        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs July 7, 2015

              TIMOTHY A. BAXTER v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Madison County
                      No. C-14-223     Donald H. Allen, Judge


               No. W2014-02325-CCA-R3-HC - Filed October 5, 2015


The Petitioner, Timothy A. Baxter, appeals as of right from the Madison County Circuit
Court’s summary dismissal of his petition for writ of habeas corpus. The Petitioner
contends that his petition stated cognizable claims for habeas corpus relief because it
alleged numerous violations of his constitutional rights, ineffective assistance of his trial
and appellate counsel, “pervasive governmental misconduct,” and insufficiency of the
convicting evidence. Following our review, we reverse the judgment of the Circuit Court
and remand the case for treatment of the petition as one for post-conviction relief and
further proceedings consistent with the Post-Conviction Procedure Act.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed;
                                  Case Remanded

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and JOHN EVERETT WILLIAMS, J., joined.

Timothy A. Baxter, Tiptonville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant
Attorney General; James G. Woodall, District Attorney General; and Alfred Lynn Earls,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       The Petitioner was convicted of felony failure to appear and sentenced to six
years’ confinement. See State v. Timothy Aaron Baxter, No. W2012-02555-CCA-R3-
CD, 2014 WL 29102 (Tenn. Crim. App. Jan. 3, 2014), perm. app. denied (Tenn. May 29,
2014). A panel of this court affirmed the Petitioner’s conviction and, on May 29, 2014,
our supreme court declined to review the matter. Id.
        On September 2, 2014, the Petitioner filed the instant petition for writ of habeas
corpus alleging numerous violations of his constitutional rights, ineffective assistance of
his trial and appellate counsel, “pervasive governmental misconduct,” and insufficiency
of the convicting evidence. On October 21, 2014, the Circuit Court summarily dismissed
the petition for failure to state a cognizable claim for habeas corpus relief. This appeal
followed.

       The Petitioner’s brief on appeal is nearly identical to his petition for writ of habeas
corpus, raising the same issues and arguments. The State responds that the Circuit Court
did not err in summarily dismissing the petition because none of the Petitioner’s claims
were cognizable in a habeas corpus proceeding.

       Under Tennessee law, the “grounds upon which habeas corpus relief may be
granted are very narrow.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The writ
will issue only where the petitioner has established: (1) a lack of jurisdiction for the
order of confinement on the face of the judgment or in the record on which the judgment
was rendered; or (2) that he is otherwise entitled to immediate release because of the
expiration of his sentence. See State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000);
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. 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 petitioner bears the burden of establishing a
void judgment or illegal confinement by a preponderance of the evidence. See Wyatt v.
State, 24 S.W.3d 319, 322 (Tenn. 2000). A habeas corpus court may summarily dismiss
a petition without a hearing when the petition “fails to demonstrate that the judgment is
void.” Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004); see Tenn. Code Ann. § 29-21-
109.

       The State is correct that the petition does not raise any claims that would be
cognizable in a habeas corpus proceeding. The Petitioner’s numerous claims of
violations of his constitutional rights and “pervasive governmental misconduct” require
proof beyond the face of the record or the judgment and would make the judgment
merely voidable, not void, even if proven true. Likewise, the Petitioner’s claims of
insufficiency of the evidence and ineffective assistance of trial and appellate counsel are
not cognizable in a habeas corpus proceeding. See Luttrell v. State, 644 S.W.2d 408
(Tenn. Crim. App. 1982) (regarding claims of ineffective assistance of counsel); Myers v.
State, 462 S.W.2d 265, 267 (Tenn. Crim. App. 1970) (regarding claims of insufficiency
of the convicting evidence).

                                             -2-
        However, post-conviction relief is available when a “conviction or sentence is
void or voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. The
Post-Conviction Procedure Act provides that a petition for habeas corpus relief may be
treated as a petition for post-conviction relief. Tenn. Code Ann. § 40-30-105(c). Here,
the petition was filed within the one-year statute of limitations, which subsequently
expired during the pendency of this appeal, and in the court of conviction. See Tenn.
Code Ann. §§ 40-30-102, -104(a). Accordingly, we reverse the judgment of the Circuit
Court and remand this case for treatment of the petition as a petition for post-conviction
relief and further proceedings consistent with the Post-Conviction Procedure Act.

       Upon consideration of the foregoing and the record as a whole, the judgment of
the Circuit Court is reversed, and this case is remanded to the Circuit Court for further
proceedings consistent with this opinion.


                                                 _________________________________
                                                 D. KELLY THOMAS, JR., JUDGE




                                           -3-
