        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 4, 2016

            JOSE LUIZ DOMINQUEZ v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                     No. 2007-D-3022 Monte Watkins, Judge
                     ___________________________________

              No. M2016-00302-CCA-R3-HC – Filed February 17, 2017
                     ___________________________________

The Petitioner, Jose Luiz Dominguez, appeals the dismissal of his petition for writ of
habeas corpus by the Davidson County Criminal Court. On appeal, the Petitioner argues
that the indictment was defective and that he received ineffective assistance of counsel,
which rendered his guilty plea involuntary. Upon review, we affirm the judgment of the
habeas corpus court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ALAN E. GLENN
and TIMOTHY L. EASTER, JJ., joined.

Manuel B. Russ, Nashville, Tennessee, for the Petitioner, Jose Luiz Dominguez.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Glenn R. Funk, District Attorney General; and Roger D. Moore, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

       On November 2, 2007, the Petitioner was indicted by a Davidson County Grand
Jury on one count of premeditated first degree murder. On March 18, 2008, the
Petitioner pled guilty to second degree murder and received a total effective sentence of
twenty years‟ incarceration. The Petitioner filed his first petition for habeas corpus relief
in the Wayne County Circuit Court, alleging that the indictment failed to include the
statutory element of “intent,” his sentence was outside the appropriate sentencing range,
and he received ineffective assistance of counsel. The Wayne County Circuit Court
dismissed the petition on both “procedural and substantive grounds.”1 On August 21,
2015, the Petitioner filed a second petition for writ of habeas corpus in the Davidson
County Criminal Court alleging the same grounds. The State filed a “Motion to Dismiss
Petition for Writ of Habeas Corpus” stating that the petition was “improperly filed” in the
Davidson County Criminal Court and failed to “demonstrate that the indictment [was]
void or that his sentence [had] expired.” The Petitioner filed a response to the State‟s
motion to dismiss, and on January 20, 2016, the habeas corpus court held a hearing on
both motions and the petition.

       At the hearing, the Petitioner‟s counsel asked the habeas corpus court if the
Petitioner could testify and elaborate on the claims raised in his petition. The State
objected stating that any testimony the Petitioner provided would be irrelevant. Noting
the State‟s objection, the habeas corpus court allowed brief testimony from the Petitioner.
The Petitioner testified, through a Spanish interpreter, that when he pled guilty in 2008,
he did not realize that he was pleading guilty to twenty years at one hundred percent. He
claimed that his attorney told him that his sentence would be ten years at one hundred
percent. The Petitioner also testified that his attorney failed to explain the possible
sentencing range for second degree murder and failed to explain the elements of the
offense to the Petitioner before he pled guilty. Furthermore, because the Spanish
interpreter provided at the guilty plea hearing did not “speak Spanish very well,” the
Petitioner could not understand what was happening during the guilty plea hearing.
Finally, the habeas corpus court asked the Petitioner if he remembered signing both the
English and Spanish versions of the plea petition. The Petitioner denied signing any
document in Spanish and denied that his signature was on the plea petition.

        The habeas corpus court took the matter under advisement, and on January 27,
2016, it dismissed the petition. The habeas corpus court reasoned that this was the
Petitioner‟s second petition for writ of habeas corpus, and he did not show “sufficient
reasons for filing the petition in the court of conviction.” Despite this procedural defect,
the habeas corpus court found that the “indictment was sufficient to charge the offense
and to vest jurisdiction in the trial court, and the sentence imposed was not illegal.” The
court also found that the Petitioner‟s claims of “ineffective assistance of counsel and an
involuntary guilty plea are not cognizable claims in habeas corpus.” It is from this order
that the Petitioner now timely appeals.



        1
           The petition failed to include a copy of the judgment as required by statute and failed to affirm
that the legality of restraint had not already been determined in a previous proceeding. See T.C.A. § 221-
107. The petition also included claims of ineffective assistance of counsel, which are not cognizable in a
petition for writ of habeas corpus.
                                                        -2-
                                           ANALYSIS

        On appeal, the Petitioner argues that the “indictment was facially insufficient” and
that he received ineffective assistance of counsel, which rendered his guilty plea
involuntary. Because the Petitioner fails to provide support in his brief for his claim that
the indictment was facially insufficient, the State argues that the Petitioner has waived
this issue. The State also argues that the Petitioner‟s claim of ineffective assistance of
counsel, which led to an involuntary guilty plea, is not a cognizable claim for habeas
corpus relief. Upon review, we agree with the State.

       “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)). Accordingly, our review is de novo without a
presumption of correctness. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (citing
State v. Livingston, 197 S.W.3d 710, 712 (Tenn. 2006)).

       A prisoner is guaranteed the right to habeas corpus relief under Article I, section
15 of the Tennessee Constitution. Tenn. Const. art. I, § 15; see T.C.A. §§ 29-21-101 to -
130. The grounds upon which a writ of habeas corpus may be issued, however, 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). A habeas corpus petition challenges void and not merely voidable
judgments. Summers, 212 S.W.3d at 255 (citing Potts v. State, 833 S.W.2d 60, 62 (Tenn.
1992)). “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 (citing Dykes v. Compton, 978 S.W.2d
528, 529 (Tenn. 1998); Archer, 851 S.W.2d at 161-64). However, a voidable judgment
“is facially valid and requires proof beyond the face of the record or judgment to
establish its invalidity.” Summers, 212 S.W.3d at 256 (citing Dykes, 978 S.W.2d at 529).
Thus, “[i]n 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.” State v. Ritchie, 20 S.W.3d 624, 633 (Tenn. 2000). 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 this burden is met, the Petitioner is entitled to immediate release. State v.


                                                -3-
Warren, 740 S.W.2d 427, 428 (Tenn. Crim. App. 1986) (citing Ussery v. Avery, 432
S.W.2d 656, 658 (Tenn. 1968)).

        Also, “[t]he application should be made to the court or judge most convenient in
point of distance to the applicant, unless a sufficient reason be given in the petition for
not applying to such court or judge.” T.C.A. § 29-21-105; see Davis v. State, 261 S.W.3d
16, 21 (Tenn. Crim. App. 2008) (“[I]f a petition does state a reason explaining why it was
filed in a court other than the one nearest the petitioner, the petition may be dismissed
pursuant to this section only if the stated reason is insufficient.”). “A trial court properly
may choose to summarily dismiss a petition for failing to comply with the statutory
procedural requirements.” Summers, 212 S.W.3d at 260; see Hickman, 153 S.W.3d at
21.

       As an initial matter, the Petitioner did not file his petition in the court “most
convenient in point of distance” as required by Tennessee Code Annotated Section 29-
21-105. The record indicates that the Petitioner is incarcerated at the South Central
Correctional Facility, in Clifton, Tennessee, which is located in Wayne County. The
Petitioner filed his second petition in Davidson County because his sentence was illegal
and it was “proper” for the Davidson County Criminal Court to hear his petition. The
habeas corpus court determined, and we agree, that the Wayne County Circuit Court “is
the court closest to [the Petitioner‟s] place of confinement” and “[h]e has not shown
sufficient reasons for also filing the petition in the court of conviction.” Notwithstanding
the Petitioner‟s failure to follow the aforementioned procedural requirements, we
conclude that the habeas corpus court properly dismissed the petition. The Petitioner
argues that the indictment was “facially insufficient and, therefore, void.” However, the
Petitioner‟s brief fails to explain why the indictment was “facially insufficient” and only
provides his “belief” that the indictment was insufficient and void. He fails to provide
this court with any legal authority to support his argument. Accordingly, this issue has
been waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by
argument, citation to authorities, or appropriate references to the record will be treated as
waived in this court.”).

       The Petitioner also argues that he received ineffective assistance of counsel, which
rendered his guilty plea involuntary. He claims that his original attorney “erroneously
informed [him] about the true nature of the plea he was entering.” However, as the
habeas corpus court found, claims of ineffective assistance of counsel and an involuntary
guilty plea are not cognizable claims in habeas corpus. See Michael Aaron Pounds v.
Roland Colson, Warden, No. M2012-02254-CCA-R3-HC, 2013 WL 6001951, at *4
(Tenn. Crim. App. Nov. 12, 2013) (holding that claims of ineffective assistance of


                                                 -4-
counsel are not cognizable claims because it “would render [the] judgment voidable
rather than void”). Therefore, the Petitioner is not entitled to relief.

                                      CONCLUSION

       Based on the aforementioned reasoning and authorities, we affirm the judgment of
the habeas corpus court.

                                           ____________________________________
                                          CAMILLE R. McMULLEN, JUDGE




                                             -5-
