        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs December 15, 2015


     ERNEST LEE JENNINGS v. GERALD MCALLISTER, WARDEN

                 Appeal from the Criminal Court for Johnson County
                      No. CC-15-CR-94      Lisa N. Rice, Judge




               No. E2015-01805-CCA-R3-HC – Filed February 12, 2016
                        _____________________________

A jury convicted the petitioner of three counts of rape of a child, a Class A felony, and
one count of sexual exploitation of a minor, a Class B felony. In this petition for the writ
of habeas corpus, the petitioner alleges that various errors at trial and on post-conviction
render his convictions void. The trial court dismissed the petition without a hearing, and
the petitioner appeals the dismissal. We conclude that the trial court did not err in
dismissing the petition, and we affirm the judgment of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which D. KELLY
THOMAS, JR., and ROGER A. PAGE, JJ., joined.

Ernest Lee Jennings, Mountain City, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; and Nicholas W. Spangler,
Assistant Attorney General, for the Appellee, State of Tennessee.


                                        OPINION

                     FACTUAL AND PROCEDURAL HISTORY

       The petitioner was convicted of one count of sexual exploitation of a minor and of
three counts of rape of a child for his crimes against three separate child victims. State v.
Ernest Lee Jennings, No. W2010-01484-CCA-R3CD, 2011 WL 3330244, at *1 (Tenn.
Crim. App. Aug. 3, 2011). He was sentenced to serve eighty-five years in prison for his
crimes. Id. The petitioner appealed, and his convictions were affirmed by this court. Id.
The petitioner then sought, and was denied, post-conviction relief. Ernest Lee Jennings,
III, v. State, No. W2013-01006-CCA-R3-PC, 2014 WL 1571819, at *1 (Tenn. Crim.
App. Apr. 17, 2014), perm. app. denied (Tenn. Aug. 27, 2014). After the denial of post-
conviction relief was likewise affirmed, the petitioner filed the instant petition for the writ
of habeas corpus.

       The petition for the writ of habeas corpus alleged as grounds for relief: that the
search of the petitioner‟s home was unlawful; that exculpatory evidence was withheld;
that the petitioner was denied the effective assistance of counsel; that evidence was
admitted in error; that the evidence was insufficient because the State presented no
medical evidence; that the State‟s witnesses committed perjury or were coerced and
“coached”; that evidence was “tampered” with; that post-conviction counsel had a
conflict of interest; that the trial court did not reveal the members of the grand jury; and
that post-conviction counsel was ineffective because he did not raise the issue that the
petitioner‟s wife‟s testimony was privileged. The petition did not include the judgments
from which the petitioner sought relief; instead, he attached the appellate opinions from
his direct appeal and his post-conviction appeal and the trial court‟s order denying post-
conviction relief, as well as the order denying the petitioner‟s motion to reveal the
members of the grand jury.

       The State filed a motion to dismiss the petition without a hearing. The State
argued that the petitioner had not included a copy of the judgments as required by
Tennessee Code Annotated section 29-21-107(b)(2) (2010) and that none of the grounds
alleged would render the judgments void. In response, the petitioner filed the judgments
and also filed a brief with the additional argument that, because the State gave a range of
dates during which his offenses occurred in the indictment, his convictions are void. The
habeas corpus court dismissed the petition without hearing, and the petitioner appeals.

                                        ANALYSIS

        Article I, section 15 of the Tennessee Constitution authorizes the writ of habeas
corpus. Habeas corpus may be granted to “[a]ny person imprisoned or restrained of
liberty.” T.C.A. § 29-21-101(a). The application for the writ must be made by petition
and verified by affidavit. T.C.A. § 29-21-107(a). In addition, the petition has certain
procedural requirements, including that a copy of “any legal process” under which the
petitioner is imprisoned be annexed to the petition or a satisfactory reason given for its
absence. T.C.A. § 29-21-107(b)(2). “These procedural requirements „are mandatory and
must be followed scrupulously.‟” Summers v. State, 212 S.W.3d 251, 259 (Tenn. 2007)
(quoting Archer v. State, 851 S.W.2d 157, 165 (Tenn. 1993)). The granting or denial of a
petition for habeas corpus relief is a question of law reviewed de novo with no
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presumption of correctness afforded to the trial court‟s findings or conclusions. Edwards
v. State, 269 S.W.3d 915, 919 (Tenn. 2008).

        While the statutory language “appears broad, in fact, „[h]abeas corpus under
Tennessee law has always been, and remains, a very narrow procedure.‟” Edwards, 269
S.W.3d at 919 (quoting Archer, 851 S.W.2d at 162). In order to merit relief, a petitioner
must establish that the challenged judgment is not merely voidable, but void. Hogan v.
Mills, 168 S.W.3d 753, 755 (Tenn. 2005). A judgment is voidable when it is “facially
valid and requires proof beyond the face of the record or judgment to establish its
invalidity.” Summers, 212 S.W.3d at 256. A void judgment, on the other hand, is “one
that is facially invalid because the court did not have the statutory authority to render
such judgment.” Id. “[T]he question of whether a judgment is void „is always one of
jurisdiction, that is, whether the order, judgment or process under attack comes within the
lawful authority of the court or judge rendering or issuing it.‟” Edwards, 269 S.W.3d at
920 (quoting State ex rel. Anglin v. Mitchell, 575 S.W.2d 284, 287 (Tenn. 1979),
overruled on other grounds by Archer, 851 S.W.2d at 162-64).

       Relief is only available 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, 851 S.W.2d at 164
(quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37 (Tenn. 1868)).

       The habeas corpus court has the authority to dismiss the petition if the petition
shows that the petitioner “would not be entitled to any relief.” T.C.A. § 29-21-109.
Accordingly, if the petition fails to establish that the judgment is void, the habeas corpus
court is not obligated to hold a hearing on the allegations. Hogan, 168 S.W.3d at 755.

        Having reviewed the petitioner‟s claims, we conclude that the habeas corpus court
properly dismissed the petition. None of the allegations in the petition touch on the
jurisdiction of the court to impose the judgments or would render the judgments void.
See Mack Transou v. Dwight Barbee, No. W2012-00258-CCA-R3-HC, 2012 WL
1813115, at *3 (Tenn. Crim. App. May 17, 2012) (“Furthermore, the admissibility of
DNA evidence is an issue that would render a judgment voidable, not void”); Ortega
Wiltz v. Howard Carlton, No. E2010-02091-CCA-R3-HC, 2011 WL 2410337, at *2
(Tenn. Crim. App. June 10, 2011) (concluding that sufficiency of the evidence is not a
proper ground for habeas corpus relief and that an allegation that the search was illegal
would only render the judgment voidable); Terrance Lowdermilk v. State, No. E2007-
00177-CCA-R3-HC, 2008 WL 4427081, at *1 (Tenn. Crim. App. Oct. 1, 2008) (stating
that claims of ineffective assistance of counsel do not render a judgment void); Ronald
Eugene Gilmore v. Kenneth Locke, No. M2005-01235-CCA-R3-HC, 2006 WL 1097493,
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at *3 (Tenn. Crim. App. Mar. 30, 2006) (holding that failure to disclose exculpatory
evidence was not a proper ground for habeas corpus relief); James Richard Jackson v.
State, No. 03C01-9904-CC-00164, 2000 WL 66090, at *1 (Tenn. Crim. App. Jan. 27,
2000) (concluding that allegations of perjured testimony and improperly admitted
evidence were not proper grounds for habeas corpus relief); Archer, 851 S.W.2d at 161
(Tenn.1993) (noting that habeas corpus cannot be utilized to show that a judgment was
contrary to the facts).

        Because a valid indictment is a jurisdictional element, an indictment so defective
that it does not vest jurisdiction in the trial court may be challenged pursuant to the writ
of habeas corpus. Wyatt v. State, 24 S.W.3d 319, 323 (Tenn. 2000). However, the
petitioner did not assert this ground in his initial petition, and the indictment was not
annexed to the petition and is not a part of the appellate record. Accordingly, the habeas
corpus court properly dismissed the claim. Jackson, 2000 WL 66090, at *1 (dismissing
petition alleging a defective indictment due to failure to attach the indictment).
Moreover, it appears that the petitioner‟s challenge does not raise questions regarding the
constitutional and statutory principles governing the validity of indictments. See Wyatt,
24 S.W.3d at 324.

                                     CONCLUSION

      Because the petition failed to show that the judgments were void, we affirm its
dismissal.



                                                 _________________________________
                                                 JOHN EVERETT WILLIAMS, JUDGE




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