        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs January 15, 2014

                 LUIS RODRIGUEZ v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                     No. 2008-A-415 Cheryl Blackburn, Judge


               No. M2013-01723-CCA-R3-HC - Filed February 13, 2014


The Petitioner, Luis Rodriguez, appeals the Davidson County Criminal Court’s summary
dismissal of his petition for a writ of habeas corpus regarding his 2008 conviction for
especially aggravated robbery, for which he is serving a twenty-five-year sentence. The
Petitioner contends that the trial court erred in dismissing the petition when his guilty plea
was unknowingly and involuntarily entered. We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and R OBERT W. W EDEMEYER, JJ., joined.

Luis A. Rodriguez, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
Victor S. (Torry) Johnson, III, District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

      On August 7, 2008, the Petitioner pleaded guilty to especially aggravated robbery.
Pursuant to the plea agreement, the trial court sentenced him to twenty-five years as a violent
offender. According to the State’s recitation of the facts at the guilty plea hearing,

               [O]n November the 7th, 2007, police responded to a robbery at 3225
       Gallatin Pike at the La Tropicana (phonetic) Market. And police were called
       as a result of the victim . . . [flagging] down officers with severe cuts to her
       throat and face[. She] was then transported to Vanderbilt in critical condition.
       Investigation revealed that the defendant had entered that store and robbed the
       victim of the contents of the register and had caused the injuries to her face
       and throat by use of a knife.

              And on November 10th of 2007 the defendant turned himself in and
       told the officer that he wanted to talk about the robbery on Gallatin Pike
       because he was the one who did it.

        In his petition for a writ of habeas corpus, the Petitioner contended that his guilty plea
was unknowingly and involuntarily entered because he was not fully aware of the
consequences of the plea, the plea was coerced, and the plea was not entered in conformity
with Tennessee Criminal Procedure Rule 11. He argued that because he “function[ed] at a
low intelligence level,” he did not comprehend the plea process and that the trial court did
not inquire on the record about his comprehension. He also contended that the trial court
failed to inform him of the right against self-incrimination, failed to require a factual basis
for his plea, and failed to ensure the translator was qualified and sworn pursuant to
Tennessee Rules of Evidence 604 and 702.

       In denying the petition for habeas corpus relief, the trial court found that the Petitioner
did not challenge the court’s jurisdiction or assert that his sentence had expired but that his
claims related to his understanding of his plea agreement and to the effective assistance of
counsel. The court found that the Petitioner alleged his sentence was “void or voidable” and
alternatively treated the petition as one for post-conviction relief.

        In denying post-conviction relief, the trial court found that the Petitioner did not
appeal his conviction and that it became final thirty days after he pleaded guilty. The court
noted that almost five years had passed since the conviction became final and found that none
of the Petitioner’s claims qualified as exceptions to the post-conviction statute of limitations.
The court dismissed the petition because it was filed outside the statute of limitations.

      On appeal, the Petitioner contends that the trial court failed to apply plain error in
dismissing his habeas corpus petition without a hearing and that the court denied him due
process and lacked jurisdiction to accept his guilty plea when the interpreter was not properly
sworn or qualified. The State contends that the court properly dismissed the petition. We
conclude that the trial court properly denied relief.

        The determination of whether habeas corpus relief should be granted is a question of
law that is reviewed de novo with no presumption of correctness. State v. Livingston, 197
S.W.3d 710, 712 (Tenn. 2006); Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000). In
Tennessee, habeas corpus relief is available 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

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or that the sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). The
purpose of the habeas corpus petition is to contest a void, not merely a voidable, judgment.
Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999); State ex rel. Newsom v. Henderson, 424
S.W.2d 186, 189 (Tenn. 1968).

       A void, as opposed to a voidable, judgment is “one that is facially invalid because the
court did not have the statutory authority to render such judgment.” Summers v. State, 212
S.W.3d 251, 256 (Tenn. 2007). A voidable judgment “is one that is facially valid and
requires proof beyond the face of the record or judgment to establish its invalidity.” Id. The
burden is on the petitioner to establish that the judgment is void or that the sentence has
expired. State ex rel. Kuntz v. Bomar, 381 S.W.2d 290, 291-92 (Tenn. 1964).

        Regarding the Petitioner’s argument that the trial court erred in dismissing his petition
without a hearing, a trial court may dismiss a petition for a writ of habeas corpus without a
hearing and without appointing a lawyer when the petition does not state a cognizable claim
for relief. Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004); State ex rel. Edmondson v.
Henderson, 421 S.W.2d 635, 636-37 (Tenn. 1967); see T.C.A. § 29-21-109 (2010). His
claims that his guilty plea was unknowing and involuntary, if proven, would render the
challenged judgment voidable rather than void and do not present cognizable claims for
habeas corpus relief. The Petitioner has not established that he is entitled to a writ of habeas
corpus.

        The Petitioner’s reply brief takes issue with the State’s insisting upon presenting the
petition as one for post-conviction relief. After determining habeas corpus relief was not
cognizable, the trial court alternatively considered the petition as one for post-conviction
relief. Consideration of the petition as one for post-conviction relief as a possible means to
grant relief was not prejudicial to the Petitioner. The petition had no merit for habeas corpus
relief and essentially alleged grounds that are addressed in a post-conviction petition.

        Tennessee Code Annotated Section 40-30-102(a) (2012) provides that a person must
petition for post-conviction relief within one year of the date on which the judgment became
final. The statute emphasizes that “[t]ime is of the essence of the right to file a petition for
post-conviction relief . . . , and the one-year limitations period is an element of the right to
file such an action and is a condition upon its exercise.” Id. In the present case, the petition
was filed on April 15, 2013, over four years after the Petitioner pleaded guilty and well
beyond the one-year limitations period. None of the limited exceptions to the post-conviction
statute of limitations apply. See T.C.A. § 40-30-102(b) (2012). We conclude that the trial
court properly determined that the Petitioner is not entitled to habeas corpus or post-
conviction relief.



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        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.




                                           ______ _ _ _ _ _ _____________________ _ _ _
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




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