Assigned on Briefs August 15, 2017
from the Circuit Court for Lauderdale County No. 6966 Joe H.
Walker, III, Judge
petitioner, Mark Foster, appeals from the Lauderdale County
Circuit Court's summary dismissal of his petition for
habeas corpus relief. Relying on Anthony D. Byers v.
State, the petitioner argues in this appeal that his
convictions for possession of a firearm during the commission
of a dangerous felony are illegal and in direct contravention
of Tennessee Code Annotated section 39-17-1324(c). No.
W2011-00473-CCA-R3-PC, 2012 WL 938976, at *8 (Tenn. Crim.
App. Mar. 15, 2012) perm. app. denied (Aug. 15,
2012). Upon our review, we affirm the judgment of the habeas
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Foster, Henning, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; David
H. Findley, Senior Counsel; Mark E. Davidson, District
Attorney General; and Randall E. Nichols, Assistant District
Attorney General, for the appellee, State of Tennessee.
Camille R. MCMULLEN, J., delivered the opinion of the court,
in which Thomas T. Woodall, P.J. and Robert L. Holloway, Jr.,
CAMILLE R. McMULLEN, JUDGE.
record shows that a Knox County grand jury indicted the
petitioner on two counts of attempted first degree murder,
two counts of employing a firearm during the commission of a
dangerous felony, and one count of unlawfully carrying a
firearm, with the intent to go armed, on the campus of a
public school. On November 3, 2011, the petitioner entered
guilty pleas to the indictment as charged and received an
effective sentence of fifty-six years' incarceration. No
other appeals were filed until April 3, 2017, when the
petitioner filed the instant petition for writ of habeas
corpus. His petition was summarily denied by the habeas
corpus court on April 6, 2017. In its order denying relief,
the habeas corpus court noted that the petitioner had failed
to attach to his petition copies of his indictment showing
the allegations of attempted murder. On April 27, 2017, the
petitioner filed a "Motion to Alter or Amend Judgment,
" along with certified copies of his indictment, moving
the habeas corpus court to reconsider its previous order
because the petitioner had been unable to obtain the
indictment while incarcerated. On the same day, the
petitioner filed a notice of appeal to this court. In
response, the State argued, and the habeas corpus court
agreed, that the petitioner's motion should be denied
because the habeas corpus court lost jurisdiction to rule
upon it given the petitioner's notice of appeal to this
court. We now review the instant appeal.
petitioner apparently argues that his convictions for
possession of a firearm during the commission of a dangerous
felony are illegal because they are in direct contravention
of Tennessee Code Annotated section 39-17-1324(c). The State
urges this court to dismiss the petitioner's habeas
corpus appeal as incomplete because he failed to attach his
indictments with the petition which were essential for
determination by the habeas corpus court. The State further
insists that the petitioner's convictions for employing a
firearm during the commission of a dangerous felony are not
void because a firearm is not an essential element of
attempted first degree murder. For the reasons that follow,
procedural requirements for habeas corpus court relief are
mandatory and must be scrupulously followed. Summers v.
State, 212 S.W.3d 251, 260 (Tenn. 2007); Archer v.
State, 851 S.W.2d 157, 165 (Tenn. 1993). In the case of
an illegal sentence claim based on facts not apparent from
the face of the judgment, an adequate record for summary
review must include pertinent documents to support those
factual assertions. When such documents from the record of
the underlying proceedings are not attached to the habeas
corpus petition, a trial court may properly choose to dismiss
the petition without the appointment of counsel and without a
hearing. Summers, 212 S.W.3d at 261. In the case
herein, the petitioner's indictment for attempted first
degree murder was not included with his petition for habeas
corpus relief. The habeas corpus court noted in its order the
necessity for the indictments to complete its review of the
issue presented. In other words, without the indictment, the
habeas corpus court was unable to determine the precise
language used by the State to charge the petitioner with
attempted first degree murder. The issue presented clearly
required the reviewing court to evaluate the essential
elements as charged in the indictment of the underlying
offense to determine whether it violated Tennessee Code
Annotated section 39-17-1324(c).  See e.g. State v. Oscar
Thomas, No. W2012-01646-CCA-R3-PC, 2013 WL 5761398 at *
6-8 (Tenn. Crim. App., June 28, 2013). We therefore agree
with the State and conclude that the indictments were
essential for the habeas corpus court's review and
ultimate determination. As such, the petitioner failed to
adhere to the mandatory statutory requirements for a petition
for writ of habeas corpus relief. Because the indictments
were not included with or reviewed by the habeas corpus
court, summary dismissal was proper.
assuming compliance with the procedural requirements of
habeas corpus law, the petitioner is not entitled to relief
for several other reasons. First, the petitioner contends
that his dual convictions for attempted first degree murder
and employing a firearm during the commission of a dangerous
felony violate both the state and federal constitution. He
recognizes that double jeopardy claims are not cognizable
claims for habeas relief and instead submits that his dual
convictions violate "the Eighth and Fourteenth
Amendments based on cruel and unusual punishment and the
denial of due process and equal protection of the law."
For reasons not entirely clear, the petitioner supports his
claim with citation to State v. Michael L. Powell,
No. E2011-00155-CCA-R3-CD, 2012 WL 1655279, at *15 (Tenn.
Crim. App. May 10, 2012) (citing and quoting Adams v.
Murphy, 653 F.2d 224, 225 (5th Cir.1981) ("Nowhere
in this country can any man be condemned for a nonexistent
crime.")). The petitioner does not provide any other
argument or analysis in support of his Eighth Amendment
claim, and we deem it to be waived. Moreover, habeas corpus
claims based on violations of due process and equal
protection are not cognizable claims for habeas corpus
relief. See Summers, 212 S.W.3d at 261 (stating that
"the habeas corpus statutes are for the purpose of
challenging a void judgment" while "a
post-conviction petition may challenge a conviction or
sentence that is alleged to be void or voidable because of
the abridgement of constitutional rights"); Luttrell
v. State, 644 S.W.2d 408, 409 (Tenn. Crim. App.
1982)(reiterating that constitutional challenges to
convictions should be made in a post-conviction proceeding,
rather than a habeas corpus proceeding). Accordingly, the
petitioner's claims, even if properly brought, would not
render his judgments void.
to the extent that the petitioner claims that his convictions
for employing a firearm during the commission of a dangerous
felony were illegal because they were in direct contravention
of Tennessee Code Annotated section 39-17-1324(c), we
acknowledge his reliance upon Anthony D. Byers v.
State, 2012 WL 938976, at *8. Anthony D. Byers,
a post-conviction case, declared a conviction for employing a
firearm during the commission of a dangerous felony void
where the proof established that the deadly weapon in
question was a firearm, even though the indictment for the
underlying offense, especially aggravated kidnapping,
referred more broadly to a deadly weapon. As in Anthony
D. Byers, the petitioner argues without much analysis
that his convictions for employment of a firearm during the
commission of a dangerous felony, to wit: attempted first
degree murder, are void because he used a firearm during the
underlying offense. We have previously rejected the same
argument posited by the petitioner with regard to attempted
second degree murder. State v. Roy Demond Duncan,
No. W2012-00834-CCA-R3-CD, 2013 WL 2490551, at *5 (Tenn.
Crim. App. June 7, 2013)(citing State v. Stacy Allen
Bullard, No. E1999-00796-CCA-R3-CD, 2000 WL 277314, at
*8 (Tenn. Crim. App. March 15, 2000), perm. app.
denied (Tenn., Sept. 11, 2000) (the defendant's use
of a firearm was an applicable enhancement factor because it
is not an element of the offense of second degree murder);
see State v. Anthony Tony Sandy, No.
M2001-02376-CCA-R3-CD, 2003 WL ...