IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 28, 2010

JOSE HOLMES v. HOWARD CARLTON, WARDEN

Appeal from the Criminal Court for Johnson County

No. 5452 Lynn Brown, Judge

No. E2009-01960-CCA-R3-HC - Filed August 26, 2010

The Petitioner,Jose Holmes, appeals pro se the trial court’s summary dismissal of his petition

for habeas corpus relief from his conviction for especially aggravated robbery, a Class A

felony, for which he was sentenced as a Range III, career offender to sixty years in the

Department of Correction. The Petitioner contends that the judgment is void because the

State failed to file a notice of intent to seek enhanced punishment at least ten days before the

trial. We affirm the judgment of the trial court.

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

JOSEPH M.TIPTON,P.J., delivered the opinion of the Court, in which JAMESCURWOODWITT,

JR., and J. C. MCLIN, JJ., joined.

Jose Holmes, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Deshea Dulany Faughn, Assistant

Attorney General, for the appellee, State of Tennessee.

OPINION

On October 5, 1994, the Petitioner was convicted by a jury in the Shelby County

Criminal Court of attempt to commit first degree murder and especially aggravated robbery.

The trial court imposed consecutive sixty-year sentences. On direct appeal, this court

affirmed the Petitioner’s conviction and sentence for especially aggravated robbery.

However, this court reversed the Petitioner’s conviction for attempt to commit first degree

murder. See State v.Jose Holmes, No. 02C01-9505-CR-00154, Shelby County (Tenn. Crim.

App. Dec. 10, 1997), app. denied (Tenn. Sept. 21, 1998). The Petitioner filed a petition for

post-conviction relief in which he contended that he received the ineffective assistance of

counsel. Following the appointment of counsel and an evidentiary hearing, the trial court
denied relief, and this court affirmed. See Jose D. Holmes v. State, No. W2000-02600-CCAR3-PC, Shelby County (Tenn. Crim. App. Jan. 30, 2002), reh’g denied (Tenn. Crim. App.

May 20, 2002), app. denied (Tenn. May 20, 2002). The Petitioner filed a petition for habeas

corpus relief on September 21, 2007, which was dismissed by the trial court for failure to

state a cognizable claim. The Petitioner appealed the dismissal, but after he failed to file an

appellate brief and failed to show cause why he had not done so, this court dismissed the

appeal. See Jose D. Holmes v. Howard Carlton, Warden, No. E2008-01529-CCA-R3-HC,

Johnson County (Tenn. Crim. App. Jan. 13, 2009) (Order).

On May 19, 2009, the Petitioner filed a pro se petition for habeas corpus relief in

which he contended that his judgment was void because the State did not file a notice of

intent to seek enhanced punishment until sixteen days after he had been convicted at the trial.

On August 3, 2009, the trial court dismissed the petition because it failed to state a

cognizable claim for habeas corpus relief. The notice of appeal was filed with the trial court

on September 9, 2009, a week after it was due.

On appeal, the Petitioner contends that the trial court erred in summarily dismissing

his petition for writ of habeas corpus. The State contends that the appealshould be dismissed

because the Petitioner failed to file a timely notice of appeal and failed to follow the

mandatory procedural requirements of the habeas corpus act. The State also contends that

the trial court properly dismissed the petition because it failed to state a cognizable claim for

habeas corpus relief. We agree with the State regarding the Petitioner’s failure to state a

cognizable claim for relief.

In Tennessee, the grounds upon which habeas corpus relief may be granted are very

narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The writ will issue only when the

petitioner has established lack of jurisdiction for the order of confinement or that he is

otherwise entitled to immediate release because of the expiration of his sentence. See Ussery

v. Avery, 432 S.W.2d 656 (1968); State ex rel. Wade v. Norvell, 443 S.W.2d 839 (1969).

The purpose of the habeas corpus petition is to contest a void, not merely a voidable,

judgment. State ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (1969). A void, as

opposed to a voidable, judgment is “one that is facially invalid because the court did not have

the statutory authority to render such judgment.” Summers v. State, 212 S.W.3d 251, 256

(Tenn. 2007). 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. at 255-56. A petitioner

bears the burden of establishing a void judgment or illegal confinement by a preponderance

of the evidence. See Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). A court may

summarily dismiss a petition for habeas corpusrelief, without the appointment of counsel and

without an evidentiary hearing, if the petition does not state a cognizable claim. See

Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004). Although a trial court may dismiss a

-2-
petition for failure to follow the procedural requirements of the habeas corpus statutes,

dismissal is not required. Id. at 21.

Rule 4 of the Tennessee Rules of Appellate Procedure requires a party to file a notice

of appeal within thirty days “after the date of entry of the judgment appealed from.”

T.R.A.P. 4(a). In the interest of justice, we may waive the timeliness requirement and

proceed to analyze the issues raised by the parties. Id. Tennessee Rule of Criminal

Procedure 49 provides that filings prepared by or on behalf of a pro se litigant incarcerated

in a correctional facility are deemed timely if the litigant delivered the filing to the

appropriate individual at the correctional facility within the time set for filing. T.R.C.P.

49(d).

We are unable to determine from the record whether the Petitioner delivered the notice

of appeal to an appropriate individual at the correctional facility within the time set for filing.

However, his notice of appeal was filed with the trial court one week late. Under these

circumstances, we conclude that the interest of justice warrants a waiver of the notice. 

On review we conclude the Petitioner’s claim does not state a claim upon which

habeas corpus relief is available. Proof of any deficiency regarding the State’s notice of

intent to seek enhanced punishment would, at best, only render the judgment voidable, not

void. See Michael Ralph Brown v. David Mills, Warden, No. E2007-01891-CCA-R3-HC,

Morgan County, slip op. at 4 (Tenn. Crim. App. Nov. 17, 2008) (holding that deficiencies

in the State’s notice of enhanced punishment would require extrinsic evidence beyond the

face of the record, rendering the judgments of conviction potentially voidable but not void).

In consideration of the foregoing and the record as a whole, we affirm the judgment

of the trial court.

____________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

-3-