         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs January 25, 2005

         KELVIN WADE CLOYD v. HOWARD CARLTON, WARDEN

                      Appeal from the Criminal Court for Johnson County
                              No. 4412   Lynn W. Brown, Judge



                     No. E2004-02003-CCA-R3-HC - Filed March 10, 2005


The petitioner, Kelvin Wade Cloyd, appeals the summary dismissal of his petition for habeas corpus
relief. He alleges that he was denied the effective assistance of counsel, claims that the state
knowingly used false testimony during his trial, and asserts that he was erroneously assessed costs.
The judgment is affirmed.

                   Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

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

Kelvin Wade Cloyd, Mountain City, Tennessee, pro se.

Paul G. Summers, Attorney General & Reporter; and John H. Bledsoe and Kathy D. Aslinger,
Assistant Attorneys General, for the appellee, State of Tennessee.

                                               OPINION

        In 1996, the petitioner was convicted of two counts of vehicular homicide and possession of
a controlled substance. This court affirmed on direct appeal. See State v. Kelvin Wade Cloyd, No.
03C01-9704-CR-00153 (Tenn. Crim. App., at Knoxville, Apr. 2, 1998), perm. app. denied (Tenn.
Dec. 14, 1998). The petitioner filed a timely petition for post-conviction relief, alleging ineffective
assistance of counsel and a violation of the requirements of Brady v. Maryland, 373 U.S. 83 (1963).
The post-conviction court denied relief and this court affirmed. See Kelvin Wade Cloyd v. State,
No. E2003-00125-CCA-R3-PC (Tenn. Crim. App., at Knoxville, Nov. 3, 2003), perm. app. denied
(Tenn. Jan. 26, 2004).

        On June 3, 2004, the petitioner filed a petition for habeas corpus relief, alleging that his trial
counsel was ineffective by failing to inform him of a plea offer and that the state violated his due
process rights by utilizing testimony it knew to be false. The trial court summarily dismissed the
petition, concluding that the petitioner had failed to establish a claim for habeas corpus relief.
Because he had failed to file an affidavit of indigency, the trial court taxed the costs to the petitioner.
In this appeal, the petitioner restates his earlier claims and complains about the assessment of court
costs.

        A writ of habeas corpus may be granted only when the petitioner has established a 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). Habeas corpus relief is
available in this state 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 petitioner or that the sentence of
imprisonment has otherwise expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v.
State, 833 S.W.2d 60, 62 (Tenn. 1992). Unlike the post-conviction petition which would afford a
means of relief for constitutional violations, such as the deprivation of the effective assistance of
counsel, the purpose of the habeas corpus petition is to contest a void, not merely a voidable,
judgment. State ex rel. Newsome v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189 (1969). A
petitioner cannot attack a facially valid conviction in a habeas corpus proceeding. Potts, 833 S.W.2d
at 62; State ex rel. Holbrook v. Bomar, 211 Tenn. 243, 364 S.W.2d 887, 888 (1963).

        The petitioner first asserts that his conviction is void because his trial counsel was ineffective
by failing to communicate a plea offer from the state. He also asserts that his right to due process
was violated because the state used false testimony. These claims, even if true, would not entitle the
petitioner to habeas corpus relief. Instead, they would entitle the petitioner to post-conviction relief,
which has a one-year statute of limitations. See, e.g., Newsome, 424 S.W.2d at 189. In
consequence, it is our view that the trial court did not err by summarily dismissing the petition. See
Passarella v. State 891 S.W.2d 619, 627 (Tenn. 1994) (holding that the trial court may summarily
dismiss a petition for writ of habeas corpus when the allegations do not state a cognizable claim);
see also Tenn. Code Ann. § 29-21-109.

        The petitioner also asserts that the trial court erred by taxing the costs of the proceeding
below to him because he is indigent. The state submits that because the petitioner failed to file an
affidavit of indigency, the trial court did not abuse its discretion by taxing the costs to the petitioner.

        Tennessee Code Annotated section 29-21-125 provides that "[t]he costs of [habeas corpus
proceedings], except when otherwise expressly provided, shall be adjudged as the court or judge may
think right, and taxed and collected as in other cases." Tenn. Code Ann. § 29-21-125. Our law
allows for the commencement of a civil action, including the filing of a petition for writ of habeas
corpus, without giving security for the costs and without paying litigation taxes when the petitioner
files an oath of poverty and affidavit of indigency. Tenn. Code Ann. § 20-12-127(a). That statute
also provides, however, that "[t]he filing of a civil action without paying the costs or taxes or giving
security for the costs or taxes does not relieve the person filing the action from responsibility for the
costs or taxes but suspends their collection until taxed by the court." Even if the petitioner had filed
the necessary documentation to proceed without securing the costs, he would not be exempt from
the payment of costs in the trial court on this basis alone. Our supreme court has held as follows:


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       [N]either the plain language of [Supreme Court Rule 29], nor the plain language of
       Tennessee Code Annotated section 20-12-127(a) (Supp. 1999), contemplates that
       indigent litigants are permanently relieved from their responsibility to pay litigation
       taxes. Rather, Rule 29 and section 20-12-127(a) only contemplate that an indigent
       litigant will not be denied access to the courts to commence a civil action solely
       because of an inability to pay litigation taxes.
Fletcher v. State, 9 S.W.3d 103, 106 (Tenn. 1999).

        The authority to tax the costs of habeas corpus litigation to the petitioner is within the
discretion of the trial court. See Tenn. Code Ann. § 29-21-125. Nothing in our statutory or case law
exempts the petitioner from the payment of costs based upon his indigency. As indicated, the
petition for writ of habeas corpus was without merit. The issues had been previously litigated in a
post-conviction petition. In our view, the trial court did not abuse its discretion under these
circumstances by taxing the costs to the petitioner.

       Accordingly, the judgment of the trial court is affirmed.


                                                       ___________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




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