### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT NASHVILL E

JI MMY HEARD v. J AMES FORTNE R, Wa rden an d

STATE OF TENNESS EE

Appeal f rom the Circ uit Court for Hickman County No. 09-5018C Jam es G . Mart in, III , Judge

No. M2009- 00899-CCA -R3-HC - F iled Augu st 12, 2009

The Petitioner, J immy Hea rd, appea ls from the trial court’s dismiss al of his petition seeking habea s corpus relief

. The State has filed a motion reque sting that this court aff irm the habea s corpus court’s dismiss al of the petition pursuant to Rule 20, Rules of the Court of Criminal Appe als. The State’s motion is g rante d. The judg ment of the ha beas c orpus cour

t is affirmed.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed P ursuan t to Rule 20, Tenn. Ct. Crim . App. R.

D A V I D H. W E L L E S , J
., delivere d the opinion of the court, in which J E R R Y L

. S M I T H and R O B E R T W. W E D E M E Y E R , J J ., joined.

J immy Hea rd, Pro Se.

Robert E. Cooper, J r., Attorney Gene ral and Reporter ; Be njamin Ba ll, Assistant Attorney Gene ral;, for the a ppellee, State of

Tenne ssee.

OP INION

We will first briefly set forth the proce dural backg round as i t relates to the appeal herein. Following a jury trial, the Petitioner was convicted of criminal co n s pirac y to commit ag g rava ted robber y , ag g rava

ted robber

y , attempted second deg ree murder, and two counts of felony evading

arr est. The trial court g rante d the Petitioner’s motion for a new trial as to the attempted second deg ree murder conviction but denied the motion for new trial as to the rema ining convictions. This
court subsequently g rante d the State’s application for a Rule 10 extraordinary appea l from the trial court’s g rant of a new trial on the attempted second deg ree murder conviction. This court aff irmed the order of the trial court g ranting the Petitioner a new trial as to t h e attempted second deg ree murder conviction. See State v. J immy Hea rd, No. M2007-01805-CCA-R3-CD, 2009 WL 723527 (Tenn. Crim. App., Na shville, March 18, 2009)

.During the pendenc y of the above extraordinary appea l, the Petitioner filed a petition seeking

habe as co rp u s relief in the Circuit Court of Hickman County

. I n this petition, the Petitioner
appar ently

asser ted that his convictions wer e void bec ause the trial court should have g rante d him

a new trial on all counts upon which he was convicted, rathe r than j u s t o n the conviction for attempted second deg ree murder. Although the Petit io n e r r a is e d n u me r o u s alleg ations in his petition, he appear ed to arg ue that beca use t he trial court gra

nted hi m relief on one of his con v i ct i o n s , t h i s rende red a ll of his convictions void.

Article 1, section 15 of the Tenne ssee Constit ution g uara ntees the rig ht to seek habea s corpus relief and our statutes codify the applicable proce dures for seeking a writ. Tenn. Code Ann. §§ 29- 21-201 et seq. Howeve r, the g rounds upon which our law provides relief are very narr ow. Tay lor

v. State, 995 S.W .2d 78, 83 (Tenn. 1999). Habe as corpus relief is available in Tenne ssee only when it appea rs upon the fac e of the judgme nt or the rec ord of the proce eding s upon which the judgme nt is rende red that (1) the convicting court was without jurisdiction or autho ri t y t o sentenc e the defe ndant; or (2) the defe ndant’s sentenc e has expired. Arc her v. State, 851 S.W .2d 157, 164 (Tenn. 1993). I t is permissible for a tri al co u rt t o summarily dismiss a petition for habea s corpus relief
, without the appointment of counsel and without an evidentiar y hear ing, if there is nothing on the fac e of the judgme nt to indicate that the convictions addre ssed there in are void. Passare lla v. State, 891 S.W .2d 619 (Tenn. Crim. App. 1994)

.

After revie wing the petitions and the briefs filed in this court, we ar e u n ab le to deter mine
prec isely what it is that the Petitioner is asser ting that might rende r his rema ining convictions void. The State arg ues that, if the alleg ations conce rning improper jury instructions have any merit at all, the alleg ations would rende r the co n v i ct ions voidable rathe r than void. Ba sed on our revie w, the Petitioner’s complaint does appea r to cente r around err oneous jury instructions which wer e not applicable to the Pet i t i o n er ’s convictions for criminal conspirac y to commit ag g rava ted robber y , ag g ravat ed ro b b er y , and two counts of felony evading arr est. I n any event, it is our view that the

err oneous jury in s tructions, if applicable to the rema ining convictions, would not rende r the convictions void.

Ba sed upon our review of t h e re co rd on appea l, we are unable t o conclude that the habeas
corpus court err ed by dismiss ing the petition seeking habea s corpus relief

. Acc ording ly
, the State’s motion is g rante d. The judgme nt of the habea s corpus court is aff irmed in acc ordanc e with Rule 20, Rules of the Court of Criminal Appea ls.

______________________________ DAVI D H. WEL L ES, J UDGE

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