         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE


                STEVEN G. HUGHES v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Johnson County
                             No. 4188 Robert E. Cupp, Judge


                     No. E2004-02473-CCA-R3-HC - Filed April 22, 2005


The petitioner, Steven G. Hughes, petitioned the Johnson County Criminal Court for habeas corpus
relief from his Cocke County convictions of aggravated robbery. The court dismissed the petition,
and the petitioner appealed. The state has moved this court to affirm the convictions pursuant to
Tennessee Court of Criminal Appeals Rule 20. We sustain the court’s motion and affirm the order
of dismissal.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON , J.,
and NORMA MCGEE OGLE, J., joined.

Steven G. Hughes, Appellant, Pro se.

Renee W. Turner, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                  MEMORANDUM OPINION

               Pursuant to the petitioner’s guilty pleas, the Cocke County Circuit Court entered four
convictions of aggravated robbery and sentenced the petitioner to an effective 50-year sentence.
Now under review is the petitioner’s Johnson County Criminal Court petition for a writ of habeas
corpus, in which the petitioner alleged voidness of his convictions based upon a “material variance
between the indicted charges and the proof submitted and accepted by the trial court” and upon the
involuntary and unknowing nature of his guilty pleas. The court held that the judgments were not
void and dismissed the petition. We affirm.

               “[T]he writ of [habeas corpus] will issue in Tennessee only when it appears upon the
face of the judgment or the record of the proceedings upon which the judgment is rendered that a
convicting court was without jurisdiction or authority to sentence a defendant, or that a defendant’s
sentence of imprisonment or other restraint has expired.” State v. Ritchie, 20 S.W.3d 624, 630
(Tenn. 2000) (quoting Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993)). “A void judgment is one
in which the judgment is facially invalid because the court lacked jurisdiction or authority to render
the judgment or because the defendant’s sentence has expired.” Taylor v. State, 955 S.W.2d 78, 83
(Tenn. 1999). In contrast, “[a] voidable conviction or sentence is one which is facially valid and
requires the introduction of proof beyond the face of the record or judgment to establish its
invalidity.” Ritchie, 20 S.W.3d at 630 (quoting Taylor, 955 S.W.2d at 83). Facial invalidity means
that the “fact [depriving the court of jurisdiction] must appear clearly and indisputably either on the
face of the judgment or in the original trial record before a writ of habeas corpus can issue from a
Tennessee court.” Ritchie, 20 S.W.3d at 633.

                   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
(2000).

                Although the petitioner has claimed that the proof at trial materially varied from the
charges stated in the indictment, the claim does not render the conviction void. Moreover, no trial
evidence was even presented; the petitioner pleaded guilty. Apparently, the petitioner claims that
in the plea submission process, the “material variance” occurred during the prosecutor’s statement
of a factual basis for the pleas and convictions. This claim fails to implicate voidness of the
indictment and the convictions and was properly dismissed.

                Also, a petition for habeas corpus relief is not the proper means for addressing a
claim of an unknowing or involuntary guilty plea. Archer, 851 S.W.2d at 163. The proper method
for making a collateral attack of this nature is a petition pursuant to the Post-Conviction Procedure
Act. Id.; see Tenn. Code Ann. §§ 40-30-101 through -122 (2003). In the present case, however,
we are without the option of treating the habeas corpus petition as an action for post-conviction
relief because the post-conviction one-year statute of limitations bars post-conviction relief.1 Tenn.
Code Ann. § 40-30-102 (2003).

                  For these reasons, the Johnson County Criminal Court’s dismissal of the petition is
affirmed.




         1
           The limited record before us reveals that the underlying offenses occurred in 1993. Sometime between then
and February 12, 1996, the petitioner pleaded guilty but appealed the trial court’s original sentencing order. W hen
addressing that appeal on February 12, 1996, this court vacated the sentences and remanded for resentencing. See State
v. Steven Hughes, No. 03C01-9405-CR-00188 (Tenn. Crim. App., Knoxville, Feb. 12, 1996). On remand, the trial court
resentenced the petitioner on September 30, 1996. Apparently, no further appeal was taken. The habeas corpus petition
was filed May 16, 2003.

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      _______________________________________
       JAMES CURWOOD WITT, JR., JUDGE




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