May v. Carlton

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

September 6, 2007 Session

RANDY L. MAY v. HOWARD W. CARLTON, WARDEN

Appeal by Permission from the Court of Criminal Appeals, Eastern Section

Circuit Court for Johnson County

No. 4781 Lynn W. Brown

No. E2006-00308-SC-R11-HC - Filed January 18, 2008

Incident to a conviction for first degree murder, the petitioner was declared infamous, a status which

involves the loss of rights of citizenship, including the right to vote. At the time of the offense,

homicide was not listed as an infamous crime under the statute. We granted permission to appeal

to determine whether the judgment could be corrected through the writ of habeas corpus. Because

the illegal disenfranchisement of the petitioner qualifies as a “restraint on liberty,” a threshold

requirement under our statute, we grant limited habeas corpus relief but uphold the underlying

conviction and the term of incarceration. The opinion of the Court of Criminal Appeals is reversed,

and the cause is remanded to the trial court for modification of the judgment.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals

Reversed; Case Remanded to the Trial Court for Modification of the Judgment

GARY R. WADE , J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and

JANICE M. HOLDER, JJ., joined. WILLIAM C. KOCH , JR., J., with whom CORNELIA A. CLARK , J.,

joins, dissenting.

Todd A. Shelton, Greeneville, Tennessee, for the appellant, Randy L. May.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; and

Leslie E. Price, Assistant Attorney General for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural Background

On January 24, 1981, the petitioner, Randy L. May, pled guilty to first degree murder and

assault with intent to commit first degree murder. Pursuant to a plea agreement, the petitioner was

ordered to serve two concurrent life sentences. As part of the judgment of conviction, the trial court

declared the petitioner “infamous in Count One [first degree murder].”

Since his conviction, the petitioner has been incarcerated in the Northeast Correction

Complex in Mountain City, Tennessee. In 2005, he filed a pro se petition for writ of habeas corpus

seeking relief from the judgment on the ground that the legislature, at the time of the offenses, had

not classified first degree murder as an infamous crime.

The trial court summarily dismissed the petition, holding that the conviction was not void

and the sentence had not expired. Upon direct appeal, the order of dismissal was affirmed. While

acknowledging that an erroneous pronouncement of infamy should be subject to correction, the

Court of Criminal Appeals ruled that a statute enacted after the petitioner’s conviction and which

declared first degree murder to be an infamous crime could be applied retroactively.

In this appeal, the petitioner argues that he is entitled to habeas corpus relief from the

erroneous judgment of infamy. Tenn. Code Ann. § 40-2712 (1980) (listing the crimes of infamy).

He posits that the erroneous declaration of infamy has “worked to restrain [his] liberty to exercise

[the] fundamental right” to vote, which is guaranteed by the Tennessee Constitution. See Tenn.

Const. art. I, § 5 (stating the right of suffrage shall never be denied to any person entitled “except

upon conviction by a jury of some infamous crime, previously ascertained and declared by law”);1

Tenn. Const. art. I, § 11 (prohibiting laws “made for the punishment of acts committed previous to

the existence of such laws, and by them only declared criminal”).

While conceding that the judgment is partly in error, the State argues that because the

declaration of infamy is a “mere” collateral consequence of the judgment and does not restrain the

petitioner of his liberty, he lacks standing to contest the erroneous designation of infamy. In the

alternative, the State submits that even if the petitioner is entitled to relief, it should only be to the

extent of vacating the illegal portion of the judgment and not the underlying conviction and sentence.

II. Scope of Review

Whether to grant relief upon review of a petition for habeas corpus relief is a question of law.

Smith v. Lewis, 202 S.W.3d 124, 127 (Tenn. 2006) (citing Hart v. State, 21 S.W.3d 901, 903 (Tenn.

2000)). Our review is, therefore, de novo with no presumption of correctness given to the findings

and conclusions of the court below. Id. (citing Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005)).

“Because this is a habeas corpus proceeding, we are limited to considering the face of the judgment

and the record of the proceedings upon which the judgment was rendered.” Id. at 128.

III. Habeas Corpus

Of common law origin and extending over hundreds of years, the “Great Writ” of habeas

corpus is documented in American law by Article I, Section 9, Clause 2, of the United States

Constitution: “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in

1

State law provides a procedure by which a person “rendered infamous” may seek restoration of their rights

of citizenship, including the right to vote and hold public office. Tenn. Code Ann. § 40-29-101 to -205 (2006).

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Cases of Rebellion or Invasion the public Safety may require it.” Ex parte Bollman, 8 U.S. 75

(1807). By the passage of the Judiciary Act of 1789, Congress granted courts the statutory authority

to issue the writ. Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 73, 81-82. Under the federal statutes

governing the procedure, the power to grant the writ is limited. 28 U.S.C. § 2241(c) (Supp. 2006).

To qualify for consideration of the merits of the claim, a federal prisoner must be “in custody.” 28

U.S.C. § 2241(c)(1), (3). Similarly, federal courts have jurisdiction to grant habeas corpus relief

when a prisoner is “in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a)

(2000). The United States Supreme Court has interpreted this “statutory language as requiring that

the habeas petitioner be ‘in custody’ under the conviction or sentence under attack at the time his

petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989).2 That interpretation has been

extended to include consecutive sentences “in the aggregate, not as discrete segments.” Garlotte v.

Fordice, 515 U.S. 39, 47 (1995) (one serving consecutive state sentences is “in custody” and may

make a habeas corpus attack on the first of the sentences, even after it has expired, until all sentences

have been served).

For federal courts to exercise the power of habeas corpus over a state prisoner, the prisoner

must have “exhausted the remedies available in the courts of the State” or have demonstrated that

“there is an absence of available State corrective process.” 28 U.S.C. § 2254(b)(1)(A)(B)(i). Under

the federal interpretation, the “in custody” language as applied to an attack on state convictions does

not always require physical confinement for consideration on the merits. For example, parole status

has met the threshold requirement for habeas corpus relief. Jones v. Cunningham, 371 U.S. 236,

242-43 (1963). Further, in Carafas v. LaVallee, 391 U.S. 234, 239 (1968), the prisoner filed for

habeas corpus relief before the expiration of his sentence but was released during the course of the

appeal. The Supreme Court ruled that jurisdiction had attached at filing and permitted the action

despite a claim of mootness by the government, ruling that the collateral consequences to the

conviction, which precluded voting, holding public office, serving as juror, and other rights of

citizenship, defeated the mootness defense.3

In this state, habeas corpus is guaranteed by article I, section 15 of the Tennessee

Constitution: “[T]he privilege of the writ of Habeas Corpus shall not be suspended, unless when in

2

Nevertheless, Maleng was deemed to be in constructive “custody,” as in Peyton v. Rowe, 391 U.S. 54 (1968),

and was permitted to proceed with his habeas corpus attack on a 1958 conviction because he was subject to a detainer

under an unserved state conviction. Cf. Daniels v. United States, 532 U.S. 374 (2001); Lackawanna County Dist.

Attorney v. Coss, 531 U.S. 923 (2000).

3

It is clear that petitioner’s cause is not moot. In consequence of his conviction, he

cannot engage in certain businesses; he cannot serve as an official of a labor union

for a specified period of time; he cannot vote in any election held in New York

State; he cannot serve as a juror. Because of these ‘disabilities or burdens (which)

may flow from’ petitioner’s conviction, he has ‘a substantial stake in the judgment

of conviction which survives the satisfaction of the sentence imposed on him.’

Fiswick v. United States, 329 U.S. 211, 222, 67 S.Ct. 224, 230, 91 L.Ed. 196

(1946). On account of these ‘collateral consequences,’ the case is not moot.

Carafas, 391 U.S. at 237-38 (footnotes omitted).

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case of rebellion or invasion, the General Assembly shall declare the public safety requires it.” Tenn.

Const. art. I, § 15; Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007). Although our writ of

habeas corpus is constitutionally guaranteed, it has been regulated by statute for almost one hundred

fifty years. Code of Tennessee §§ 3720 to 3765 (Return J. Meigs & William F. Cooper eds., E.G.

Easterman & Co. 1858); Faulkner, 226 S.W.3d at 361 (citing Ussery v. Avery, 432 S.W.2d 656, 657

(Tenn. 1968)). The statute broadly states that “[a]ny person imprisoned or restrained of liberty,

under any pretense whatsoever, except in cases [in which federal courts have exclusive jurisdiction],

may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and restraint.”

Tenn. Code Ann. § 29-21-101 (2000).4 The procedural requirements, as prescribed by statute, “are

mandatory and must be followed scrupulously.” Archer v. State, 851 S.W.2d 157, 165 (Tenn. 1993).

Although habeas corpus in this state receives constitutional and statutory guarantees, this

Court has ruled that the writ may be granted “only when it appears upon the face of the judgment or

the record of the proceedings upon which the judgment is rendered that a court lacked jurisdiction

or authority to sentence a defendant or that the sentence has expired.” Stephenson v. Carlton, 28

S.W.3d 910, 911 (Tenn. 2000). Stated differently, a petitioner must demonstrate that the judgment

is “void” and not merely “voidable.” Smith, 202 S.W.3d at 127 (citing Hogan, 168 S.W.3d at 755).

An illegal sentence, one whose imposition directly contravenes a statute, is considered void and may

be set aside at any time. State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978) (holding that even

after a judgment becomes final, a trial judge has “the power and duty” to correct any illegality).

Thus, when an illegality in the sentence is evident on the face of the record of the underlying

proceeding, it is a nullity. Smith, 202 S.W.3d at 127.

IV. Analysis

The petitioner contends that the declaration of infamy incident to his conviction of first

degree murder was void because the trial court had no statutory authority to include that as a part of

the judgment. In support of his claim, he asserts that at the time of the offense and his subsequent

conviction and sentence, murder and assault with intent to commit murder were not listed as

infamous crimes under Tennessee Code Annotated section 40-2712 (1980).

In 1980, the statute provided an exhaustive list of infamous crimes, including the following:

abusing a female child, arson and felonious burning, bigamy, burglary,

felonious breaking into a business house, outhouse other than a dwelling

house, bribery, buggery, counterfeiting, violating any of the laws to suppress

the same, forgery, incest, larceny, horse stealing, perjury, robbery, receiving

stolen property, rape, sodomy, stealing bills of exchange or other valuable

papers, subornation of perjury, and destroying a will.

4

The most basic principle of statutory construction is to ascertain the natural and ordinary meaning of the

language. See, e.g., Tuggle v. Allright Parking Sys., Inc., 922 S.W.2d 105, 107 (Tenn. 1996).

-4-

Id.

The terms of this legislation provided that upon conviction of any of these crimes, “it shall

be part of the judgment of the court that the defendant be [declared] infamous,” a status that

precluded the right of suffrage. Id. As demonstrated, however, homicide was not a crime of infamy

at the time the petitioner committed the offense. See Williams v. State, 520 S.W.2d 371, 376 (Tenn.

Crim. App. 1974) (stating that homicide was not an infamous crime at that time). As a result, the

trial court lacked statutory authority to declare the petitioner infamous. We must conclude, therefore,

that the declaration of infamy was in direct contravention of the statute. See Smith, 202 S.W.3d at

128.

It is noteworthy that in the year following the petitioner’s convictions, our legislature

expanded the relevant statutory section to provide that any felony conviction would result in a

declaration of infamy. See Gaskin v. Collins, 661 S.W.2d 865, 866 (Tenn. 1983). As a result, since

May 18, 1981 (only four months after the petitioner’s convictions), all felonies, regardless of

severity, have qualified as “infamous crimes.” Tenn. Code Ann. § 40-20-112 (1991). Although the

legislature directed that this statute be applied retroactively, see Tenn. Code Ann. §§ 2-2-139(b), 2-

19-143(4) (1981), this Court struck down that provision in 1983, holding that a retroactive

disenfranchisement of voting rights violated article I, section 5 of the Tennessee Constitution.

Gaskin, 661 S.W.2d at 867.5 Thus, the 1981 amendment to the statute is not applicable to the

petitioner and did not serve to cure the illegality of that component of the sentence.

While admitting that a restraint on one’s liberty as used in Tennessee Code Annotated section

29-21-101 “encompasses situations beyond actual physical custody,” the State argues that

notwithstanding the illegality, the petitioner lacks standing and cannot be granted any relief unless

there is some “restraint upon . . . freedom of action or movement.” See State v. Hickman, 153

S.W.3d 16, 23 (Tenn. 2004). The State submits that the label of infamy appearing on the face of the

judgment neither confines nor restrains the petitioner, and argues it is the perfectly valid sentence

of life imprisonment that places the restraint on his freedom of action or movement. See id. The

State concludes that “restraint of liberty” simply does not encompass voting rights, and that such a

restriction is merely a “collateral consequence of the challenged judgment.”

As stated, the essential purpose of a writ of habeas corpus is to subject imprisonment or any

other restraint on liberty, for whatever cause, to judicial scrutiny. Faulkner, 226 S.W.3d at 361

(citing Peyton v. Rowe, 391 U.S. 54, 58 (1968)); see also Tenn. Code. Ann. § 29-21-101. We must

5

Gaskin, who had fully served a sentence for manufacturing marijuana, challenged the propriety of the statute

when his voter registration was revoked. On behalf of a unanimous court, Justice Frank Drowota wrote that

the 1870 constitutional convention was comprised of men who had known the injustice of retroactive

disenfranchisement [during Reconstruction] and were determined to safeguard . . . future generations

from similar acts of repression. That this right was preserved by constitutional amendment rather than

legislative enactment accentuates its importance to the people of the State of Tennessee.

Gaskin, 661 S.W.2d at 868.

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consider, therefore, whether an illegal disenfranchisement of the right to vote is the sort of wrong

that the writ of habeas corpus was designed to correct. In Summers v. State, this Court explained

the categories of restraints for which relief can be sought through the writ of habeas corpus:

To obtain habeas corpus relief, a petitioner must be “imprisoned or restrained of

liberty.” “Imprisoned” refers to actual physical confinement or detention.

“Restrained of liberty” is a broader term and encompasses situations beyond actual

physical custody. However, a petitioner is not restrained of liberty unless the

challenged judgment itself imposes a restraint on the petitioner’s freedom of action

or movement.

212 S.W.3d 251, 257 (Tenn. 2007) (citations omitted). Obviously, the petitioner is in prison for the

very judgment under attack. Moreover, while the deprivation of the entitlement to vote does not fall

under the definition of “imprisonment,” the illegal component of the judgment, the declaration of

infamy, qualifies as a restraint on his liberty and his freedom to act.

In Baker v. Carr, the United States Supreme Court observed that “[a] citizen’s right to a vote

free of arbitrary impairment by state action has been judicially recognized as a right secured by the

[Federal] Constitution . . . .” 369 U.S. 186, 208 (1962). Our federal courts have described “the right

to vote [a]s . . . a ‘fundamental right’–indeed, the most fundamental right of all.” Blumstein v.

Ellington, 337 F. Supp. 323, 329 (M.D. Tenn. 1970). Early in Tennessee’s judicial history, this

Court determined that persons invested with the right to vote can be deprived only “by due process

of law.” State v. Staten, 46 Tenn. (6 Cold.) 233 (Tenn. 1869). Our Constitution guarantees its

citizenry the right to vote pursuant to article I, section 5, protecting all except those convicted of

infamous crimes.6 That the entitlement is preserved in the Constitution rather than by legislative

enactment underscores its importance to the people:

The elections shall be free and equal, and the right of suffrage, as hereinafter

declared, shall never be denied to any person entitled thereto, except upon conviction

by a jury of some infamous crime, previously ascertained and declared by law, and

judgment thereon by court of competent jurisdiction.

In this state, conviction of an infamous crime is absolutely essential to any denial of the fundamental

right to vote. See also Gaskin, 661 S.W.2d at 866-67 (stating that voting rights can be denied only

upon conviction of an infamous crime, previously ascertained and declared by law). Moreover, this

Court has repeatedly observed that the phrase “restrained of liberty” includes any limitation placed

on a person’s freedom of action, including such restraints as conditions of “parole or probation.”

Benson v. State, 153 S.W.3d 27, 31 (Tenn. 2004); Dillehay v. White, 398 S.W.2d 737, 738 (1966)

(holding that even though the petitioner was on bail, habeas corpus is permitted to test the legality

of the restraint on liberty).

6

In contrast, Amendment 15 to the United States Constitution makes no reference to disqualification by

infamy.

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Even though the federal statutes governing habeas corpus restrict the remedy to only those

“in custody,” imprisonment, as previously indicated, is not always a prerequisite for relief. Years

ago, our nation’s highest court confirmed the flexible nature of the writ. Wade v. Mayo, 334 U.S.

672, 681 (1948). More recently, the high court observed that “[h]istory, usage, and precedent can

leave no doubt that, besides physical imprisonment, there are other restraints on a man’s liberty,

restraints not shared by the public generally, which have been thought sufficient . . . to support the

issuance of habeas corpus.” Jones, 371 U.S. at 240. In Jones, the Supreme Court considered

whether a Virginia prisoner, who had been paroled, was “in custody” within the federal habeas

corpus statute and thus was entitled to invoke habeas corpus jurisdiction of the United States District

Court. Id. at 243; see 28 U.S.C. § 2241. Due to the restrictions placed on his parole, the Court

determined that the “Great Writ” could be invoked, allowed the petitioner to test the legality of the

judgment, and framed the appropriate question to be whether the conditions “significantly restrain

petitioner’s liberty to do those things which in this country free men are entitled to do.” Id. at 242-

43.

A “collateral consequence” of an illegality in a judgment is not always so significant as to

warrant habeas corpus relief. Further, the petitioner, having committed egregious crimes and serving

concurrent life sentences, is hardly a sympathetic figure. But as a matter of precedent applicable to

all citizens, the writ should be available to those whose liberties are restrained by an illegality in a

judgment. The right to vote, so precious to Tennesseans during the Reconstruction Era, qualifies

today as a fundamental liberty in a representative government and, when illegally abridged, should

be restored through the “Great Writ.”7

Years ago, in State v. McCraw, 551 S.W.2d 692, 694 (Tenn. 1977), this Court specifically

addressed the right to vote as a “restraint on liberty.” McCraw was convicted of extortion in

Tennessee and, after completing his sentence, moved to Georgia. When he was denied the right to

vote in that state, he sought post-conviction relief here.8 In construing the term “in custody,” a

prerequisite for relief eligibility under the Post-Conviction Procedure Act of 1967, this Court ruled

that a prohibition on the right to vote so qualified, describing the prohibition, perhaps not by

coincidence, as a “restraint on liberty.” Id. As noted in Hickman, however, the term “in custody”

is more broadly construed in the post-conviction context than either “imprisoned” or “restrained of

7

Texas recognizes restraints beyond actual confinement. For example, in Tatum v. State, 846 S.W .2d 324

(Tex. Crim. App. 1993), the Texas high court confirmed that a void judgment may “have . . . collateral consequences

in some future proceeding” and, if so, may be subject to habeas corpus attack even if the term has been served and the

fine paid. Id. at 327; see also Ex parte Ormsby, 676 S.W .2d 130 (Tex. Crim. App. 1984); Ex parte Phelper, 433 S.W .2d

897 (Tex. Crim App. 1968); and Ex parte Jordan, 659 S.W .2d 827 (Tex. Crim. App. 1983). Denial of entry in the

military and prohibitions against any opportunity to become a law officer have been deemed restraints on liberty in Texas

subject to a petition for habeas corpus. Ex parte Davis, 748 S.W .2d 555 (1988); State v. Collazo, ___ S.W .3d ___, No.

01-06-01076-CR, 2007 W L 3227611 (Tex. Ct. App. Nov. 1, 2007).

8

Today, the statute of limitations enacted in 1986 and reduced in length to one year in 1995, would preclude

use of the Tennessee post-conviction procedure in these circumstances. Tenn. Code Ann. § 40-30-102(a) (2006). There

is no statute of limitations in state habeas corpus.

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liberty” under our habeas corpus statute. Hickman, 153 S.W.3d at 23 n.4. Despite the more

restrictive interpretation of the threshold requirements for habeas corpus consideration, the holding

in McCraw provides at least some perspective as to what collateral restraints beyond imprisonment

might qualify for the remedy.

There should be no wrong under our law without redress. Bob v. State, 10 Tenn. (2 Yer.)

173, 176 (1826). When an illegality exists within the judgment itself, some procedural recourse

should be available. While acknowledging the wrongful declaration of infamy in this case, the state

has offered no relief. To date, our courts have not done so. To plead procedural bar, as the dissent

suggests (in hopes of a magnanimous gesture through an untested process), offers no just conclusion.

In Cummings v. State, 168 P.3d 1080, 1087 (N.M. 2007) (holding that habeas corpus may not be

used to restore a prisoner’s right to vote when the district court wrongfully informed the county court

that the petitioner was a felon), the New Mexico Supreme Court rendered an opinion that is

distinguishable from the circumstances at issue today. In that case, a clerical error, based upon a

mistaken interpretation of a valid judgment, purged Cummings from the voter registration roll:

“[S]ending his name to the voter registration section of the county clerk’s office was erroneous.”

Id. at 1086. Here, the judgment of conviction included an illegality. Under similar circumstances,

we have held that habeas corpus is the proper procedure for challenging an illegality in the judgment

document. Moody v. State, 160 S.W.3d 512, 515 (Tenn. 2005) (judgment required registration of

a sexual offender, despite the lack of statutory authority for the crime committed). This Court

confirmed the principle that an illegality in a judgment may be corrected at any time. Id. at 516.

Habeas corpus has vitality in this state and, in our assessment, “is not a ‘static, narrow,

formalistic remedy,’ but one which must retain the ‘ability to cut through barriers of form and

procedural mazes.’ ‘The very nature of the writ demands that it be administered with the initiative

and flexibility essential to insure that . . . [in]justice[s] within its reach are surfaced and corrected.’”

Hensley v. Mun. Court, 411 U.S. 345, 349-50 (1973) (quoting Jones, 371 U.S. at 243, and Harris v.

Nelson, 394 U.S. 286, 291 (1969)). While not every collateral consequence qualifies as a restraint

on liberty, we should not “suffocate the writ in stifling formalisms or hobble its effectiveness with

the manacles of arcane and scholastic procedural requirements.” Id. at 350.

The petitioner is entitled to no remedy other than a correction of the judgment, thereby

regaining, in his words, the “constitutionally-protected, fundamental right of suffrage as provided

in Article I, Section 5 of the Tennessee Constitution.” He should be granted relief from the

declaration of infamy, but nothing more.9 The conviction and term of incarceration remain intact.

See Smith, 202 S.W.3d at 130 (stating that an original judgment of sentence was void on its face and

warranted habeas corpus relief, but legality of conviction entered pursuant to guilty plea upheld); see

also State v. Stephenson, 195 S.W.3d 574, 593 (Tenn. 2006) (stating that a first degree murder

conviction “remained valid and in effect” even though habeas court on remand declared the

accompanying sentence null and void).

9

“A vote is like a rifle: its usefulness depends upon the character of the user.” Theodore Roosevelt, An

Autobiography 153 (BiblioBazaar 2007) (1910).

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V. Conclusion

Laws disenfranchising convicted felons are penal in nature. Retroactive application of the

statute declaring all felonies infamous crimes is not permissible. See Gaskin, 661 S.W.2d at 867.

Because the right to vote is fundamental to the concept of liberty in this state, an erroneous label of

infamy in a judgment of conviction warrants remedy and should be declared null and void.10 The

petitioner is entitled to habeas corpus relief. We vacate the portion of the judgment labeling the

petitioner infamous. The cause is remanded to the Johnson County Circuit Court for entry of a

corrected judgment.

It appearing that the petitioner is indigent, the costs of this cause are taxed to the State of

Tennessee.

___________________________________

GARY R. WADE, JUSTICE

10

In our view, the Court of Criminal Appeals incorrectly relied on prior cases to hold that “an erroneous

pronouncement of infamy does not strike at the jurisdictional integrity of the sentence (life imprisonment) or the

conviction (first degree murder).” May v. Carlton, E2006-00308-CCA-R3-HC, 2007 WL 241025, at *1 (Tenn. Crim.

App. Jan. 29, 2007) (citing Humphreys v. State, 531 S.W.2d 127, 139 (Tenn. 1975); W illiams v. State, 520 S.W.2d 371,

376 (Tenn. 1974) (perm. app. denied (Tenn. 1975)). In both Humphreys and Williams, the appeal process provided an

opportunity for the modification of judgment. In this case, the petitioner pled guilty, no appeal was available, and no

procedure other than habeas corpus was available to the petitioner to obtain relief from the illegality in the sentence.

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