Court of Criminal Appeals of Tennessee, Knoxville
ANTHONY D. WASHINGTON
RANDY LEE, WARDEN
Assigned on Briefs June 27, 2017
from the Criminal Court for Johnson County No. CC-16-CR-143
Lisa Rice, Judge
petitioner, Anthony D. Washington, appeals the summary
dismissal of his petition for writ of habeas corpus by the
Johnson County Criminal Court. In this appeal, the Petitioner
makes several claims, all of which are rooted in the
duplicitous nature of his indictment. The State asserts that
the Petitioner failed to show that his judgment was void.
Upon review, we affirm the judgment of the habeas corpus
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Anthony D. Washington, Mountain City, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter;
Katherine C. Redding, Assistant Attorney General; and Tony
Clark, District Attorney General, for the Appellee, State of
Camille R. McMullen, J., delivered the opinion of the court,
in which D. Kelly Thomas, Jr., and Robert L. Holloway, Jr.,
CAMILLE R. McMULLEN, JUDGE
Petitioner was originally indicted by the Davidson County
Grand Jury for one count of possession with the intent to
sell or deliver 0.5 grams or more of a substance containing
cocaine in a drug-free zone, one count of possession of
marijuana, and one count of possession of drug paraphernalia.
Following a trial, he was convicted of possession with the
intent to sell 0.5 grams or more of a substance containing
cocaine in a drug-free zone, and the trial court sentenced
the Petitioner, as a Range III, persistent offender, to
thirty years' incarceration, with the first twenty years
to be served at 100%. Id. He appealed his conviction
and sentence, both of which were affirmed by this court.
State v. Anthony Dewight Washington, No.
M2011-02678-CCA-R3-CD, 2012 WL 6115589, at *1 (Tenn. Crim.
App. July 17, 2012), perm app. denied (Tenn. Mar. 5,
2013). The Petitioner subsequently sought post-conviction
relief on the grounds of ineffective assistance of counsel,
the denial of which was also affirmed by this court.
Anthony Dewight Washington v. State, No.
M2015-02309-CCA-R3-PC, 2016 WL 5266620, at *1 (Tenn. Crim.
App. Sept. 22, 2016), perm. app. denied (Oct. 15,
2016). On October 18, 2016, the Petitioner filed a petition
for writ of habeas corpus, and the State filed a response on
November 16, 2016. By order on February 3, 2017, the habeas
court denied relief. On March 1, 2017, the Petitioner filed a
timely notice of appeal.
appeal, the Petitioner challenges his indictment as
duplicitous. Specifically, he contends that it "fail[ed]
to separate the [three] charges into three different
counts" and that he was convicted of two offenses:
possession with intent to sell .5 grams or more of a
substance containing cocaine and possession with intent to
deliver .5 grams or more of a substance containing cocaine.
Consequently, the Petitioner claims that he was not informed
of the charges he had to defend against at trial and that the
lack of jury unanimity violated principles of double
jeopardy. In response, the State contends that there is no
infirmity in the indictment because the Petitioner was
charged with the separate crime of possession, rather than
the two crimes of delivery and sale of cocaine. Moreover,
they insist that the Petitioner's claims, even if true,
only render his judgments voidable, and not void. For the
following reasons, we affirm the summary dismissal by the
address the Petitioner's issues with the following well
established legal framework in regard to habeas corpus
relief. "The 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 (Tenn. 2006)).
prisoner is guaranteed the right to habeas corpus relief
under Article I, section 15 of the Tennessee Constitution.
Tenn. Const. art. I, § 15; see also 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) (quoting State v. Galloway, 45 Tenn.
(5 Cold.) 326, 337 (1868)). "[T]he 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, 851 S.W.2d at 161-64). However, "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, 212 S.W.3d at 256
(citing Dykes, 978 S.W.2d at 529). Thus, "[i]n
all cases where a [P]etitioner 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)).
Tennessee Supreme Court has held that "the validity of
an indictment . . . 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). Generally, an indictment is
valid if it contains sufficient information "(1) to
enable the accused to know the accusation to which answer is
required, (2) to furnish the court adequate basis for the
entry of a proper judgment, and (3) to protect the accused
from double jeopardy." State v. Hill, 954
S.W.2d 725, 727 (Tenn. 1997). The Tennessee Supreme Court has
held that an indictment that specifically references the
statute under which the defendant is indicted is sufficient
to satisfy the ...