        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs October 30, 2001

            LARRY L. HALLIBURTON v. STATE OF TENNESSEE

                 Direct Appeal from the Circuit Court for Madison County
                          No. C-00-298    Donald H. Allen, Judge



                  No. W2001-00755-CCA-R3-CO - Filed January 30, 2002


A claim that a guilty plea was not knowingly and voluntarily entered because of coercion is not
cognizable in a habeas corpus proceeding. We affirm the trial court’s denial of the writ.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES, J.,
joined and JAMES CURWOOD WITT, JR., J., concurred in the result.

Larry Halliburton, Tiptonville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Mark E. Davidson, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and Alfred Lynn Earls, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                           OPINION

       Petitioner Larry Lee Halliburton pled guilty to theft and possession of stolen property in
Madison County, Tennessee, Circuit Court on January 29, 1992. On February 6, 1992, petitioner
was sentenced as a Range III offender to twenty-seven (27) years in the Tennessee Department
of Correction. He filed his pro se application for Writ of Habeas Corpus in the same court on
August 30, 2000. Petitioner alleged that his guilty plea was not knowingly and voluntarily made
because it was coerced.

        The state filed a motion to dismiss petitioner’s petition on September 27, 2000. The
state’s motion was granted by order entered September 28, 2000. Petitioner filed a “Motion to
Reconsider Order” on October 13, 2000. Petitioner’s untimely notice of appeal followed on
November 24, 2000. However, Rule 4 of the Tennessee Rules of Appellate Procedure allows us
to waive the timely filing of a notice of appeal, and we do so in this instance.
        Article I, § 15 of the Tennessee Constitution guarantees the right to seek habeas corpus
relief. A writ of habeas corpus is granted only if “‘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) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37 (Tenn. 1868)); Potts v. State,
833 S.W.2d 60, 62 (Tenn. 1992); see also Ussery v. Avery, 432 S.W.2d 656 (Tenn. 1968); State
ex rel. Wade v. Norvell, 443 S.W.2d 839 (Tenn. Crim. App. 1969). It is the petitioner’s burden
to establish either of these preconditions. See Tenn. Code Ann. § 29-21-101. If the petitioner so
establishes by a preponderance of the evidence, then he is entitled to immediate release. See
State v. Warren, 740 S.W.2d 427, 428 (Tenn. Crim. App. 1986). However, a trial court may
summarily dismiss a petition for writ of habeas corpus without an evidentiary hearing if nothing
on the face of the judgment indicates that the conviction is void. Passarella v. State, 891 S.W.2d
619 (Tenn. Crim. App. 1994).

        Unlike the post-conviction petition, the purpose of the habeas corpus petition is to
contest void and not merely voidable judgments. See State ex rel. Newsom v. Henderson, 221
Tenn. 24, 424 S.W.2d 186, 189 (1968). Thus, the petitioner cannot collaterally attack a facially
valid conviction in a habeas corpus proceeding. State ex rel. Holbrook v. Bomar, 211 Tenn.
243, 364 S.W.2d 887 (1963); Ferguson v. State, No. W2000-00936-CCA-R3-CO, 2000 WL
1863514, at *3 (Tenn. Crim. App., at Jackson, Dec. 1, 2000). “Habeas corpus relief is not
available where an appellant alleges only that facially valid judgments may be voided upon the
introduction of further evidence and appropriate findings.” McMillan v. State, No. M2000-
1929-CCA-R3-PC, 2000 WL 1611058, at *2 (Tenn. Crim. App., at Nashville, October 27,
2000); see Potts, 833 S.W.2d at 62. “A voidable conviction or sentence is one [that] is facially
valid and requires the introduction of proof beyond the face of the record or judgment to
establish its invalidity.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999) (citing Dykes v.
Compton, 978 S.W.2d 528-29 (Tenn. 1998); Archer, 851 S.W.2d 161-64); see also State v.
Ritchie, 20 S.W.3d 624, 631 (Tenn. 2000)). Further, a showing by the petitioner that the
judgment of the sentencing court is void for lack of jurisdiction may only be based upon the
original trial record itself. Ritchie, 20 S.W.3d at 633.

        In the instant case, petitioner is seeking to set aside his conviction based upon his
contention that his guilty plea was not knowingly and voluntarily made. Petitioner’s claim is
based on remarks by the district attorney general contained in a letter to petitioner’s attorney
stating, “If [petitioner] doesn’t want to plead guilty, [the assistant district attorney general] may
have some bad news for him in Federal Court.” Petitioner asserts that this amounted to a threat
and resulted in a coerced guilty plea.

        We conclude that petitioner’s allegations regarding such remarks are outside the record
of the original trial. As such, they do not fall within the purview of a habeas corpus proceeding.
Further, nothing on the face of the judgment indicates that the trial court was without jurisdiction
or that petitioner’s sentence has expired. Hence, the judgment of the trial court is not void, and
habeas corpus relief is not proper.


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        Judgments based upon invalid guilty pleas are voidable and should be challenged through
a petition for post-conviction relief. Archer, 851 S.W.2d at 164. Petitioner in the instant case
failed to meet the statutory time limit for filing for post-conviction relief and is therefore
precluded from raising this issue.

       Lastly, even if this was a proper issue for habeas corpus review, the petition was not filed
in the proper venue. Habeas corpus procedural provisions are mandatory and must be
scrupulously followed. Archer, 851 S.W.2d at 165. Tennessee Code Annotated § 29-21-105
requires an application for writ of habeas corpus to be "made to the court most convenient in
point of distance to the applicant," unless a sufficient reason is given for not applying to such
court. This usually means the application must be filed in the county of incarceration. Lewis v.
Metropolitan General Sessions Court of Nashville, 949 S.W.2d 696, 700 (Tenn. Crim.
App.1996). In the instant case, the petition was filed in Madison County, and the petitioner is
incarcerated in Lake County.


                                        CONCLUSION


       Accordingly, we affirm the ruling of the lower court.




                                                     ___________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE




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