Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs March 14, 2017
from the Criminal Court for Trousdale County No. 16-CV-4524
John D. Wootten, Jr., Judge
Petitioner, Christopher Mimms, appeals the summary dismissal
of his petition for writ of habeas corpus by the Trousdale
County Criminal Court. On appeal, the Petitioner argues that
his drug-related convictions are void because the trial court
amended the indictment without his consent. Upon review, we
affirm the judgment of the habeas corpus court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Christopher Mimms, Hartsville, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; M.
Todd Ridley, Assistant Attorney General; and Tom P. Thompson,
Jr., District Attorney General, for the Appellee, State of
Camille R. McMullen, J., delivered the opinion of the court,
in which Norma McGee Ogle and Robert W. Wedemeyer, JJ.,
CAMILLE R. McMULLEN, JUDGE
Petitioner was convicted of one count of selling 0.5 grams or
more of cocaine and one count of selling 0.5 grams or more of
cocaine in a school zone. State v. Christopher
Mimms, No. M2011-02712-CCA-R3-CD, 2013 WL 493306, at *1
(Tenn. Crim. App. Feb. 8, 2013), perm. app. denied
(Tenn. June 12, 2013). This court affirmed his convictions on
direct appeal, and the Tennessee Supreme Court denied
permission to appeal. Id. This court also affirmed
the denial of his petition for post-conviction relief.
Christopher Mimms v. State, No.
M2014-01616-CCA-R3-PC, 2015 WL 3952161, at *1 (Tenn. Crim.
App. June 29, 2015), perm. app. denied (Tenn. Sept.
17, 2015). On March 30, 2016, the Petitioner filed a pro se
petition for writ of habeas corpus challenging the validity
of the indictment. He argued that the trial court erred by
allowing a constructive amendment to the indictment and that
the indictment did not provide the Petitioner with
"notice that the jury would be allowed to fin[d] him
guilty under a different element of the
offense." He claimed that the constructive amendment
of the indictment rendered his judgment void and that he is
entitled to relief. The habeas corpus court summarily
dismissed his petition on April 21, 2016. The habeas corpus
court found that the Petitioner had "failed to establish
that the convicting [c]ourt lacked jurisdiction or
authority." The habeas corpus court also found that many
of the Petitioner's allegations were more suitable for a
direct appeal, rather than a petition for writ of habeas
corpus. It is from this order that the Petitioner now timely
appeal, the Petitioner argues that the trial court
"constructively amended the indictment, without the
consent of the Petitioner." He appears to argue that the
indictment specified a particular means of committing the
offense, but the trial court charged the jury with
"alternative theories of [the] sale of cocaine in [a]
school zone." The Petitioner contends that he was not
given "proper notice that the jury would be allowed to
fin[d] him guilty under a different element of the
offense." The State asserts that the Petitioner failed
to meet the procedural requirements for habeas corpus relief,
and the Petitioner's claims do not entitle him to relief.
After review, we agree with the State.
determination of whether habeas corpus relief should be
granted is a question of law." Faulkner v.
State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart
v. State, 21 S.W.3d 901, 903 (Tenn. 2000)). Accordingly,
our review is de novo without a presumption of correctness.
Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007)
(citing State v. Livingston, 197 S.W.3d 710, 712
prisoner is guaranteed the right to habeas corpus relief
under article I, section 15 of the Tennessee Constitution.
Tenn. Const. art. I, § 15; see T.C.A.
§§ 29-21-101 to -130. The grounds upon which a writ
of habeas corpus may be issued, however, are very narrow.
Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999).
"Habeas corpus relief is available in Tennessee 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." Archer v. State, 851 S.W.2d 157,
164 (Tenn. 1993). A habeas corpus petition challenges void
and not merely voidable judgments. Summers, 212
S.W.3d at 255 (citing Potts v. State, 833 S.W.2d 60,
62 (Tenn. 1992)). "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, 851 S.W.2d at 161-64). However, a voidable
judgment "is facially valid and requires proof beyond
the face of the record or judgment to establish its
invalidity." Summers, 212 S.W.3d at 256 (citing
Dykes, 978 S.W.2d at 529). Thus, "[i]n all
cases where a petitioner must introduce proof beyond the
record to establish the invalidity of his conviction, then
that conviction by definition is merely voidable, and a
Tennessee court cannot issue the writ of habeas corpus under
such circumstances." State v. Ritchie, 20
S.W.3d 624, 633 (Tenn. 2000). Moreover, it is the
petitioner's burden to demonstrate, by a preponderance of
the evidence, that the judgment is void or that the
confinement is illegal. Wyatt v. State, 24 S.W.3d
319, 322 (Tenn. 2000). If this burden is met, the Petitioner
is entitled to immediate release. State v. Warren,
740 S.W.2d 427, 428 (Tenn. Crim. App. 1986) (citing
Ussery v. Avery, 432 S.W.2d 656, 658 (Tenn. 1968)).
habeas corpus court determines from the petitioner's
filings that no cognizable claim has been stated and that the
petitioner is not entitled to relief, the petition for writ
of habeas corpus may be summarily dismissed. See
Hickman, 153 S.W.3d at 20. Further, the habeas corpus
court may summarily dismiss the petition without the
appointment of a lawyer and without an evidentiary hearing if
there is nothing on the face of the judgment to indicate that
the convictions are void. 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). "The petitioner bears the ...