        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs November 13, 2013

       DANIEL LEE DRAPER v. CHERRY LINDAMOOD, WARDEN

                 Appeal from the Circuit Court for Hardeman County
                  No. CC-13-CR-51     Joseph H. Walker, III, Judge


               No. W2013-01030-CCA-R3-HC - Filed January 31, 2014


The pro se petitioner, Daniel Lee Draper, appeals the summary dismissal of his petition for
writ of habeas corpus. He argues that the trial court did not have jurisdiction to sentence him
to life with the possibility of parole, that the habeas court erred in summarily dismissing his
petition without a hearing, and that the habeas court erred in failing to treat his habeas
petition as a post-conviction petition. After review, we affirm the summary dismissal of the
petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which R OBERT W. W EDEMEYER
and R OGER A. P AGE, JJ., joined.

Daniel Lee Draper, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Tracy L. Bradshaw, Assistant
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

        On September 26, 2002, the petitioner pled guilty in the Sullivan County Criminal
Court to first degree felony murder and aggravated child abuse, in exchange for sentences
of life with the possibility of parole and twenty-five years, to be served concurrently. See
Daniel Lee Draper v. State, No. E2009-00952-CCA-R3-PC, 2010 WL 5343193, at *1 (Tenn.
Crim. App. Dec. 21, 2010), perm. app. denied (Tenn. Apr. 13, 2011).

       The petitioner subsequently filed a petition for post-conviction relief but voluntarily
dismissed it on September 8, 2005, when the trial court denied his motion to disqualify the
district attorney’s office. Id. Thereafter, he then filed a motion to reopen the petition on
August 22, 2006, but the trial court denied the motion, and this court denied his application
to appeal the denial of the motion to reopen. Id. Later, on May 14, 2007, the petitioner filed
another petition for post-conviction relief. Id. The post-conviction court dismissed the
petition without appointing counsel or conducting an evidentiary hearing, determining that
the petition was barred by the one-year statute of limitations and that the petitioner’s claims
had been previously determined on the merits by this court’s order dismissing the motion to
reopen. Id. at *2. This court affirmed the post-conviction court’s dismissal of the petition
on appeal. Id.; see also Daniel Lee Draper v. State, No. E2007-01485-CCA-R3-PC, 2008
WL 5130503 (Tenn. Crim. App. Dec. 5, 2008), perm. app. denied (Tenn. May 4, 2009).

        On February 3, 2009, the petitioner filed a petition for writ of error coram nobis.
Daniel Lee Draper, 2010 WL 5343193, at *2. The error coram nobis court dismissed the
petition, holding that the petitioner was attempting to reopen the motion to suppress his
confession, that the evidence described in the petition was not new, that the ineffectiveness
of his trial counsel was not a proper ground for relief, and that he raised similar issues in his
petition for post-conviction relief. Id. The court also held that the petition was barred by the
statute of limitations. Id. This court affirmed the trial court’s ruling. Id. at *5-6.

         On April 10, 2013, the petitioner filed a petition for writ of habeas corpus in the
Hardeman County Circuit Court. In his petition, the petitioner contended that his sentence
was void and illegal because “this sentencing option [life with the possibility of parole] did
not exist in Tennessee at the time [the] [p]etitioner’s offense allegedly occurred[.]” The
habeas court entered an order denying the petition on April 16, 2013. The habeas court
determined that the trial court had jurisdiction and authority to sentence the petitioner to the
sentence he received and that the petitioner’s sentences had not expired. The court also noted
that it could summarily dismiss a petition without a hearing if the petition demonstrated no
right to relief. The petitioner appealed.

                                         ANALYSIS

       On appeal, the petitioner argues that the trial court did not have jurisdiction to
sentence him to life with the possibility of parole, that the habeas court erred in summarily
dismissing his petition without a hearing, and that the habeas court erred in failing to treat
his habeas petition as a post-conviction petition and toll the statute of limitations on due
process grounds.

        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

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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)). Thus, habeas corpus relief is available 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 . . . has expired.” Archer v. State, 851
S.W.2d 157, 162, 164 (Tenn. 1993) (citation and internal quotation marks omitted).

       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).
Whether the petitioner is entitled to habeas corpus relief is a question of law. Summers, 212
S.W.3d 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 findings and conclusions of the habeas
court. Id.

        The petitioner’s claim that a life sentence with the possibility of parole was not a
statutorily authorized punishment must fail because the petitioner received a valid sentence
under our sentencing laws. Tennessee Code Annotated section 39-13-202, which defines
first degree murder, states that the possible punishments for first degree murder are: (1)
death; (2) imprisonment for life without possibility of parole; or (3) imprisonment for life.
Id. § 39-13-202(c). Tennessee Code Annotated section 40-35-501(i) states:

       (1) There shall be no release eligibility for a person committing an offense, on
       or after July 1, 1995, that is enumerated in subdivision (i)(2). The person shall
       serve one hundred percent (100%) of the sentence imposed by the court less
       sentence credits earned and retained. However, no sentence reduction credits
       authorized by § 41-21-236 or any other provision of law, shall operate to
       reduce the sentence imposed by the court by more than fifteen percent (15%).

       (2) The offenses to which subdivision (i)(1) applies are:

               (A) Murder in the first degree[.]

       During the petitioner’s plea hearing, the trial court explained to the petitioner the three
possible punishments for a first degree murder conviction: death, life without the possibility
of parole, and life with the possibility of parole. Although the court used the phrase “life
sentence with the possibility of parole,” instead of “life,” to describe the petitioner’s sentence

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under the plea, the court explained that such sentence was a mandatory sixty-year sentence
with the potential that it could be reduced by as much as fifteen percent for good behavior,
equating to a fifty-one-year sentence, but that such reduction was not guaranteed. The
court’s explanation was directly in line with the statute. In addition, an opinion by the
Tennessee Attorney General submitted by the petitioner in support of his claim explains the
same thing and concludes that “the mandatory minimum percentage of a life term that must
be served prior to becoming release eligible is 85% of sixty years, or fifty-one years.” Op.
Att’y Gen. No. 97-098 (July 1, 1997).

        Moreover, the habeas court did not err in dismissing the petition without a hearing.
It is permissible for a court to summarily dismiss a habeas corpus petition, without the
appointment of counsel and without an evidentiary hearing, if there is nothing on the face of
the record or judgment to indicate that the convictions or sentences addressed therein are
void, such as the case here. Summers, 212 S.W.3d at 260; Hogan v. Mills, 168 S.W.3d 753,
755 (Tenn. 2005).

        As to the petitioner’s final issue, under certain circumstances, a petition for writ of
habeas corpus may be treated as a petition for post-conviction relief under Tennessee Code
Annotated section 40-30-205(c); however, the statute of limitations for filing a
post-conviction petition is one year from the date of the final action of the highest state
appellate court to which an appeal is taken or within one year of the date on which the
judgment became final. Tenn. Code Ann. § 40-30-102(a). Here, the petitioner pled guilty
in 2002, but the habeas corpus petition was not filed until 2013. Therefore, even if we were
to treat the petition as one for post-conviction relief, it would be barred by the expiration of
the statute of limitations, Carter v. State, 952 S.W.2d 417, 420 (Tenn. 1997), and the
petitioner has failed to make a prima facie showing that the statute of limitations should be
tolled.

                                       CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the summary dismissal
of the petition.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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