Jeffrey E. Dunlap v. Tony Parker, W ( 1994 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JEFFREY E. DUNLAP v. TONY PARKER, WARDEN
Direct Appeal from the Circuit Court for Lake County
No. 04-CR-8553 R. Lee Moore, Jr., Judge
No. W2004-01042-CCA-R3-HC - Filed September 1, 2004
The Petitioner, Jeffrey E. Dunlap, appeals the trial court's denial of his petition for habeas corpus
relief. The State has 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. Because Petitioner has failed
to allege a ground for relief which would render the judgment void, we grant the State's motion
and affirm the judgment of the lower court.
Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of
the Court of Criminal Appeals
ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN
EVERETT WILLIAMS, JJ. joined.
Jeffrey E. Dunlap, pro se.
Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General, for
the appellee, the State of Tennessee.
MEMORANDUM OPINION
On December 14, 1994, Petitioner was convicted of two counts of aggravated robbery.
On February 27, 1995, he was sentenced, as a range III persistent offender, to a term of thirty
years on both counts with both sentences to be served consecutively. These sentences were
further ordered to be served consecutive to prior sentences resulting in an effective sentence of
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ninety-four years. On March 26, 2004, Petitioner filed an application for writ of habeas corpus
relief, alleging that his convictions are void because the State’s Rule 12.3 “Notice of Intent to
Seek Increased Sentence” was not filed prior to trial and that the trial court was without the
authority and jurisdiction to entertain the notice to enhance the punishment. On April 13, 2004,
the trial court dismissed the petition, finding that the Petitioner has failed to provide
documentation supporting his claim other than a letter from his attorney and that these claims are
not cognizable in a habeas corpus proceeding.
Habeas corpus relief is available in this state only when it appears on the face of the
judgment or the record that the trial court was without jurisdiction to convict or sentence the
defendant or that the sentence of imprisonment has otherwise expired. Archer v. State, 851
S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). Unlike the post-
conviction petition, the purpose of the habeas corpus petition is to contest a void, not merely
voidable, judgment. State ex rel. Newsome v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189
(1968). A petitioner cannot collaterally attack a facially valid conviction in a habeas corpus
proceeding. Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992); State ex rel. Holbrook v. Bomar,
211 Tenn. 243, 364 S.W.2d 887, 888 (1963).
Petitioner alleges that he is entitled to habeas corpus relief because the State failed to
timely file a notice of intent to seek increased sentence. Petitioner alleges that the notice was
filed after the trial but prior to sentencing. Petitioner has failed to attach the notice to his
petition. A defect in the notice of intent to seek sentence enhancement does not render an
enhanced sentence illegal. See State v. Debro, 787 S.W.2d 932, 933-934 (Tenn. Crim. App.
1989). Moreover, our supreme court has determined that a failure to file a Rule 12. 3 notice,
even until the day of trial, did not render that notice ineffective, unless the defendant can
establish prejudice. See State v. Stephenson, 752 S.W.2d 80 (Tenn.1988). Here, no such
prejudice has been demonstrated.
Finally, the Petitioner has failed to attach copies of the judgments to his petition.
"Without question, the procedural provisions of the habeas corpus statutes are mandatory and
must be followed scrupulously." Archer v. State, 851 S.W.2d at 165 (citing Bateman v. Smith,
183 Tenn. 541, 543, 194 S.W.2d 336, 337 (1946)). In view of the Petitioner's failure to comply
with the mandatory provisions of Section 29-21-107, summary dismissal of the petition was
proper. State ex rel. Allen v. Johnson, 394 S.W.2d 652, 653, 217 Tenn. 28 (1965).
The Petitioner has not established that he is entitled to habeas corpus relief. He has
alleged neither a facially invalid judgment nor an expired sentence. 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.
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___________________________________
ALAN E. GLENN, JUDGE
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