IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

KEVIN MCFERREN v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 89-02763; 90-06016 W. Otis Higgs, Jr., Judge

No. W2010-02101-CCA-R3-HC - Filed May 12, 2011

The Petitioner, Kevin McFerren, appeals the Criminal Court of Shelby County’s dismissal

of his pro se petition for post-conviction relief and petition for writ of habeas corpus. The

State has filed a motion requesting that this Court affirm the trial court’s dismissal pursuant

to Rule 20 of the Rules of the Court of Criminal Appeals. Following our review, we grant

the State’s motion and affirm the judgment of the trial court.

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

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which ALAN E. GLENN

and J.C. MCLIN, JJ., joined.

Kevin McFerren, Memphis, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General, for the Appellee, State of Tennessee.

MEMORANDUM OPINION

On November 19, 1988, the Petitioner was arrested and charged with possession with

intent to sell cocaine and possession with intent to deliver cocaine. On June 6, 1989, while

released on bond, the Petitioner was arrested and charged with the sale of a controlled

substance. On November 16, 1989, the Petitioner entered a guilty plea on the November

1988 charges and was sentenced to three years incarceration. On May 31, 1990, the

Petitioner entered a guilty plea to the June 1989 charge and was sentenced to three years

incarceration to run concurrent with the prior sentence.
In August 2010, the Petitioner filed a petition for writ of habeas corpus alleging that

because he was released on bond at the time of the June 1989 offense, his sentences should

have run consecutively rather than concurrently. In August 2010, the Petitioner also filed a

post-conviction relief petition challenging both convictions and alleging ineffective

assistance of counsel and error by the trial court in failing to inform him that he could appeal

the alleged “void judgment.” On September 13, 2010, the trial court entered an order

denying both petitions. The Petitioner filed a timely notice of appeal.

Post-Conviction Petition

In 1986, the legislature enacted a three-year statute of limitations for post-conviction

petitions. Tenn. Code Ann. § 40-30-102 (1990) (repealed 1995). Thus, the Petitioner was

required to file a post-conviction relief petition by November 1992 with regard to the first

conviction and by May 1993 with regard to the second conviction. However, the Petitioner

waited until August 2010, more than ten years after the convictions, to seek post-conviction

relief.

Our supreme court has held that the statute of limitations “is an element of the right

to file a post-conviction petition and that is not an affirmative defense that must be asserted

by the State.” State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001). Thus, “it is incumbent upon

a petitioner to include allegations of fact in the petition establishing either timely filing or

tolling of the statutory period,” and the “[f]ailure to include sufficient factual allegations of

either compliance with the statute or [circumstances] requiring tolling will result in

dismissal.” Id. The Petitioner has failed to include allegations sufficient to require tolling

of the statute of limitations. Accordingly, the trial court did not err in dismissing the petition.

Petition for Writ of Habeas Corpus

A prisoner is guaranteed the right to habeas corpus relief under Article I, section 15

of the Tennessee Constitution. See also T.C.A. § 29-21-101, et seq. However, the grounds

upon which a writ of habeas corpus may be issued are very narrow. Taylor v. State, 995

S.W.2d 78, 83 (Tenn. 1999). “Habeas corpus relief is available in Tennessee only when ‘it

appears upon the face of the judgment or the record of the proceedings upon which the

judgment is rendered’ 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). “[T]he purpose of a habeas

corpus petition is to contest void and not merely voidable judgments.” Id. at 163. 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.” Taylor, 995 S.W.2d at 83. In contrast,

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a voidable judgment is facially valid and requires the introduction of proof

beyond the face of the record or judgment to establish its invalidity. Thus, in

all cases where a petitioner must introduce proof beyond the record to establish

the invalidity of his conviction, then that conviction by definition is merely

voidable, and a Tennessee court cannot issue the writ of habeas corpus under

such circumstances.

Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004) (internal citation and quotations omitted);

see also Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (citations omitted). Moreover,

it is the petitioner’s burden to demonstrate, by a preponderance of the evidence, that the

judgment is void or that the confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322

(Tenn. 2000).

If the habeas corpus court determines from the petitioner’s filings that no cognizable

claim has been stated and that the petitioner is not entitled to relief, the petition for writ of

habeas corpus may be summarily dismissed. See Hickman, 153 S.W.3d at 20. Further, the

habeas corpus court may summarily dismiss the petition without the appointment of a lawyer

and without an evidentiary hearing if there is nothing on the face of the judgment to indicate

that the convictions are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.

1994), superseded by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC00266, 1998 Tenn. Crim. App. LEXIS 282 (Tenn. Crim. App., at Jackson, Mar. 11, 1998).

In the Rule 20 motion, the State claims that the Petitioner is not entitled to relief

because he already served his sentence. Under Tennessee Code Annotated section 29-21-

101(a), habeas corpus relief is only available if the petitioner is “imprisoned or restrained of

liberty.” The Tennessee Supreme Court has interpreted this requirement to mean that the

challenged judgment must itself retrain the petitioner of his or her freedom of action or

movement. Hickman, 153 S.W.3d at 23; see also Benson v. State, 153 S.W.3d 27, 32 (Tenn.

2004). The court in Hickman concluded that “when the restraint on a petitioner’s liberty is

merely a collateral consequence of the challenged judgment, habeas corpus is not an

appropriate avenue for seeking relief.” Hickman, 153 S.W.3d at 23 (“Use of the challenged

judgment to enhance the sentence imposed on a separate conviction is not a restraint of

liberty sufficient to permit a habeas corpus challenge to the original conviction long after the

sentence on the original conviction has expired.”); see also Benson, 153 S.W.3d at 32; May

v. Carlton, Warden, 245 S.W.3d 340, 353 (Tenn. 2008).

In the present case, the record reflects that the Petitioner’s sentences have expired and

that he is currently incarcerated in a federal facility. Therefore, the Petitioner is not

“imprisoned or restrained of liberty,” as required under Tennessee Code Annotated section

29-21-101(a). Moreover, the Petitioner failed to attach a copy of the judgments and, thus,

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failed to comply with the statutory procedural requirements of Tennessee Code Annotated

section 29-21-107(b). Accordingly, the Petitioner is not entitled to habeas corpus relief.

Conclusion

When an opinion would have no precedential value, the Court of Criminal Appeals

may affirm the judgment or action of the trial court by memorandum opinion when the

judgment is rendered or the action taken in a proceeding without a jury and such judgment

or action is not a determination of guilt, and the evidence does not preponderate against the

finding of the trial judge. See Tenn. Ct. Crim. App. R. 20. We conclude that this case

satisfies the criteria of Rule 20. Accordingly, it is ordered that the State’s motion is granted.

The judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Court

of Criminal Appeals.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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