Willie L. Hicks, Jr. v. State of Tennessee ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
WILLIE L. HICKS, JR. v. KEVIN MYERS, WARDEN and the
STATE OF TENNESSEE
Appeal from the Circuit Court for Sullivan County
No. C49, 827 Phyllis H. Miller, Judge
No. E2004-02921-CCA-R3-HC - Filed August 22, 2005
The petitioner, Willie L. Hicks, appeals from the trial court's order dismissing his petition for writ
of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial
of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petitioner has failed
to establish that he is entitled to habeas corpus relief. 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 Circuit Court Affirmed
Pursuant to Rule 20, Rules of the Court of Criminal Appeals
JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
NORMA MCGEE OGLE, J., joined.
Willie L. Hicks, Clifton, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General, for
the Appellee, State of Tennessee.
MEMORANDUM OPINION
In May 1995, the petitioner was convicted pursuant to guilty pleas for first degree murder
(count 1) and second degree murder (count 2). Pursuant to his plea agreement, the petitioner was
sentenced upon these convictions to life with the possibility of parole and to15 years, respectively,
with said sentences ordered served consecutively. In November 2004, the petitioner filed a petition
for writ of habeas corpus. The petitioner contended that his sentences were illegal and void because
the judgments each reflect that the sentence imposed is to be served consecutively to the sentence
imposed in the other judgment. The petitioner reasoned that if he "can't serve count one until he
expires count two, and can't serve count two until he expires count one," he is left with no legal
sentence to serve. He further argued that his 15 year sentence for second degree murder has fully
expired. The trial court dismissed the petition finding that it failed to comply with a statutory
requirement for seeking habeas corpus relief and that no cognizable claim for relief was alleged.
In Tennessee, “[a]ny person imprisoned or restrained of his liberty, under any pretense
whatsoever, except [those held under federal authority], may prosecute a writ of habeas corpus to
inquire into the cause of such imprisonment and restraint.” Church v. State, 987 S.W.2d 855, 857
(Tenn. Crim. App. 1998); Tenn. Code Ann. § 29-21-101. 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, 214 Tenn.
500, 504, 381 S.W.2d 290, 291-92 (1964). If the petitioner carries this burden, he is entitled to
immediate release. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). A petition
seeking issuance of a writ of habeas corpus may be summarily dismissed by a trial court if it fails
to indicate that the petitioner's conviction is void. Tenn. Code Ann. § 29-21-109.
First, it is clear that the petitioner's 15 year sentence imposed on May 17, 1995, has not
expired. The petitioner's additional claim of a void judgment based on each judgment ordering a
consecutive sentence does not present a cognizable claim for habeas corpus relief. Although the
petitioner correctly describes each judgment as providing for its sentence to be served consecutively
to the sentence imposed in the other judgment,1 the judgments are not thereby rendered void.
Moreover, the trial court correctly noted that the petitioner failed to file his petition with the "court
or judge most convenient in point of distance to the applicant," and the petitioner has given no
sufficient reason for not applying to such court or judge. See Tenn. Code Ann. § 29-21-105. The
procedural requirements for habeas corpus relief are mandatory and must be scrupulously followed.
Archer v. State, 851 S.W.2d 157, 165 (Tenn. 1993). The petition was subject to dismissal on this
basis alone. Based on the aforestated reasons, the trial court properly denied habeas corpus relief.
Upon due consideration of the pleadings, the record, and the applicable law, the court
concludes that the petitioner has not established that he is entitled to habeas corpus relief.
Accordingly, the state’s motion is granted and the judgment of the trial court is affirmed in
accordance with Rule 20, Rules of the Court of Criminal Appeals.
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
1
The state's assertion in support of its Rule 20 motion that "the judgments clearly indicate that the petitioner's
sentence in Count two is to be served consecutive (sic) to the sentence in count one" misses the point of the petitioner's
argument in view of the fact that the judgment in count one further provides that that sentence is to be served
consecutively to the sentence in count two.
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