IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JOSEPH B. THOMPSON v. RICKY BELL, WARDEN

Appeal from the Criminal Court for Sullivan County

No. C49,575 R. Jerry Beck, Judge

No. E2005-00005-CCA-R3-HC - Filed October 7, 2005

The petitioner, Joseph B. Thompson, filed a petition for a writ of habeas corpus in the Sullivan

County Criminal Court. The trial court summarily dismissed the petition for failure to meet

procedural requirements, which dismissal the petitioner appeals. The State filed a motion requesting

that this Court affirm the trial court’s denial of relief pursuant to Rule 20, Rules of the Court of

Criminal Appeals. Upon review of the record and the parties’ briefs, we conclude that the petition

was properly dismissed. Accordingly, the State’s motion is granted and the judgment of the trial

court is affirmed. 

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

Pursuant to Rule 20, Rules of the Court of Criminal Appeals

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and

JAMES CURWOOD WITT, JR., J., joined.

Kristi M. Davis, Knoxville, Tennessee, for the appellant, Joseph B. Thompson.

Paul G. Summers, Attorney General and Reporter; and Michelle Chapman McIntire, Assistant

Attorney General, for the appellee, State of Tennessee. 

OPINION

In 2001, the petitioner was convicted by a jury in the Sullivan County Criminal Court of

aggravated robbery and aggravated kidnapping, and he received a total effective sentence of forty

years. This court affirmed his convictions and sentences on direct appeal. See State v. Joseph B.

Thompson, No. E2002-00061-CCA-R3-CD, 2003 WL 1202979, at *1 (Tenn. Crim. App. Mar. 17,

2003). The petitioner was incarcerated in Davidson County. 

Thereafter, while serving the aforementioned sentence, the petitioner filed a petition for a

writ of habeas corpus in the Sullivan County Criminal Court. He alleged that in 1990, he was

convicted of aggravated assault, a Class C felony, and he received a two-year sentence. The

petitioner argues that the statutory minimum sentence he could have received for that offense was
 See Tenn. Code Ann. § 40-35-112(a)(3) (2003). 1

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three years; accordingly, his sentence for aggravated assault was void. As proof supporting his 1

allegations, the petitioner included with his petition a “TOMIS” letter from the Tennessee

Department of Correction, showing his conviction and the length of the accompanying sentence. 

The State answered, contending that the petitioner had not met the formal requirements of

a habeas corpus petition. Specifically, the State noted that the petitioner failed to file his petition in

Davidson County, the court closest to where the petitioner was incarcerated. Additionally, the State

claimed that the petitioner did not attach a copy of the contested judgment with his petition, nor did

he verify the petition by affidavit. 

The petitioner responded that he filed in the convicting court because, as a layman, he was

unaware that he must file within the court closest to him. He also responded that he did not include

his judgment of conviction because, despite his efforts, he was unable to obtain a copy of the

judgment. Finally, the petitioner alleged that he did not verify the petition by affidavit because he

had no money and “with no money you can get nothing [notarized].” The petitioner also filed a

“Motion to Alert the Court,” in which he alleged that he had attempted to obtain a copy of his

judgment of conviction to no avail. The petitioner also submitted a verified affidavit to accompany

his habeas corpus petition. Finally, the petitioner alleged that he filed in the convicting court because

that court had all of the relevant records concerning the petitioner’s sentence. 

Upon consideration of the motions, the trial court found that the State’s motion to dismiss

was well taken. Thus, the court dismissed the petitioner’s petition for habeas corpus relief without

conducting an evidentiary hearing. The petitioner now appeals this dismissal. 

The determination of whether to grant habeas corpus relief is a question of law. McLaney

v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). As such, we will review the trial court’s findings de novo

without a presumption of correctness. Id. Moreover, it is the petitioner’s burden to demonstrate, by

a preponderance of the evidence, “that the sentence is void orthat the confinement is illegal.” Wyatt

v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

Article I, § 15 of the Tennessee Constitution guarantees an accused the right to seek habeas

corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). However, “[s]uch 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.” Wyatt, 24 S.W.3d at 322; see also Tenn. Code Ann.

§ 29-21-101 (2000). In other words, habeas corpus relief may be sought only when the judgment

is void, not merely voidable. Taylor, 995 S.W.2d at 83. “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.’ We have recognized that a sentence imposed in

direct contravention of a statute, for example, is void and illegal.” Stephenson v. Carlton, 28 S.W.3d

910, 911 (Tenn. 2000) (citations omitted).
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The procedural requirements for a petition for habeas corpus relief are contained in

Tennessee Code Annotated section 29-21-107 (2000). “Without question, the procedural provisions

of the habeas corpus statutes are mandatory and must be followed scrupulously.” Archer v. State,

851 S.W.2d 157, 165 (Tenn. 1993). Our review of the record reveals that although the petitioner

verified his application for habeas corpus relief by including an affidavit with a copy of his petition

which he attached to his “Motion to Alert the Court,” he nevertheless failed to include his judgment

of conviction with his petition. Tenn. Code Ann. § 29-21-107(a) and (b)(2). Additionally, the

petitioner failed to file his petition in the court closest to him. Tenn. Code Ann. § 29-21-105 (2000).

Thus, the trial court was authorized to summarily dismiss the habeas corpus petition. 

Moreover, it appears that the petitioner does not contest the legality of his 1990 conviction

for aggravated assault, merely the sentence imposed. However, the record before us reflects that the

petitioner has already served the contested sentence. The petitioner is currently serving a sentence

for a different conviction. Our supreme court has recently held that “a person is not ‘restrained of

liberty’ for purposes of the habeas corpus statute unless the challenged judgment itself imposes a

restraint upon the petitioner’s freedom of action or movement.” Hickman v. State, 153 S.W.3d 16,

23 (Tenn. 2004). Therefore, as the petitioner’s liberty is no longer restrained by the contested

sentence, he may not seek habeas corpus relief from that sentence.

Finally, we note that the “TOMIS” report the petitioner included in the record indicates that

the contested sentence was imposed in 1990 for an offense which occurred on July 28, 1989. The

1989 Sentencing Reform Act, which provides that the minimum sentence for a Class C felony is

three years, did not go into effect until November 1, 1989. See Tenn. Code Ann. § 40-35-112,

Sentencing Commission Comments (1990). Thus, the petitioner’s sentence was governed by the

Criminal Sentencing Reform Act of 1982. As such, the appellant’s Class C felony conviction for

aggravated assault was punishable by a sentencing range not less than two nor more than ten years

incarceration. See Tenn. Code Ann. § 39-2-101(d) (1988). Ergo, the petitioner would not be entitled

to relief on the merits of his claim. 

Accordingly, the State’s motion is granted. The judgment of the trial court is affirmed

pursuant to Rule 20, Rules of the Court of Criminal Appeals. 

___________________________________ 

NORMA McGEE OGLE, JUDGE