Court of Criminal Appeals of Tennessee, Nashville
FREDERICK R. ROSS, JR.
STATE OF TENNESSEE
Assigned on Briefs December 11, 2019
from the Criminal Court for Sumner County No. 548-2015 Dee
David Gay, Judge
Frederick R. Ross, Jr., appeals from the summary denial of
his petition for writ of habeas corpus challenging his
guilty-pleaded conviction for selling hydrocodone, a Schedule
II drug. Because Petitioner failed to state a cognizable
claim for habeas corpus relief, we affirm the judgment of the
habeas corpus court.
R. App P. 3 Appeal as of Right; Judgment of the Criminal
Frederick, R. Ross, Jr., Gallatin, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter;
Samantha L. Simpson, Assistant Attorney General; L. Ray
Whitely, District Attorney General; and Bryna Grant,
Assistant District Attorney General, for the appellee, State
Timothy L. Easter, J., delivered the opinion of the court, in
which Robert W. Wedemeyer and Robert L. Holloway, Jr., JJ.,
TIMOTHY L. EASTER, JUDGE
relevant to this appeal, on November 23, 2015, Petitioner
pled guilty to one count of selling a Schedule II controlled
substance, hydrocodone, with an offense date of May 15, 2015,
along with multiple counts in other cases. See State v.
Frederick R. Ross, No. M2016-02180-CCA-R3-CD, 2018 WL
1152005, at *1 (Tenn. Crim. App. Mar. 5, 2018), no perm.
app. filed. Petitioner received a sentence of 6 years
for the sale of hydrocodone, and the trial court suspended
the total effective sentence of 12 years to supervised
probation. Id. at *1. Petitioner's probation was
subsequently revoked, and Petitioner was ordered to serve his
sentence. Id. at *3.
7, 2019, Petitioner filed a pro se petition for habeas corpus
relief. Petitioner claimed that hydrocodone did not become a
Schedule II controlled substance until July 1, 2015, 57 days
after his offense. As a result, Petitioner argued that the
judgment and indictment in his case charged an "ex[
]post facto offense, are void and must be dismissed."
The habeas corpus court summarily dismissed the petition on
May 29, 2019, after concluding that hydrocodone was listed as
a Schedule II controlled substance on the date of the
offense, making the judgment facially valid and not void. It
is from this dismissal that Petitioner filed a timely notice
argues that the indictment and subsequent conviction for sale
of a Schedule II controlled substance are illegal and void as
a violation of the constitutional prohibition against ex post
facto laws because hydrocodone was listed as a Schedule III
controlled substance instead of a Schedule II controlled
substance on the date of the offense. Petitioner also argues
that the habeas corpus court erred in not appointing him an
attorney. The State argues that the habeas corpus court
properly dismissed the petition without a hearing because
Petitioner's grounds for the writ were meritless and not
cognizable for habeas corpus relief. We agree with the State.
Tennessee, "[a]ny person imprisoned or restrained of his
liberty, under any pretense whatsoever . . . may prosecute a
writ of habeas corpus, to inquire into the cause of such
imprisonment and restraint." T.C.A. § 29-21-101.
While there is no statute of limitations for filing a
petition for a writ of habeas corpus, the grounds upon which
relief may be granted are narrow. Hickman v. State,
153 S.W.3d 16, 20 (Term. 2004). Habeas corpus relief is only
available when it appears on the face of the judgment or
record of the proceedings that the convicting court was
without jurisdiction or that the defendant is still
imprisoned despite the expiration of his sentence. Id.;
Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). In
other words, habeas corpus relief may be granted only when
the judgment of conviction is void, rather than merely
voidable. Summers v. State, 212 S.W.3d 251, 255
(Tenn. 2007). A void judgment is "one that is facially
invalid because the court did not have the statutory
authority to render such judgment." Id. at 256
(citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn.
1998)). A voidable judgment is "one that is facially
valid and requires proof beyond the face of the record or
judgment to establish its invalidity." Id.
petitioner bears the burden of showing, by a preponderance of
the evidence, that the judgment is void. Wyatt v.
State,24 S.W.3d 319, 322 (Tenn. 2000). However, if the
habeas corpus court determines that there is nothing on the
face of the judgment to indicate that the conviction
contained therein is illegal, it may summarily dismiss the
petition without the appointment of counsel and without an
evidentiary hearing. Summers, 212 S.W.3d at 261;
T.C.A. 8 29-21-109. Because the issue of whether habeas
corpus relief should be granted is a question ...