        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                   Assigned on Briefs May 4, 2010

           KEVIN O. HOOKS v. STEVEN DOTSON, WARDEN
                 Appeal from the Circuit Court for Hardeman County
                       No. 09-CR-186 Joe H. Walker, Judge


                 No. W2009-02630-CCA-R3-HC - Filed July 15, 2010




The pro se Petitioner, Kevin O. Hooks, appeals as of right from the Hardeman County Circuit
Court’s summary dismissal of his petition for a writ of habeas corpus challenging his
conviction for first degree felony murder. 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 is Affirmed.

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which A LAN E. G LENN and
J.C. M CL IN, JJ., joined.

Kevin O. Hooks, Wartburg, Tennessee, Pro Se.

Robert E. Cooper, Attorney General and Reporter; and Rachel E. Willis, Assistant Attorney
General, attorneys for the appellee, State of Tennessee.

                                        OPINION

       A Shelby County jury convicted the Petitioner of second degree murder and first
degree felony murder; the trial court merged the two convictions and imposed a sentence of
life imprisonment. The conviction and sentence were affirmed on direct appeal. State v.
Kelvin Hooks, No. W2001-01516-CCA-R3-CD, 2002 WL 31466920 (Tenn. Crim. App.
Nov. 1, 2002), perm. app. denied (Tenn. Feb. 24, 2003). The Petitioner filed a petition for
post-conviction relief which was denied following an evidentiary hearing. This court
affirmed the post-conviction court’s action by memorandum opinion pursuant to Rule 20 of
the Rules of the Tennessee Court of Criminal Appeals. Kelvin Hooks v. State, No. W2004-
02238-CCA-R3-PC, 2005 WL 1249040 (Tenn. Crim. App. May 25, 2005); see also Rule 22,
Rules of the Tennessee Court of Criminal Appeals.1

        On October 23, 2009, the Petitioner filed a petition for a writ of habeas corpus
challenging the legality of his conviction and sentence.2 He alleges that his conviction is
void due to a fatal defect in the felony murder indictment and erroneous jury instructions.
On November 19, 2009, the habeas corpus court summarily dismissed the petition for failing
to state a cognizable claim. The Petitioner filed a timely notice of appeal on December 15,
2009.

                                              ANALYSIS

        On appeal, the Petitioner asserts that his allegations warrant the granting of a new
trial. He also contends that the summary dismissal of his petition violated his due process
rights. The State argues that none of the Petitioner’s claims were cognizable in a habeas
corpus proceeding; thus, the habeas corpus court correctly dismissed the petition. Following
our review, we agree with the State.

        “[I]n Tennessee, [the] grounds upon which habeas corpus relief may be granted are
very narrow.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The writ will issue only
when the petitioner has established a lack of jurisdiction for the order of confinement or that
he is otherwise entitled to immediate release because of the expiration of his sentence. See
Ussery v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell, 443 S.W.2d
839 (Tenn. Crim. App. 1969). The purpose of the habeas corpus petition is to contest a void,
not merely a voidable, judgment. State ex rel. Newsome v. Henderson, 424 S.W.2d 186, 189
(Tenn. 1968). 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). A petitioner bears the burden of establishing
a void judgment or illegal confinement by a preponderance of the evidence. See Wyatt v.
State, 24 S.W.3d 319, 322 (Tenn. 2000). A court may summarily dismiss a petition for
habeas corpus relief, without the appointment of counsel and without an evidentiary hearing,
if the petition does not state a cognizable claim. See Hickman v. State, 153 S.W.3d 16, 20
(Tenn. 2004).



        1
         On both direct appeal and at post-conviction, the Petitioner’s name appears as “Kelvin.”
However, the habeas corpus petition refers to the Petitioner as “Kevin.”


        2
        At the time of filing, the Petitioner was incarcerated at Whiteville Correctional Facility in
Hardeman County. He has since been moved to Morgan County Correctional Complex.

                                                    2
        Typically, a challenge to the sufficiency of an indictment is not cognizable in a habeas
corpus proceeding. See Haggard v. State, 475 S.W.2d 186, 187-88 (Tenn. Crim. App. 1971).
However, “the 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 court of jurisdiction.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). Turning
to the validity of the indictment challenged by the Petitioner, the indictment states that the
Petitioner and a codefendant:

       did unlawfully, and with the intent to commit Robbery, kill JOE MASON
       during the perpetration of a Robbery, in violation of T.C.A. 39-13-202 . . . .

The Petitioner contends that the indictment erroneously charges intent and that intent is not
an essential element of felony murder. However, the element of intent, as charged in the
indictment, relates to the underlying felony of robbery and is a proper allegation in the
indictment. See Tenn. Code Ann. 39-13-202(b). Accordingly, we conclude that this
indictment sufficiently states the offense of first degree felony murder. Therefore, the
Petitioner has not shown a defect depriving the convicting court of jurisdiction.

         Likewise, allegations regarding jury instructions and evidentiary rulings are claims
that, if proven, would render the challenged judgments voidable rather than void; therefore,
they do not present cognizable claims for habeas corpus relief. See Passarella v. State, 891
S.W.2d 619, 627 (Tenn. Crim. App. 1994); Luttrell v. State, 644 S.W.2d 408, 409 (Tenn.
Crim. App. 1982). In summarily dismissing the petition, the habeas court found that none
of the allegations merited habeas corpus relief. Furthermore, as previously stated, a habeas
corpus court may summarily dismiss a petition that fails to state a cognizable claim without
the appointment of counsel and without an evidentiary hearing – such a procedure does not
offend due process. Accordingly, the judgment of the habeas corpus court is affirmed.

                                       CONCLUSION

      In consideration of the foregoing and the record as a whole, the judgment of the
habeas corpus court is affirmed.




                                                   D. KELLY THOMAS, JR., JUDGE




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