IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 7, 2010

JAMES E. LOFTON v. HENRY STEWARD, WARDEN 

Appeal from the Circuit Court for Lauderdale County

No. 6391 Joseph H. Walker, III, Judge

No. W2010-01122-CCA-R3-HC - Filed January 31, 2011

The petitioner, James E. Lofton, appeals the Lauderdale County Circuit Court’s dismissal of

his petition for writ of habeas corpus. Following our review, we affirm the summary

dismissal of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the Court, in which THOMAS T. WOODALL and

JOHN EVERETT WILLIAMS, JJ., joined.

James E. Lofton, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Deshea Dulany Faughn, Assistant

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS and PROCEDURAL HISTORY

On April 19, 1985, the petitioner was convicted by a Shelby County Criminal Court

jury of larceny from the person, armed robbery, and assault with intent to commit first degree

murder. The jury also found him guilty of being an habitual criminal regarding each offense.

State v. James Earl Lofton, 1986 WL 1672, at *1 (Tenn. Crim. App. Feb. 5, 1986), perm. to

appeal denied (Tenn. Apr. 28, 1986). The trial court sentenced him to three life sentences

for the convictions, with the life sentences for the armed robbery and felonious assault

convictions to be served concurrently to each other but consecutively to the life sentence for

the larceny from the person conviction. Id. This court affirmed the judgments of the trial

court, and our supreme court denied the petitioner’s application for permission to appeal. Id.
The petitioner subsequently filed a petition for post-conviction relief, which was

denied by the post-conviction court. James Earl Lofton v. State, No. 02C01-9306-CR-00111,

1995 WL 7679, at *1 (Tenn. Crim. App. Jan. 11, 1995), perm. to appeal denied (Tenn. June

12, 1995). Among other claims, the petitioner alleged that his guilty pleas in prior cases, on

which the jury had relied for its finding that he was an habitual criminal, were unknowing

and involuntary. Id. On direct appeal, this court vacated the petitioner’s 1970 conviction for

third degree burglary but held that the remaining convictions were sufficient to “sustain the

jury’s finding of habitual criminality.” Id. at *6.

In November 2005, the petitioner challenged the jury’s finding that he was an habitual

criminal in another petition for post-conviction relief, which was dismissed by the postconviction court without a hearing. Jimmy Earl Lofton v. State, No. 02C01-9603-CR-00073,

1997 WL 100810, at *1 (Tenn. Crim. App. Mar. 7, 1997), perm. to appeal denied (Tenn. Oct.

6, 1997). This court affirmed the summary dismissal of the petition, concluding, among

other things, that the issue had been previously determined and that the petition was barred

by the statute of limitations. Id. at *1-2. Our supreme court subsequently denied the

petitioner’s application for permission to appeal. Id. at *1.

On July 29, 2005, the petitioner filed a petition for writ of habeas corpus, which was

dismissed without a hearing, in which he alleged that the habitual criminalstatute wasillegal.

This court affirmed the summary dismissal, finding that the habitual criminal statute was not

unconstitutional, and our supreme court denied the petitioner’s application for permission to

appeal. Paul L. Hawkins and James Earl Lofton v. State, No. M2005-02807-CCA-R3-HC,

2006 WL 2206094, at *1-3 (Tenn. Crim. App. July 27, 2006), perm. to appeal denied (Tenn.

Dec. 27, 2006).

On March 24, 2010, the petitioner filed the petition at issue in this case, alleging that

he is being illegally restrained because he “was never effectively sentenced according to his

actual convictions, but instead, illegally sentenced as being an Habitual Criminal under the

1982 Criminal Sentencing Act.” On April 16, 2010, the habeas court entered an order

dismissing the petition without a hearing on the basis that the petitioner’s allegations did not

entitle him to habeas corpus relief. This appeal followed.

ANALYSIS

Whether the petitioner is entitled to habeas corpus relief is a question of law.

Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007); Hart v. State, 21 S.W.3d 901, 903

(Tenn. 2000). As such, our review is de novo with no presumption of correctness given to

the trial court’s findings and conclusions. Id.

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It is well-established in Tennessee that the remedy provided by a writ of habeas corpus

is limited in scope and may only be invoked where the judgment is void or the petitioner’s

term of imprisonment has expired. Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007);

State v. Ritchie, 20 S.W.3d 624, 629 (Tenn. 2000); State v. Davenport, 980 S.W.2d 407, 409

(Tenn. Crim. App. 1998). 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, 212 S.W.3d at 256 (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)).

A petitioner bears the burden of establishing a void judgment or illegal confinement by a

preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

Furthermore, when “a habeas corpus petition fails to establish that a judgment is void, a trial

court may dismiss the petition without a hearing.” Summers, 212 S.W.3d at 260 (citing

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

The habitual criminal statute, which has since been repealed, provided for enhanced

punishment of life imprisonment for enumerated felonies if a defendant had the requisite

number of prior felonies. See Tenn. Code Ann. § 39-1-801 et seq. (1982) (repealed 1989).

Procedurally, a defendant was charged with the underlying offense in one count of the

indictment or presentment and with being an habitual criminal in a second count, with the

jury considering evidence in support of the habitual criminal charge after finding the

defendant guilty of the underlying substantive offense. See id.; State v. Wyrick, 62 S.W.3d

751, 763-64 (Tenn. Crim. App. 2001). The Habitual Criminal Act did not, however, “‘create

an independent crime but a status prescribing circumstances under which there is an

enhanced penalty for the present crime.’” Wyrick, 62 S.W.3d at 764 (quoting Harrison v.

State, 394 S.W.2d 713, 714 (Tenn. 1965); State v. Duffel, 665 S.W.2d 402, 404 (Tenn. Crim.

App. 1983)).

The petitioner does not challenge the jury’s finding that he was an habitual criminal

in the instant case. Instead, his argument, as we understand it, is that his judgments for his

substantive offenses were never final, thereby rendering his confinement illegal, because the

trial court failed to pronounce separate sentences for the underlying substantive offenses

before sentencing him to life imprisonment in accordance with the habitual criminal counts

of the indictment.

As the State points out, this court addressed a similar issue in Canupp v. State, 460

S.W.2d 382 (Tenn. Crim. App. 1970), where a petitioner “attack[ed] the validity of his

conviction as an habitual criminal on the sole basis that in his original trial the court did not

pronounce judgment upon the jury’s verdict finding him guilty of grand larceny, his

insistence being that a judgment by the trial court upon that verdict was a positive

prerequisite to the habitual criminal judgment.” Id. at 384. We rejected that claim,

concluding that, since the petitioner’s status as an habitual criminal mandated life

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imprisonment for his conviction, there was no error in the sentencing procedure employed

by the trial court:

Thus, it can no longer be open to question or debatable that it is wholly

unnecessary for the trial court to pronounce separate judgments upon the

verdict of the jury finding the defendant guilty of the specified crime presently

charged, and also upon the verdict finding him guilty as an habitual criminal.

It would be an idle thing to hold that the trial court must pronounce judgment

upon the verdict of the jury finding the defendant guilty of the present crime,

when the punishment for that offense (except in cases punishable by death) is

by statute automatically and mandatorily increased to life imprisonment upon

the defendant’s conviction as an habitual criminal. The law does not concern

itself with trifles. As a matter of law, as an habitual criminal the defendant is

subject to that punishment and no other.

Id. at 384-85.

We are unpersuaded by the petitioner’s argument that his case is distinguishable from

Canupp because the Canupp jury, in returning its verdict on the substantive offense,

“sentenced” Canupp by fixing his punishment at three years in the state penitentiary. See id.

at 383; see also State v. Jay Will Kilby, No. 03C01-9110-CR-00332, 1992 WL 97086, at *1

(Tenn. Crim. App. May 12, 1992) (noting that trial court’s having imposed life sentences

upon jury’s finding of defendant’s habitual criminality, without first having sentenced the

defendant upon his guilty plea convictions for the triggering offenses, was a procedure

authorized both by statute and by the holding in Canupp). We conclude, therefore, that the

habeas corpus court’s summary dismissal of the petition was proper.

CONCLUSION

We conclude that the petitioner’s allegations do not entitle him to habeas corpusrelief.

Accordingly, we affirm the summary dismissal of his petition for writ of habeas corpus.

_________________________________

ALAN E. GLENN, JUDGE

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