        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs March 26, 2014

      MICHAEL ANTHONY LEWIS v. SHARON TAYLOR, WARDEN

                  Appeal from the Criminal Court for Johnson County
                      No. CC-13-CV-109      Stacy Street, Judge


                  No. E2013-02492-CCA-R3-HC - Filed May 13, 2014


Michael Anthony Lewis (“the Petitioner”) filed a petition for a writ habeas corpus regarding
his conviction for attempt to commit first degree premeditated murder. The habeas corpus
court summarily dismissed the petition, and this appeal followed. Upon our thorough review
of the record and applicable law, we affirm the habeas corpus court’s judgment.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which C AMILLE R. M CM ULLEN
and R OGER A. P AGE, JJ., joined.

Michael Anthony Lewis, pro se, Mountain City, Tennessee, as the appellant.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Senior Counsel, for
the appellee, State of Tennessee.

                                          OPINION

                           Factual and Procedural Background

        In 2001, the Petitioner shot a police officer five times while the officer was attempting
to apprehend him. A jury convicted the Petitioner of criminal attempt to commit first degree
premeditated murder, and the trial court sentenced the Petitioner to sixty years’ incarceration.
See State v. Michael Anthony Lewis, No. M2005-02279-CCA-R3-CD, 2006 WL 2738160,
at *1 (Tenn. Crim. App. Sept. 26, 2006), perm. app. denied (Tenn. Jan. 29, 2007). This Court
affirmed the Petitioner’s conviction on direct appeal. See id. at *10. In this habeas corpus
proceeding, the Petitioner contends that his conviction is void because it is based on an
indictment so defective that the trial court was without jurisdiction to enter the judgment of
conviction. The habeas corpus court summarily dismissed the Petitioner’s claim for relief,
and this appeal followed.

                                     Standard of Review

       The decision to grant habeas corpus relief is a question of law. Thus, our Court’s
standard of review is de novo, with no presumption of correctness. Faulkner v. State, 226
S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000);
Killingsworth v. Ted Russell Ford, Inc., 205 S.W.3d 406, 408 (Tenn. 2006)).

                                           Analysis

        Under the United States and Tennessee Constitutions, a convicted criminal enjoys the
right to pursue habeas corpus relief. U.S. Const. art. 1, § 9, cl. 2; Tenn. Const. art. I, § 15.
In Tennessee, however, this right has been governed by statute for over a century. See
Ussery v. Avery, 432 S.W.2d 656, 657 (Tenn. 1968); Tenn. Code Ann. § 29-21-101(a) (Supp.
2009) (“Any person imprisoned or restrained of liberty, under any pretense whatsoever,
except in cases specified in subsection (b) and in cases specified in § 29-21-102, may
prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and
restraint.”).

       In Tennessee, the “grounds upon which habeas corpus relief will be granted are very
narrow.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). Moreover, “the purpose of a
habeas corpus petition is to contest void and not merely voidable judgments.” Potts v. State,
833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel. Newsom v. Henderson, 424 S.W.2d 186,
189 (Tenn. 1968)). “A void judgment is one in which the judgment is facially invalid
because the court lacked jurisdiction or authority to render the judgment or because the
defendant’s sentence has expired.” Taylor, 995 S.W.2d at 83 (citing Dykes v. Compton, 978
S.W.2d 528, 529 (Tenn. 1998); Archer v. State, 851 S.W.2d 157, 161-64 (Tenn. 1993)). On
the other hand, “[a] voidable judgment is one that is facially valid and requires proof beyond
the face of the record or judgment to establish its invalidity.” Summers v. State, 212 S.W.3d
251, 256 (Tenn. 2007) (citing Dykes, 978 S.W.2d at 529). A petitioner must prove that his
or her judgment is void or that his or her sentence has expired by a preponderance of the
evidence. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

       A habeas corpus court may dismiss a petition for habeas corpus relief summarily
“[w]hen the habeas corpus petition fails to demonstrate that the judgment is void.” Hickman
v. State, 153 S.W.3d 16, 20 (Tenn. 2004) (citing Tenn. Code Ann. § 29-21-109 (2000);
Dixon v. Holland, 70 S.W.3d 33, 36 (Tenn. 2002)).



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        “[T]he validity of an indictment and the efficacy of the resulting conviction may be
addressed in a petition for habeas corpus when the indictment is so defective as to deprive
the [trial] court of jurisdiction.” Dykes, 978 S.W.2d at 529. However, so long as the
indictment performs its essential constitutional and statutory purposes, habeas corpus relief
is not warranted. Id. (citing State v. Hill, 954 S.W.2d 725, 729 (Tenn. 1997)).

       An indictment passes constitutional muster when it provides (1) notice of the charge
against which the accused must defend himself; (2) an adequate basis for the entry of a
proper judgment; and (3) protection of the accused from double jeopardy. Hill, 954 S.W.2d
at 727. Additionally, an indictment satisfies statutory requirements when it

       state[s] the facts constituting the offense in ordinary and concise language,
       without prolixity or repetition, in such a manner 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[.]

Tenn. Code Ann. § 40-13-202 (1997). Moreover, as a general rule, it is sufficient to state the
offense charged in the words of the statute or words which are equivalent to the words
contained in the statute. State v. Tate, 912 S.W.2d 785, 789 (Tenn. Crim. App. 1995)
(internal citations omitted).

      In this case, the indictment setting forth the charge upon which the Petitioner was
convicted provided as follows:

              The Grand Jurors of Davidson County, Tennessee, duly impaneled and
       sworn, upon their oath, present that: Michael Anthony Lewis . . . on the 14th
       day of June, 2001, in Davidson County, Tennessee and before the finding of
       this indictment, did intentionally, and with premeditation attempt to kill
       Wesley Charles Tilley, in violation of Tennessee Code Annotated § 39-13-202
       and § 39-12-201, and against the peace and dignity of the State of Tennessee.

The Petitioner alleges that the indictment is fatally defective because it fails to include any
description of an overt act and because it includes a reference to Tennessee Code Annotated
section 39-12-201, the full text of which is “This part shall be known and may be cited as the
‘Racketeer Influenced and Corrupt Organization Act of 1989.’” Tenn. Code Ann. § 39-12-
201 (1997).

          Tennessee Code Annotated section 39-13-202 provides that “[f]irst degree murder is
. . . [a] premeditated and intentional killing of another.” Tenn. Code Ann. § 39-13-202(a)(1)

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(Supp. 2001). Thus, the indictment tracks the language of the relevant statute. However,
when a defendant is charged with criminal attempt to commit a specific crime, see id. § 39-
12-101 (1997), the Petitioner is correct that the indictment “must allege some overt act
committed toward the commission of the offense.” State v. Lewis, 36 S.W.3d 88, 97 (Tenn.
Crim. App. 2000) (citations omitted).

        This Court previously has addressed the issue of whether an indictment is fatally
defective because it does not include a specific description of how the accused attempted to
kill the victim and found it to be without merit. See James R. Twitty v. Howard Carlton,
Warden, No. 03C01-9707-CR-00310, 1999 WL 2832, at *2 (Tenn. Crim. App. Jan. 6, 1999),
perm. app. denied (Tenn. June 21, 1999). In Twitty, the petitioner was convicted of attempt
to commit first degree premeditated murder on the basis of an indictment charging that he
“did unlawfully, deliberately and with premeditation attempt to kill [the victim], in violation
of Section 39-12-101, Tennessee Code Annotated.” Id. The petitioner sought habeas corpus
relief on the basis that the indictment failed to “allege any injury to the victim, nor [did] it
allege any type of weapon used for the attempted murder.” Id. This Court found the
petitioner’s contention to be without merit, holding that “the indictment properly charges him
with the commission of a substantive offense, attempt to commit murder in the first degree.”
Id. (citation omitted).

         We reach the same conclusion here. The indictment charged the Petitioner not simply
with criminal attempt, but with “attempt to kill” the victim, “intentionally, and with
premeditation.” This language was sufficient to allege an overt act. See Wyatt v. State, 24
S.W.3d 319, 324-25 (Tenn. 2000) (holding that an indictment alleging that the defendant “did
. . . attempt to kill” was sufficient to (1) allege an overt act as required by the criminal
attempt statute, (2) notify the defendant of the accused crime, (3) confer jurisdiction on the
trial court, and (4) protect against double jeopardy). The Petitioner is entitled to no relief on
this basis.

        The Petitioner also is entitled to no relief on the basis that the indictment included a
reference to Tennessee Code Annotated section 39-12-201. First, an indictment’s reference
to an incorrect statute is mere surplusage and does not render the indictment fatally defective.
See McCracken v. State, 489 S.W.2d 48, 51 (Tenn. Crim. App. 1972); State v. Roger Eugene
Daly, No. M2010-00535-CCA-R3-CD, 2011 WL 2418829, at *11 (Tenn. Crim. App. June
10, 2011). Second, it appears that the reference to section 39-12-201 is merely a clerical
error, as the statute proscribing the crime of criminal attempt is codified at section 39-12-101.
See Tenn. Code Ann. § 39-12-101 (1997). A clerical error in an indictment does not render
the indictment fatally defective. See Cole v. State, 512 S.W.2d 598, 601-02 (Tenn. Crim.
App. 1974); McCracken, 489 S.W.2d at 51; State v. Wade Tyler, No. M2009-01762-CCA-



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R3-CD, 2011 WL 300145, at *8 (Tenn. Crim. App. Jan. 21, 2011), perm. app. denied (Tenn.
Aug. 5, 2011).

        Finally, the Petitioner also complains that the habeas corpus court did not grant him
sufficient time to respond to the State’s motion to dismiss his petition. We hold that the
habeas corpus court committed no error in granting the State’s motion four days after it was
filed. The Petitioner’s claim rested upon the language of the indictment. The Petitioner
provided this language with his petition. Accordingly, there was no need for the Petitioner
to have additional time to respond to the State’s motion to dismiss. The Petitioner is not
entitled to relief on this basis.

        In sum, we hold that the indictment was sufficient. It set forth the crime of criminal
attempt to commit first degree premeditated murder in the words of the statute, named the
victim, and named the month and year of the offense. The indictment also made accurate
reference to the statute proscribing first degree premeditated murder. See State v. Sledge,
15 S.W.3d 93, 95 (Tenn. 2000) (recognizing that “specific reference to a statute within the
indictment may be sufficient to place the accused on notice of the charged offense”)
(citations omitted). Thus, the indictment notified the Petitioner that he was being prosecuted
for the attempted first degree murder of the victim, provided an adequate basis for the entry
of a proper judgment, and protected the Petitioner from double jeopardy. See Hill, 954
S.W.2d at 727. The indictment stated the facts constituting the offense of attempt to commit
first degree premeditated murder in ordinary and concise language that enabled a person of
common understanding to know he was being charged with that crime, and it described the
offense with sufficient certainty to enable the trial court, on conviction, to pronounce the
proper judgment. See Tenn. Code Ann. § 40-13-202 (1997). Accordingly, the Petitioner is
not entitled to habeas corpus relief on this basis.

                                        Conclusion

      For the reasons set forth above, we affirm the habeas corpus court’s summary
dismissal of the Petitioner’s petition for writ of habeas corpus.




                                           ________________________________
                                           JEFFREY S. BIVINS, JUDGE




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