              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                       AT JACKSON



DAVID DEWAYNE BROWN,                       )
                                           )
       Petitioner,                         ) C. C. A. NO. W1999-01841-CCA-R3-CO
                                           )
vs.                                        ) LAUDERDALE COUNTY
                                           )
ALTON HESSON, WARDEN, ET AL.,              ) No. 5232
       Respondents.
                                           )
                                           )                         FILED
                                                                      January 12, 2000
                                         ORDER
                                                                    Cecil Crowson, Jr.
                                                                   Appellate Court Clerk

              This matter is before the Court upon motion of the state to affirm the
judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals.

This case represents an appeal from the trial court’s dismissal of the petitioner’s petition

for a writ of habeas corpus. In 1986, the petitioner pled guilty to five counts of third
degree burglary. He previously filed for post-conviction relief challenging the

voluntariness of his guilty pleas. This Court found that his pleas were constitutionally

entered. Payne v. State, et al., Nos. 71, 84, Shelby County (Tenn. Crim. App., at

Jackson, Nov. 28, 1990), perm. app. denied, (Tenn. July 15, 1991). In his present

petition, the petitioner again claims his guilty pleas were involuntarily entered. The trial
court dismissed the petition, finding that this is not an appropriate matter for

consideration in a habeas corpus proceeding. The trial court also noted that petitioner

would not be entitled to post-conviction relief in this instance because the petition was
filed in the wrong county.



              On appeal, the petitioner claims 1) the trial court denied him the
opportunity to respond to the state’s motion to dismiss the petition, and 2) his

sentences are void because the record does not contain a valid waiver of a jury trial.



              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.

Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (emphasis added). The judgment

clearly reflects that the convicting court had jurisdiction over this petitioner and that the

petitioner’s sentence has not expired. Since the petitioner’s allegation in this case

would necessarily involve investigation beyond the face of the judgment or record, the
trial court properly denied habeas corpus relief. See Dykes v. Compton, 978 S.W.2d

528, 529 (Tenn. 1998). Even if the petitioner’s claim has merit, such claim renders the

judgment voidable, not void, and it may not be collaterally attacked in a suit for habeas
corpus relief. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

Moreover, when a petition for a writ of habeas corpus fails to state a cognizable claim,

the trial court may summarily dismiss the petition. See Id. The trial court also properly
ruled it was without jurisdiction to consider post-conviction relief in this instance. See

T.C.A. § 40-30-204(a).



              Accordingly, for the reasons stated above, it is hereby ORDERED that the

state’s motion is granted and the judgment of the trial court is affirmed in accordance

with Rule 20, Rules of the Court of Criminal Appeals. Since the record reflects the
petitioner is indigent, costs of this proceeding shall be taxed to the state.




                                           ____________________________
                                           DAVID G. HAYES, JUDGE



                                           ____________________________
                                           JOE G. RILEY, JUDGE



                                           ____________________________
                                           JOHN EVERETT WILLIAMS, JUDGE




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