         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE

                  DAYLON ROBERTS v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Johnson County
                              No. 4484 Robert E. Cupp, Judge


                      No. E2004-02965-CCA-R3-HC - Filed June 21, 2005


The petitioner, Daylon Roberts, appeals from the trial court's order denying his petition for writ of
habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial
of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petitioner has failed
to establish a cognizable claim for habeas corpus relief. Accordingly, the state's motion is granted
and the judgment of the trial court is affirmed.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
               Pursuant to Rule 20, Rules of the Court of Criminal Appeals

GARY R. WADE, P. J., delivered the opinion of the court, in which JOSEPH M. TIPTON and NORMA
MCGEE OGLE , J.J., joined.

Daylon Demetric Roberts, Mountain City, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; Joe
C. Crumley, Jr., District Attorney General, for the Appellee, State of Tennessee.

                                   MEMORANDUM OPINION

        In November 1993, the petitioner was convicted by a Knox County jury of murder
perpetrated in an attempt to commit a robbery. The trial judge sentenced the petitioner to life in
prison. On appeal, this court affirmed the judgment of the trial court. See State v. Daylon Demetric
Roberts, No. 03C01-9403-CR-00117 (Tenn. Crim. App. Oct. 5, 1994), app. denied (Tenn. Mar. 6,
1995). On September 28, 2004, the petitioner filed a pro se petition for writ of habeas corpus. The
petitioner contended that he received ineffective assistance of counsel as a result of numerous alleged
omissions and errors by counsel at trial. Finding it “quite obvious that the Petitioner is attempting
to collaterally attack a facially valid conviction,” the trial court denied relief. The petitioner timely
appealed and has simply submitted a copy of his original habeas corpus petition as his brief on
appeal.

      The purpose of a habeas corpus petition is to contest void and not merely voidable
judgments. Archer v. State, 851 S.W. 2d 157, 163 (Tenn. 1993) (citing State ex rel. Newsom v.
Henderson, 221 Tenn. 24, 424 S.W. 2d 186, 189 (1968)). A writ of habeas corpus may be granted
only when the petitioner has established 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 v.
Avery, 222 Tenn. 50, 432 S.W.2d 656 (1968); State ex rel. Wade v. Norvell, 1 Tenn. Crim. App.
447, 443 S.W.2d 839 (1969). The burden is on the petitioner to establish that the judgment is void
or that the sentence has expired. State ex rel. Kuntz v. Bomar, 214 Tenn. 500, 504, 381 S.W. 2d
290, 291-92 (1964).

        The petitioner’s claim of ineffective assistance of trial counsel would not support issuance
of the writ because, even if proven, it would render the judgment merely voidable rather than void.
The "authorized avenue for attacking a voidable judgment is a petition for post-conviction relief."
State v. McClintock, 732 S.W.2d 268, 272 (Tenn. 1987). In this case, however, the petitioner
previously sought post-conviction relief and specifically raised the claim of ineffective assistance
of counsel. On appeal, this court affirmed the judgment of the trial court denying the petition
following an evidentiary hearing. See Daylon Demetric Roberts v. State, No. E1999-02180-CCA-
R3-PC (Tenn. Crim. App. Dec. 1, 2000), app. denied (Tenn. Apr. 30, 2001). Thus, the issue has
been previously determined and the petitioner is not entitled to file an additional petition attacking
the same judgment. See Tenn. Code Ann. § 40-30-102(c)(2004). Based on the foregoing, the trial
court properly denied the petition for writ of habeas corpus.

       Upon due consideration of the pleadings, the record, and the applicable law, the court
concludes that the petitioner has not presented a cognizable claim for habeas corpus relief.
Accordingly, the state’s motion is granted. The judgment of the trial court is affirmed in accordance
with Rule 20, Rules of the Court of Criminal Appeals.



                                                       ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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