        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs February 03, 2015

                MOUSEN ADEN v. BRENDA JONES, WARDEN

                Appeal from the Circuit Court for Lauderdale County
                        No. 6770   Joe H. Walker, III, Judge




                No. W2014-01977-CCA-R3-HC - Filed June 24, 2015




The petitioner, Mousen Aden, appeals the denial of his petition for the writ of habeas
corpus. The habeas corpus court dismissed the petition without appointing counsel or
holding a hearing after finding that the indictment was valid, the judgment was not
facially void, and that the petitioner‟s sentence had not expired. On appeal, the petitioner
contends that his indictment was invalid because it did not vest the trial court with
jurisdiction to enter a proper judgment and failed to provide him with adequate protection
from double jeopardy. Following our review, we affirm the judgment of the habeas
corpus court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which CAMILLE R.
MCMULLEN and ROGER A. PAGE, JJ., joined.

Mousen Aden, Henning, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel, for the appellee, State of Tennessee.



                                        OPINION
                       FACTS AND PROCEDURAL HISTORY

      On July 31, 2006, a Davidson County grand jury indicted the petitioner for
aggravated robbery. The indictment read that the petitioner:

       on the 19th day of April, 2006, in Davidson County, Tennessee and before
       the finding of this indictment, [the defendant] intentionally or knowingly
       did take from the person of [the victim] certain property, to wit: a motor
       vehicle, a passport and a sum of money of value, by violence or putting [the
       victim] in fear; the robbery accomplished with a deadly weapon or by the
       displaying of any article used or fashioned to lead [the victim] to
       reasonably believe the article to be a deadly weapon in violation of
       Tennessee Code Annotated §39-13-402, and against the peace and dignity
       of the State of Tennessee.

After a jury trial, the petitioner was convicted of aggravated robbery. The trial court
sentenced him to serve eleven years as a Range I offender. This court affirmed the
petitioner‟s conviction and sentence on direct appeal. State v. Mousen Yisak Aden, No.
M2011-02463-CCA-R3-CD, 2013 WL 615392, at *1 (Tenn. Crim. App. Feb. 19, 2013).
On July 10, 2014, the petitioner filed a petition for writ of habeas corpus. He alleged that
his indictment was defective and illegal because it charged him with aggravated robbery
but contained the essential elements for the crime of carjacking. The habeas corpus court
denied the petition. The court found that “[t]he indictment satisfied the overriding
purpose of providing notice to the Petitioner that he was charged with aggravated
robbery.” The court observed that the indictment defined the crime of aggravated
robbery, sufficiently notifying the petitioner of the charged offense. The court found that
the court had jurisdiction to sentence the defendant and that his sentence had not expired.
The court further noted that it had no jurisdiction to consider the petition if it were treated
as one for post-conviction relief.

       On July 31, 2014, the petitioner filed a “Motion to Reconsider: Tyrannical
Adjudication.” The habeas corpus court denied the motion. The petitioner filed a timely
notice of appeal, and we proceed to consider his claim.

                                        ANALYSIS

       The petitioner contends that the habeas corpus court erred in dismissing his
petition. He argues that the indictment failed to provide the trial court with jurisdiction to
enter a judgment and failed to provide him with protection against double jeopardy.


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        Article I, section 15 of the Tennessee Constitution guarantees the right to seek
habeas corpus relief. However, the grounds for the writ are very narrow. Archer v. State,
851 S.W.2d 157, 162 (Tenn. 1993). Habeas corpus relief is appropriate “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 or other restraint
has expired.” Id. at 164 (citation omitted). The writ may be used to correct judgments
that are void, rather than merely voidable. Taylor v. State, 995 S.W.2d 78, 83 (Tenn.
1999). A judgment is void when it “is facially invalid because the court lacked
jurisdiction or authority to render the judgment or because the defendant‟s sentence has
expired.” Id. A voidable judgment “is one which is facially valid and requires the
introduction of proof beyond the face of the record or the judgment to establish its
invalidity.” Id. This court reviews the dismissal of a habeas corpus petition de novo with
no presumption of correctness given to the conclusions of the habeas corpus court.
Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007).

        The petitioner bears the burden of establishing by a preponderance of the evidence
that the challenged judgment is void. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).
If the habeas corpus court determines that the petitioner has failed to state a valid claim
for relief, it may summarily dismiss the petition without holding a hearing or appointing
counsel. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994), superseded
by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC-00266, 1998 WL
104492, at *1 n.2 (Tenn. Crim. App. Mar. 11, 1998).

       A party must normally raise an objection to a defect in an indictment prior to trial,
or the objection is considered waived. Tenn. R. Crim. P. 12(b)(2)(B); (f)(1). However,
“[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, a claim that
“an indictment is so defective as to fail to vest jurisdiction in the trial court” may be
raised “at any stage of the proceeding, including in a habeas corpus petition.” Wyatt, 24
S.W.3d at 323. Generally, an indictment is valid if it provides information sufficient to:
(1) enable the accused to know the offense charged; (2) to furnish the court adequate
basis for the entry of a proper judgment; and (3) to protect the accused from double
jeopardy. Id. at 324.

         The petitioner argues that while he was indicted for aggravated robbery, the proof
at trial showed that he committed only the offense of carjacking. As a result, he contends
that the trial court did not have jurisdiction to enter a judgment upon his conviction for
aggravated robbery and that he is not protected from a subsequent prosecution for
carjacking.

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        While the petitioner is correct that carjacking is not a lesser included offense of
robbery, we disagree with his claim that the indictment is constitutionally invalid.
Although his argument regarding the proof at trial is clothed as a challenge to the trial
court‟s jurisdiction, effectively it is a claim that there was a material variance between the
indictment and the proof at trial. This court has held that such claims are not cognizable
grounds for habeas corpus relief. See Sidney Cleve Metcalf v. David Sexton, Warden, No.
E2011-02532-CCA-R3-HC, 2012 WL 3555311, at *5 (Tenn. Crim. App. Aug. 20, 2012)
(citations omitted). In any event, the indictment was sufficient to vest the trial court with
jurisdiction and to provide the petitioner with double jeopardy protection. The
indictment included the name of the victim, the date of the offense, and the items taken
from the victim. It referred to the crime as “the robbery,” and it cited to Tennessee Code
Annotated section 39-13-402, which defines aggravated robbery. Thus, the indictment
adequately informed the trial court that a judgment and sentence for aggravated robbery
were proper upon a conviction. Finally, the petitioner was adequately protected against
double jeopardy. Tennessee Rule of Criminal Procedure 8 requires the mandatory
joinder of two or more offenses if they are “based on the same conduct or arise out of the
same criminal episode.” Tenn. R. Crim. P. 8(a)(1)(A). Any future charge of carjacking
would have arisen from the same conduct and criminal episode as the aggravated robbery
and would therefore be prohibited by Rule 8.

                                      CONCLUSION

         Based upon the foregoing analysis, we affirm the judgment of the habeas corpus
court.




                                                  _________________________________

                                                  JOHN EVERETT WILLIAMS, JUDGE




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