IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs March 24, 2020

JOSEPH S. MCNAIR, JR. v. BERT BOYD, WARDEN

Appeal from the Criminal Court for Johnson County

No. CC-19-CV-94 Stacy L. Street, Judge

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No. E2019-01524-CCA-R3-HC

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Petitioner, Joseph S. McNair, Jr., appeals from the dismissal of his petition for habeas 

corpus relief. On appeal and in his pro se petition, Petitioner argues that he is entitled to 

habeas corpus relief because the trial court permitted the State to improperly amend the 

original indictment. After review of the record and the briefs, we affirm the judgment of 

the habeas corpus court. 

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Joseph S. McNair, Jr., Mountain City, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant 

Attorney General; and Kenneth C. Baldwin, District Attorney General, for the appellee, 

State of Tennessee.

OPINION

Background

Petitioner was convicted of possession with intent to sell more than 0.5 grams of 

cocaine in a drug-free zone, possession with intent to deliver more than 0.5 grams of 

cocaine in a drug-free zone, and simple possession of marijuana. The trial court merged

the two possession of cocaine convictions and imposed a sentence of twelve years to be 

served in confinement. The trial court further ordered a concurrent sentence of eleven 

months and twenty-nine days for the marijuana possession conviction. On direct appeal, 

Petitioner argued that the evidence was insufficient to support his conviction for 

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possession with intent to sell more than 0.5 grams of cocaine, and that the trial court erred 

by denying his motion to suppress. This court affirmed the convictions on appeal. State 

v. Joseph Sanford McNair, Jr., No. E2014-00916-CCA-R3-CD, 2015 WL 12978200 

(Tenn. Crim. App. Feb. 25, 2015). 

On April 9, 2019, Petitioner filed a pro se petition for writ of habeas corpus, 

alleging that the trial court lost jurisdiction when it permitted the State to improperly 

amend his indictment. After its review, the habeas corpus court summarily dismissed the 

petition. 

Analysis

Article I Section 15 of the Tennessee Constitution guarantees a convicted criminal 

defendant the right to seek habeas corpus relief. According to Tenn. Code Ann. §29-21-

101, “[a]ny person imprisoned or restrained of his liberty, under any pretense whatsoever 

. . . may prosecute a writ of habeas corpus, to inquire into the cause of such 

imprisonment.” However, the grounds for which such relief may be granted are very 

limited. State v. Richie, 20 S.W.3d 624, 629 (Tenn. 2000). 

Habeas corpus relief is available only in cases where it appears facially on the 

record, “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). Habeas corpus relief is therefore 

only available in instances of void judgements, as opposed to voidable judgments. 

Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). “A voidable judgment or sentence is 

one which is facially valid but which requires evidence beyond the face of the judgment 

or the record of the proceedings to establish its invalidity.” Powers v. State, No. M2009-

00937-CCA-R3-HC, 2010 WL 27948, at *1 (Tenn. Crim. App. May 12, 2010) (citing 

Taylor v. State, 995 S.W.2d at 83). Petitioners may not attack a facially valid judgment 

in a habeas corpus proceeding. Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992).

The petitioner bears the burden of establishing a void judgment by a 

preponderance of the evidence. Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005). 

Determining whether to grant habeas corpus relief is a question of law, and therefore 

appellate review is de novo. Summers v. State, 212 S.W.3d 251, 262 (Tenn. 2007).

Petitioner argues that he is entitled to habeas corpus relief because the trial court 

allowed the State to improperly amend his indictment. However, an improperly amended 

indictment renders a judgment voidable, not void on its face. Gary E. Aldridge v. State, 

No. M2005-01861-CCA-R3-HC, 2006 WL 1132073, at *3 (Tenn. Crim. App. Apr. 28, 

2006); Victor E. McConnel v. Morrow, No. E2010-02341-CCA-R3-HC, 2011 WL

1361569, at *3 (Tenn. Crim. App. April 11, 2011); Eric D. Wallace v. Chapman, No. 

M2012-00749-CCA-R3-HC, 2012 WL 5543055 (Tenn. Crim. App. Nov. 9, 2012).
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“Generally, defenses and objections based on a defective indictment must be raised prior 

to trial or they are waived.” Wyatt v. State, 24 S.W.3d 319, 322-23 (Tenn. 2000) (citing 

Tenn. R. Crim. P. 12(b)(2), (f)). However, “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). The Tennessee Supreme Court has stated that an 

indictment is valid if it contains sufficient information “(1) to enable the accused to know 

the accusation to which answer is required, (2) to furnish the court 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) (citing State v. Byrd, 820 S.W.2d 739, 741 

(Tenn. 1991); VanArsdall v. State, 919 S.W.2d 626, 630 (Tenn.Crim.App.1995); State v. 

Smith, 612 S.W.2d 493, 497 (Tenn. Crim. App. 1980)). In this case, there is no 

indication in the record that the indictment is invalid. Petitioner is not entitled to habeas 

corpus relief in this appeal.

CONCLUSION

The judgment of the habeas corpus court is affirmed. 

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 THOMAS T. WOODALL, JUDGE