IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

ERIC C. PENDLETON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 87-S-777

No. M2010-01494-CCA-R3-HC - Filed May 10, 2011

This matter is before the Court upon the State’s motion to dismiss or in the alternative to

affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules

of the Court of Criminal Appeals. Petitioner, Eric C. Pendleton, has appealed the trial court’s

order dismissing his petition for writ of habeas corpus in which Petitioner alleged that the

indictments upon which he was convicted were void for failing to name all the essential

elements of the crimes. Upon a review of the record in this case, we are persuaded that the

trial court was correct in dismissing the petition for habeas corpus relief and that this case

meets the criteria for affirmance pursuant to Rule 20, Rules of the Court of Criminal

Appeals. Accordingly, the State’s motion is granted, and the judgment of the trial court is

affirmed.

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

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

JERRY L. SMITH,J., delivered the opinion of the court, in which THOMAS T.WOODALL and ROBERT

W. WEDEMEYER, JJ. joined.

Eric D. Pendleton, Pro Se, Nashville, Tennessee.

Robert E. Cooper, Jr., Attorney General & Reporter, and Mark A. Fulks, Assistant Attorney General,

for the appellee, State of Tennessee.

MEMORANDUM OPINION

Petitioner is no stranger to the judicial process. This case presents an extensive

procedural posture starting with Petitioner’s convictions for first degree murder and

aggravated assault in 1987, for which he received an effective life sentence. State v. Eric

Cordell Pendleton, No. 87-189-III, 1988 WL 99743, at *1 (Tenn. Crim. App., at Nashville,

Sept. 28, 1988), perm. app. denied, (Tenn. Dec. 27, 1988). Petitioner’s convictions were

affirmed on appeal, and the supreme court denied permission to appeal. Id.
Subsequently, Petitioner sought post-conviction relief for the first time on May 24,

1989, alleging ineffective assistance of counsel. His petition was denied by the postconviction court. The denial of relief was upheld by this Court on appeal. Eric Pendleton

v. State, No. 01C019001CR00008, 1990 WL 109112 (Tenn. Crim. App., at Nashville, Aug.

3, 1990), perm. app. denied, (Tenn. Nov. 13, 1990).

Petitioner filed a second petition for post-conviction relief on September 24, 1991, in

which he argued that the trial court erred by denying him an evidentiary hearing and delayed

appeal regarding issues appellate counsel failed to raise. See Eric Pendleton v. State, No.

01C01-9305-CR-00149, 1994 WL 142301, at *1 (Tenn. Crim. App., at Nashville, Apr. 21,

1994), perm. app. denied, (Tenn. Nov. 6, 1995), reh’g granted, (Tenn. Feb. 5, 1996).

Specifically, he complained that the trial court failed to give him an opportunity to prove that

he did not waive the issues in the first post-conviction proceeding. This Court remanded the

matter to the trial court for a hearing regarding waiver. Id. After a hearing, the trial court

again dismissed the petition. Petitioner again sought an appeal. The dismissal of the second

petition for post-conviction relief was affirmed. Eric Pendleton v. State, No. 01C01-9305-

CR-00149, 1996 WL 134214 (Tenn. Crim. App., at Nashville, Mar. 22, 1996), perm. app.

denied, (Tenn. Oct. 21, 1996). This Court determined that under House v. State, 911 S.W.2d

705 (Tenn. 1995), Petitioner’s allegations did not “provide justification for his failure to

present these issuesin his previous post-conviction cases.” Eric Pendleton v. State, 1996 WL

134214, at *2.

While the second petition for post-conviction relief was on appeal, Petitioner sought

habeas corpus relief. The trial court treated the petition as a petition for post-conviction

relief and found it time-barred. This Court affirmed the dismissal on appeal. Eric C.

Pendleton v. State, No. 01C01-9604-CR-00158, 1997 WL 59501 (Tenn. Crim. App., at

Nashville, Feb. 13, 1997), perm. app. denied, (Tenn. Oct. 13, 1997).

Petitioner also filed a petition for writ of error coram nobis in 2003, which was denied

by the trial court. The denial of relief was affirmed on appeal. State v. Eric C. Pendleton,

No. M2003-01762-CCA-R3-CD, 2004 WL 1144040 (Tenn. Crim. App., at Nashville, May

20, 2004), reh’g denied, (Tenn. Crim. App. June 25, 2004), perm. app. denied, (Tenn. Nov.

8, 2004), reh’g denied, (Tenn. Dec. 20, 2004).

On February 22, 2010, Petitioner filed his second writ of habeas corpus, the subject

of the appeal herein. The trial court determined that Petitioner did not present a proper

ground for obtaining habeas corpus relief and denied the petition for relief. Petitioner sought

a timely appeal from the denial of relief.

Analysis

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Petitioner claims that he is being held illegally and is entitled to habeas corpus relief

because the indictments against him were constitutionally defective. Specifically, he claims

the indictments failed to allege all the elements of the crimes charged. As a result of the

deficiencies, Petitioner suggests that his convictions and sentences are void. The State

disagrees.

The determination of whether to grant habeas corpus relief is a question of law. See

Hickman v. State, 153 S.W.3d 16, 19 (Tenn. 2004). As such, we will review the habeas

corpus 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).

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). A writ of

habeas corpus is available only when it appears on the face of the judgment or the record that

the convicting court was without jurisdiction to convict or sentence the defendant or that the

defendant is still imprisoned despite the expiration of his sentence. Archer v. State, 851

S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). In other

words, habeas corpus relief may be sought only when the judgment is void, not merely

voidable. See 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, 955 S.W.2d at 83).

However, if after a review of the habeas petitioner’s filings the habeas corpus court

determines that the petitioner would not be entitled to relief, then the petition may be

summarily dismissed. T.C.A. § 29-21-109; State ex rel. Byrd v. Bomar, 381 S.W.2d 280

(Tenn. 1964). Further, a habeas corpus court may summarily dismiss a petition for writ of

habeas corpus without the appointment of a lawyer and without an evidentiary hearing if

there is nothing on the face of the judgment to indicate that the convictions addressed therein

are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

The procedural requirements for habeas corpus relief are mandatory and must be

scrupulously followed. Summers v. State, 212 S.W.3d 251, 260 (Tenn. 2007); Hickman, 153

S.W.3d at 19-20; Archer, 851 S.W.2d at 165. A habeas corpus court “properly may choose

to summarily dismiss a petition for failing to comply with the statutory procedural

requirements.” Summers, 212 S.W.3d at 260; See also Hickman, 153 S.W.3d at 21.

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Although in most instances a challenge to the sufficiency of an indictment is not a

proper claim to raise in a habeas corpus proceeding, see Haggard v. State, 475 S.W.2d 186,

187-88 (Tenn. Crim. App. 1971), “the validity of an indictment and the efficacy of the

resulting conviction may be addressed in a petition for habeas corpus when the indictment

is so defective as to deprive the court of jurisdiction.” Dykes v. Compton, 978 S.W.2d 528,

529 (Tenn. 1998). An indictment meets constitutional requirements if it provides sufficient

information: (1) to enable the accused to know the accusation to which an answer is required,

(2) to furnish the court an adequate basis for the entry of a proper judgment; and (3) to

protect the accused from double jeopardy. State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997).

In addition, an indictment must state the facts of the offense in ordinary and concise language

“in a manner so as to enable a person of common understanding to know what is intended.”

T.C.A. § 40-13-202.

The trial court herein determined that the indictments, even if faulty, would render the

judgments voidable, not void. The indictment in Count One stated that Petitioner and a codefendant:

[W]ith force and arms, in the County aforesaid, unlawfully, feloniously,

willfully, deliberately, premeditatedly and maliciously, did make an assault

upon the body of one Don Thomas Moore and the said [Petitioner and codefendant] then and there did unlawfully, feloniously, willfully, deliberately,

premeditatedly, and of their malice aforethought, kill and murder the said Don

Thomas Moore against the peace and dignity of the State of Tennessee.

The indictment in Count Two stated that Petitioner and a co-defendant:

[W]ith force and arms, in the County aforesaid, unlawfully, and feloniously did

attempt to cause or willfully or knowingly cause[d] bodily injury to Mamie

Williams with a deadly weapon and to wit a pistol and did thereby commit the

crime and felony of aggravated assault in violation of section 39-2-101

Tennessee Code Annotated and against the peace and dignity of the State of

Tennessee.

The language of the indictments closely tracks the language of the statutes that were in effect

at the time of Petitioner’s crimes. See T.C.A. § 39-2-201 (1986); T.C.A. § 39-2-101 (1986).

Having reviewed the indictments contained in the record on appeal, we cannot conclude that

the trial court erred in its assessment that the indictments were sufficient and that Petitioner

has failed to demonstrate that he is entitled to habeas corpus relief by failing to show that the

judgments are void. Petitioner is not entitled to relief on this issue.

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Conclusion

Rule 20, Rules of the Court of Criminal Appeals provides inter alia:

The Court, with the concurrence of all judges participating in the case, when

an opinion would have no precedential value, may affirm the judgment or

action of the trial court by memorandum opinion rather than by formal opinion,

when:

The judgment is rendered or the action taken in a proceeding before the trial

judge without a jury, and such judgment or action is not a determination of

guilt, and the evidence does not preponderate against the finding of the trial

judge . . . .

We determine that this case meets the criteria of the above-quoted rule and, therefore,

we grant the State’s motion filed under Rule 20. We affirm the judgment of the trial court.

____________________________________

JERRY L. SMITH, JUDGE

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