arson, rape, robbery, burglary, theft,
              kidnapping, aggravated child abuse, aggravated child neglect or aircraft
              piracy[.]

T.C.A. § 39-13-202(a)(2).

        Based on the above authority, such an offense does exist in Tennessee as
contemplated by the plea agreement. Moreover, simply because the plea agreement form
states “felony homicide” instead of “felony murder” does not render the petitioner’s
conviction void. See e.g. Manny T. Anderson v. State, No. M2004-02116-CCA-R3-HC,
2006 WL 739885, at *5 (Tenn. Crim. App., at Nashville, March 23, 2006) (“A plea
agreement which is breached or later dishonored presents a voidable, as opposed to a void
judgment.”). Finally, during the petitioner’s guilty plea colloquy, the petitioner stated that
he understood the nature of the charges and that he had been “charged with first degree
murder and what is known as felony murder; that is, the commission of a homicide during
the commission of a felony[].” Upon review, this court determined that the petitioner
voluntarily, knowingly, and intelligently entered his guilty plea. We therefore conclude that
the petitioner has failed to demonstrate by a preponderance of the evidence that his judgment
is void or that his confinement is illegal. Wyatt, 24 S.W.3d at 322. Accordingly, based on
the record presented before us, the petitioner is not entitled to habeas corpus relief.

                                      CONCLUSION

        Upon review of the record and applicable law, we conclude that the petitioner is not
entitled to habeas corpus relief, and affirm the judgment of the Circuit Court for Gibson
County.


                                                   ___________________________________
                                                   CAMILLE R. McMULLEN, JUDGE




                                             -7-
