The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 28, 2012
FRED ALLEN OWENS v. DAVID SEXTON, WARDEN
Appeal from the Criminal Court for Johnson County
No. 5927 Robert Cupp, Judge
No. E2011-02313-CCA-R3-HC - Filed October 29, 2012
The Petitioner, Fred Allen Owens, pro se, appeals the Johnson County Criminal Court’s
dismissal of his petition for a writ of habeas corpus from his 2003 conviction for second
degree murder and his resulting thirty-five-year sentence. The Petitioner contends that the
trial court erred by denying him habeas corpus relief from his conviction and sentence
because the State failed to file notice of its intent to seek enhanced punishment, violating his
due process and equal protection rights. We affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and C AMILLE R. M CM ULLEN, JJ., joined.
Fred Allen Owens, Mountain City, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Senior Counsel;
Anthony Wade Clark, District Attorney General, for the appellee, State of Tennessee.
OPINION
The Petitioner was convicted by a jury of second degree murder and sentenced to
thirty-five years’ confinement. This court affirmed the judgment of the trial court. State v.
Fred Allen Owens, No. E2003-02003-CCA-R3-CD (Tenn. Crim. App. May 25, 2004), perm.
app. denied (Tenn. Nov. 8, 2004). The Petitioner sought post-conviction relief contending
that his trial counsel was ineffective. The trial court denied relief, and this court affirmed the
trial court. Fred Allen Owens v. State, No. E2011-01190-CCA-R3-PC (Tenn. Crim. App.
March 12, 2012).
The Petitioner contends that his conviction and sentence are void because of “severe”
violations of due process and equal protection by the State and the trial court. He argues that
although the State failed to file its notice of intent to seek enhanced punishment as required
by Tennessee Code Annotated section 40-35-202 and Tennessee Rule of Criminal Procedure
12.3, the trial court sentenced him as a Range II, multiple offender. The State contends that
the Petitioner has failed to state a cognizable claim for relief. We agree with the State.
This court has recognized that challenges to convictions based upon constitutional
violations in the conviction proceedings are issues for post-conviction relief rather than
habeas corpus relief. Luttrell v. State, 644 S.W.2d 408, 409 (Tenn. Crim. App. 1982); see
Fredrick B. Zonge v. State, No. 03C01-9903-CR-00094, slip op. at 2 (Tenn. Crim. App. Dec.
16, 1999) (stating “[a]lleged violations of constitutional rights are addressed in post-
conviction, not habeas corpus, proceedings.”), perm. app. denied (Tenn. June 26, 2000).
“Proof of any deficiencies in the State’s notice of enhanced punishment would require
extrinsic evidence beyond the face of the record which would render [the petitioner’s]
judgments of conviction potentially voidable rather than void, and thus such allegation is not
a cognizable claim for habeas corpus relief.” Michael Ralph Brown v. David Mills, Warden,
No. E2007-01891-CCA-R3-HC, slip op. at 4 (Tenn. Crim. App. Nov. 17, 2008).
We conclude that the Petitioner has not stated a claim upon which habeas corpus relief
is available. Any deficiency regarding the State’s notice of intent to seek enhanced
punishment, if true, would only render the judgment voidable, not void. The Petitioner has
not established that his thirty-five-year sentence has expired or that the trial court was
without jurisdiction to convict and sentence him. The Petitioner is not entitled to relief.
In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.
______________________________________
JOSEPH M. TIPTON, PRESIDING JUDGE
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