        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 6, 2015

          CRYSTAL MIRANDA KIRBY v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                     No. P39748    J. Robert Carter, Jr., Judge


               No. W2014-00679-CCA-R3-HC - Filed March 26, 2015


The petitioner, Crystal Miranda Kirby, appeals the denial of her petition for writ of
habeas corpus, arguing that her judgment for first degree murder is void and illegal on its
face because of the trial court’s merger of her second degree murder conviction into the
first degree murder conviction after separate judgments had already been entered and the
jury had been dismissed. Following our review, we affirm the judgment of the habeas
court summarily denying the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN
and ROGER A. PAGE, JJ., joined.

Crystal Miranda Kirby, Memphis, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Amy P. Weirich, District Attorney General; and Paul Goodman, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

                                         FACTS
        On April 5, 2007, the Campbell County Grand Jury indicted the petitioner with the
first degree premeditated murder, first degree felony murder, and especially aggravated
robbery of the victim, Jonathan Pierce. Following a jury trial, the petitioner was
convicted of first degree premeditated murder, second degree murder, and especially
aggravated robbery and sentenced by the trial court to concurrent terms of life, twenty-
one years, and eighteen years, respectively. This court affirmed the convictions on direct
appeal but remanded to the trial court for entry of an amended judgment to reflect that the
conviction for second degree murder merged into the conviction for first degree murder.
State v. Crystal Miranda Kirby, No. E2008-01862-CCA-R3-CD, 2010 WL 1854137, at
*1 (Tenn. Crim. App. May 7, 2010), perm. app. denied (Tenn. Sept. 22, 2010).

       On January 15, 2014, the petitioner filed a petition for writ of habeas corpus in
which she alleged that her dual convictions and sentences for first degree premeditated
murder and second degree murder violated double jeopardy principles, thereby rendering
the convictions illegal and void. The petitioner argued that “the trial court, not the
Appellate Court, should have dismissed or vacated one of the counts, or at that time,
merged the two counts into one (1) judgment of conviction because acceptance by the
trial court of verdicts of guilty on both counts allowed the State to create separate
offenses from one act.”

        On February 5, 2014, the habeas court entered an order summarily dismissing the
petition on the basis that the petitioner’s allegations did not entitle her to habeas corpus
relief. Thereafter, the petitioner filed a timely notice of appeal to this court.

                                       ANALYSIS

        On appeal, the petitioner argues that her conviction and sentence for first degree
murder is void and illegal because the jury returned inconsistent guilty verdicts for “two
different degrees of murder for the one offense” and the trial court failed to take
corrective action to merge the verdicts before the jury was dismissed. The State responds
by arguing, inter alia, that this court’s remand to the trial court for an amended judgment
reflecting the merger addressed the petitioner’s double jeopardy complaint, the jury’s
verdicts were not inconsistent, and, even if inconsistent, consistency in verdicts on
multiple-count indictments is not required. We agree with the State.

       It is well-established in Tennessee that the remedy provided by a writ of habeas
corpus is limited in scope and may only be invoked where the judgment is void or the
petitioner’s term of imprisonment has expired. Faulkner v. State, 226 S.W.3d 358, 361
(Tenn. 2007); State v. Ritchie, 20 S.W.3d 624, 629 (Tenn. 2000); State v. Davenport, 980
S.W.2d 407, 409 (Tenn. Crim. App. 1998). A void, as opposed to a voidable, judgment
is “one that is facially invalid because the court did not have the statutory authority to
render such judgment.” Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (citing
Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)).

      A petitioner bears the burden of establishing a void judgment or illegal
confinement by a preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000). Furthermore, when a “habeas corpus petition fails to establish that a
judgment is void, a trial court may dismiss the petition without a hearing.” Summers,


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212 S.W.3d at 260 (citing Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005)). Whether
the petitioner is entitled to habeas corpus relief is a question of law. Id. at 255; Hart v.
State, 21 S.W.3d 901, 903 (Tenn. 2000). As such, our review is de novo with no
presumption of correctness given to the habeas court’s findings and conclusions. Id.

        We conclude that the habeas court’s summary dismissal of the petition was proper.
This court addressed any double jeopardy issue by remanding to the trial court for merger
of the offenses. Furthermore, a double jeopardy claim, even if valid, does not render a
conviction void and, thus, is not a cognizable claim for habeas corpus relief. See Tiffany
Davis v. Brenda Jones, Warden, No. M2014-00386-CCA-R3-HC, 2014 WL 3749443, at
*2 (Tenn. Crim. App. July 30, 2014) (“[A] violation of principles of double jeopardy
does not render a conviction void and, accordingly, occasions no cause for habeas corpus
relief.”) (citations omitted). We disagree that the verdicts for first degree premeditated
murder and second degree murder were inconsistent. Regardless, as noted by the State,
our supreme court long ago held that “[c]onsistency in verdicts for multiple count
indictments is unnecessary as each count is a separate indictment” and must be
individually supported by the evidence. Wiggins v. State, 498 S.W.2d 92, 93-94 (Tenn.
1973). Accordingly, we affirm the summary dismissal of the petition for writ of habeas
corpus.

                                     CONCLUSION

       Based on our review, we conclude that the petitioner has not stated a cognizable
claim for habeas corpus relief. Accordingly, we affirm the judgment of the habeas court
dismissing her petition for writ of habeas corpus.



                                                 _________________________________
                                                 ALAN E. GLENN, JUDGE




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