         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs June 9, 2004

                 LUTHER HAGGARD v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Davidson County
                         No. 3431    J. Randall Wyatt, Jr., Judge



                      No. M2003-02554-CCA-R3-HC - Filed June 9, 2004


The petitioner, Luther Haggard, filed a petition for the writ of habeas corpus in the Davidson County
Criminal Court. In the petition he alleges that various Bradley County, Tennessee, convictions he
received pursuant to guilty pleas entered in 1997 are illegal and void. The Davidson County
Criminal Court summarily dismissed the petition. We affirm.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E. GLENN ,
JJ., joined.

Luther Haggard, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Kathy Morante, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                         BACKGROUND

       In February of 1997 the petitioner, Luther Haggard, entered guilty pleas in the Bradley
County, Tennessee ,Criminal Court to numerous charges of burglary, aggravated burglary and theft.
The judgment form wherein one of the guilty pleas was accepted provides that the petitioner could
apply for a community corrections sentence after service of one year incarceration.

         After entry of the guilty pleas in February, but before judgment was entered on those pleas
in April 1997, the petitioner pled guilty to aggravated assault. On November 25, 1997, he applied
to the trial court for a placement in community corrections, however that application was denied.
        On September 25, 2003, in the Davidson County Criminal Court, the petitioner filed a
petition for the writ of habeas corpus. In the petition he alleged that because his aggravated assault
conviction made him ineligible for community corrections, his convictions and sentences on the
guilty pleas in February 1997 are illegal and void.

       On October 1, 2003, the habeas corpus court summarily denied the petition holding that the
Bradley County convictions were not void. This appeal followed.

                                            ANALYSIS
        The grounds upon which habeas corpus relief is warranted are narrow. Stephenson v.
Carlton, 28 S.W.3d 910, 911 (Tenn. 2000). The writ will issue only when it appears upon the face
of the judgment or the record of the proceedings upon which the judgment is rendered that a court
lacked jurisdiction or authority to sentence a defendant or that the sentence has expired. Archer v.
State, 851 S.W.2d 157, 164 (Tenn. 1993).

       A habeas corpus petition may only be used to challenge judgments that are void and not
merely voidable. Id.; Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). 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.” Id. The Tennessee Supreme Court has
recognized that a sentence imposed in direct contravention of a sentencing statute, i.e., the length or
manner of service, for example, is void and illegal. State v. Burkhart, 566 S.W.2d 871, 873 (Tenn.
1978).

        A trial court is not required, as a matter of law, to grant the writ and conduct an inquiry into
the allegations contained in the petition, and if the petition fails to state a cognizable claim, the
petition may be summarily dismissed by the trial court. See Passarella v. State, 891 S.W.2d 619, 627
(Tenn. Crim. App. 1994); Tenn. Code Ann. § 29-21-109.

        A petitioner has the burden of establishing by a preponderance of the evidence that the
judgment he attacks is void or that his term of imprisonment has expired. State ex rel. Kuntz v.
Bomar, 214 Tenn. 500, 504, 381 S.W.2d 290, 291 (1964). If a petitioner fails to establish by a
preponderance of the evidence that his conviction is void or his term of imprisonment has expired,
he is not entitled to immediate release. Passarella, 891 S.W.2d at 627-28.

       The petitioner’s sentence is not illegal and the trial court properly dismissed the petition.
Simply having a conviction for aggravated assault did not exempt the defendant from participation
in community corrections. See State v. Michael Walls, No. M2002-01796-CCA-R3-CD, 2004
WL193071 (Tenn. Crim. App., Jan. 30, 2004) (no app. to date) (noting that defendant, who had
aggravated assault conviction, not ineligible for community corrections.) Moreover, as noted by the
habeas corpus court in denying the petition, the petitioner was not actually sentenced or guaranteed
admission to community corrections; instead, the judgment only provided that he could apply for
such after one year. The trial court properly dismissed the petition and the judgment should be
affirmed.


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        The petitioner also argues on appeal that his guilty pleas were not knowing and voluntary,
alleging that these pleas were predicated on being allowed to enter community corrections after a
year. However, even assuming the truth of such allegations, they do not render the judgments void;
claims regarding the voluntariness of a guilty plea must be brought in a petition for post-conviction
relief. However, since the petitioner’s judgments were final in 1997, the time for filing such a
petition has expired. See Tenn. Code Ann. § 40-30-102 (2003) (providing a one year period of time
in which to file such petitions.)

                                         CONCLUSION

       In light of the foregoing, the judgment of the Davidson County Criminal Court summarily
dismissing the petition for the writ of habeas corpus is AFFIRMED.

                                                      ___________________________________
                                                      JERRY L. SMITH, JUDGE




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