IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

OMOWALE A. SHABAZZ AKA FRED EDMOND DEAN v. JAMES

WORTHINGTON, WARDEN

Appeal from the Circuit Court for Morgan County

No. 9394 E. Eugene Eblen, Judge

No. E2008-01627-CCA-R3-HC - Filed February 11, 2009

The petitioner, Omowale A. Shabazz, filed in the Morgan County Circuit Court a petition for a writ

of habeas corpus. The habeas corpus court summarily dismissed the petition, and the petitioner

appeals. The State filed a motion requesting that this court affirm the habeas corpus court’s denial

of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. After review, we conclude

that the petition was properly dismissed. Accordingly, the State’s motion is granted and the

judgment of the habeas corpus court is affirmed. 

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

to Rule 20, Rules of the Court of Criminal Appeals.

NORMA MCGEE OGLE,J., delivered the opinion of the court, in which JAMES CURWOOD WITT,JR.,

and D. KELLY THOMAS, JR., JJ., joined.

Omowale A. Shabazz, Nashville, Tennessee, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Sophia S. Lee, Assistant Attorney

General, for the appellee, State of Tennessee.

MEMORANDUM OPINION

Previously, this court summarized the procedural history of the petitioner’s case as follows:

The Sullivan County grand jury charged the [p]etitioner, Fred

Edmond Dean a/k/a Omowale A. Shabazz, by presentment with one

count each of first degree murder and attempted first degree murder;

a Sullivan County jury convicted the [p]etitioner of second degree

murder and attempted second degree murder, and the trial court

sentenced him to consecutive thirty and fifteen year sentences,

respectively. The convictions and sentences were affirmed on direct

appeal. See State v. Fred Edmond Dean, No.

03C01-9508-CC-00251, 1997 WL 7550 (Tenn. Crim. App., at
-2-

Knoxville, Jan. 10, 1997), perm. app. denied (Tenn. Sept. 2, 1997).

The [p]etitioner’s post-conviction petition was also denied after an

evidentiary hearing, but this [c]ourt vacated the conviction for

attempted second degree murder and the Tennessee Supreme Court

affirmed that decision. See Fred Edmond Dean v. State, No.

E1998-00135-CCA-R3-PC, 2000 WL 337552 (Tenn. Crim. App., at

Knoxville, Mar. 21, 2000), perm. app. denied (Tenn. Nov. 13, 2000);

Dean v. State, 59 S.W.3d 663 (Tenn. 2001).

Omowale A. Shabazz v. Jim Worthington, Warden, No. E2007-00634-CCA-R3-HC, 2007 WL

2984694, at *1 (Tenn. Crim. App. at Knoxville, Oct. 15, 2007), perm. to appeal denied, (Tenn.

2008). Thereafter, the petitioner filed a habeas corpus petition, which was denied for failure to

comply with procedural requirements. On appeal, this court affirmed the dismissal of that habeas

corpus petition. Id. at *2. 

The petitioner then filed in the Morgan County Circuit Court his instant petition for habeas

corpus relief. In the petition, the petitioner argued that Tennessee Code Annotated section 39-13-

210, the second degree murder statute, is unconstitutional because it is vague and overbroad in that

it prohibits knowing killings perpetrated in self-defense. He also argued that at the time of his trial

in 1995, Tennessee courts “defined ‘knowing’ or ‘knowingly’ in a way that was vague and

overbroad. It wasn’t until . . . State v. Ducker, 27 S.W.3d 889 (Tenn. 2000) [was decided] that the

‘knowing’ element was sufficiently defined for second degree murder.” As further support, the

petitioner also cited State v. Page, 81 S.W.3d 781, 785 (Tenn. Crim. App. 2002) and stated that

“[t]he ‘knowing’ element at petitioner’s trial was defined in the exact manner as that rejected by the

Ducker court.”

In response, the State filed a motion to dismiss the petition, contending that the second

degree murder statute is not unconstitutional. In an order, the habeas corpus court summarily stated

that “the Court is of the opinion that the petition is not well-taken and that the [State’s] motion to

dismiss should be granted.” 

The petitioner now appeals, arguing that the habeas corpus court was “extremely vague” in

stating the reasons for dismissing his petition. Further, he argues that Rule 12.02 of the Tennessee

Rules of Civil Procedure mandated that the court dismiss a habeas corpus petition “only when no

set of facts will entitle the petitioner to relief, or when the petition is totally lacking in clarity or

specificity.” The petitioner does not argue about the merits of his habeas corpus petition. The State

responds that the habeas corpus court correctly dismissed the petition. 

Initially, we note that the determination of whether to grant habeas corpus relief is a question

of law. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). As such, we will review the trial

court’s findings de novo without a presumption of correctness. Id. Moreover, it is the 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).
-3-

Article I, § 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). However, “[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 (2000). In other words, habeas corpus relief may be sought only when the judgment

is void, not merely voidable. 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) (citation omitted). Our supreme court has stated that “[w]hen the habeas

corpus petition fails to demonstrate that the judgment is void, a trial court may properly dismiss the

petition without a hearing.” Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004). 

In order to determine whether the trial court correctly dismissed the petition, we must first

determine whether the petition raised grounds for habeas corpus relief. In the petition, the petitioner

challenged his second degree murder conviction, arguing that the second degree murder statute is

unconstitutionally vague. However, our case law does not support his claim. See State v. Suttles,

30 S.W.3d 252, 268-69 (Tenn. 2000) (appendix); State v. JerryTaylor, No. 01C01-9612-CC-00499,

1998 WL 424570, at *8 (Tenn. Crim. App. at Nashville, July 29, 1998). Moreover, contrary to the

petitioner’s assertions, a killing in self-defense is, under Tennessee law, considered justifiable. See

Tenn. Code Ann. § 39-11-611(a). Thus, the petitioner is not entitled to habeas corpus relief on this

basis. 

Moreover, regarding the petitioner’s complaint concerning the jury instruction on the mens

rea of “knowing,” this court has previously stated, “Erroneous jury instructions meet none of the .

. . requirements for habeas corpus relief. The only method of collaterally attacking the judgment

because of constitutional deprivations occasioned by erroneous jury instructions is by petition for

post conviction relief.” Willie Edward Thornton v. Fred Raney, Warden, No.

02C01-9302-CC-00025, 1994 WL 25827, at *1 (Tenn. Crim. App. at Jackson, Jan. 26, 1994). In

other words, such an error, if one existed, does not render the petitioner’s conviction void.

Therefore, the petitioner is not entitled to habeas corpus relief on this basis.

Based upon our review of the record, we conclude that the habeas corpus court properly

dismissed the petition for failure to state a claim warranting habeas corpus relief. Accordingly, the

State’s motion is granted. The judgment of the trial court is affirmed pursuant to Rule 20, Rules of

the Court of Criminal Appeals. 

___________________________________ 

NORMA McGEE OGLE, JUDGE