Trevon Scott Barcus v. State of Tennessee ( 2020 )

09/24/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 23, 2020
TREVON SCOTT BARCUS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Scott County
No. 11443 E. Shayne Sexton, Judge
No. E2019-02206-CCA-R3-HC
The Petitioner, Trevon Scott Barcus, appeals as of right from the Scott County Criminal
Court’s summary dismissal of his petition for writ of habeas corpus. He claims entitlement
to habeas corpus relief, alleging that (1) his separate federal and state convictions for failing
to register as a sex offender violate double jeopardy principles; (2) he entered an
unknowing and involuntary guilty plea because the trial court failed to inform him that he
could not transfer the supervision of his probation to another state; and (3) that this
“categorical” prohibition on travel constitutes cruel and unusual punishment and violates
principles of substantive due process. Following our review, we conclude that the
Petitioner has failed to state a cognizable claim for relief and, therefore, affirm the summary
dismissal of his petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.
Trevon Scott Barcus, Lovejoy, Georgia, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney
General; Jared Effler, District Attorney General; and Thomas E. Barclay, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
On January 8, 2019, the Scott County Grand Jury indicted the Petitioner for
violation of community supervision for life and violating the sex offender registry. See
Tenn. Code Ann. §§ 39-13-526, 40-39-204. The Petitioner pled guilty as charged on April
1, 2019; the facts articulated at the plea hearing indicated that the Petitioner had previously
been convicted of attempted aggravated sexual battery and that he subsequently failed to
register as a sex offender or attend required sex offender counseling. Pursuant to the plea
agreement, the Petitioner was sentenced to an effective four years, suspended to probation;
the sentences were ordered to be served consecutively to the Petitioner’s federal sentence,
which was based upon similar conduct.1 A note on both of the Petitioner’s judgment forms
read, “The [Petitioner] shall not be eligible to transfer supervision to another State.”
On September 30, 2019, the Petitioner filed a pro se petition for writ of habeas
corpus, asserting that his Scott County convictions were void, having been imposed in
violation of his double jeopardy rights. Relevant to the issues raised on appeal, the
Petitioner argued that the dual sovereign doctrine permitting concurrent state and federal
convictions violated double jeopardy. See United States v. Lanza, 260 U.S. 377 (1922).
The State filed a responding motion to summarily dismiss the petition, arguing that the
Petitioner had failed to state a cognizable ground for relief because double jeopardy
violations do not render a conviction void; the State noted that the Petitioner’s essential
request was for the habeas corpus court to overturn Lanza, an action the court was not
authorized to take.
The habeas corpus court summarily dismissed the petition by written order dated
October 7, 2019, concluding simply that “for good cause shown” the petition was denied.
The Petitioner later filed an October 12, 2019 motion for a hearing; at the December 2,
2019 hearing, it became apparent that the Petitioner never received a copy of the court’s
order. The court indicated during the hearing that it would make the order effective as of
December 2, 2019, in order to facilitate the timely filing of the Petitioner’s notice of
appeal.2 The court also noted during the hearing that it denied the order because it was
“not prepared to go against” the United States Supreme Court’s decision in Lanza. The
Petitioner filed a notice of appeal on December 16, 2019.
ANALYSIS
On appeal, the Petitioner argues that the habeas corpus court erred by dismissing his
petition for failure to state a cognizable claim for relief. The Petitioner further contends
that his dual state and federal convictions violated double jeopardy protections and urges
this court to “have a fresh look” at the dual sovereign doctrine announced in Lanza. Our
understanding is that in the Petitioner’s estimation, Lanza is no longer constitutional or
1
The Petitioner was also charged in Texas, Kentucky, and in federal court with failure to register as a sex
offender; the Texas and Kentucky charges were eventually dropped, but the federal case resulted in a
conviction.
2
The record does not contain any such modified order.
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binding under Article 1, section 10 of the Tennessee Constitution because the evolving
legal standards relevant to double jeopardy analysis and federal incorporation doctrine
would have changed the outcome in Lanza were it decided today.
Under Tennessee law, the “grounds upon which habeas corpus relief may 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: (1) a lack of jurisdiction for the order of
confinement on the face of the judgment or in the record on which the judgment was
rendered; or (2) that he is otherwise entitled to immediate release because of the expiration
of his sentence. 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). A
void, as opposed to a voidable, judgment is “one that is facially invalid because the court
did not have the statutory authority to render such judgment.” See Summers v. State, 212
S.W.3d 251, 256 (Tenn. 2007). In contrast, “[a] voidable conviction or sentence is one
which is facially valid and requires the introduction of proof beyond the face of the record
or judgment to establish its invalidity.” Taylor, 995 S.W.2d at 83.
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. We note that the determination of
whether to grant habeas corpus relief is a matter of law; therefore, we will review the
habeas corpus court’s finding de novo without a presumption of correctness. McLaney v.
Bell, 59 S.W.3d 90, 92 (Tenn. 2001).
As a preliminary matter, in his appellate briefs, the Petitioner raises additional issues
not presented in the court below. Specifically, the Petitioner submits that he entered an
unknowing guilty plea because the trial court failed to inform him that he could not transfer
supervision of his probation to another state. He further characterizes the Tennessee
probation supervision requirement as a “categorical” restriction on travel that is violative
of Fourteenth Amendment substantive due process and the Eighth Amendment prohibition
against cruel and unusual punishment. In his reply brief, the Petitioner has requested plain
error review.
Possible waiver notwithstanding, the Petitioner’s three claims—an unknowing
guilty plea, a due process violation, and an Eighth Amendment violation—if proven, would
render the challenged judgments voidable rather than void and do not present a cognizable
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claim for habeas corpus relief. See Archer v. State, 851 S.W.2d 157, 163-64 (Tenn. 1993)
(concluding that an unknowing guilty plea creates a voidable judgment); Kelvin A. Lee v.
Shawn Phillips, Warden, No. W2019-01634-CCA-R3-HC, 2020 WL 4745484, at *4
(Tenn. Crim. App. Aug. 14, 2020) (concluding that an Eighth Amendment violation creates
a voidable judgment); Tyrone E. Montgomery v. State, No. E2011-02629-CCA-R3-HC,
2013 WL 5180586, at *3 (Tenn. Crim. App. Sept. 13, 2013) (citing Frederick B. Zonge v.
State, No. 03C01-9903-CR-00094, 1999 WL 1191542, at *2 (Tenn. Crim. App. Dec. 16,
1999) (concluding that a due process violation creates a voidable judgment).
Likewise, we may briefly dispense with the Petitioner’s double jeopardy claim.
Such an allegation would render a conviction merely voidable, not void, and as a result, it
is not a proper basis of a petition for habeas corpus. See, e.g., Timothy Lee Armstrong v.
Tammy Ford, Warden, No. W2016-00891-CCA-R3-HC, 2017 WL 838667, at *2 (Tenn.
Crim. App. Mar. 3. 2017); Vincent Love Williams v. Henry Steward, Warden, No. W2011-
01954-CCA-R3-HC, 2012 WL 2308094, at *3 (Tenn. Crim. App. June 18, 2012) (citing
Patrick Thurmond v. David Sexton, Warden, No. E2010-02256-CCA-R3-HC, 2011 WL
6016890, at *4-5 (Tenn. Crim. App. Dec. 5, 2011).
It has been repeatedly stated that constitutional claims such as the ones presented
here are properly addressed in a petition for post-conviction relief. See Hickman, 153
S.W.3d at 19-20 (articulating the difference between petitions for habeas corpus, which
may attack void sentences imposed in contravention of statute, and post-conviction
petitions, which attack sentences that are void or voidable “because of the abridgement of
constitutional rights”). We note that in the Petitioner’s case, the deadline to file a post-
conviction petition passed on May 1, 2020, one year after the judgments became final.
Because the Petitioner has not presented a cognizable claim for habeas corpus relief, his
petition was properly dismissed.
CONCLUSION
Upon consideration of the foregoing and the record as a whole, we affirm the
judgment of the habeas corpus court summarily dismissing the petition.
_________________________________
D. KELLY THOMAS, JR., JUDGE
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