         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


           KEVIN TATE, PRO SE v. BRUCE WESTBROOK, WARDEN

                       Appeal from the Criminal Court for Shelby County
                            No. P-27279   Joseph B. Dailey, Judge



                      No. W2003-01477-CCA-R3-HC - Filed March 10, 2004


The Petitioner, Kevin Tate, appeals the trial court's denial of his petition for habeas corpus relief.
The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant
to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner fails to assert a cognizable claim
for which habeas corpus relief may be granted. Accordingly, the State's motion is granted and the
judgment of the trial court is affirmed.

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

JOE G. RILEY , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ALAN
E. GLENN , JJ., joined.

Kevin Tate, pro se.

Paul G. Summers, Attorney General & Reporter; John H. Bledsoe, Assistant Attorney General, for
the appellee, State of Tennessee.

                                    MEMORANDUM OPINION

        In September 1995, a Shelby County jury found the Petitioner guilty of first degree murder.
See State v. Kevin Tate, No. 02C01-9605-CR-00164, 1997 WL 746441, *1 (Tenn. Crim. App. at
Jackson, Dec. 3, 1997), perm. to appeal denied, (Tenn. Oct. 5, 1998). The trial court imposed a
sentence of life imprisonment. Id. His conviction and sentence were affirmed by this Court on
direct appeal. Id. Petitioner is presently confined at West Tennessee State Penitentiary in Henning,
Tennessee.

        On April 16, 2003, Petitioner filed, in the Criminal Court of Shelby County, a pro se petition
for writ of habeas corpus relief. As basis for relief, Petitioner alleges that his conviction is void


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“because the trial court violated Petitioner [sic] 4th Amendment Right for warrantless arrests and also
for a McLaughlin violation of T.R.C.P. 5(a) by not taken [sic] the petitioner before a magistrate or
an officer ‘without unnecessary delay.’” By order entered May 27, 2003, the trial court denied
habeas corpus relief, finding that the petition failed to state a cognizable claim for habeas corpus
relief. The trial court further determined that, treated as a petition for post-conviction relief, the
petition was time-barred.

       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
procedural requirements for habeas corpus relief are mandatory and must be scrupulously
followed. Archer v. State, 851 S.W.2d 157, 165 (Tenn. 1993). The Petitioner has failed to
attach to his petition either the copies of the judgment of conviction or the indictment. See Tenn.
Code Ann. § 29-21-107(b)(2). An application for the issuance of habeas corpus may be
summarily dismissed for failure to attach the judgment forms. Id.; see also State ex rel. Wood v.
Johnson, 393 S.W.2d 135, 136 (Tenn. 1965). Additionally, the petition was filed in the Criminal
Court of Shelby County. Pursuant to section 29-21-105, Tennessee Code Annotated, a petition
for writ of habeas corpus must be filed in the court most convenient in point of distance to the
applicant, unless a sufficient reason is stated in the petition for not applying to such court.
Petitioner has failed to offer explanation as to why the petition was not filed in the county of his
confinement. The petition could have been dismissed on this ground alone.


        Habeas corpus relief is available in this state only when it appears on the face of the
judgment or the record that the trial court was without jurisdiction to convict or sentence the
defendant or that the sentence of imprisonment has otherwise expired. Archer, 851 S.W.2d at
164; Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). The Petitioner in this case does not argue
that his sentence has expired; therefore, he is a candidate for habeas corpus relief only if the
judgment or sentence is void. Unlike the post-conviction petition, the purpose of the habeas
corpus petition is to contest a void, not merely voidable, judgment. State ex rel. Newsome v.
Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189 (1968). A petitioner cannot collaterally attack a
facially valid conviction in a habeas corpus proceeding. Potts v. State, 833 S.W.2d 60, 62 (Tenn.
1992); State ex rel. Holbrook v. Bomar, 211 Tenn. 243, 364 S.W.2d 887, 888 (1963).

        The Petitioner's complaint challenges his initial detention by police officers. This
allegation does not involve a void judgment nor does it involve an expired sentence. Thus, this
ground does not entitle Petitioner to habeas corpus relief. Where the allegations in a petition for
writ of habeas corpus do not demonstrate that the judgment is void, a trial court may correctly
dismiss the petition without a hearing. McLaney v. Bell, 59 S.W.3d 90, 93 (Tenn. 2001) (citing
Tenn. Code Ann. § 29-21-109 (2000); see, e.g., Archer, 851 S.W.2d at 164 (parenthetical
omitted)).


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         Notwithstanding, section 40-30-105(c) (2003 Repl.), Tennessee Code Annotated,
instructs trial courts to treat habeas petitions as post-conviction petitions "when the relief and
procedure authorized by [the Post-Conviction Procedure Act] appear adequate and appropriate."
Considering the application as one for post-conviction relief, we conclude that such petition is
barred as a petition for post-conviction relief as it was filed outside the applicable statute of
limitations. Petitioner’s conviction became final in 1998. Thus, under the applicable statute of
limitations, Petitioner had until 1999 in which to file a claim for post-conviction relief. See
Tenn. Code Ann. § 40-30-202 (renumbered as 40-30-102 (2003 Repl.). Under the Post-
Conviction Procedure Act of 1995, exceptions to the statute of limitations are explicitly set forth,
i.e., (1) claims based upon a new rule of constitutional law applicable to a petitioner’s case, (2)
claims based upon new scientific evidence showing innocence, and (3) claims based upon
enhanced sentences that were enhanced because of convictions subsequently found to be illegal.
See Tenn. Code Ann. § 40-30-102(b)(1)-(3) (2003 Repl.). Petitioner has failed to assert one of
these exceptions for tolling the statute. He cites no new constitutional rule, refers to no new
scientific evidence, and makes no claim that an earlier conviction has been overturned. See
Tenn. Code Ann. § 40-30-106(g) (2003 Repl). Thus, no grounds exist as an exception to the
statute of limitations. Finally, the validity of the search was raised on direct appeal. Thus, the
issue is deemed waived under the Post-Conviction Procedure Act. See Tenn. Code Ann. § 40-
30-106(h) (2003 Repl.). Accordingly, Petitioner is not entitled to post-conviction relief as to this
claim.


        Accordingly, it is ordered that 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.




                                       ____________________________________
                                                           JOE G. RILEY, JUDGE




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