IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned On Briefs March 29, 2011

WILLIAM PAUL BOGUS v. JIM MORROW, WARDEN and STATE OF

TENNESSEE

Appeal from the Circuit Court for Bledsoe County

No. 2010-CR-44 J. Curtis Smith, Judge

No. E2010-02368-CCA-R3-HC - Filed May 10, 2011

Petitioner, William Paul Bogus, was convicted of first degree felony murder. See State v.

William Paul Bogus, No. 02C01-9506-CC-00169, 1998 WL 22031, at *1 (Tenn. Crim. App.,

at Jackson, Jan. 22, 1998), perm. app. denied, (Tenn. Nov. 2, 1998). Petitioner later alleged

in a petition for habeas corpus relief that his conviction was void because he was not

convicted of the underlying felony and because the indictment was defective. The lower

court dismissed the petition without a hearing. Petitioner appeals. Because nothing on the

face of the judgment shows that Petitioner’s life sentence has expired or that the conviction

is void, we affirm the dismissal of the petition for habeas corpus relief.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.

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

William P. Bogus, Pro Se, Pikeville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney

General; and J. Michael Taylor, District Attorney General, for the appellee, State of

Tennessee.

OPINION

Factual Background

Petitioner was indicted in December of 1993 by the Dyer County Grand Jury for first

degree premeditated murder, first degree felony murder, and aggravated robbery, for his role

in the death of his wife. State v. William Paul Bogus, 1998 WL 22031, at *1. The facts at
trial showed that Petitioner’s wife was a waitress at Shoney’s. Id. On the night of her death,

she took home thirty-one dollars in tips in one-dollar bills. Id. According to several

witnesses, Petitioner was looking for drugs, specifically cocaine, and was seen with a large

quantity of one-dollar bills. Id. at *2-4. Petitioner was convicted by a jury of first degree

felony murder and sentenced to life without the possibility of parole. Id. at *1. On appeal,

this Court affirmed the judgment of the trial court. Id. The Supreme Court denied

permission to appeal.

Petitioner subsequently sought post-conviction relief, claiming ineffective assistance

of trial and appellate counsel, juror misconduct, insufficient evidence, and suppression of

exculpatory evidence. William Paul Bogus v. State, No. W2000-00348-CCA-R3-PC, 2001

WL 91737 (Tenn. Crim. App., at Jackson, Jan. 31, 2001), perm. app. denied, (Tenn. May 7,

2001). This Court denied post-conviction relief on appeal. Id. at *10. The supreme court

denied permission to appeal.

On September 17, 2007, Petitioner filed the petition for writ of habeas corpus at issue

herein. In the petition, he claimed that his conviction for felony murder was “in direct

contravention” of the to statute because he “was not found guilty of the stated underlying

felony of Robbery, . . . or any lesser-included offense . . . .” Petitioner also claimed that he

was convicted as the result of a defective indictment. Specifically, Petitioner claimed that

Count Three of the indictment classified aggravated robbery as a “Class A” felony when in

reality it is a Class B felony. Petitioner asserted that the improper classification was a

violation of his rights to “due process and a fair trial.”

The habeas corpus court entered an order on November 9, 2010, dismissing the

petition for habeas corpus relief. The habeas court noted that there was no requirement that

Petitioner be convicted of the underlying felony and that this Court had upheld Petitioner’s

conviction on direct appeal. Additionally, the habeas corpus court determined that the

indictment was valid.

Petitioner filed a timely notice of appeal. On appeal, Petitioner abandons his

challenge to the indictment but insists that the habeas corpus court improperly dismissed his

petition. Specifically, Petitioner contends that he is entitled to habeas corpus relief because

he was not convicted of the underlying felony.

Analysis

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

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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.

Petitioner alleges that he is entitled to habeas relief because he was convicted

of felony murder without being convicted of the underlying felony. We disagree. It is wellsettled that “[c]onsistency in verdicts for multiple count indictments is unnecessary as each

count is a separate indictment.” Wiggins v. State, 498 S.W.2d 92, 93-94 (Tenn. 1973).

“[T]his Court has consistently declined to disturb one conviction on the basis that the jury’s

acquittal on another offense is inconsistent, even when the elements and evidence of the two

offenses intertwine or are the same.” State v. Shane Michael Grogger, No. M2008-02015-

CCA-R3-CD, 2009 WL 3832921, at *14 (Tenn. Crim. App., at Nashville, Nov. 17, 2009),

perm. app. denied, (Tenn. Apr. 14, 2010) (specifically upholding a felony murder conviction

where the defendant was not convicted of the underlying felony).

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Furthermore, in considering this issue, the habeas corpus court determined that

Petitioner was essentially challenging the sufficiency of the convicting evidence. The habeas

corpus court reiterated that a claim challenging the sufficiency of the evidence is not

cognizable in a habeas corpus proceeding. See Gant v. State, 507 S.W.2d 133, 136 (Tenn.

Crim. App. 1973) (stating that habeas corpus proceedings may not be used to challenge the

sufficiency of evidence presented at trial). Moreover, the sufficiency of the convicting

evidence was upheld on direct appeal. See William Paul Bogus, 1998 WL 22031, at *1. The

Tennessee Supreme Court has held that pursuant to the law of the case doctrine an appellate

court may not consider issues that have been previously determined on appeal:

[U]nder the law of the case doctrine, an appellate court’s decision on an issue

of law is binding in later trials and appeals of the same case if the facts on the

second trial or appeal are substantially the same as the facts in the first trial or

appeal. The doctrine applies to issues that were actually before the appellate

court in the first appeal and to issues that were necessarily decided by

implication. The doctrine does not apply to dicta.

Memphis Publ’g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303,

306 (Tenn. 1998) (internal citations omitted);see also Creech v. Addington, 281 S.W.3d 363,

383 (Tenn. 2009). Therefore, we also conclude that this Court has previously determined this

issue. Petitioner has not shown that his judgment is void or that his sentence has expired.

Accordingly, Petitioner is not entitled to relief on this issue.

Conclusion

For the foregoing reasons, the judgment of the habeas corpus court is affirmed.

___________________________________

JERRY L. SMITH, JUDGE

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