Cortez Bennett v. Kevin Genovese, Warden

07/14/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 12, 2022

CORTEZ BENNETT v. KEVIN GENOVESE, WARDEN

Appeal from the Circuit Court for Lake County

No. 21-CR-10812 Mark L. Hayes, Judge

No. W2021-01507-CCA-R3-HC

The petitioner, Cortez Bennett, appeals the summary denial of his petition for writ of

habeas corpus, which petition challenged his Lake County Circuit Court Jury convictions

of first degree murder, attempted first degree murder, and especially aggravated robbery,

arguing that he is entitled to habeas corpus relief on grounds that the sentence imposed for

his conviction of first degree murder was imposed in direct contravention of a statute, that

the count alleging attempted first degree murder was void, and that his convictions of

especially aggravated robbery violate double jeopardy principles. Discerning no error, we

affirm.

Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and JOHN W. CAMPBELL. SR., JJ., joined.

James Shae Atkinson, Memphis, Tennessee, for the appellant, Cortez Bennett.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant

Attorney General; and Danny Goodman, Jr., District Attorney General, for the appellee,

State of Tennessee.

OPINION

A Lake County Circuit Court Jury convicted the petitioner and his co-

defendant, Andre Mays, of the first degree murder of Tonya Tyler, the attempted first

degree murder of Wesley Tyler, Sr., and the especially aggravated robbery of Mr. and Mrs.

Tyler during a home invasion robbery on June 29, 1999. See State v. Andre Mays and

Cortez Bennett, No. M2001-02151-CCA-R3-CD, 2002 WL 31385939, at *1 (Tenn. Crim.

App., Nashville, Oct. 22, 2002). The evidence adduced at trial established that Mr. Mays

planned the robbery and that the petitioner, along with Eric Booth and Tywaun Morrow,

went together to the Tyler residence, where Mr. Mays and the petitioner forced the Tylers

at gunpoint, in the presence of their two young children, to turn over their money and

jewelry. Id. Mr. Mays then shot both Mr. and Mrs. Tyler in the head with “a small caliber

revolver.” Id. Mr. Tyler survived but Mrs. Tyler did not. Id. at *2. The trial court imposed

a total effective sentence of life plus 50 years’ incarceration. Id. This court affirmed the

convictions and total effective sentence on direct appeal. Id.

The petitioner filed a timely but unsuccessful petition for post-conviction

relief, and this court affirmed the denial of post-conviction relief. See Cortez Bennett v.

State, No. M2004-02640-CCA-R3-PC, 2005 WL 2546929, at *1 (Tenn. Crim. App.,

Nashville, Oct. 11, 2005). The petitioner then moved the trial court to correct a perceived

illegality in his sentence under the terms of Tennessee Rule of Criminal Procedure 36.1.

In his motion, the petitioner challenged the legality of the sentence of life imprisonment

imposed for his conviction of first degree murder. This court affirmed the trial court’s

summary denial of Rule 36.1 relief via a Memorandum Opinion. See State v. Cortez

Bennett, No. M2019-01034-CCA-R3-CD, 2020 WL 2044740, at *1 (Tenn. Crim. App.,

Nashville, Apr. 28, 2020).

On November 24, 2021, he petitioned for writ of habeas corpus, claiming

that the life sentence directly contravened Code sections 40-35-501 and 40-28-115, that the

indictment for attempted first degree murder was void, and that dual convictions for the

especially aggravated robbery of Mr. and Mrs. Tyler violated double jeopardy principles.

The habeas corpus court summarily denied relief, finding that the petitioner had failed to

state a cognizable claim for habeas corpus relief, that the judgments were not void, and that

none of the petitioner’s sentences had expired. The petitioner appeals from this order.

“The determination of whether habeas corpus relief should be granted is a

question of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v.

State, 21 S.W.3d 901, 903 (Tenn. 2000)). Our review of the habeas corpus court’s decision

is, therefore, “de novo with no presumption of correctness afforded to the [habeas corpus]

court.” Id. (citing Killingsworth v. Ted Russell Ford, Inc., 205 S.W.3d 406, 408 (Tenn.

2006)). The writ of habeas corpus is constitutionally guaranteed, see U.S. Const. art. 1, §

9, cl. 2; Tenn. Const. art. I, § 15, but has been regulated by statute for more than a century,

see Ussery v. Avery, 432 S.W.2d 656, 657 (Tenn. 1968). Tennessee Code Annotated

section 29-21-101 provides that “[a]ny person imprisoned or restrained of liberty, under

any pretense whatsoever, except in cases specified in § 29-21-102, may prosecute a writ of

habeas corpus, to inquire into the cause of such imprisonment and restraint.” T.C.A. § 29-

21-101. Despite the broad wording of the statute, a writ of habeas corpus may be granted

only when the petitioner has established a lack of jurisdiction for the order of confinement

or that he is otherwise entitled to immediate release because of the expiration of his

sentence. See Ussery, 432 S.W.2d at 658; State v. Galloway, 45 Tenn. (5 Cold.) 326

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(1868). The purpose of the state habeas corpus petition is to contest a void, not merely a

voidable, judgment. State ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn.

1968). A void conviction is one which strikes at the jurisdictional integrity of the trial

court. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); see State ex rel. Anglin v.

Mitchell, 575 S.W.2d 284, 287 (Tenn. 1979); Passarella v. State, 891 S.W.2d 619, 627

(Tenn. Crim. App. 1994).

I. Life Sentence

The petitioner first asserts that the court should have granted habeas corpus

relief because his sentence of life imprisonment directly contravenes provisions of Code

section 40-35-501 and 40-28-115 relative to release eligibility and is, therefore, illegal.

The petitioner was convicted in alternative counts of the first degree felony murder and the

first degree premeditated murder of Mrs. Tyler. The trial court merged the convictions and

imposed a sentence of life imprisonment. Code section 35-13-202 provides that:

A person convicted of first degree murder shall be punished

by:

(1) Death;

(2) Imprisonment for life without possibility of parole; or

(3) Imprisonment for life.

T.C.A. § 39-13-202(c). Because the State did not file a pretrial notice seeking either a

sentence of death or life without the possibility of parole, see T.C.A. §§ 39-13-208(a)

(“Written notice that the state intends to seek the death penalty, filed pursuant to Rule

12.3(b) of the Tennessee Rules of Criminal Procedure, shall constitute notice that the state

also intends to seek, as a possible punishment, a sentence of imprisonment for life without

possibility of parole.”); -208(b) (“Where a capital offense is charged in the indictment or

presentment and the district attorney general intends to ask for the sentence of

imprisonment for life without possibility of parole, written notice shall be filed not less

than thirty (30) days prior to trial.”), the only statutorily available sentence for the

defendant’s conviction of first degree murder was life imprisonment, see id. § 39-13-208(c)

(“If notice is not filed pursuant to subsection (a) or (b), the defendant shall be sentenced to

imprisonment for life by the court, if the defendant is found guilty of murder in the first

degree.”). Thus, the defendant’s sentence of life imprisonment would not avail him of

habeas corpus relief.

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Moreover, the petitioner’s claim is actually not that his sentence contravenes

a statute but that the two statutes apparently contravene one another. This claim, however,

is based upon the petitioner’s misunderstanding of Code section 40-35-501(h)(2), which

provides:

There shall be no release eligibility for a person committing

first degree murder, on or after July 1, 1995, and receiving a

sentence of imprisonment for life. The person shall serve one

hundred percent (100%) of sixty (60) years less sentence

credits earned and retained. However, no sentence reduction

credits authorized by § 41-21-236 or any other law, shall

operate to reduce the sentence imposed by the court by more

than fifteen percent (15%).

T.C.A. § 40-35-501(h)(2), and Code section 40-28-115(b)(1), which provides:

Every person sentenced to a determinate sentence and confined

in a state prison, after having served a period of time equal to

one half (1/2) of the sentence imposed by the court for the

crime for which the person was convicted, but in no event less

than one (1) year, shall likewise be subject to parole in the same

manner provided for those sentenced to an indeterminate

sentence.

T.C.A. § 40-28-115(b)(1). Code section 40-28-115 is not a sentencing statute and is instead

a statute addressed to the parole board and includes the general requirements for parole

eligibility. Code section 40-35-501(h)(2) specifically addresses the timing of release, not

parole, for a prisoner sentenced to life imprisonment. See, e.g., Christopher A. Williams v.

State, No. W2013-00555-CCA-R3-HC, slip op. at 2 (Tenn. Crim. App., Jackson, Sept. 30,

2013) (noting that “this court has observed that the phrase ‘life with parole’ is inaccurate

because a defendant sentenced to life is entitled ‘to be released, as opposed to being

paroled, after serving 100 percent of 60 years less any eligible credits so long as they do

not operate to reduce the sentence by more than 15 percent, or nine years’” (quoting State

v. Kermit Penley, No. E2004-00129-CCA-R3-PC, slip op. at 4 (Tenn. Crim. App.,

Knoxville, Nov. 1, 2004)). Consequently, the provisions of Code section 40-28-115 have

no application to a sentence of life imprisonment, do not conflict with the language in Code

section 40-35-501, and would not avail the petitioner of the relief he desires.

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II. Indictment

The petitioner next asserts that Count 4 of the indictment, which charged him

with the attempted first degree murder of Mr. Tyler, was void because it did not include a

citation to the first degree murder statute. That count reads:

THE GRAND JURORS of Davidson County,

Tennessee, duly impaneled and sworn, upon their oath, present

that:

TYWAUN L. MORROW, ANDRE MAYS, ERIC BOOTH,

and CORTEZ BENNETT

on the 29th day of June, 1999, in Davidson County, Tennessee

and before the finding of this indictment, did attempt to

intentionally and with premeditation kill Wesley Tyler, in

violation of Tennessee Code Annotated § 39-12-101, and

against the peace and dignity of the State of Tennessee.

A habeas corpus proceeding is not the proper vehicle for testing the

sufficiency of an indictment unless the indictment is “so defective as to deprive the court

of jurisdiction.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). The law in

Tennessee is that an indictment must provide “sufficient information (1) to enable the

accused to know the accusation to which answer is required, (2) to furnish the court

adequate basis for the entry of a proper judgment, and (3) to protect the accused from

double jeopardy.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997); see also T.C.A. § 40-

13-202. The indictment in this case, which alleges the essential elements of the offense of

attempted first degree murder, cites the attempt statute, identifies the victim, and identifies

the date of the offense, satisfies these constitutional requirements and, in consequence, was

not defective. To be sure, Count 4 does not directly reference Code section 39-13-202;

Count 2 does contain such a reference. Although “[e]ach count must be a complete

indictment within itself, charging all the facts and circumstances that make the crime,”

State v. Lea, 41 Tenn. 175, 177-78 (1860), where “it is reasonably clear from the averments

of the second count that this is connected with and a part of the preceding count . . . such a

count may be considered good,” State v. Youngblood, 287 S.W.2d 89, 91 (Tenn. 1956);

see also State v. Cureton, 38 S.W.3d 64, 82 (Tenn. Crim. App. 2000) (holding, post-Hill,

that where all counts in an indictment referred to the same victim, the same offense date,

and were related to each other, the counts could be read together for purposes of providing

notice to the defendant). The petitioner is not entitled to relief on this issue.

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III. Double Jeopardy

Finally, the petitioner claims entitlement to habeas corpus relief on grounds

that dual convictions for the especially aggravated robbery of both Mr. and Mrs. Tyler

violate principles of double jeopardy. We need not tarry long on this claim, however,

because a violation of principles of double jeopardy does not render a conviction void and,

accordingly, occasions no cause for habeas corpus relief. See, e.g., Joseph L. Coleman v.

State, No. W2013-00884-CCA-R3-HC, slip op. at 3 (Tenn. Crim. App., Jackson, Nov. 25,

2013) (“We reiterate that a double jeopardy claim does not render a judgment void, and

thus is not a cognizable claim for which habeas corpus relief can be granted.”).

Accordingly, we affirm the order of the habeas corpus court summarily

denying the petition for writ of habeas corpus.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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