Kevin Lawrence v. Kevin Genovese, Warden

04/29/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs April 2, 2024

KEVIN LAWRENCE v. KEVIN GENOVESE, WARDEN

Appeal from the Circuit Court for Lake County

No. 21-CR-10814 Mark L. Hayes, Judge

No. W2023-00607-CCA-R3-HC

The Petitioner, Kevin Lawrence, appeals the Lake County Circuit Court’s dismissal of his

petition for writ of habeas corpus. The Petitioner argues his judgment is void and illegal

because his sentence does not reflect any parole eligibility. Based on our review, we affirm

the habeas corpus court’s dismissal of the petition.

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

KYLE A. HIXSON, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER

and TOM GREENHOLTZ, JJ., joined.

M. Todd Ridley (on appeal), Assistant Public Defender—Appellate Division, Franklin,

Tennessee; and Sean P. Day, District Public Defender, Dyersburg, Tennessee, for the

appellant, Kevin Lawrence.

Jonathan Skrmetti, Attorney General and Reporter; Richard D. Douglas, Senior Assistant

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

State of Tennessee.

OPINION

I. FACTUAL AND PROCEDURAL HISTORY

The Petitioner, along with two codefendants, was indicted by a Shelby County grand

jury for first degree premeditated murder and felony murder following a robbery and killing

on December 28, 1998, in Memphis, Tennessee. At trial, the Petitioner was convicted of

first degree felony murder and second degree murder as a lesser included offense of first

degree premeditated murder. The trial court merged the second degree murder conviction

with the felony murder conviction and sentenced the Petitioner to life imprisonment.

On direct appeal, this court affirmed the Petitioner’s conviction. State v. Lawrence,

No. W2001-02638-CCA-R3-CD, 2003 WL 22318461, at *13 (Tenn. Crim. App. Oct. 9,

2003) (“Lawrence I”), perm. app. granted (Tenn. Mar. 8, 2004). On discretionary review,

our supreme court also affirmed the Petitioner’s conviction. State v. Lawrence, 154 S.W.3d

71, 73 (Tenn. 2005) (“Lawrence II”).

The Petitioner timely petitioned for post-conviction relief. The post-conviction

court denied the petition, and this court affirmed this denial. Lawrence v. State, No.

W2007-02021-CCA-R3-PC, 2009 WL 1034508, at *1 (Tenn. Crim. App. Apr. 17, 2009),

perm. app. denied (Tenn. Oct. 5, 2009).

On December 28, 2021, the Petitioner filed a pro se petition for writ of habeas

corpus in which he alleged his judgment was void and illegal because (1) his sentence of

life imprisonment does not permit the possibility of parole in violation of Tennessee Code

Annotated sections 40-35-501 and 40-28-115; (2) his indictment for felony murder was

defective; (3) his conviction violated double jeopardy; and (4) Tennessee’s first degree

murder statute, Tennessee Code Annotated section 39-13-202, is unconstitutional.

After counsel was appointed, the habeas corpus court entered an order in which it

stated, “Counsel for [the Petitioner] shall file an amended petition or a declaration that he

is not amending the petition by February 24, 2022.” The Petitioner, through counsel, filed

a notice stating that the petition would not be amended.

Thereafter, the State filed a motion to dismiss the petition for writ of habeas corpus,

arguing the petition failed on procedural and substantive grounds. On July 11, 2022, the

habeas corpus court entered an order granting the State’s motion to dismiss the petition.

The habeas corpus court found the petition was procedurally defective because the

Petitioner failed to sign his petition and failed to verify it by affidavit as required by

Tennessee Code Annotated section 29-21-107(a). Further, the habeas corpus court found

the petition did not state a cognizable claim for relief.

On October 4, 2022, the Petitioner, through counsel, filed an unopposed motion to

vacate the order of dismissal and amend the petition for habeas corpus relief. The habeas

corpus court granted the motion, vacated the July 11, 2022 order, and allowed the Petitioner

to file an amended petition.

On March 15, 2023, the Petitioner filed an amended petition for writ of habeas

corpus. The amended petition did not raise any additional claims but incorporated all

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claims raised in the original petition. Additionally, the amended petition cured the

procedural defects of the original petition. The habeas corpus court dismissed the amended

petition, finding that the Petitioner was not entitled to relief under any of his four

substantive arguments. On the Petitioner’s first ground, the habeas corpus court found that

the Petitioner’s sentence was not in contradiction to Tennessee Code Annotated

section 40-35-501 as the supreme court in Brown v. Jordan, 563 S.W.3d 196 (Tenn. 2018)

held that there was no conflict between sections 40-35-501(h) and (i), and a defendant

convicted of first degree murder on or after July 1, 1995, and sentenced to life in prison

may be released, at the earliest, after fifty-one years of imprisonment. Further, the

Petitioner’s sentence was not in contradiction to Tennessee Code Annotated

section 40-28-115 because this statute applies only to persons who committed crimes prior

to July 1, 1982, by virtue of the provisions in the Tennessee Criminal Sentencing Reform

Act of 1982. On the Petitioner’s additional grounds for relief, the habeas corpus court

found that (1) the indictment appeared to meet the requirements of Tennessee Code

Annotated section 40-13-202 and properly charged the Petitioner with first degree felony

murder; (2) no double jeopardy issues appear in the judgment as the Petitioner’s

convictions were merged and no separate or additional sentence was imposed; and (3) no

authority supports the Petitioner’s proposition that Tennessee’s first degree murder statute

is unconstitutional. This timely appeal followed.

II. ANALYSIS

The Petitioner contends on appeal that the habeas corpus court erred in dismissing

his petition for failure to state a claim. The Tennessee Constitution guarantees a convicted

criminal defendant the right to seek habeas corpus relief. See Tenn. Const. art. I, § 15.

While the right to seek a writ of habeas corpus is a constitutional right, it is regulated by

statute in Tennessee. See Ussery v. Avery, 432 S.W.2d 656, 657 (Tenn. 1968). The statute

provides, with certain limited exceptions, that “[a]ny person imprisoned or restrained of

liberty, under any pretense whatsoever, . . . may prosecute a writ of habeas corpus, to

inquire into the cause of such imprisonment and restraint.” Tenn. Code

Ann. § 29-21-101(a). However, the “grounds upon which habeas corpus relief will be

granted are very narrow.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The writ will

issue only where the petitioner has established on the face of the judgment or the record of

the proceeding upon which the judgment was rendered that: (1) the convicting court was

without jurisdiction to sentence the petitioner; or (2) the petitioner’s sentence has expired

and he is entitled to immediate release. See State v. Ritchie, 20 S.W.3d 624, 630 (Tenn.

2000); Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). The purpose of the 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).

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A void judgment is “one that is facially invalid because the court did not have the

statutory authority to render such judgment.” Summers v. State, 212 S.W.3d 251, 256

(Tenn. 2007). A sentence imposed in direct contravention of a statute is illegal and, thus,

void. Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000). A petitioner bears the

burden of establishing a void judgment or illegal confinement by a preponderance of the

evidence. See Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). A habeas corpus court

may summarily dismiss a petition without a hearing when the petition “fails to demonstrate

that the judgment is void.” Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004); see Tenn.

Code Ann. § 29-21-109. The determination of whether to grant habeas corpus relief is a

question of law, and our review is de novo. Summers, 212 S.W.3d at 255.

We begin by addressing a procedural irregularity in this case. As noted above, the

habeas corpus court, upon the Petitioner’s motion, set aside its order dismissing the

Petitioner’s original petition. The legal basis for this order of vacation is unclear. In his

motion, the Petitioner did not move the habeas corpus court to vacate pursuant to any

particular rule or law. In turn, the habeas corpus court did not grant the motion pursuant

to any particular rule or law. See Grooms v. State, No. E2014-01228-CCA-R3-HC, 2015

WL 1396474, at *2 (Tenn. Crim. App. Mar. 25, 2015) (holding that an order denying

habeas corpus relief becomes final thirty days after its entry, and a habeas corpus court

lacks jurisdiction to issue additional orders on the petition after that time). Despite this

ambiguity, the amended petition is procedurally sound to serve as a separate, original

petition. First, the amended petition cured the procedural deficiencies of the original

petition. Specifically, as required by Tennessee Code Annotated section 29-21-107(a), the

Petitioner signed the petition and verified it by affidavit. Second, under Tennessee Code

Annotated section 29-21-107(b)(4), the amended petition noted that a previous application

for writ of habeas corpus had been made and attached a copy of the original petition.

Therefore, we will review the amended petition as a new petition for writ of habeas corpus

rather than an amendment to the previously-denied petition.

On appeal, the Petitioner’s sole argument is that the habeas corpus court erred in its

denial of the Petitioner’s claim that his judgment was void and illegal because the

Petitioner’s sentence does not reflect parole eligibility. The State alleges this argument has

been waived due to the Petitioner’s reliance on a new theory on appeal. We begin by

addressing this waiver argument.

A petitioner cannot change theories of relief from the habeas corpus court to the

appellate court. Pittman v. Steward, No. W2011-01632-CCA-R3-HC, 2012 WL 2514909,

at *3 (Tenn. Crim. App. July 2, 2012). In Pittman, the petitioner argued, both in his petition

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and on appeal, that the indictment in his case was defective. Id. However, the petitioner

changed his underlying theory as to this proposition from the habeas corpus court to the

appellate court. Id. In his petition, the petitioner asserted that the indictment was defective

due to missing elements; on appeal, the petitioner asserted the indictment was defective

because alternative bases for the elements were alleged. Id. This court held that the new

theory was waived on appeal. Id. (citing State v. Dooley, 29 S.W.3d 542, 549 (Tenn. Crim.

App. 2000)).

Here, the Petitioner argues both in his petition and on appeal that his judgment is

void and illegal because his sentence of life imprisonment deprives him of the possibility

of parole. However, like in Pittman, the Petitioner’s theory underlying this argument

changed from the habeas corpus court to this court. In his petition, and the issue addressed

by the habeas corpus court, the Petitioner argued his judgment was void and illegal because

his sentence of life imprisonment does not permit the possibility of parole in contravention

of Tennessee Code Annotated sections 40-35-501 and 40-28-115. On appeal, the Petitioner

argues that his sentence of life imprisonment is illegal because it does not permit the

possibility of parole despite this court’s and the Tennessee Supreme Court’s finding that

the Petitioner’s sentence included the possibility of parole by operation of law.

Specifically, the Petitioner relies on the law of the case doctrine to advance this latter

argument, stating the issue of the Petitioner’s parole eligibility is settled and cannot be

reconsidered. Due to the Petitioner’s change in theory on appeal, this issue is waived.

Notwithstanding waiver, we conclude the Petitioner failed to establish a cognizable

claim for habeas corpus relief. As explained above, the Petitioner argues on appeal that,

under the law of the case doctrine, his sentence of life imprisonment is void and illegal.

His argument relies on language in Lawrence I and II describing his sentence as including

the possibility of parole.

Pursuant to the law of the case doctrine, an appellate court’s decision on an issue of

law is binding in later trials and appeals of the same case if the facts on the second trial or

appeal are substantially the same as the facts in the first trial or appeal. State v. Jefferson,

31 S.W.3d 558, 560-61 (Tenn. 2000) (quoting Memphis Publ’g. Co. v. Tennessee

Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998)).

Furthermore, “[t]he doctrine applies to issues that were actually before the appellate court

in the first appeal and to issues that were necessarily decided by implication.” Id. “There

are limited circumstances which may justify reconsideration of an issue which was [an]

issue decided in a prior appeal: (1) the evidence offered at a trial or hearing after remand

was substantially different from the evidence in the initial proceeding; (2) the prior ruling

was clearly erroneous and would result in a manifest injustice if allowed to stand; or (3)

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the prior decision is contrary to a change in the controlling law which has occurred between

the first and second appeal.” Id. (quoting Memphis Publ’g. Co., 975 S.W.2d at 306).

Notably, the doctrine does not apply to dicta. Id.

The issue of the Petitioner’s parole eligibility was not before this court or the

supreme court on direct appeal. See Lawrence I, 2003 WL 22318461, at *1; Lawrence II,

154 S.W.3d at 73. The Petitioner argues, however, that the issue of his parole eligibility

was necessarily decided by implication, stating that in the courts’ affirmation of the

Petitioner’s conviction and sentence, the courts found his sentence included parole

eligibility. Specifically, Petitioner cites to the courts’ statements that the Petitioner was

sentenced to life with the possibility of parole. While this court and the supreme court did

state that the Petitioner was sentenced to life with the possibility of parole, the purpose of

these statements was factual recitation, not a holding on a presented issue. See Lawrence

I, 2003 WL 22318461, at *1, *7; Lawrence II, 154 S.W.3d at 75. Further, none of the

issues decided by this court or the supreme court on prior appeals implicates the

Petitioner’s sentence or parole eligibility. Lawrence I, 2003 WL 22318461, at *1;

Lawrence II, 154 S.W.3d at 73. This court and the supreme court made no determination,

either explicitly or implicitly, that would serve as the law of the case concerning the

Petitioner’s parole eligibility. The courts’ affirmation of the trial court’s judgment on

separate issues does not extend to a decision on the Petitioner’s parole eligibility.

Therefore, the Petitioner’s claim that his sentence includes parole eligibility under the law

of the case doctrine such that habeas corpus relief should be granted to reflect this eligibility

is meritless.

Furthermore, we recognize that the phrase “life with the possibility of parole” does

not describe a legally available sentence for first degree murder in Tennessee, even though

it has been used colloquially to differentiate between two of the available sentences for that

offense—i.e., “imprisonment for life without the possibility of parole” and “imprisonment

for life.” See Tenn. Code Ann. § 39-13-204(a); see also Penley v. State, No. E2004-00129-

CCA-R3-PC, 2004 WL 2439287, at *3 (Tenn. Crim. App. Nov. 1, 2004) (“The term ‘life

imprisonment with the possibility of parole’ is inaccurate and is mistakenly used to

differentiate between the more severe sentence of life imprisonment without possibility of

parole.”). Here, for a defendant committing first degree murder, “a sentence of life in

prison entitles the defendant to be released, as opposed to paroled, after serving 100% of

sixty years less any eligible credits, so long as they do not operate to reduce the sentence

by more than 15%, or nine years, which would result in a total sentence of fifty-one years.”

Penley, 2004 WL 2439287, at *3; see Tenn. Code Ann. § 40-35-501(h)(2). The usage of

“life with the possibility of parole” in Lawrence I and II was likely to differentiate the

Petitioner’s sentence from the more severe sentence of life without the possibility of parole.

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See id. In any instance, the use of the phrase “life with the possibility of parole” in prior

appellate decisions does not render the Petitioner’s judgment void. See Williams v. State,

No. W2013-00555-CCA-R3-HC, 2013 WL 5493568, at *2 (Tenn. Crim. App. Sept. 30,

2013) (stating that use of the phrase “Life with Parole” on petitioner’s judgment would not

render the petitioner’s judgment void); Rose v. Lindamood, No. M2017-00928-CCA-R3-

HC, 2018 WL 3116609, at *2 (Tenn. Crim. App. June 25, 2018) (stating that the trial

court’s use of the phrase “life imprisonment with the possibility of parole” at the sentencing

hearing does not cause petitioner’s judgment to be void). As a result, and notwithstanding

waiver, the Petitioner would not be entitled to habeas corpus relief.

III. CONCLUSION

Based on our review, we affirm the judgment of the habeas corpus court dismissing

the petition.

______________________________

KYLE A. HIXSON, JUDGE

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