Cortez Bennett v. Kevin Genovese, Warden ( 2022 )

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.) 326-2-
(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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