           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE
                                                         FILED
                                                           March 30, 1999
                            DECEMBER 1998 SESSION
                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
MATHIS MARTIN,                  *    No. 01C01-9801-CR-00013

      APPELLANT,                *    Davidson County

VS.                             *    Honorable Seth Norman, Judge

STATE OF TENNESSEE,             *    (Petition for Writ of Habeas Corpus)

      APPELLEE.                 *



For Appellant:                       For Appellee:

Mathis Martin                        John Knox Walkup
MTCX Annex                                  Attorney General and Reporter
7466 Centennial Boulevard            425 Fifth Avenue North
Nashville, TN 37209-1052                    Nashville, TN 37243-0493

                                     Kim R. Helper
                                     Assistant Attorney General
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493




OPINION FILED: ____________________


AFFIRMED


NORMA MCGEE OGLE, JUDGE




                                      1
                                           OPINION

               On November 19, 1997, the petitioner, Mathis Martin, filed pro se a

“Petition to Set Aside Guilty Plea, And/Or Alternative Writ of Habeas Corpus” in the

Davidson County Criminal Court. On December 3, 1997, the trial court summarily

dismissed the petition, finding no cognizable grounds for relief. On appeal, the

petitioner challenges the trial court’s dismissal of his petition without the

appointment of counsel or an evidentiary hearing. Following a thorough review of

the petition and the record, we affirm the judgment of the trial court.



               In his petition, the petitioner alleged that he pled guilty in the Davidson

County Criminal Court to two counts of armed robbery and one count of robbery on

July 20, 1989.1 According to the petitioner, a plea agreement provided for a

sentence of fifteen years incarceration in the Tennessee Department of Correction

for each count of armed robbery and eight years incarceration for the robbery

conviction. The sentences were to be served concurrently with one another and

consecutively to a sentence being served pursuant to a parole violation. Instead,

the trial court ordered that the petitioner serve all his sentences consecutively. No

appeal was taken.



       In his petition requesting habeas corpus relief, the petitioner alleged for the

first time the following grounds for relief:

               (1)   The trial court failed to implement the sentencing
               arrangement set forth in the plea agreement, imposing
               consecutive instead of concurrent sentencing;
               (2)   Because the petitioner’s crimes occurred within a twenty-four


1
  We have no record of any proceedings occurring prior to these habeas corpus proceedings,
including the judgment of conviction.



                                                2
                        hour period of time, the trial court’s imposition of consecutive
                        sentencing was erroneous, and the resulting sentence
                        constituted cruel and unusual punishment;
                (3)     The trial court did not apply the Tennessee
                        Criminal Sentencing Reform Act of 1989 in
                        sentencing the petitioner;
                (4)     The petitioner’s counsel provided ineffective assistance
                        including failing to advise the petitioner of his right to appeal his
                        sentence, failing to adequately investigate his case before
                        advising him to plead guilty, failing to advise the petitioner of his
                        right against self-incrimination, assisting the police and
                        prosecutor in obtaining information from the petitioner, and
                        failing to ensure that the petitioner was competent to plead
                        guilty;
                (5)     The petitioner was not competent to plead
                                guilty;
                        moreover, his guilty plea was neither knowing nor voluntary;
                (6)     There was no factual basis to his plea;
                (7)     The State withheld exculpatory information;
                (8)     The petitioner’s convictions subjected him to double jeopardy;
                (9)     The wording of his indictment rendered it
                                void, and the
                        Indictment was unsupported by the evidence;
                (10)    The prosecutor selectively prosecuted the
                                petitioner and
                        otherwise engaged in prosecutorial misconduct;
                (11)    The trial court did not possess venue.

The petitioner asked that he be permitted to withdraw his guilty plea, or, alternatively,

that he be granted a “late Appeal.”



                Initially, we have previously observed that, under Tennessee law, a

trial court may set aside the acceptance of a guilty plea in three different

circumstances. State v. Lyons, No. 01C01-9508-CR-00263, 1997 WL 469501, at *5

(Tenn. Crim. App. at Nashville, August 15, 1997). Tenn. R. Crim. P. 32(f) governs

two circumstances in which a defendant may withdraw a guilty plea before a

judgment has become final. Id. at **5-6. In this case, the petitioner’s judgment of

conviction became final long before the filing of the instant petition.2 After a

2
 See, e.g ., State v. Ha ll, No. 02C01-9802-CR-00040, 1998 WL 545339, at *1 (Tenn. Crim. App. at
Jackson, August 28, 1998)(following the petitioner’s guilty plea, the judgment became final upon the
waiver of his right to ap peal); State v. Hooper, No. 03C0 1-9701-C R-00035 , 1998 W L 95392, at *1
(Tenn. Crim. App. at Knoxville, March 6, 1998)(a judgment becomes final 30 days after it is entered



                                                  3
judgment becomes final, a defendant may then seek to have his guilty plea set

aside in post-conviction proceedings. Lyons, No. 01C01-9508-CR-00263, 1997 WL

469501, at **5-6. The Post-Conviction Procedure Act also provides that, if a trial

court finds that a petitioner was denied the right to an appeal from the original

conviction in violation of the state and federal constitutions, the trial court may grant

a “delayed appeal.” See Tenn. Code Ann. § 40-30-213 (1997).



                 The court in this case could have treated this petition as a petition for

post-conviction relief. Tenn. Code Ann. § 40-30-205(c) (1997). However, the record

in this case clearly shows that the applicable three-year statute of limitation expired

in 1992. Tenn. Code Ann. § 40-30-102 (1989). Moreover, the Post-Conviction

Procedure Act of 1995 did not revive the petitioner’s claims. Tenn. Code Ann. §40-

30-201 to -222 (1997). See, e.g., Cox v. State, No. 02C01-9508-CR-00221, 1997

WL 284713, at *1 (Tenn. Crim. App. at Jackson, May 30, 1997)(“[p]etitions barred

by the statute of limitations contained in the 1986 Act may not be revived by filing

under the amended act”).



                 Habeas corpus proceedings provide a fourth context in which a

petitioner may challenge a judgment of conviction or sentence stemming from a

guilty plea. See, e.g. Dykes v. Compton, 978 S.W.2d 528 (Tenn. 1998). However,

the procedural provisions pertaining to habeas corpus relief are mandatory and must

be scrupulously followed. Villanueva v. Carlton, No. 03C01-9611-CR-00425, 1997

WL 607499, at *2 (Tenn. Crim. App. at Knoxville, October 3, 1997), perm. to appeal

denied, concurring in results only, (Tenn. 1999). We note that the petitioner did not

attach the judgment of conviction in his case to his petition for habeas corpus relief,


into the minutes of the court clerk).



                                              4
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). Nevertheless, because the judgment

is not critical to the disposition of this petition and in the interest of judicial economy,

we will address the merits of the petitioner’s appeal.



              The Habeas Corpus Act requires a court to review the petition and

dismiss it unless it alleges a cognizable ground for relief. Tenn. Code Ann. §§ 29-

21-101 to –109 (1997). In other words, a petition for a writ of habeas corpus may be

summarily dismissed by the trial court without appointment of counsel, without an

evidentiary hearing, and without the opportunity to amend the petition, if the face of

the petition does not present a cognizable claim. Mitchell v. Carlton, No. 03C01-

9704-CR-00125, 1998 WL 8505, at *2 (Tenn. Crim. App. at Knoxville, January 12,

1998). See also Attaway v. State, No. 03C01-9703-CR-00100, 1998 WL 125563, at

*3 (Tenn. Crim. App. at Knoxville, March 23, 1998). Moreover, if the petition is

inartfully drawn, the trial court is not required to appoint counsel. There is no right to

counsel in habeas corpus proceedings. See Ransom v. Myers, No. 01C01-9708-

CC-00233, 1998 WL 748673, at *4 (Tenn. Crim. App. at Nashville, October 23,

1998); State v. Harris, No. 01C01-9309-CR-00304, 1994 WL 630504, at *1 (Tenn.

Crim. App. at Nashville, November 10, 1994).



              Thus, we must consider whether or not the petitioner has stated claims

cognizable in habeas corpus proceedings. 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,



                                             5
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).



                   We conclude that the petitioner failed to allege facts adequately

demonstrating the void character of the proceedings which led to his confinement.

McDowell v. Jones, No. 03C01-9707-CR-00278, 1998 WL 389065, at *1 (Tenn.

Crim. App. at Knoxville, July 14, 1998). The petitioner first alleges that the trial court

failed to implement the plea agreement between the petitioner and the State. It is

unclear from the record and the petition whether the plea agreement at issue was

binding or non-binding pursuant to Tenn. R. Crim. P. 11(e). Thus, it is unclear

whether the petitioner is arguing that his counsel did not apprise him of the nature of

his plea agreement or that the trial court did not afford the petitioner an opportunity

to withdraw his plea pursuant to Rule 11(e)(4).3




3
  Normally, the petitioner’s failure to provide an adequate record on appeal would preclude our
consideration of this issue. However, we note that, in his Notice of Appeal, the petitioner requested
that “a ll proc eed ings , reco rds, a nd an y hear ing tra nsc ripts b e cer tified to the C rim inal C ourt o f App eals
by this Cou rt.”



                                                            6
              In any event, whether we characterize the petitioner’s argument in

terms of ineffective assistance of counsel, a challenge to the voluntary and knowing

nature of his guilty plea, or a challenge to the trial court’s compliance with Rule 11,

the petitioner’s claim renders the judgment voidable rather than void. W e 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. Code

Ann. 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). Similarly, challenges to the voluntary or

knowing nature of a guilty plea can be made only by a petition for post-conviction

relief. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). See also Neal v. State,

810 S.W.2d 131, 134 (Tenn. 1991)(failure of a trial court to give the full litany of

Boykin rights rendered the judgment voidable rather than void). Additionally, to the

extent that a trial court’s compliance with Rule 11 is intended to ensure the voluntary

and knowing nature of a guilty plea, a trial court’s failure to comply with Rule 11 in

accepting a guilty plea is properly addressed in post-conviction proceedings. See

State v. Lord, 894 S.W.2d 312, 316 (Tenn. Crim. App. 1994)(“the focus of the

inquiry at a guilty plea hearing is on whether or not the plea is being voluntarily and

intelligently made and the procedural requirements of Mackey and Rule 11 … insure

that the record will show that such a plea occurs”).



              Second, the petitioner asserts that the trial court could not impose



                                            7
consecutive sentencing, because his crimes occurred within a twenty-four hour

period of time. Generally, a petitioner may challenge an illegal sentence in habeas

corpus proceedings. Cupples v. State, No. 02C01-9511-CC-00333, 1996 WL

601730, at *1 (Tenn. Crim. App. at Jackson, October 22, 1996). See also State v.

Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978). However, nothing in the law at the

time of the petitioner’s offenses precluded consecutive sentencing for offenses

occurring within a twenty-four hour period. At the time of the appellant’s offenses

and at the time of his guilty plea and sentencing, consecutive sentencing was

governed in part by our supreme court’s decision in Gray v. State, 538 S.W.2d 391,

393 (Tenn. 1976). In that case, the court rejected the petitioner’s argument that

      in determining whether or not to sentence a defendant to consecutive
      sentences, the trial judge [wa]s required to take into consideration the
      fact that all of the offenses arose out of one single criminal episode or
      were inspired by the same general intent and minutely limited in both
      time and space.

Indeed, Tenn. Code Ann. § 40-35-210(e) (1988) explicitly eliminated the “single

criminal episode” concept for purposes of imposing consecutive or concurrent

sentences upon persistent offenders as provided by the supreme court. Therefore,

we may also conclude that the mere fact that the petitioner’s offenses occurred

within a twenty-four hour period did not render his consecutive sentences cruel and

unusual punishment. See Wooten v. State, 477 S.W.2d 767, 768 (Tenn. Crim. App.

1971)(imposition of cumulative sentence pursuant to a statute approved by the

supreme court of this state did not constitute cruel and unusual punishment). See

generally Holt v. McWherter, No. 01C01-9201-CR-00095, 1993 WL 207649, at *2

(Tenn. Crim. App. at Nashville, June 11, 1993)(sentence of life imprisonment for

armed robbery did not constitute cruel and unusual punishment).



             Third, the petitioner asserts that the 1989 Sentencing Reform Act was



                                          8
in effect at the time of his guilty plea and sentencing in July, 1989. Therefore, he

contends that his sentence is void, because the trial court failed to apply the 1989

Act in his case. Moreover, the petitioner states that, because he was not sentenced

under the 1989 Act, (1) his confinement constitutes ex post facto punishment; (2) he

was denied equal protection of the law; (3) he was denied due process of law; and

(4) his sentence constitutes cruel and unusual punishment. Initially, implicit in the

petition is the assumption that the petitioner would have received a lesser sentence

under the 1989 Act.4 Thus, the factual allegations of this case do not permit

invocation of an ex post facto challenge. See, e.g., Yates v. Sundquist, No. 01C01-

9707-CC-00299, 1998 WL 299290, at *2 (Tenn. Crim. App. at Nashville), perm. to

appeal denied, (Tenn. 1998). Furthermore, the petitioner’s assertion that the 1989

Act was in effect at the time of his guilty plea and sentencing is erroneous. Instead,

the effective date of the Act was November 1, 1989, several months after the

imposition of the petitioner’s sentence. In State ex rel. Crum v. McWherter, No.

02C01-9108-CC-00181, 1992 WL 99029, at **3-4 (Tenn. Crim. App. at Jackson,

May 13, 1992), our court held that the 1989 Act, by its own terms, does not apply to

sentences imposed prior to the effective date of the Act, and that failure to apply the

Act to those penalties does not violate equal protection principles. See also State

ex rel. Jones v. McWherter, No. 01C01-9204-CR-00124, 1992 WL 335918, at *7

(Tenn. Crim. App. at Nashville, November 18, 1992); Simpson v. State, No. 01C01-

9203-CR-00098, 1992 WL 335937, at *2 (Tenn. Crim. App. at Nashville, November

18, 1998). Additionally, this court has held that the failure to apply the 1989 Act to

previously imposed sentences does not violate principles of due process. Barrett v.


4
 We note that, although the 1989 Act lowered and narrowed the broad ranges of punishment
available fo r robber y and arm ed robb ery, the petitione r’s senten ces are still within those ra nges. O f
cou rse, w e are unab le to de term ine fro m th e lim ited re cord befo re us the s pec ific ran ge th at wo uld
have been applic able t o this petitio ner u nde r the 1 989 Act. In any ev ent, a s we subs equ ently
conclud e, the trial cou rt applied the correct law in senten cing the p etitioner.



                                                         9
State, No. 02C01-9508-CC-00233, 1997 WL 81658, at **3-4 (Tenn. Crim. App. at

Jackson), perm. to appeal denied, (Tenn. 1997). Finally, assuming that the

petitioner would have received a reduced penalty under the new Act, this fact alone

does not render a sentence under the prior law disproportionate to the crime. Id. at

*3. See also State ex rel. Jones, No. 01C01-9204-CR-00124, 1992 WL 335918, at

*3.



                 The petitioner’s remaining claims are similarly inappropriate for

consideration in habeas corpus proceedings. A double jeopardy claim is not

cognizable in a habeas corpus proceeding. Harvey v. State, No. 03C01-9510-CC-

00307, 1996 WL 368208, at 1 (Tenn. Crim. App. at Knoxville, June 28, 1996). Also,

because a guilty plea waives any argument concerning venue, venue in this case

will not constitute a cognizable claim in a petition for habeas corpus relief. Ellis v.

Carlton, No. 03C01-9711-CR-00493, 1998 WL 597140, at *2 (Tenn. Crim. App. at

Knoxville, September 10, 1998), perm. to appeal denied, (Tenn. 1998). We

additionally conclude that allegations concerning a possible violation of the rule set

forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963), 5 and allegations of

prosecutorial misconduct would require investigation of facts other than those

contained on the face of the judgment or the record of the proceedings and,

accordingly, are not cognizable in this case. Martin, No. 02C01-9804-CC-00101,

1998 WL 467098, at *1.



5
  An allegation of a Brady violation may, in some cases, toll the applicable statute of limitations for
filing a petition for post-co nviction relief. Arm strong v. S tate, No. 01C01-9311-CR-00403, 1994 WL
695424, at **3-4 (Tenn. Crim. App. at Nashville, December 8, 1994). However, in this case the
petitioner alleged that the prosecutor withheld the following information:
          That the victims in th is case a t bar, being two wom en, one a n X-Fe lon, were a t a
          public are a, plenty of stre et lights, and view by othe r people.
The a ppellant no where a lleges that h e hims elf was n ot aware of these facts at the time of h is guilty
plea or that these facts only came to light following the expiration of the applicable statute of
limitations.



                                                     10
              Finally, the petitioner alleges that the indictment was defective in his

case. However, not all defects in an indictment are cognizable grounds for habeas

corpus relief. See, e.g. Thompson v. Carlton, No. 03C01-9611-CR-00395, 1998 WL

19932, at **1-2 (Tenn. Crim. App. at Knoxville, January 22, 1998), perm. to appeal

denied, (Tenn. 1998). The petitioner contends that the State’s use of the word

“unlawful” in the indictment rendered it void, because use of the word did “not

comply to statute.” We acknowledge that the applicable statute employs the term

“felonious.” Tenn. Code Ann. § 39-2-501(1988). However, the petitioner does not

claim that the term “felonious” was omitted from the indictment, and we conclude

that the insertion of the word “unlawful,” without more, was insufficient to divest the

trial court of jurisdiction over the petitioner’s case.



               For the foregoing reasons, we affirm the judgment of the trial court.



                                            ________________________
                                            NORMA MCGEE OGLE, Judge



CONCUR:


 _______________________
JOHN H. PEAY, Judge


 ________________________
JOSEPH M. TIPTON, Judge




                                             11
