           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                    FILED
                               AT KNOXVILLE                        July 28, 1999

                                                                 Cecil Crowson, Jr.
                             APRIL 1999 SESSION                 Appellate C ourt
                                                                    Clerk



BOBBY CARL FLOYD,              *    C.C.A. NO. 03C01-9811-CC-00399

      APPELLANT,               *    SEVIER COUNTY

VS.                            *    Hon. Ben W. Hooper II, Judge

STATE OF TENNESSEE,            *    (Habeas Corpus)

      APPELLEE.                *




For Appellant:                      For Appellee:

Bobby Carl Floyd, pro se            John Knox Walkup
FCI Manchester / 12666-074          Attorney General and Reporter
P.O. Box 4000                       450 James Robertson Parkway
Manchester, KY 40962                Nashville, TN 37243-0493

                                    Todd R. Kelley
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    425 Fifth Avenue North, 2nd Floor
                                    Nashville, TN 37243-0493

                                    Charles E. Atchley, Jr.
                                    Assistant District Attorney General
                                    Sevier County Courthouse
                                    Sevierville, TN 37862



OPINION FILED: ____________________



AFFIRMED



NORMA MCGEE OGLE, JUDGE
                                                  OPINION

                  On April 17, 1997, the petitioner, Bobby Carl Floyd, filed pro se a

“Petition For Writ of Habeas Corpus” in the Circuit Court of Sevier County. On July

9, 1997, the petitioner filed an amendment to his petition. On August 19, 1998, the

trial court dismissed the petition, finding no cognizable ground for relief. Following a

review of the record, we affirm the judgment of the trial court.



                  The petitioner has alleged that, on April 4, 1989, he pled guilty to

felony jail escape and disposing of mortgage property over one hundred dollars. 1

The petitioner also alleged that, on December 14, 1982, he pled guilty in a case he

identifies as Warrant No. 42353-48-18. 2 Additionally, the petitioner alleged that, on

February 7, 1991, he pled guilty to simple possession of cocaine. 3



                  In his petition and on appeal, the petitioner argues that he received

ineffective assistance of counsel and that the convictions resulting from the

aforementioned guilty pleas are void because he did not knowingly and voluntarily

plead guilty. In its order dismissing the petition for a writ of habeas corpus, the trial

court found that the petition was in fact a petition for post-conviction relief which had
                             4
not been timely filed.



         1
           With respect to these cases, this court has no record of the judgment of conviction or the
sentences imposed by the trial court. However, the Advisement of Rights forms, W aiver of Jury Trial
form s, an d Gu ilty Plea form s sign ed by t he pe titione r, are includ ed in th e rec ord o n app eal.

         2
           With respect to this case, this court has no record of the judgment of conviction, the
indictm ent, the off ense c harged in the indictm ent, or the s entenc e impo sed by the trial court.

         3
          Also with respect to this case, this court has no record of the judgment of conviction, the
indictm ent, or the s entenc e impo sed by the trial court.

         4
            We note that the trial court observed that had the petition been a petition for writ of habeas
corp us, it w ould h ave b een dism isse d for being filed in the w rong coun ty. Con trary to the tria l cour t’s
observ ation, whe n an out- of-state re sident se eks ha beas c orpus re lief from Tenn essee conviction , a
court of th e coun ty of original con viction has jurisdiction to rule upon the petition. Churc h v. State , 987
S.W .2d 8 55, 8 57 (T enn . Crim . App . 199 8). T he pe titione r was incar cera ted in fede ral pris on in
Kentucky, thus his petition was correctly filed in Sevier County, his apparent county of original
conviction .

                                                        2
              The remedy of the writ of habeas corpus is limited to relief from void

and not merely voidable judgments. Archer v. State, 851 S.W.2d 157, 163 (Tenn.

1993); Passarella v. State, 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994); Donald v.

State, No. 01C01-9710-CR-00481, 1998 WL 468646, at *1 (Tenn. Crim. App. at

Nashville, August 12, 1998), perm. to appeal denied, (Tenn. 1999). In other words,

it must appear upon the face of the judgment or the record of the proceedings upon

which the judgment is rendered that a court was without jurisdiction or authority to

convict or sentence a defendant, or that a defendant’s sentence of imprisonment

has expired. Archer, 851 S.W.2d at 164; Ritchie v. State, No. 03C01-9601-CC-

00029, 1998 WL 855517, at *2 (Tenn. Crim. App. at Knoxville, December 10, 1998).

Additionally, if a claim would necessarily involve investigation beyond the face of the

judgment or the record of the proceedings, the claim will not be cognizable in

habeas corpus proceedings . See e.g., Martin v. State, No 02C01-9804-CC-00101,

1998 WL 467098, at *1 (Tenn. Crim. App. at Jackson, August 12, 1998).



              Furthermore, we have previously observed that ineffective assistance

of counsel is not a cognizable basis for habeas corpus relief. McCaslin v. State, No.

01C01-9611-CC-00480, 1998 WL 44919, at *1 (Tenn. Crim. App. at Nashville),

perm. to appeal denied, (Tenn. 1998); State v. Harris, No. 01C01-9309-CR-00304,

1994 WL 630504, at *1 (Tenn. Crim. App. at Nashville, November 10, 1994). See

also Wooden v. State, No. 03C01-9303-CR-0069, 1993 WL 313643, at *2 (Tenn.

Crim. App. at Knoxville, August 13, 1993)( the petitioner’s complaint that the guilty

plea judgment was constitutionally deficient because of ineffective assistance of

counsel, even if true, would make the judgment merely voidable and not void).

Likewise, challenges to the voluntary or knowing nature of a guilty plea can be made


                                           3
only by a petition for post-conviction relief. Archer, 851 S.W.2d at 164. Based upon

the foregoing, we agree with the trial court that the petitioner has failed to allege any

ground for relief cognizable in habeas corpus proceedings.



                  Additionally, the procedural provisions pertaining to habeas corpus

relief are mandatory and must be scrupulously followed. Archer, 851 S.W.2d at 165

(Tenn. 1993). We note that the petitioner did not attach the judgments of conviction

in his case to his petition for habeas corpus relief, as required by Tenn. Code Ann. §

29-21-107(b)(2) (1997). A trial court may dismiss a petition for failure to comply with

this requirement. State ex rel. Wood v. Johnson, 393 S.W.2d 135, 136 (Tenn.

1965).



                  Treating the petition as one for post-conviction relief, the trial court

found that the petition had been filed beyond the applicable one year statute of

limitations. A trial court is not bound by the title of a pleading, but has discretion to

treat the pleading according to the relief sought. Norton v. Everhart, 895 S.W.2d

317, 319 (Tenn. 1995). When a pleading framed as a habeas corpus petition

requests relief that can only be granted under post-conviction law, a court has

discretion to treat a petition for habeas corpus relief as a petition for post-conviction

relief. Tenn. Code Ann. § 40-30-205(c) (1997).




                  We agree with the trial court that the applicable statute of limitations

has expired. 5 At the time of petitioner’s convictions, a petition for post-conviction

         5
           We note that the petitioner has made no specific factual allegations regarding the case
identified as Warrant No. 42353-48-18 and the guilty plea entered on February 7, 1991. The petitioner
shall include allegations of fact supporting each claim for relief set forth in the petition. Tenn. Code
Ann . § 40 -30- 204 (e) (1 997 ). Ne verth eles s, as state d belo w, the petitio ner’s post -con viction claim s

                                                       4
relief had to be filed within three years of the date of the final action of the highest

state appellate court to which an appeal is taken. Tenn. Code Ann. § 40-30-102

(Repl. May 10, 1995). Moreover, petitions already time-barred under the former

act’s three year statute of limitations are not revived by the one year statute of

limitations in the new act. Carter v. State, 952 S.W.2d 417, 420 (Tenn. 1997).

According to the petitioner, his dates of conviction are April 6, 1989, December 14,

1982, and February 7, 1991. The instant petition was filed on April 17, 1997 and

amended on July 9, 1997.



                 Accordingly, the judgment of the trial court is affirmed.




                                                     __________________________________
                                                     Norma McGee Ogle, Judge


CONCUR:



______________________________
Jerry L. Smith, Judge




_______________________________
Joe G. Riley, Judge




have be en filed be yond the o ne year sta tute of lim itations and mus t be dism issed.

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