IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MACK TRANSOU v. DWIGHT BARBEE, WARDEN
Appeal from the Circuit Court for Lauderdale County
No. CV6540 Joe H. Walker, III, Judge
No. W2012-00258-CCA-R3-HC - Filed May 17, 2012
The Petitioner, Mack Transou, appeals the Lauderdale County Circuit Court’s dismissal of
his pro se petition for writ of habeas corpus. The State has filed a motion requesting that this
Court affirm the order pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.
Following our review, we grant the State’s motion and affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
Pursuant to Rule 20 of the Rules of the Court of Criminal Appeals
A LAN E. G LENN, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and C AMILLE R. M CM ULLEN, JJ., joined.
Mack T. Transou, Henning, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; and Nicholas White Spangler,
Assistant Attorney General for the Appellee, Dwight Barbee, Warden.
MEMORANDUM OPINION
As this Court has previously noted, “[t]his case is procedurally complex, due in large
part to the petitioner’s numerous and varied pro se motions and pleadings in which he
repeatedly raises the same claims.” Mack Transau v. State, No. W2010-01313-CCA-R3-PC,
2011 Tenn. Crim. App. LEXIS 247, at *1 (Tenn. Crim. App., at Jackson, Mar. 31, 2011),
perm. to appeal denied (Tenn. June 1, 2011). On March 22, 1999, the Petitioner pled guilty
to driving after being declared a habitual motor vehicle offender. He received a two-year
sentence, which included ninety days of incarceration with the remainder to be served in
Community Corrections.
As our supreme court noted:
During intake processing at the prison, Transou signed a consent form and
submitted to a blood draw. A DNA analysis was performed and the results
were submitted to CODIS. Transou’s DNA profile was eventually matched
to profiles developed from forensic evidence in two unsolved crimes: the
reported rape of S.K. in December 2001 and the reported rape of C.T. in
March 2002.
State v. Scarborough, 201 S.W.3d 607, 612 (Tenn. 2006). The Petitioner was convicted of
aggravated burglary and rape arising from the December 2001 incident and rape and sexual
battery arising from the March 2002 incident. These convictions were affirmed on appeal.
See id.
The Petitioner then began filing numerous pleadings and motions in which he
consistently maintained that his DNA profile was unlawfully obtained. See Mack Transou,
2001 Tenn. Crim. App. LEXIS 247, **1-6 (providing a review of the pleadings and motions).
On July 15, 2005, the Petitioner filed his first petition for writ of habeas corpus relief in
which he challenged his convictions arising from the December 2001 and March 2002
incidents and his two-year sentence for the conviction of driving after being declared a
habitual motor vehicle offender. The Petitioner specifically challenged the revocation of the
two-year sentence. He also maintained the actions of the Tennessee Department of
Correction in obtaining the blood sample were illegal. The trial court dismissed the petition,
and this Court affirmed the dismissal on appeal. See Mack Transou v. State, No. W2005-
01935-CCA-R3-HC, 2006 Tenn. Crim. App. LEXIS 205 (Tenn. Crim. App., at Jackson, Mar.
7, 2006), perm. to appeal denied (Tenn. May 30, 2006).
On November 3, 2008, the Petitioner filed another petition for writ of habeas corpus
in which he challenged the legality of the collection of his DNA. The trial court dismissed
the petition, and this Court affirmed the dismissal on appeal. See Mack Transou v. State, No.
W2008-02713-CCA-R3-CD, 2009 Tenn. Crim. App. LEXIS 537 (Tenn. Crim. App., at
Jackson, July 9, 2009), perm. to appeal denied (Tenn. Oct. 26, 2009).
In January 2012, the Petitioner filed a third petition for writ of habeas corpus in which
he contended “the judgments regarding the probation revocation proceedings occurring on
the dates of July 29, 1999 and July 17, 2000 were illegal and void.” He also maintained the
State violated his constitutional rights by subjecting him to DNA testing when he was
incarcerated following the revocation proceedings. The Petitioner acknowledged that the
petition was his third “in which [he] concedes to raising issues similar to those as included
herein.”
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On January 26, 2012, the trial court entered an order dismissing the petition. The trial
court found that the Petitioner failed to attach a copy of the judgment causing restraint, that
he did not show that his sentence was illegal, and that the issues raised have been previously
determined. The Petitioner filed a timely notice of appeal.
A prisoner is guaranteed the right to habeas corpus relief under Article I, section 15
of the Tennessee Constitution. See also T.C.A. § 29-21-101, et seq. However, the grounds
upon which a writ of habeas corpus may be issued are very narrow. Taylor v. State, 995
S.W.2d 78, 83 (Tenn. 1999). “Habeas corpus relief is available in Tennessee only when ‘it
appears upon the face of the judgment or the record of the proceedings upon which the
judgment is rendered’ that a convicting court was without jurisdiction or authority to
sentence a defendant, or that a defendant’s sentence of imprisonment or other restraint has
expired.” Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). “[T]he purpose of a habeas
corpus petition is to contest void and not merely voidable judgments.” Id. at 163. A void
judgment “is one in which the judgment is facially invalid because the court lacked
jurisdiction or authority to render the judgment or because the defendant’s sentence has
expired.” Taylor, 995 S.W.2d at 83. In contrast,
a voidable judgment is facially valid and requires the introduction of proof
beyond the face of the record or judgment to establish its invalidity. Thus, in
all cases where a petitioner must introduce proof beyond the record to establish
the invalidity of his conviction, then that conviction by definition is merely
voidable, and a Tennessee court cannot issue the writ of habeas corpus under
such circumstances.
Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004) (internal citation and quotations omitted);
see also Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (citations omitted). Moreover,
it is the petitioner’s burden to demonstrate, by a preponderance of the evidence, that the
judgment is void or that the confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000).
If the habeas corpus court determines from the petitioner’s filings that no cognizable
claim has been stated and that the petitioner is not entitled to relief, the petition for writ of
habeas corpus may be summarily dismissed. See Hickman, 153 S.W.3d at 20. Further, the
habeas corpus court may summarily dismiss the petition without the appointment of a lawyer
and without an evidentiary hearing if there is nothing on the face of the judgment to indicate
that the convictions are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.
1994), superseded by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC-
00266, 1998 Tenn. Crim. App. LEXIS 282 (Tenn. Crim. App., at Jackson, Mar. 11, 1998).
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The procedural requirements for habeas corpus relief are mandatory and must be
scrupulously followed. Hickman, 153 S.W.3d at 19-20; Archer, 851 S.W.2d at 165. “A
habeas corpus court may properly choose to dismiss a petition for failing to comply with the
statutory procedural requirements.” Hickman, 153 S.W.3d at 21. The petition only includes
a copy of the 1999 judgment for driving after being declared a habitual motor vehicle
offender. Although the Petitioner challenges the judgment revoking his probation, he failed
to attach copies of those judgments. See T.C.A. § 29-21-107(b)(2). The Petitioner also
failed to state in his petition that “the legality of the restraint has not already been adjudged
upon a prior proceeding of the same character.” See id. at (b)(3). Rather, he acknowledged
the issues raised were similar to those raised in prior proceedings. Finally, while the
Petitioner acknowledged the petition was his third, he failed to attach copies of the previous
petitions. See id. at (b)(4).
Not only has the Petitioner failed to follow the statutory procedural requirements for
filing a petition for writ of habeas corpus, he has also failed to establish that he is entitled to
relief. The Petitioner contends the collection of his DNA was improper and unconstitutional.
However, this issue has previously been adjudicated and found to be without merit. See
Scarborough, 201 S.W.3d at 625; Mack Transou, 2009 Tenn. Crim. App. LEXIS 537, at *8.
Furthermore, the admissibility of DNA evidence is an issue that would render a judgment
voidable, not void, and, therefore, may not constitute a ground for habeas corpus relief.
Mack Transou, 2006 Tenn. Crim. App. LEXIS 205, at *9.
For the first time on appeal, the Petitioner contends his 1999 plea to driving after
being declared a habitual motor vehicle offender was involuntary because he received
ineffective assistance of counsel. This claim, however, is an improper ground for habeas
corpus relief. See Archer, 851 S.W.2d at 161-62; Passarella v. State, 891 S.W.2d 619, 626
(Tenn. Crim. App. 1994). Moreover, the trial court properly declined to consider the petition
for one seeking post-conviction relief. The petition was not filed in Madison County where
the conviction occurred. See T.C.A. § 40-30-104(a). The petition was also filed outside the
one-year statute of limitations, and the Petitioner failed to establish any reason for tolling the
statute of limitations. See T.C.A. § 40-30-102(b); Burford v. State, 845 S.W.2d 204, 209
(Tenn. 1992). Thus, the Petitioner is not entitled to relief.
When an opinion would have no precedential value, the Court of Criminal Appeals
may affirm the judgment or action of the trial court by memorandum opinion when the
judgment is rendered or the action taken in a proceeding without a jury and such judgment
or action is not a determination of guilt, and the evidence does not preponderate against the
finding of the trial judge. See Tenn. Ct. Crim. App. R. 20. We conclude that this case
satisfies the criteria of Rule 20. Accordingly, it is ordered that the State’s motion is granted.
The judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Court
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of Criminal Appeals.
_________________________________
ALAN E. GLENN, JUDGE
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