         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE

                 MICHAEL L. SMITH v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Johnson County
                              No. 4441 Robert E. Cupp, Judge


                      No. E2004-02752-CCA-R3-HC              Filed July 13, 2005


The petitioner, Michael L. Smith, appeals from the trial court's order denying his petition for writ
of habeas corpus. The state has filed a motion requesting that this court affirm the trial court's denial
of relief pursuant to Rule 20 of the Rules of the Court of Criminal Appeals. The petitioner has failed
to establish a cognizable claim for habeas corpus relief. Accordingly, the state's motion is granted
and the judgment of the trial court is affirmed.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JAMES CURWOOD WITT , JR., J., joined.

Michael L. Smith, Mountain City, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; Joe
C. Crumley, Jr., District Attorney General, for the Appellee, State of Tennessee.

                                   MEMORANDUM OPINION

         On July 24, 1986, the petitioner entered a plea of guilty to the offense of robbery with a
deadly weapon. Pursuant to his plea agreement, the trial court sentenced the petitioner as a Range
II, persistent and aggravated offender, to serve forty (40) years in the Department of Correction. No
direct appeal was taken. Thereafter, the petitioner sought post-conviction relief based on a claim of
ineffective assistance of trial counsel. The trial court denied the petition following an evidentiary
hearing. On appeal, the judgment was affirmed. See Michael L. Smith v. State, No. 03C01-9205-
CR-00157 (Tenn. Crim. App. Feb. 24, 1993), app. denied (Tenn. June 1, 1993). On August 10,
2004, the petitioner filed a pro se petition for writ of habeas corpus. He claimed that his guilty plea
was not knowingly and voluntarily entered in that it was based on a “non-existent” statutory waiver
of rights provision and that the trial court either failed to accurately inform him or misrepresented
to him the law regarding acceptance of his guilty plea. The trial court summarily denied relief,
concluding that the petitioner had failed to present a cognizable claim for habeas corpus relief. The
petitioner timely appealed.
        The purpose of a habeas corpus petition is to contest void and not merely voidable
judgments. Archer v. State, 851 S.W. 2d 157, 163 (Tenn. 1993) (citing State ex rel. Newsom v.
Henderson, 221 Tenn. 24, 424 S.W. 2d 186, 189 (1968)). 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 burden is on the petitioner to establish that the judgment is void
or that the sentence has expired. State ex rel. Kuntz v. Bomar, 214 Tenn. 500, 504, 381 S.W. 2d
290, 291-92 (1964). A petition seeking issuance of a writ of habeas corpus may be summarily
dismissed by a trial court if it fails to indicate that the petitioner's conviction is void. Tenn. Code
Ann. § 29-21-109.

        The petitioner’s claim of an involuntary and unknowing guilty plea would not support
issuance of the writ because, even if proven, it would render the judgment merely voidable rather
than void. See Archer, 851 S.W.2d at 164. The "authorized avenue for attacking a voidable
judgment is a petition for post-conviction relief." State v. McClintock, 732 S.W.2d 268, 272 (Tenn.
1987). As noted, however, the petitioner has previously sought post-conviction relief and the trial
court determined the merits of the claims presented following a full evidentiary hearing. Thus, the
petitioner is barred by the single-petition provision from seeking post-conviction relief in a
subsequent petition attacking the same judgment. See Tenn. Code Ann. § 40-30-102 (c) (2003).
Based on the foregoing, the trial court properly denied the petition for writ of habeas corpus.

       Upon due consideration of the pleadings, the record, and the applicable law, the court
concludes that the petitioner has not presented a cognizable claim for habeas corpus relief.
Accordingly, 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.



                                                       ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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