         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


                   MIQWON LEACH v. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court for Lauderdale County
                               No. 5900 Joe H. Walker, Judge



                     No. W2004-02336-CCA-R3-HC - Filed May 25, 2005




The Petitioner, Miqwon Leach, appeals the trial court’s dismissal of his petition seeking habeas
corpus relief. The State has filed a motion requesting that this Court affirm the trial court’s denial
of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Because the Petitioner has
failed to allege aground for relief which would render the judgment void, we grant the State’s motion
and affirm the judgment of the lower court.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of the
Court of Criminal Appeals

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C.
MCLIN , JJ. joined.

Miqwon Deon Leach, pro se.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General, for
the appellee, the State of Tennessee.



                                  MEMORANDUM OPINION


       An Obion County jury found the Petitioner, along with his two co-defendants, guilty of
conspiracy to commit second degree murder, second degree murder, and first degree felony murder.
See State v. Clarence Carnell Gaston, Miqwon Deon Leach, and Mario Deangelo Thomas, No.
W2001-02046-CCA-R3-CD, 2003 WL 261941, *1 (Tenn. Crim. App., at Jackson, Feb. 7, 2003),


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perm. to appeal denied, (Tenn. Sept. 2, 2003). Each defendant was sentenced to life without the
possibility of parole for the first-degree murder conviction. Id. The trial court merged the second
degree murder conviction into the conviction for first degree murder. Id. The defendants were
sentenced to eight years for the conspiracy conviction. Id. The convictions and sentences were
affirmed by this Court on direct appeal. Id.

         On September 2, 2004, Petitioner Leach filed a petition for habeas corpus relief in the
Lauderdale Circuit Court. As grounds for relief, Petitioner alleged that his convictions are void
because (1) the trial court lacked jurisdiction to read the jury charges submitted during the trial, (2)
the trial court gave erroneous and unclear law in the jury charge prejudicing the Petitioner, and (3)
the trial court lacked jurisdiction to sentence Petitioner to life imprisonment for second degree
murder. On September 14, 2004, the trial court denied habeas corpus relief. In doing so, the trial
court found that “petitioner’s sentence has not expired and the court had jurisdiction to sentence the
defendant to such sentence.” The trial court noted that, “[p]rocedural due process violations and
other alleged violations of constitutional rights are addressed in post-conviction, not habeas corpus
proceedings.”

         The grounds upon which habeas corpus relief may be granted in this state are narrow.
Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004) (citations omitted). Relief will be granted if the
petition establishes that the challenged judgment is void. Id. A judgment is void “only when ‘[i]t
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.” Hickman, 153 S.W.3d at 20
(quoting State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000) (citations omitted)). The petitioner bears
the burden of establishing either a void judgment or an illegal confinement by a preponderance of
the evidence. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). If the petitioner
carries this burden, he is entitled to immediate release. Id. However, if the habeas corpus petition
fails to demonstrate that the judgment is void or that the confinement is illegal, neither appointment
of counsel nor an evidentiary hearing are required and the trial court may properly dismiss the
petition. Hickman, 153 S.W.3d at 20 (citations omitted).

       First, Petitioner complains that the trial court lacked the authority to impose a sentence of life
without the possibility of parole for second degree murder. The trial court did not impose such a
sentence. The sentence of life without parole was imposed as a result of his conviction for first-
degree murder, a lawful sentence for this conviction. The trial court merged the second degree
murder conviction into the conviction for first degree murder, rendering any challenge to the
conviction for second degree murder moot.

        Next, Petitioner contends that his convictions are void because the trial court gave the jury
erroneous instructions on the lesser-included offenses of conspiracy to commit first-degree murder
and first-degree murder. Petitioner’s challenges to the jury instructions, even if proven, would
render the convictions voidable, and not void. See Passarella v. State, 891 S.W.2d 619, 627 (Tenn.
Crim. App. 1994). Thus, these claims are not cognizable in a habeas corpus proceeding. The


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Petitioner has failed to establish any ground that would entitle him to habeas corpus relief. Rather,
these allegations would merely render the judgments voidable. As the Petitioner admits that he has
previously filed a petition for post-conviction relief, the petition cannot be treated as a petition for
post-conviction relief. See Tenn. Code Ann. § 40-30-102(c).

        The Petitioner has not established that he is entitled to habeas corpus relief. He has alleged
neither a facially invalid judgment nor an expired sentence. Accordingly, it is ordered that the
State’s motion is granted. The judgment of the trial court is affirmed in accordance with Rule 20,
Rules of the Court of Criminal Appeals.




                                               ___________________________________
                                               JOHN EVERETT WILLIAMS, JUDGE




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