IN T H E C O U R T O F C R IM IN A L A P P E A L S O F T E N N E S S E E 

AT KNOXVILLE

Assigned on Briefs February 25, 2014

HAROLD TOLLEY v. SHARON TAYLOR, WARDEN

Appeal from the Criminal Court for Johnson County

No. CC-13-CV-89 Robert E. Cupp, Judge

No. E2013-01988-CCA-R3-HC - Filed March 11, 2014

The Petitioner, Harold Tolley, appeals the Johnson County Criminal Court’s summary

dismissal of his petition for habeas corpus relief from his 1998 conviction for first degree

murder and his resulting life sentence. The Petitioner contends that the trial court erred by

summarily denying relief because he was denied his right to defend himself at the trial by

presenting an intoxication defense to show he had diminished capacity. We affirm the

judgment of the trial court.

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

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which JAMESCURWOOD WITT,

JR., and D. KELLY THOMAS, JR., JJ., joined.

Harold Tolley, Mountain City, Tennessee, Pro Se.

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

Anthony Wade Clark, District Attorney General, for the appellee, State of Tennessee.

OPINION

According to this court’s opinion in the appeal of the Petitioner’s conviction, the

evidence at the trial showed that on March 1, 1997, the Petitioner crossed an open pasture,

crawled between the strands of a barbed wire fence, and walked to where the victim was

talking to Jerry and Cleon Price. Jerry Price testified that the Petitioner approached the

group, pulled a gun, and shot the victim in the left temple. He said that after the victim fell,

the Petitioner stood over the victim and shot him three more times. He said the Petitioner put

the gun in his back pocket and walked to his truck. Although the Defendant testified that he

shot the victim because the victim cursed him, hit him, and knocked him to the ground, Mr.

Price testified that no argument occurred, and Dr. William McCormick, who performed the
victim’s autopsy, testified that the victim’s hands had no injuries that were consistent with

the Petitioner’s claim that the victim hit him.

The Petitioner was convicted of first degree murder and received a life sentence. He

appealed his conviction, and this court affirmed it. State v. Harold Tolley, No. 03C01-9811-

CR-00386 (Tenn. Crim. App. Jan. 14, 2000), perm. app. denied (Tenn. Sept. 5, 2000).

In 2001, the Petitioner filed a petition for post-conviction relief, contending that he

received the ineffective assistance of counsel. Harold Tolley v. State, No. E2005-02260-

CCA-MR3-PC (Tenn. Crim. App. Dec. 21, 2006), perm. app. denied (Tenn. Apr. 23, 2007).

He argued that counsel was ineffective in advising him to forego the State’s plea offer and

in presenting his defense. Id. at 8. The trial court denied relief, and this court affirmed the

denial. Id. at 9.

The Petitioner filed a petition for a declaratory judgment in Davidson County

Chancery Court, arguing that Tennessee Code Annotated section 40-35-501(i) was

unconstitutional as applied to his life sentence. Harold Tolley v. Attorney General of

Tennessee, No. M2012-00551-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2012), perm. app.

denied (Tenn. Mar. 5, 2013). The trial court granted the Department of Correction’s motion

to dismiss, and the Tennessee Court of Appeals affirmed the dismissal. Id.

In his present habeas corpus petition, the Petitioner contended that he was denied his

rights to due process and equal protection because he suffered from a “mental disease or

defect” and could not form the culpable mental state required for a first degree murder

conviction. He argued that he was prescribed numerous medications to treat his mental

illness, that he had consumed one quart of “moonshine” whiskey on the day of the incident,

and that he had diminished capacity because of the combination of the medications and the

alcohol, which made premeditation impossible.

The State filed a motion to dismiss the petition, arguing that the Petitioner’s claim was

“essentially a sufficiency argument, which is not cognizable in habeas corpus,” and that this

court previously determined the evidence at the trial was sufficient to support the conviction.

The trial court granted the motion and summarily dismissed the petition for relief. This

appeal followed.

The Petitioner contends that he was denied his right to defend himself at the trial by

presenting an intoxication defense to show he had diminished capacity. He argues that at the

time of the offense, he was being treated by a physician, was prescribed “Lortab, Soma 350,

and Prozac,” and was drinking whiskey. He argues that he had diminished capacity because

of the drug and alcohol combination and that he had no memory of the offense. The State

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responds that the trial court properly dismissed the petition because the Petitioner failed to

establish his judgment was void. We agree with the State.

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

law that is reviewed de novo with no presumption of correctness. State v. Livingston, 197

S.W.3d 710, 712 (Tenn. 2006); Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2001). In

Tennessee, habeas corpus relief is available only when it appears on the face of the judgment

or the record that the trial court was without jurisdiction to convict or sentence the defendant

or that the sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). When

applicable, the purpose of the habeas corpus petition is to contest a void, not merely a

voidable, judgment. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999); State ex rel. Newsom

v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968).

A void, as opposed to a voidable, judgment is “one that is facially invalid because the

court did not have the statutory authority to render such judgment.” Summers v. State, 212

S.W.3d 251, 256 (Tenn. 2007). A voidable judgment “is one that is facially valid and

requires proof beyond the face of the record or judgment to establish its invalidity.” Id. at

255-56. The burden is on the petitioner to establish that the judgment is void or that the

sentence has expired. State ex rel. Kuntz v. Bomar, 381 S.W.2d 290, 291-92 (Tenn. 1964).

The trial court, however, may dismiss a petition for writ of habeas corpus without a hearing

and without appointing a lawyer when the petition does not state a cognizable claim for

relief. Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004); State ex rel. Edmondson v.

Henderson, 421 S.W.2d 635, 636-37 (Tenn. 1967); see T.C.A. § 29-21-109 (2010).

Regarding the Petitioner’s claim that he was denied hisright to present an intoxication

defense to show that he lacked the capacity of premeditation, “[t]he Sixth Amendment and

the Due Process Clause of the Fourteenth Amendment clearly guarantee a criminal defendant

the right to present a defense which includes the right to present witnesses favorable to the

defense.” State v. Brown, 29 S.W.3d 427, 432 (Tenn. 2000). However, this court has

recognized that challenges to convictions based upon constitutional violations in the

conviction proceedings are issues for post-conviction relief rather than habeas corpus relief.

Luttrell v. State, 644 S.W.2d 408, 409 (Tenn. Crim. App. 1982); see Fredrick B. Zonge v.

State, No. 03C01-9903-CR-00094, slip op. at 2 (Tenn. Crim. App. Dec. 16, 1999) (stating

“[a]lleged violations of constitutional rights are addressed in post-conviction, not habeas

corpus, proceedings”), perm. app. denied (Tenn. June 26, 2000). The Petitioner is not

entitled to relief.

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In consideration of the foregoing and the record as a whole, we affirm the judgment

of the trial court.

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JOSEPH M. TIPTON, PRESIDING JUDGE

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