Mark Stephen Foster v. Jonathan Lebo, Warden, W2017-00924-CCA-R3-HC

Mark Foster pled guilty in 2011 to two counts of attempted first-degree murder, two counts of employing a firearm during the commission of a dangerous felony, and one firearm-on-school-campus offense; effective sentence 56 years.
In April 2017 Foster filed a pro se petition for writ of habeas corpus claiming the firearm employment convictions were illegal under Tenn. Code Ann. § 39-17-1324(c).
The habeas court summarily dismissed the petition because Foster did not attach his indictments (necessary to determine whether possession/employing a firearm was an essential element of the charged offenses).
Foster filed certified copies of the indictments and a motion to alter the judgment after filing a notice of appeal; the habeas court declined to act further for lack of jurisdiction.
On appeal Foster relied on Anthony D. Byers (post-conviction WL decision) arguing a firearm-based employment conviction is void where the underlying indictment charged a deadly weapon more broadly; the State argued Foster’s petition was procedurally deficient and the firearm was not an essential element of attempted first-degree murder.
The Court of Criminal Appeals affirmed, holding the petition was properly dismissed for failure to include necessary indictments and, on the merits, the claim did not render the judgments void.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether habeas corpus petition can proceed without indictments attached	Foster: convictions for employing a firearm are illegal under § 39-17-1324(c); court can adjudicate claim	State: indictments are essential to determine if firearm was an element; petition incomplete	Court: Dismissal proper; indictments were required for review
Whether employing a firearm conviction is void when underlying offense references a deadly weapon generally	Foster: Byers supports voiding firearm-employment convictions where proof showed a firearm was used	State: firearm is not an essential element of attempted first-degree murder; convictions not void	Court: On merits, claim fails; use of firearm is not an essential element here; convictions not void
Whether due process / Eighth Amendment claims are cognizable in habeas corpus	Foster: asserts Eighth and Fourteenth Amendment violations from dual convictions	State: constitutional claims of this type belong in post-conviction proceedings, not habeas	Court: Constitutional claims not cognizable in habeas and were waived or inappropriate here
Whether court could consider post-dismissal filings after notice of appeal	Foster: submitted indictments and motion to alter after dismissal	State: habeas court lacked jurisdiction after Foster’s notice of appeal	Court: Foster concedes and court agrees habeas court lacked jurisdiction to act further

Summers v. State, 212 S.W.3d 251 (Tenn. 2007) (procedural requirements and necessary record attachments for habeas relief)
Archer v. State, 851 S.W.2d 157 (Tenn. 1993) (habeas procedure standards)
Luttrell v. State, 644 S.W.2d 408 (Tenn. Crim. App. 1982) (constitutional claims are generally for post-conviction, not habeas)
State v. Shelton, 854 S.W.2d 116 (Tenn. Crim. App. 1992) (use of a firearm may be an enhancement factor rather than an essential element of certain homicide offenses)