IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

LARRY McKAY v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 3662 Seth W. Norman, Judge

No. M2005-02141-CCA-R3-CO - Filed February 7, 2006

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by

memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petitioner

has appealed the trial court’s order summarily dismissing the petition for the writ of habeas corpus.

In that petition, the petitioner argues that his indictments were void because the applicable statute

under which he was indicted did not “define the use of a deadly weapon as an element of first degree

murder.” Upon a review of the record in this case we are persuaded that the trial court was correct

in summarily dismissing the habeas corpus petition 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 Circuit Court

Affirmed Pursuant to Rule 20 of the Tennessee Court of Criminal Appeals

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID H. WELLES and

ROBERT W. WEDEMEYER, JJ., joined.

Larry McKay, Nashville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; C. Daniel Lins, Assistant Attorney General; and

Victor S. (Torry) Johnson III, District Attorney General, Dan Hamm, Assistant District Attorney

General, for the appellee, the State of Tennessee.

MEMORANDUM OPINION

On or about November 3, 1982, the petitioner and a co-defendant were convicted of murder

in the perpetration of armed robbery and sentenced to death. The petitioner’s conviction and

sentence were affirmed on direct appeal. See State v. McKay, 680 S.W.2d 447, 453 (Tenn. 1984).

Since that time, the petitioner has filed at least four petitions for post-conviction relief. See, e.g.,

Michael Eugene Sample v. State, No. W1999-01202-CCA-R3-PC, 2001 WL 43381 (Tenn. Crim.

App., at Jackson, Jan. 17, 2001), perm. app. granted (Tenn. 2001), perm. app. denied (Tenn. 2001);

Michael E. Sample v. State, No. 02C01-9505-CR-000131, 1996 WL 551754 (Tenn. Crim. App., at
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Jackson, Sept. 30, 1996), perm. app. denied (Tenn. 1997); Michael E. Sample v. State, No. 02C01-

9104-CR-00062, 1995 WL 66563 (Tenn. Crim. App., at Nashville, Feb. 15, 1995), perm. app.

denied (Tenn. 1997); Larry McKay v. State, No. 25, 1989 WL 17507 (Tenn. Crim. App., at Jackson,

Mar. 1, 1989), perm. app. denied (Tenn. 1989), pet. to rehear granted (Tenn. 1989).

On June 16, 2005, the petitioner filed a pro se petition for writ of habeas corpus asserting that

his indictments were void because the applicable statute under which he was indicted did not “define

the use of a deadly weapon as an element of first degree murder.” On June 27, 2005, the trial court

dismissed the petition, finding that the petitioner failed to show that the indictments were void or that

he was convicted on the allegedly void indictments. The trial court also decided to dismiss the

petition because the petitioner failed to attach a copy of the underlying judgment to the petition or

provide a satisfactory reason for its absence as required by Tennessee Code Annotated section 29-21-

107(b)(2). On July 7, 2005, the petitioner filed a motion to alter or amend the judgment pursuant

to Rule 59.04 of the Tennessee Rules of Civil Procedure. The trial court denied the motion to alter

or amend and the petitioner appealed. 

On appeal, the petitioner asserts that the trial court erred in dismissing his petition without

allowing him to amend the petition within fifteen days under Rule 15.01 of the Tennessee Rules of

Civil Procedure. The petitioner also contends that the trial court erred in dismissing the petition

without requiring the State to file an answer. Specifically, he argues that because the State did not

file an answer, the trial court erred by not accepting all allegations in the petition as true. The

petitioner also complains that the trial court erred in dismissing the petition without a hearing.

Lastly, the petitioner contends that the trial court erred in denying the motion to alter or amend the

judgment pursuant to Rule 59.04 of the Tennessee Rules of Civil Procedure. 

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

McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). 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). 

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). 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).
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However, if after a review of the habeas petitioner’s filings the trial court determines that the

petitioner would not be entitled to relief, then the petition may be summarily dismissed. Tenn. Code

Ann. § 29-21-109; State ex rel. Byrd v. Bomar, 381 S.W.2d 280 (Tenn. 1964). Further, a trial 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 (Tenn. Crim. App.

1994), superceded by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC-00266,

1998 WL 104492, at *1 n.2 (Tenn. Crim. App., at Jackson, Mar. 11, 1998). 

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

followed. Hickman v. State, 153 S.W.3d 15, 19-20 (Tenn. 2004); Archer, 851 S.W.2d at 165. The

formal requirements for an application or petition for writ of habeas corpus are found at Tennessee

Code Annotated section 29-21-107:

(a) Application for the writ shall be made by petition, signed by either the party for

whose benefit it is intended, or some person on the petitioner’s behalf, and verified

by affidavit.

(b) The petition shall state:

(1) That the person in whose behalf the writ is sought, is illegally restrained of

liberty, and the person by whom and place where restrained, mentioning the name of

such person, if known, and if unknown, describing the person with as much

particularity as practicable; 

(2) The cause or pretense of such restraint according to the best information of the

applicant, and if it be by virtue of any legal process, a copy thereof shall be annexed,

or a satisfactory reason given for its absence; 

(3) That the legality of the restraint has not already been adjudged upon a prior

proceeding of the same character, to the best of the applicant’s knowledge and belief;

and

(4) That it is the first application for the writ, or, if a previous application has been

made, a copy of the petition and proceedings there shall be produced, or satisfactory

reasons should be given for the failure to do so. 

Tenn. Code Ann. § 29-21-107. “A habeas corpus court may properly choose to dismiss a petition

for failing to comply with the statutory procedural requirements . . . .” Hickman, 153 S.W.3d at 21.

First, we note that the petitioner herein failed to adhere to the mandatory requirements for

habeas corpus petitions under Tennessee Code Annotated section 29-21-107(b)(2) by failing to

include a copy of the judgment. The petitioner’s failure to comply with the mandatory requirements

for habeas corpus petitions alone provided adequate justification for the trial court’s dismissal of the

petition. Further, the trial court did not have to require the State to answer the petition prior to the

dismissal. As stated previously, a trial court may properly dismiss a petition for writ of habeas

corpus without a hearing, and presumably prior to any answer from the State, when the petition does

not demonstrate that a judgment is void. Dixon v. Holland, 70 S.W.3d 33, 36 (Tenn. 2002).
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Moreover, the trial court was not required to allow the petitioner to amend his petition under

Tennessee Rule of Civil Procedure 15.01. The Tennessee Rules of Civil Procedure do not general

apply to criminal cases. See Alley v. State, 882 S.W.2d 810, 816 (Tenn. Crim. App. 1994). Because

the petitioner has failed to properly demonstrate that he is entitled to habeas corpus relief, we affirm

the judgment of the trial court. 

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 and we affirm the judgment of the trial court. 

_________________________________________

THOMAS T. WOODALL, JUDGE