         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs May 15, 2007

                     JOEY SALCIDO v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Wayne County
                             No. 14046 Robert L. Jones, Judge



                    No. M2007-00166-CCA-R3-HC - Filed on June 21, 2007



The Petitioner, Joey Salcido, filed a pro se petition for a writ of habeas corpus. The habeas court
denied relief, and the Petitioner filed a timely notice of appeal. On appeal, the Petitioner contends
that the habeas corpus court erred because: (1) the trial court lacked jurisdiction to convict him
because of a defective indictment; and (2) the delay in the disposition of his post-conviction petition
has deprived him of due process of law. Finding no error, we affirm the judgment of the habeas
court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JAMES CURWOOD WITT ,
JR., and D. KELLY THOMAS, JR., JJ., joined.

Joey Salcido, Clifton, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Mike Bottoms, District Attorney General, for the Appellee, State of Tennessee.



                                             OPINION

                                               I. Facts

        The Petitioner, Joey Salcido, was convicted in 1999 in the Giles County Circuit Court on
three counts of aggravated sexual battery, and he received an effective sentence of thirty-six years.
On appeal, his convictions and sentences were affirmed. See State v. Joey L. Salcido, No. M1999-
00501-CCA-R3-CD, 2001 WL 227357 (Tenn. Crim. App., at Nashville, Mar. 8, 2001), perm. app.
denied (Tenn. Sept. 17, 2001). The Petitioner filed a petition for a writ of habeas corpus alleging
a delay in the disposition of his post-conviction petition, the habeas court dismissed the petition
without a hearing, and the Petitioner filed a timely notice of appeal.
                                              II. Analysis

        The Petitioner contends that the habeas corpus court erred when it dismissed his petition
because: (1) the trial court lacked jurisdiction to convict him because of a defective indictment; and
(2) the delay in the disposition of his post-conviction petition has deprived him of due process of
law.

        Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas corpus
relief. Although the right is guaranteed in the Tennessee Constitution, the right is governed by
statute. T.C.A. § 29-21-101 (2006) et seq. The determination of whether habeas corpus relief should
be granted is a question of law and is accordingly given de novo review. Hart v. State, 21 S.W.3d
901, 903 (Tenn. 2000). Although there is no statutory limit preventing a habeas corpus petition, the
grounds upon which relief can be granted are very narrow. Taylor v. State, 995 S.W.2d 78, 83
(Tenn. 1999). It is the burden of the petitioner to demonstrate by a preponderance of the evidence
that “the sentence is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000). In other words, the very narrow grounds upon which a habeas corpus petition can be
based are as follows: (1) a claim there was a void judgment which was facially invalid because the
convicting court was without jurisdiction or authority to sentence the defendant; or (2) a claim the
defendant’s sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). In contrast,
a voidable judgment 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; see State v.
Richie, 20 S.W.3d 624, 633 (Tenn. 2000).

                                            A. Indictment

         The Petitioner alleges that the trial court lacked jurisdiction to convict him because of a
defective indictment. Specifically, the Petitioner claims that the indictment is defective because it
fails to sufficiently charge the offense for which the Petitioner was convicted. The State contends
that the Petitioner waived this issue and that, alternatively, the trial court did not lack subject matter
jurisdiction to impose a conviction.

       Although the Petitioner risks waiver because he failed to raise this issue at his hearing in the
habeas corpus court, we will review the issue. In Summers v. State, 212 S.W.3d 251 (Tenn. 2007),
the Tennessee Supreme Court noted the following:

        The petitioner bears the burden of providing an adequate record for summary review
        of the habeas corpus petition, including consideration of whether counsel should be
        appointed. In the case of an illegal sentence claim based on facts not apparent from
        the face of the judgment, an adequate record for summary review must include
        pertinent documents to support those factual assertions. When such documents from
        the record of the underlying proceedings are not attached to the habeas corpus
        petition, a trial court may properly choose to dismiss the petition without the


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        appointment of counsel and without a hearing.

Id. at 261. The record reflects that the Petitioner failed to include the indictment at issue in his
petition to the habeas corpus court. Because the Petitioner failed to provide the habeas corpus court
with the necessary documentation to support his factual allegations, we conclude that the habeas
corpus court properly dismissed the Petitioner’s petition.

                                     B. Post-Conviction Petition

         The Petitioner argues that the four year delay in the disposition of his post-conviction petition
has deprived him of due process of law. The State contends that the Petitioner’s due process claim
is not recognizable in a habeas corpus proceeding. We agree with the State.

         The record reflects that the Petitioner filed a post-conviction petition on September 17, 2002,
and that an order assigning him counsel was filed on December 28, 2005. The Petitioner’s allegation
is not that his judgments are void or that his sentence has expired. Again, we note that 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. See Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004). Therefore, the Petitioner is
not entitled to relief on this issue.

                                           III. Conclusion

       In accordance with the foregoing authorities and reasoning, we affirm the judgment of the
habeas corpus court.




                                                         ___________________________________

                                                               ROBERT W. WEDEMEYER, JUDGE




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