IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 13, 2010

RICHARD REHAGEN v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Hardeman County

No. 09-CR-0176 Joe Walker, Judge

No. W2009-02176-CCA-R3-HC - Filed October 8, 2010

Petitioner Richard Rehagen filed a pro se habeas corpus petition challenging the validity of

his guilty pleas to one count of first degree murder, one count of attempted first degree

murder, and one count of aggravated arson. He now appeals the habeas court’s decision to

summarily dismiss the petition for failing to state a cognizable claim. Upon review, we

affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

NORMA MCGEE OGLE, J., delivered the opinion of the Court, in which JOHN EVERETT

WILLIAMS and ALAN E. GLENN, JJ., joined.

Richard Rehagen, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Finley, Assistant Attorney

General; D. Michael Dunavant, District Attorney General; for the appellee.

OPINION

Petitioner did not include any records from his underlying case in his petition or the

record on appeal. From the record before us, including this court’s opinion in Petitioner’s

prior post-conviction relief case, we gather that Petitioner pled guilty to one count of first

degree murder, one count of attempted first degree murder, and one count of aggravated

arson. Richard Rehagen v. State, No. W2003-00894-CCA-R3-PC, 2003 WL 22794527, at

*1 (Tenn. Crim. App. at Jackson, Nov. 19, 2003). He was sentenced to life in prison without

parole for the murder conviction and consecutive twenty-five year sentences for the other

counts.

According to the petition, Petitioner was indicted on May 9, 2000, and shortly
thereafter the State filed a notice that it intended to seek the death penalty. Petitioner claims

that his appointed counsel, the State, and the trial court all repeatedly advised him that the

State would pursue the death penalty if he did not plead guilty. He further claims that his

trial counsel informed him that he would likely receive the death penalty if he went to trial.

Those repeated warnings and Petitioner’s fear that he would indeed be sentenced to death

compelled him to plead guilty and accept a sentence of life without parole.

Petitioner claims that he was deceived because he was never actually in danger of

receiving the death penalty. Petitioner alleges that he underwent a psychological evaluation

prior to entering his plea in order to determine whether he was competent to stand trial and

that the results of that evaluation indicated that he had an intelligence quotient (I.Q.) of sixtynine. Citing Tennessee Code Annotated section 39-13-203(a), he contendsthat hisI.Q. made

him ineligible for the death penalty. He therefore concludes that he was coerced into

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pleading guilty based on inaccurate information and, consequently, that the judgments

rendered against him are void.

The habeas court summarily dismissed the petition without a hearing. It first ruled

that the petition was deficient because it failed to comply with certain mandatory procedures.

In particular, Petitioner failed to attach the challenged judgment or record. Second, noting

that Petitioner’s sentence had not yet expired and that the fraud Petitioner alleged did not

involve the trial court’s jurisdiction, the habeas court found that nothing in the petition

alleged that the trial court lacked authority to enter the judgment. Finally, the court

concluded that even if it were to construe the petition as one for post-conviction relief,

Petitioner fared no better because he had already filed such a petition.

On appeal, Petitioner asserts that the habeas court erred in concluding that an

involuntary plea claim does not state a cognizable basis for habeas relief, citing our supreme

court’s decision in Anglin v. Mitchell, 575 S.W.2d 284 (1979). He also asserts that the

habeas court erred in dismissing the petition without first appointing counsel.

Upon review, we conclude that the habeas court did not err in dismissing the petition.

We first conclude that the habeas court did not err in disposing of the case without

We note that “[s]ignificantly subaverage general intellectual functioning as evidenced by a

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functional intelligence quotient (I.Q.) of seventy (70) or below,” Tenn. Code Ann. § 39-13-203(a)(1), is just

one of three criteria that Petitioner would have to meet in order to satisfy the definition of “mental

retardation” under section 203(a). We also note that, since Petitioner’s conviction, the legislature has

substituted “intellectual disability” for the phrase “mental retardation.” See 2010 Pub. Acts, c. 734, § 1 (eff.

Apr. 9, 2010).

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appointing counsel. “There is no federal or state constitutional right to counsel in a habeas

corpus proceeding.” Summers v. State, 212 S.W.3d 251, 260 (Tenn. 2007). Indeed, a habeas

petitioner is not entitled to counsel even when he states a cognizable claim. See id. at 261.

Instead, “[a]ppointment of counsel in a state habeas corpus proceeding is within the trial

court’s discretion.” Id. at 260. The habeas court did not abuse that discretion here.

However, because Petitioner is proceeding pro se, we will give his petition the benefit of

liberal construction, as we must under Haines v. Kerner, 404 U.S. 519, 520 (1972).

We next conclude that the habeas court did not err in dismissing the petition. As an

initial matter, we note that “[w]ithout question, the procedural provisions of the habeas

corpus statutes are mandatory and must be followed scrupulously.” Archer v. State, 851

S.W.2d 157, 165 (Tenn. 1993). Specifically, Tennessee Code Annotated section 29-21-107

provides:

(a) Application for the writ shall be made by petition, signed either by the party

for whose benefit it is intended, or some person on the petitioner’s behalf, and

verified by affidavit.

(b) The petition shall state:

(1) That the person in whose behalf the writ is sought, is illegally restrained of

liberty, and the person by whom and place where restrained, mentioning the

name of such person, if known, and, if unknown, describing the person with

as much particularity as practicable;

(2) The cause or pretense of such restraint according to the best information

of the applicant, and if it be by virtue of any legal process, a copy thereof shall

be annexed, or a satisfactory reason given for its absence;

(3) That the legality of the restraint has not already been adjudged upon a prior

proceeding of the same character, to the best of the applicant’s knowledge and

belief; and

(4) That it is first application for the writ, or, if a previous application has been

made, a copy of the petition and proceedings thereon shall be produced, or

satisfactory reasons be given for the failure so to do.

Here, Petitioner failed to attach either the judgment or the underlying record to his petition,

as is required by subsection (b)(2). Because, as we have explained, Petitioner was not

entitled to counsel, we reject his argument that the trial court erred in not accepting his

request that counsel be appointed in order to obtain the relevant documents on his behalf.

“[S]ummary dismissal may be proper when . . . the petitioner fails to attach to the habeas

corpus petition pertinent documentsfrom the record of the underlying proceedingsto support

his factual claim.” Summers, 212 S.W.3d at 254. The trial court thus did not err in

dismissing the petition on procedural grounds.

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Even if we looked beyond Petitioner’s procedural errors, he fares no better. The

petition failed to state a cognizable claim for habeas relief.

The determination of whether to grant such relief is a question of law that we review

de novo. See Davis v. State, 313 S.W.3d 751, 755 (Tenn. 2010); Summers, 212 S.W.3d at

255. It is Petitioner’s burden to demonstrate, by a preponderance of the evidence, “that the

sentence is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322

(Tenn. 2000).

Article I, section 15 of the Tennessee Constitution guarantees an accused the right to

seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). Despite the

habeas statute’s “broad language, the grounds upon which habeas corpus relief will be

granted are narrow.” Davis, 313 S.W.3d at 758 (quotation marks omitted). Indeed, “[s]uch

relief is available only when it appears from the face of the judgment or the record of the

proceedings that a trial court was without jurisdiction to sentence a defendant or that a

defendant’s sentence of imprisonment or other restraint has expired.” Wyatt, 24 S.W.3d at

322; see also Tenn. Code Ann. § 29-21-101. In other words, habeas corpus relief may be

sought only when the judgment is void, not merely voidable. See Edwards v. State, 269

S.W.3d 915, 920 (Tenn. 2008); Taylor, 995 S.W.2d at 83. “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.’ We have recognized that a

sentence imposed in direct contravention of a statute, for example, is void and illegal.”

Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (quoting Taylor, 995 S.W.2d at 83).

Petitioner’s claim that his plea was involuntary does not state a cognizable claim for

habeas relief. “Voluntariness of the plea . . . has no relevance in a habeas corpus

proceeding.” Summers, 212 S.W.3d at 259. Our courts have long held that “challenges to

the voluntariness of guilty pleas” merely assert a claim that the judgment is voidable, not that

it is void. Archer, 851 S.W.2d at 164; see also McChristian v. State, 159 S.W.3d 608, 611

(Tenn. Crim. App. 2004); Passarella v. State, 891 S.W.2d 619, 627-28 (Tenn. Crim. App.

1994), superseded on other grounds as stated by State v. Steven S. Newman, No. 02C01-

9707-CC-00266, 1998 WL 104492, at *1 n.2 (Tenn. Crim. App. at Jackson, Mar. 11, 1998).

Petitioner’s reliance on Anglin is misplaced. While that case does contain dicta

stating that habeas corpus relief may be available to address errors regarding “certain

fundamental constitutional rights,” 575 S.W.2d at 287, that proposition has since been

squarely contradicted by our supreme court, see Archer, 851 S.W.2d at 163 (noting that the

supreme court “has not chosen to follow the unsupported dicta in Anglin in the years since

the release of that opinion”).

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Habeas corpus is simply not the proper mechanism to address Petitioner’s claim.

Rather, the proper procedure would have been through our post-conviction relief process.

See id. at 164; see also McChristian, 159 S.W.3d at 611. Indeed, the limited nature of our

habeas corpusremedy is precisely why our legislature adopted the Post-Conviction Procedure

Act. See Edwards, 269 S.W.3d at 919-20.

However, construing Petitioner’s claim as one for post-conviction relief still provides

Petitioner no relief. The petition would be barred by the statute of limitations. See Tenn.

Code Ann. § 40-30-102(a). Moreover, he has already filed a petition for post-conviction

relief contending that his plea was invalid, see Rehagen, No. W2003-00894-CCA-R3-PC,

2003 WL 22794527, at *1, and he cannot do so again, see Tenn. Code Ann. § 40-30-106(b).

We affirm the habeas court’s dismissal of the petition.

_________________________________

NORMA McGEE OGLE, JUDGE

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