IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 11, 2019

FREDERICK R. ROSS, JR. v. STATE OF TENNESSEE

Appeal from the Criminal Court for Sumner County

No. 548-2015 Dee David Gay, Judge

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No. M2019-01117-CCA-R3-HC

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Petitioner, Frederick R. Ross, Jr., appeals from the summary denial of his petition for writ

of habeas corpus challenging his guilty-pleaded conviction for selling hydrocodone, a 

Schedule II drug. Because Petitioner failed to state a cognizable claim for habeas corpus 

relief, we affirm the judgment of the habeas corpus court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and ROBERT L. HOLLOWAY, JR.,JJ., joined.

Frederick, R. Ross, Jr., Gallatin, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant 

Attorney General; L. Ray Whitely, District Attorney General; and Bryna Grant, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

As relevant to this appeal, on November 23, 2015, Petitioner pled guilty to one 

count of selling a Schedule II controlled substance, hydrocodone, with an offense date of 

May 15, 2015, along with multiple counts in other cases. See State v. Frederick R. Ross, 

No. M2016-02180-CCA-R3-CD, 2018 WL 1152005, at *1 (Tenn. Crim. App. Mar. 5, 

2018), no perm. app. filed. Petitioner received a sentence of 6 years for the sale of 

hydrocodone, and the trial court suspended the total effective sentence of 12 years to 

supervised probation. Id. at *1. Petitioner’s probation was subsequently revoked, and 

Petitioner was ordered to serve his sentence. Id. at *3. 

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On May 7, 2019, Petitioner filed a pro se petition for habeas corpus relief. 

Petitioner claimed that hydrocodone did not become a Schedule II controlled substance

until July 1, 2015, 57 days after his offense. As a result, Petitioner argued that the 

judgment and indictment in his case charged an “ex[ ]post facto offense, are void and 

must be dismissed.” The habeas corpus court summarily dismissed the petition on May 

29, 2019, after concluding that hydrocodone was listed as a Schedule II controlled 

substance on the date of the offense, making the judgment facially valid and not void. It 

is from this dismissal that Petitioner filed a timely notice of appeal. 

Analysis

Petitioner argues that the indictment and subsequent conviction for sale of a 

Schedule II controlled substance are illegal and void as a violation of the constitutional 

prohibition against ex post facto laws because hydrocodone was listed as a Schedule III 

controlled substance instead of a Schedule II controlled substance on the date of the 

offense. Petitioner also argues that the habeas corpus court erred in not appointing him 

an attorney. The State argues that the habeas corpus court properly dismissed the petition 

without a hearing because Petitioner’s grounds for the writ were meritless and not 

cognizable for habeas corpus relief. We agree with the State.

In Tennessee, “[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 and restraint.” T.C.A. § 29-21-101. While there is no statute of 

limitations for filing a petition for a writ of habeas corpus, the grounds upon which relief 

may be granted are narrow. Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004). Habeas 

corpus relief is only available when it appears on the face of the judgment or record of 

the proceedings that the convicting court was without jurisdiction or that the defendant is 

still imprisoned despite the expiration of his sentence. Id.; Archer v. State, 851 S.W.2d 

157, 164 (Tenn. 1993). In other words, habeas corpus relief may be granted only when 

the judgment of conviction is void, rather than merely voidable. Summers v. State, 212 

S.W.3d 251, 255 (Tenn. 2007). A void judgment is “one that is facially invalid because 

the court did not have the statutory authority to render such judgment.” Id. at 256 (citing 

Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)). 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. 

The petitioner bears the burden of showing, by a preponderance of the evidence, 

that the judgment is void. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). However, if 

the habeas corpus court determines that there is nothing on the face of the judgment to 

indicate that the conviction contained therein is illegal, it may summarily dismiss the 

petition without the appointment of counsel and without an evidentiary hearing. 

Summers, 212 S.W.3d at 261; T.C.A. § 29-21-109. Because the issue of whether habeas 
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corpus relief should be granted is a question of law, we conduct a de novo review without 

any presumption of correctness given to the decision of the lower court. Summers, 212 

S.W.3d at 255.

Ex post facto laws are forbidden under both the United States and Tennessee 

Constitutions. See U.S. Const. art. 1, §10, cl. 1; Tenn Const. art. I, § 11. The Ex Post 

Facto Clause of the Tennessee Constitution has the same definition and scope as the 

federal clause. State v. Pruitt, 510 S.W.3d 398, 416 (Tenn. 2016). Generally, the ex post 

facto prohibition is aimed at laws that “retroactively alter the definition of crimes or 

increase the punishment for criminal acts.” Kaylor v. Bradley, 912 S.W.2d 728, 732 

(Tenn. Ct. App. 1995) (quoting California Dep’t of Corrs. v. Morales, 514 U.S. 499, 504 

(1995)). Our supreme court has established five broad categories of laws that violate the 

Ex Post Facto Clause of the Tennessee Constitution, including a “law which aggravates a 

crime or makes it greater than when it was committed.” Miller v. State, 584 S.W.2d 758, 

761 (Tenn. 1979) (internal citations omitted), overruled on other grounds by Pruitt, 510 

S.W.3d at 416. 

Tennessee Code Annotated 39-17-408 has included hydrocodone on the list of

Schedule II controlled substances since April 25, 2012. See 2012 Tenn. Pub. Acts ch. 

812, § 6. Petitioner’s offense date for the sale of hydrocodone is listed on the judgment 

form as May 5, 2015. Consequently, Petitioner’s conviction for the sale of a Schedule II 

controlled substance was not an ex post facto violation, and the judgment is not void. 

Because the judgment is not void, the habeas corpus court was correct in summarily 

dismissing the petition and not appointing an attorney for Petitioner. See Summers, 212 

S.W.3d at 261. Because Petitioner has failed to state a cognizable claim, Petitioner is not 

entitled to habeas corpus relief.

Conclusion

Based on the foregoing, we affirm the judgment of the habeas corpus court.

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TIMOTHY L. EASTER, JUDGE