Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 22, 2015
Appeal from the Criminal Court for Putnam County No. 040592 Leon C. Burns, Jr., Judge
Andrew Soimis, Henning, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel; Bryant C. Dunaway, District Attorney General; and Anthony Craighead, Assistant District Attorney General, for the appellee, State of Tennessee.
Roger A. Page, J., delivered the opinion of the court, in which John Everett Williams and Alan E. Glenn, JJ., joined.
ROGER A. PAGE, JUDGE
I. Facts and Procedural History
Petitioner was indicted for the first degree murder of David Duncker, and following a July 2005 jury trial, he was convicted of second degree murder. Andrew Soimis v. State, No. M2010-01002-CCA-R3-PC, 2011 WL 2572779, at *1 (Tenn. Crim. App. June 29,
2011), perm. app. denied (Tenn. Oct. 19, 2011). Petitioner's conviction was premised upon his having shot and killed the victim while the men were fishing together in a rural area. Id. A thorough recitation of the facts underlying petitioner's conviction can be found in this court's opinion on direct appeal. See State v. Andrew Soimis, No. M2005-02524-CCA-R3-CD, 2007 WL 416380, at *1 (Tenn. Crim. App. Feb.8, 2007), perm. app. denied (Tenn. June 18, 2007).
II. Habeas Corpus Proceedings
Petitioner seeks habeas corpus relief from his 2005 conviction of second degree murder. He alleges that his judgment is void because the indictment charged him with first degree murder but he was convicted of second degree murder; thus, he was not provided notice of the elements of the offense for which he was convicted. He extrapolates that he was, accordingly, convicted without benefit of an indictment. The habeas corpus court summarily dismissed the petition, and this appeal follows.
A. Standard of Review
"[T]he grounds upon which habeas corpus relief will be granted are narrow." Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004) (citing Dixon v. Holland, 70 S.W.3d 33, 36 (Tenn. 2002)). Habeas corpus relief is available to a petitioner only in the limited circumstances when the judgment is void on its face or the petitioner's sentence has expired. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000). "'A void judgment is one in which the judgment is facially invalid because the court did not have the statutory authority to render such judgment.'" Id. (quoting Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)). Conversely, a voidable conviction or sentence appears facially valid and requires the introduction of proof beyond the face of the record or judgment to determine its deficiency. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999) (citing Dykes, 978 S.W.2d at 529). The proper method for attacking a voidable judgment is by a petition for post-conviction relief, not habeas corpus. Id. (citing State v. McClintock, 732 S.W.2d 268, 272 (Tenn. 1987)). The court's decision with respect to a petition for a writ of habeas corpus is a question of law that we review de novo without a presumption of correctness. Hart, 21 S.W.3d at 903.
There are also procedural hurdles that must be cleared before a petition for writ of habeas corpus is properly before a court. First, application for the writ "should be made to the court or judge most convenient in point of distance to the applicant, unless a sufficient reason be given in the petition for not applying to such court or judge." Tenn. Code Ann. § 29-21-105. Second, the application "shall be made by petition, signed either by the party for whose benefit it is intended, . . . and verified by affidavit." Id. § 29-21-107(a). A habeas corpus court may choose to summarily dismiss a petition for failing to comply with the statutory procedural requirements. Id
Having met the procedural requirements, a habeas corpus petitioner must also establish a void judgment or illegal confinement by a preponderance of the evidence. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). A habeas corpus court may summarily dismiss a habeas corpus petition, without the appointment of counsel and without an evidentiary hearing, if the face of the record or judgment fails to indicate that the ...