         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs September 26, 2007

        MATHIS T. VAUGHN v. JAMES WORTHINGTON, WARDEN

                      Appeal from the Criminal Court for Morgan County
                             No. 9258    E. Eugene Eblen, Judge



                    No. E2007-00808-CCA-R3-HC - Filed January 4, 2008


The petitioner, Mathis T. Vaughn, appeals the summary dismissal of his petition for writ of habeas
corpus. In this appeal, he asserts that the habeas corpus court erred by dismissing his petition prior
to the appointment of counsel and that his conviction for first degree felony murder is void because
(1) the trial court failed to charge any lesser included offenses of felony murder and (2) the
indictment did not charge an underlying felony to support the felony murder charge. The judgment
of the habeas corpus court is affirmed.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J.,
and NORMA MCGEE OGLE, J., joined.

Mathis T. Vaughn, Petros, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Rachel E. Willis (on appeal) and John
H. Bledsoe (at trial), Assistant Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

                In March 1993, the petitioner was convicted of first degree felony murder and
sentenced to life imprisonment. On direct appeal, the petitioner challenged only the trial court’s
refusal to give his specially requested jury instruction on premeditation. Because the petitioner was
convicted of felony murder and acquitted of premeditated murder, this court affirmed the conviction
and sentence. See State v. Mathis T. Vaughn, No. 01C01-9312-CR-00425 (Tenn. Crim. App.,
Nashville, June 9, 1994). In July 1995, the petitioner filed an unsuccessful petition for post-
conviction relief, claiming that he was denied the effective assistance of counsel at trial. This court
affirmed the denial of post-conviction relief. See Mathis T. Vaughn v. State, No. M2000-00755-
CCA-R3-PC (Tenn. Crim. App., Nashville, Mar. 29, 2001).
                In October 2006, the petitioner filed a petition for writ of habeas corpus wherein he
alleged that his conviction is void because the indictment failed to allege an underlying or predicate
felony offense to support the felony murder charge and because the trial court failed to instruct on
any lesser included offenses of felony murder. Although the record is not entirely clear, it appears
that at some point, the habeas corpus court appointed counsel to represent the petitioner in his habeas
corpus action. On November 10, 2006, the petitioner filed a motion to remove the Public Defender’s
Office as counsel of record, and the habeas corpus court granted the motion after a hearing on
February 13, 2007. Before appointing substitute counsel, the habeas corpus court summarily
dismissed the petition for habeas corpus relief on March 28, 2007. The petitioner filed a timely
notice of appeal.

                In this appeal, the petitioner reiterates his claims that his conviction is void because
the indictment does not include a separate count for the predicate felony offense of robbery and
because the trial court failed to instruct on any lesser included offenses of felony murder. He also
contends that the petition should not have been dismissed before substitute counsel was appointed.
The State contends that neither claim, even if true, would entitle the petitioner to habeas corpus relief
and that summary dismissal was, therefore, proper. We agree with the State.

               “The determination of whether habeas corpus relief should be granted is a question
of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21 S.W.3d 901,
903 (Tenn. 2000)). Our review of the habeas corpus court’s decision is, therefore, “de novo with no
presumption of correctness afforded to the [habeas corpus] court.” Id. (citing Killingsworth v. Ted
Russell Ford, Inc., 205 S.W.3d 406, 408 (Tenn. 2006)).

                 The writ of habeas corpus is constitutionally guaranteed, see U.S. Const. art. 1, § 9,
cl. 2; Tenn. Const. art. I, § 15, but has been regulated by statute for more than a century, see Ussery
v. Avery, 432 S.W.2d 656, 657 (Tenn. 1968). Tennessee Code Annotated section 29-21-101
provides that “[a]ny person imprisoned or restrained of liberty, under any pretense whatsoever,
except in cases specified in § 29-21-102, may prosecute a writ of habeas corpus, to inquire into the
cause of such imprisonment and restraint.” T.C.A. § 29-21-101 (2000). Despite the broad wording
of the statute, a writ of habeas corpus may be granted only when the petitioner has established a lack
of jurisdiction for the order of confinement or that he is otherwise entitled to immediate release
because of the expiration of his sentence. See Ussery, 432 S.W.2d at 658; State v. Galloway, 45
Tenn. (5 Cold.) 326 (1868). The purpose of the state habeas corpus petition is to contest a void, not
merely a voidable, judgment. State ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn.
1968). A void conviction is one which strikes at the jurisdictional integrity of the trial court. Archer
v. State, 851 S.W.2d 157, 164 (Tenn. 1993); see State ex rel. Anglin v. Henderson, 575 S.W.2d 284,
287 (Tenn. 1979); Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). Because in
the petitioner’s case the sentence has not expired and the trial court apparently had jurisdiction over
the actus reus, the subject matter, and the person of the petitioner, the petitioner’s issues are limited
to the claims that the court was without authority to enter the judgments. See Anglin, 575 S.W.2d
at 287 (“‘Jurisdiction’ in the sense here used, is not limited to jurisdiction of the person or of the
subject matter but also includes lawful authority of the court to render the particular order or


                                                  -2-
judgment whereby the petitioner has been imprisoned.”); see also Archer, 851 S.W.2d at 164;
Passarella, 891 S.W.2d at 627.

                 The petitioner’s first claim, that the trial court did not provide instructions on any
lesser included offenses of felony murder, even if true, would not entitle the petitioner to habeas
corpus relief. Although the failure to instruct on appropriate lesser included offenses is indeed an
error of constitutional magnitude, see generally State v. Allen, 69 S.W.3d 181 (Tenn. 2002),
omission of instructions on lesser included offenses renders the conviction voidable rather than void.
See, e.g., William W. Osepczuk v. State, No. M2006-00131-CCA-R3-HC, slip op. at 3 (Tenn. Crim.
App., Nashville, Jan. 8, 2007).

                Next, the petitioner’s claim that the indictment fails to charge a predicate felony to
support his conviction for felony murder is not supported by the record. The indictment in this case
contains two charges: first degree premeditated murder and first degree felony murder committed
in the perpetration of a robbery. The petitioner correctly points out that the indictment does not
contain a separate count charging the petitioner with robbery. The count charging felony murder
does, however, allege that the murder occurred during the perpetration of a robbery. The language
of the indictment is sufficient to provide notice of the charge, enable entry of a proper judgment, and
protect against double jeopardy. State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991) (citing State v.
Pearce, 7 Tenn. (Peck) 65, 67 (1823); State v. Haynes, 720 S.W.2d 76, 82 (Tenn. Crim. App. 1986)).
To the extent that the petitioner’s second claim can be construed as a challenge to the sufficiency of
the convicting evidence, such a challenge is not cognizable in a habeas corpus proceeding. See Gant
v. State, 507 S.W.2d 133, 136 (Tenn. Crim. App. 1973). Thus, the petitioner is not entitled to relief
on this issue.

                Finally, because neither of the petitioner’s claims renders his conviction void, the
habeas corpus court did not err by dismissing the petition prior to the appointment of substitute
counsel. “[W]here the allegations in a petition for writ of habeas corpus do not demonstrate that the
judgment is void, a trial court may correctly dismiss the petition without a hearing.” McLaney v.
Bell, 59 S.W.3d 90, 93 (Tenn. 2001). Further, “an indigent petitioner does not have a right to
appointed counsel in a habeas corpus action except to the extent that appointment of counsel is found
to be ‘necessary’ within the meaning of Tennessee Code Annotated section 40-14-204.” Summers
v. State, 212 S.W.3d 251, 261 (Tenn. 2007).

                                          CONCLUSION

              Neither of the petitioner’s claims renders his conviction for first degree felony murder
void. Accordingly, the trial court did not err by dismissing the petition without a hearing or the
appointment of substitute counsel.

                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE



                                                 -3-
