        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 August 3, 2010 Session

               HENRY JOHNSON v. TONY PARKER, WARDEN

                Direct Appeal from the Circuit Court for Lake County
                  No. 10-CR-9407     Russell Lee Moore, Jr., Judge


              No. W2010-00563-CCA-R3-HC - Filed November 30, 2010


The pro se petitioner, Henry Johnson, appeals from the summary dismissal of his petition for
writ of habeas corpus relief. He was convicted of first degree murder and aggravated
burglary and was sentenced to life imprisonment on August 19, 2009. On appeal, he argues
that: the indictment against him was defective; the habeas corpus court erred in dismissing
his petition without a hearing or appointment of counsel; and he was subject to double
jeopardy as a result of the indictment. After careful review, we affirm the summary dismissal
of the petition.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT, J R. and J.C. M CL IN, JJ., joined.

Henry Johnson, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder and Rachel E.
Willis, Assistant Attorneys General; and C. Phillip Bivens, District Attorney General, for the
appellee, State of Tennessee.

                                         OPINION

        The petitioner argues that the habeas corpus court improperly dismissed his petition
for relief without a hearing or the appointment of counsel. Specifically, he contends that he
should have been appointed counsel and been granted a hearing because he attached the
judgments to his petition and one judgment proved that he was “ACQUITTED” of felony
murder. He argues that he was subjected to double jeopardy because of this acquittal.
Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas corpus
relief. Tennessee Code Annotated sections 29-21-101 et seq. codify the applicable
procedures for seeking a writ. While there is no statutory time limit in which to file for
habeas corpus relief, Tennessee law provides very narrow grounds upon which such relief
may be granted. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A habeas corpus petition
may be used only to contest void judgments which are facially invalid because (1) the
convicting court was without jurisdiction or authority to sentence a petitioner; or (2)
petitioner’s sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).

        The habeas corpus court may summarily dismiss a petition for habeas corpus relief
without the appointment of counsel and without an evidentiary hearing if there is nothing on
the face of the record to indicate that the convictions are void. Passarella v. State, 891
S.W.2d 619, 627 (Tenn. Crim. App. 1994). The petitioner was not subjected to double
jeopardy by the indictment because the charges in the indictment were separate and distinct
offenses. There was no violation of double jeopardy principles. Further, a claim of double
jeopardy is not cognizable in a habeas corpus proceeding because it renders a claim voidable
rather than void. See Ralph Phillip Claypole v. State, No. M1999-02591-CCA-R3-PC, 2001
Tenn. Crim. App. LEXIS 367, at **6-7 (Tenn. Crim. App. May 16, 2001). A judgment
which is voidable can be attacked only by a petition for post-conviction relief and not
through habeas corpus procedures. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999).

        Next, the petitioner argues that the indictment against him was deficient for failing
to state the “concise criminal offense” for which he was being tried. Generally, defenses and
objections based on a defective indictment must be raised prior to trial or they are waived.
Tenn. R. Crim. P. 12(b)(2), (f); Wyatt v. State, 24 S.W.3d 319, 322-323 (Tenn. 2000).
However, as we have previously stated, “[a] valid indictment is an essential jurisdictional
element, without which there can be no prosecution.” Dykes v. Compton, 978 S.W.2d 528,
529 (Tenn. 1998). Thus, an indictment that is so defective as to fail to vest jurisdiction in the
trial court may be challenged at any stage of the proceedings, including in a habeas corpus
petition. Tenn. R. Crim. P. 12(b)(2).

        Here, the petitioner contends that Count Three of the indictment was deficient for
failing to state the crimes for which he stood accused. Specifically, he contends that the
charge in the indictment was for the misdemeanor offence of assault and that he was
convicted of aggravated burglary. The record contains the true bill against the petitioner
from the Montgomery County Circuit Court. The indictment reflects that in Count Three,
the petitioner was charged with violation of Tennessee Code Annotated section 39-14-403,
which is aggravated burglary. Pursuant to statute, “[t]he indictment must state the facts
constituting the offense in ordinary and concise language, without prolixity or repetition, in
a manner so as to enable a person of common understanding to know what is intended and
with that degree of certainty which will enable the court, on conviction, to pronounce the
proper judgment.” T.C.A. § 40-13-202 (2007). The language of the statute satisfies

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Tennessee Code Annotated section 40-13-202 if it provides adequate notice to both the
petitioner and the trial court of the offense alleged and protects the petitioner from
subsequent re-prosecution for the same offense. See State v. Hill, 954 S.W.2d 725, 727
(1997).

        Here, the indictment identified the petitioner as the perpetrator of the offense,
identified the victim, specified the actus reus and the mens rea, and specified the statute that
defined the offense. The Tennessee Supreme Court has previously held that specific
reference to a statute within the indictment may be sufficient to place the accused on notice
of the charged offense. See State v. Sledge, 15 S.W.3d 93, 95 (Tenn. 2000); State v. Carter,
988 S.W.2d 145, 149 (Tenn. 1999); Ruff v. State, 978 S.W.2d 95 (Tenn. 1998). The language
of the indictment provided the trial court with ample information upon which to base a proper
judgment. See Sledge, 15 S.W.3d at 95; Carter, 988 S.W.2d at 149; Ruff, 978 S.W.2d at 97,
99. The indictment further provided ample information to protect the petitioner from re-
prosecution for the same offense. The language of the indictment was clear and concise and
met the requirements of Tennessee Code Annotated section 40-13-202. Therefore, the
petitioner is not entitled to relief on this issue.


                                          Conclusion

       Based on the foregoing and the record as a whole, we affirm the summary dismissal
of the petition for writ of habeas corpus relief.




                                                    _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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