IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON 

Assigned on Briefs July 10, 2012 

TIMOTHY L. MORTON v. STATE OF TENNESSEE

Appeal from the Circuit Court for Lake County

No. 11-CR-9635 R. Lee Moore, Jr., Judge

No. W2011-02632-CCA-R3-HC - Filed September 20, 2012

The Petitioner, Timothy L. Morton, appeals the Lake County Circuit Court’s summary

dismissal of his three petitions for writ of habeas corpus and its denial of his motion to

reinstate these petitions, wherein he alleged that the trial court’s judgment revoking his

probation and ordering his one-year sentence for DUI, fourth offense, and two-year sentence

for driving in violation of the Motor Vehicle Habitual Offenders Act (MVHOA) into

execution is void. Upon review, we affirm the judgments summarily dismissing the petitions

for habeas corpus relief and denying the motion for reinstatement of the petitions for habeas

corpus relief.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and ALAN E. GLENN, JJ., joined.

Timothy L. Morton, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Senior Counsel; C.

Phillip Bivens, District Attorney General; and Kelly A. Lawrence, Assistant District Attorney

General, for the Appellee, State of Tennessee.

OPINION

Background. The Petitioner, Timothy L. Morton, entered guilty pleas to DUI, fourth

offense and driving in violation of the MVHOA, Class E felonies, on August 9, 2010.

Pursuant to his plea agreement, the Petitioner was sentenced as a Range II, multiple offender

to a one-year sentence for the DUI, fourth offense, to be served on probation after he was

given jail credit for the 150 days of incarceration ordered by the trial court and to a

consecutive a two-year sentence for the driving in violation of the MVHOA offense to be
served on probation, for an effective sentence of three years on probation. On March 22,

2011, the trial court revoked the Petitioner’s probationary sentences for DUI, fourth offense,

and driving in violation of the MVHOA and ordered into execution his effective sentence of

three years. The Petitioner filed a direct appeal claiming that the trial court had abused its

discretion in revoking his probation and ordering his sentences into execution, and this court

affirmed the trial court’s judgment. State v. Timothy L. Morton, No. M2011-00876-CCAR3-CD, 2012 WL 1080480, at *1 (Tenn. Crim. App. Mar. 30, 2012).

On October 18, 2011, the Petitioner filed his first petition for writ of habeas corpus

in the Lake County Criminal Court, alleging that the trial court’s judgment revoking his

probation and ordering his one-year sentence for DUI, fourth offense, and two-year sentence

for driving in violation of the MVHOA into execution is void. On November 4, 2011, the

habeas corpus court summarily dismissed his petition because the Petitioner failed to verify

the petition by affidavit and failed to attach the pertinent judgment forms.

On November 7, 2011, the Petitioner filed a second petition for writ of habeas corpus,

again alleging that the trial court’s judgment revoking his probation and ordering his oneyear sentence for DUI, fourth offense, and two-year sentence for driving in violation of the

MVHOA into execution is void. He also alleged for the first time that he was given jail

credits for a period of incarceration from February 25, 2011, to March 22, 2011, pursuant to

the March 22, 2011 probation revocation order.

On November 15, 2011, the Petitioner filed a motion entitled “Reinstatement of Writ

of Habeas Corpus.” In this motion, the Petitioner attached a third petition for writ of habeas

corpus, separately filed by the Lake County Circuit Court clerk’s office on November 15,

2011, which was identical in substance to his second petition. The Petitioner also attached

judgment forms for his guilty pleas to DUI, fourth offense, and driving in violation of the

MVHOA, which were entered on August 9, 2010; a copy of the March 22, 2011 probation

revocation order; copies of the Tennessee Offender Management Information System

(TOMIS) reports for the aforementioned convictions; and a notarized affidavit verifying the

petition. In the motion, the Petitioner alleged that the trial court’s judgment revoking his

probation and ordering his one-year sentence for DUI, fourth offense, and two-year sentence

for driving in violation of the MVHOA into execution is void because he claimed he

completed the sentence for the DUI, fourth offense, prior to the issuance of the probation

revocation warrant on February 25, 2011. He also alleged that the number of street time

credits stated in the TOMIS report for the DUI, fourth offense, was incorrect because it

differed from the periods of jail credit stated in the March 22, 2011 probation revocation

order.

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On November 21, 2011, the trial court filed an order summarily dismissing the second

petition filed on November 7, 2011, on the grounds that the Petitioner failed to verify the

petition by affidavit and failed to attach the relevant judgments forms. On December 5,

2011, the trial court filed an order denying the Petitioner’s motion to reinstate the petitions

for writ of habeas corpus on the following grounds: (1) there was no basis to reinstate the

properly dismissed habeas corpus petitions, (2) the Petitioner failed to raise any issue in his

motion for which habeas corpus relief was available, and (3) even if the petitions were

reinstated, the Petitioner failed to state a cognizable claim for habeas corpus relief. The

Petitioner then filed a timely notice of appeal.

ANALYSIS

On appeal, the Petitioner alleges that the trial court’s judgment revoking his probation

and ordering his one-yearsentence for DUI, fourth offense, and two-yearsentence for driving

in violation of the MVHOA into execution is void because he claims he completed the

sentence for the DUI, fourth offense, prior to the issuance of the probation revocation

warrant on February 25, 2011. He claims that the trial court improperly revoked his one-year

sentence for DUI, fourth offense, when it revoked his two-year sentence for driving in

violation of the MVHOA, which resulted in the trial court ordering into execution his

original effective sentence of three years. In addition, he alleges that his due process rights

were violated by his appearance at the Board of Parole for a three-year sentence, rather than

a two-year sentence. Finally, he claims that the calculation of his jail credits for the DUI,

fourth offense, was incorrect. In response, the State argues that the habeas corpus court did

not err in summarily dismissing the petitions. We agree with the State.

“The determination of whether habeas corpus relief should be granted is a question

of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21

S.W.3d 901, 903 (Tenn. 2000)). Accordingly, our review is de novo without a presumption

of correctness. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (citing State v.

Livingston, 197 S.W.3d 710, 712 (Tenn. 2006)).

A prisoner is guaranteed the right to habeas corpus relief under Article I, section 15

of the Tennessee Constitution. Tenn. Const. art. I, § 15; see T.C.A. §§ 29-21-101 to -130.

The grounds upon which a writ of habeas corpus may be issued, however, are very narrow.

Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). “Habeas corpus relief is available in

Tennessee only when ‘it appears upon the face of the judgment or the record of the

proceedings upon which the judgment is rendered’ that a convicting court was without

jurisdiction or authority to sentence a defendant, or that a defendant’s sentence of

imprisonment or other restraint has expired.” Archer v. State, 851 S.W.2d 157, 164 (Tenn.

1993) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 337 (1868)). “[T]he purpose of

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a habeas corpus petition is to contest void and not merely voidable judgments.” Potts v.

State, 833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel. Newsom v. Henderson, 424

S.W.2d 186, 189 (Tenn. 1968)). 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.” Taylor, 995 S.W.2d at 83 (citing Dykes v. Compton,

978 S.W.2d 528, 529 (Tenn. 1998); Archer, 851 S.W.2d at 161-64)). However, as the

Tennessee Supreme Court stated in Hickman v. State:

[A] voidable judgment is facially valid and requires the introduction of proof

beyond the face of the record or judgment to establish its invalidity. Thus, in

all cases where a petitioner must introduce proof beyond the record to establish

the invalidity of his conviction, then that conviction by definition is merely

voidable, and a Tennessee Court cannot issue the writ of habeas corpus under

such circumstances.

153 S.W.3d 16, 24 (Tenn. 2004) (internal citations, quotations, and emphasis omitted); see

Summers, 212 S.W.3d at 256 (citation omitted). Moreover, it is the petitioner’s burden to

demonstrate, by a preponderance of the evidence, that the judgment is void or that the

confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). If this burden is

met, the Petitioner is entitled to immediate release. State v. Warren, 740 S.W.2d 427, 428

(Tenn. Crim. App. 1986) (citing Ussery v. Avery, 432 S.W.2d 656, 658 (Tenn. 1968)).

If the habeas corpus court determines from the petitioner’s filings that no cognizable

claim has been stated and that the petitioner is not entitled to relief, the petition for writ of

habeas corpus may be summarily dismissed. See Hickman, 153 S.W.3d at 20. Further, the

habeas corpus court may summarily dismiss the petition 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 are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.

1994), superseded by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC00266, 1998 WL 104492, at *1 n.2 (Tenn. Crim. App., at Jackson, Mar. 11, 1998). “The

petitioner bears the burden of providing an adequate record for summary review of the

habeas corpus petition, including consideration of whether counsel should be appointed.”

Summers, 212 S.W.3d at 261.

Additionally, the procedural requirements for habeas corpus relief are mandatory and

must be scrupulously followed. Summers, 212 S.W.3d at 259 (citations omitted). Tennessee

Code Annotated section 29-21-107(a) provides that the petition for writ of habeas corpus

must be signed and verified by affidavit. In addition, the statute requires that the petition

state:

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(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 first application for the writ, or, if a previous application has been

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

satisfactory reasons be given for the failure so to do.

T.C.A. § 29-21-107(b) (2006). A trial court properly may choose to summarily dismiss a

petition for failing to comply with the statutory procedural requirements. Id.

Here, the Petitioner did not fulfill the procedural requirement in Tennessee Code

Annotated section 29-21-107(a) because he failed to verify by affidavit his first and second

petitions. In addition, the Petitioner did not fulfill the procedural requirement in Tennessee

Code Annotated section 29-21-107(b)(2) because he failed to attach to his first and second

petitions copies of the judgments that were the cause of his restraint. Accordingly, the

habeas corpus court could have dismissed these petitions based on these grounds alone. See

id. § 29-21-107(a), (b)(2); Summers, 212 S.W.3d at 259.

Notwithstanding the Petitioner’s failure to follow the aforementioned procedural

requirements, we conclude that the habeas corpus court properly dismissed the petitions, as

well as the motion for reinstatement of the habeas corpus petitions, because they failed to

state a cognizable claim for habeas corpus relief. First, the Petitioner alleges that the trial

court’s judgment revoking his probation and ordering his one-year sentence for DUI, fourth

offense, and two-year sentence for driving in violation of the MVHOA into execution is void

because he claims he completed the sentence for the DUI, fourth offense, prior to the

issuance of the probation revocation warrant on February 25, 2011. He claims that the trial

court improperly revoked his one-year sentence for DUI, fourth offense, when it revoked his

two-year sentence for driving in violation of the MVHOA, which resulted in the trial court

ordering into execution his original effective sentence of three years.

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Here, the judgment form shows that the Petitioner was ordered to serve one year of

probation on the DUI, fourth offense, beginning on August 9, 2010. Based on the record,

this one-year probationary sentence did not expire until August 9, 2011. Because the

probation revocation warrant was issued on February 25, 2011, the Petitioner’s one-year

probationary sentence had not expired at the time the probation revocation warrant was

issued.

Because the judgment revoking the Petitioner’s probation is facially valid and the

limited appellate record provided by the Petitioner does not show that this judgment is void,

we conclude that the Petitioner’s claim is not a cognizable claim for habeas corpus relief.

See Wyatt, 24 S.W.3d at 322 (Tenn. 2000) (stating that habeas corpus relief “is available only

when it appears from the face of the judgment or the record of the proceedings that a trial

court was without jurisdiction to sentence a defendant or that a defendant’s sentence of

imprisonment or other restraint has expired”). Moreover, we note that the Petitioner failed

to include a copy of the transcript from the probation revocation hearing. The appellant has

a duty to prepare a record that conveys “a fair, accurate and complete account of what

transpired with respect to those issues that are the bases of appeal.” Tenn. R. App. P. 24(b).

“In the absence of an adequate record on appeal, we must presume that the trial court’s ruling

was supported by the evidence.” State v. Bibbs, 806 S.W.2d 786, 790 (Tenn. Crim. App.

1991) (citing Smith v. State, 584 S.W.2d 811, 812 (Tenn. Crim. App. 1979); Vermilye v.

State, 584 S.W.2d 226, 230 (Tenn. Crim. App. 1979)).

Interestingly, the Petitioner cites State v. Watkins, 972 S.W.2d 703 (Tenn. Crim. App.

1998), in support of his argument that the trial court’s judgment revoking his probation and

ordering his one-year sentence for DUI, fourth offense, and two-year sentence for driving in

violation of the MVHOA into execution is void because his sentence for the DUI, fourth

offense, had expired at the time that the February 25, 2011, probation violation warrant was

issued. In Watkins, the defendant was convicted of two Class A misdemeanors. Id. at 704.

After awarding jail credit in the amount of five months and eight days for one of the

convictions, the court imposed consecutive sentences of eleven months and twenty-nine days

to be served on probation. Id. The certified question of law for review was “whether the

probationary term had expired prior to the commencement of the revocation proceeding.”

Id. Initially, this court noted that the defendant could not be sentenced to a term longer than

eleven months and twenty-nine days for each of the Class A misdemeanors. Id. at 705 (citing

T.C.A. § 40-35-111(e)(1)). Ultimately, this court concluded that “[b]ecause the sentence of

the defendant began at the time he was placed in jail, the trial court had no authority to

revoke probation after each of the two consecutive eleven-month, twenty- nine-day sentences

had expired.” Id. at 705-06. In a footnote, the court also noted that even if both of the

consecutive sentences of eleven months and twenty-nine days had been proper, the first

sentence would have expired prior to issuance of the probation violation warrant, thereby

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resulting in revocation of only the second of the two sentences. Id. at 706 n.1 (citing State

v. Jeffrey D. Hunter, No. 01C01-9608-CC-00334, 1997 WL 672650 (Tenn. Crim. App., at

Nashville, Oct. 30, 1997), aff’d, 1 S.W.3d 643 (Tenn. 1999)).

In the instant case, the Petitioner was sentenced as a Range II, multiple offender to a

one-year sentence for the DUI, fourth offense, to be served on probation after he was

awarded 283 days of jail credit for the 150 days of incarceration ordered by the trial court and

to a consecutive a two-year sentence for the driving in violation of the MVHOA offense to

be served on probation, for an effective sentence of three years on probation. Unlike in

Watkins, the Petitioner’s sentence for the DUI, fourth offense, was not void because the court

had the authority to award him 283 days of jail credit and to impose a one-year probationary

sentence. See T.C.A. § 40-35-112(b)(5) (stating that a Range II sentence for a Class E felony

is two to four years); § 40-35-111(b)(5) (stating that the statutorily authorized sentence for

a Class E felony is not less than one year nor more than six years); Hoover v. State, 215

S.W.3d 776, 779 (Tenn. 2007) (concluding that although the defendant’s plea bargained

sentence was “outside the parameters of Range I offenders,” the sentence was “well within

the overall punishment range authorized for Class A felony offenses”). Because the

probation violation warrant was issued on February 25, 2011, more than five months before

the expiration of the sentence for the DUI, fourth offense, the Petitioner is not entitled to

relief pursuant to Watkins.

Second, the Petitioner alleges that his due process rights were violated by his

appearance at the Board of Parole for a three-year sentence, rather than a two-year sentence.

We also conclude that this claim is not a cognizable claim for habeas corpus relief. See

Summers, 212 S.W.3d at 261 (stating that “the habeas corpus statutes are for the purpose of

challenging a void judgment” while “a post-conviction petition may challenge a conviction

or sentence that is alleged to be void or voidable because of the abridgement of constitutional

rights”); Smith v. Hesson, 63 S.W.3d 725, 728 (Tenn. Ct. App. 2001) (stating that an

allegation of a due process violation is not a cognizable claim for habeas corpus relief);

Luttrell v. State, 644 S.W.2d 408, 409 (Tenn. Crim. App. 1982) (reiterating that

constitutional challenges to convictions should be made in a post-conviction proceeding,

rather than a habeas corpus proceeding). Finally, the Petitioner claims that the calculation

of his jail credits for the DUI, fourth offense, was incorrect. However, this claim is also not

a cognizable claim for habeas corpus relief. See State v. Bobby Blackmon, No.

M2002-00612-CCA-R3-CO, 2003 WL 21250809, at *1 (Tenn. Crim. App. May 30, 2003)

(holding that “a dispute over the award of jail credit is not proper for habeas review since

even if the appellant is correct his sentence would not be void nor would it have expired”),

perm. app. denied. (Tenn. Oct. 6, 2003); Don L. Hancock v. State, No. 01C01-9710-CR00489, 1998 WL 453682, at *1 (Tenn. Crim. App. July 30, 1998) (stating that “complaints

regarding sentence credit miscalculations that relate to release eligibility short of full service

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of the sentence do not warrant habeas corpus relief”), perm. app. denied (Tenn. Feb. 16,

1999).

We also agree with the State that the Petitioner failed to establish that his three-year

sentence in the Tennessee Department of Correction has expired. The judgments show that

the Petitioner entered guilty pleas to DUI, fourth offense, and driving in violation of the

MVHOA on August 9, 2010. He received a one-year sentence for the DUI offense to be

served on probation after he was given jail credit for the 150 days of incarceration imposed

and a consecutive two-year sentence for the violation of the MVHOA offense to be served

on probation, for an effective sentence of three years on probation. At the time that these

judgments were entered, the trial court awarded the Petitioner 283 days of pretrial jail credit

before giving him time served for the 150 days of incarceration imposed for the DUI

conviction. The Petitioner’s probation was subsequently revoked on March 22, 2011, and

the trial court ordered into execution the Petitioner’s original effective sentence of three

years. Pursuant to the probation revocation order, the Petitioner was awarded the 283 pretrial

jail credits as well as 42 additional days jail credit for time served, for a total of 325 days of

jail credit. A three-year sentence totals 1,095 days. From the March 22, 2011 probation

revocation order to the date that the Petitioner filed his brief, the Petitioner served a total of

351 days on his three-year sentence. Taking into account his jail credit of 325 days as well

as the 351 days that he served prior to filing his brief, the Petitioner had 419 days remaining

on his three-year sentence. Accordingly, the Petitioner’s sentence has not expired, and he

is not entitled to habeas corpus relief on this basis.

The Petitioner has not established that the trial court’s judgment is void or that his

sentence has expired. Accordingly, the habeas corpus court’s summary dismissal of the

petitions for habeas corpus relief and denial of the motion for reinstatement of the petitions

for habeas corpus relief was proper.

CONCLUSION

We affirm the summary dismissal of the petitions for writ of habeas corpus and the

denial of the motion for reinstatement of the petitions for habeas corpus relief.

______________________________

CAMILLE R. McMULLEN, JUDGE

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