         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs June 20, 2006

                    DARRYL FORD v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Wayne County
                           No. 13755     Robert Holloway, Judge


                     No. M2005-01854-CCA-R3-HC - Filed July 31, 2006


The Appellant, Darryl Ford, proceeding pro se, appeals the Wayne County Circuit Court’s summary

dismissal of his petition for writ of habeas corpus. Because the petition fails to raise a cognizable

claim for habeas corpus relief, the judgment of the trial court is affirmed.



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



DAVID G. HAYES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and NORMA

MCGEE OGLE, JJ., joined.



Darryl Ford, Pro Se, Clifton, Tennessee.



Paul G. Summers, Attorney General and Reporter and Preston Shipp, Assistant Attorney General,

for the Appellee, State of Tennessee.



                                             OPINION
                                       Procedural History



       The Appellant is currently serving an effective twenty-five year sentence stemming from his

guilty pleas to aggravated rape and attempted aggravated rape. On May 10, 2005, the Appellant filed

a pro se petition for writ of habeas corpus relief. As grounds for the issuance of the writ, the

Appellant alleged that his guilty pleas were not knowingly and voluntarily entered. On June 16,

2005, the trial court summarily dismissed the petition. A timely notice of appeal was filed on June

29, 2005.



                                             Analysis



       The grounds upon which a writ of habeas corpus may be issued are very narrow. McLaney

v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). A writ of habeas corpus is available only when it appears

from the face of the judgment or record that either the convicting court was without jurisdiction to

convict or sentence the petitioner, or the petitioner's sentence has expired. Archer v. State, 851

S.W.2d 157, 164 (Tenn. 1993). In other words, habeas corpus relief may only be sought when the

judgment is void, not merely voidable. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). 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, 381 S.W.2d 290, 291-92 (Tenn. 1964).



       Initially, we would observe that the Appellant’s petition is woefully inadequate with regard

to statutory form and necessary facts which must be asserted in seeking habeas corpus relief. The


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Appellant neglects to attach a copy of the cause of the alleged restraint, i.e., the plea agreement or

a transcript of the guilty plea hearing, and he fails to state whether the legality of his restraint has

been previously adjudicated. T.C.A. § 29-21-107 (b)(2), (3) (2003). In addition, the petition is not

verified by affidavit, as required by Tennessee Code Annotated section 29-21-107(a). Our supreme

court has confirmed that the procedural requirements are mandatory and must be followed

scrupulously. Hickman v. State, 153 S.W.3d 16, 21 (Tenn. 2004). A habeas corpus court may

properly choose to dismiss a petition for failing to comply with the statutory procedural

requirements; however, dismissal is not required. Id.



        On appeal, the Appellant presents the following issue: “Because the Trial Court did not

ensure that the petitioner understood the rights he was waiving, because the court did not properly

accept the petitioner’s plea, renders the Plea and the resulting conviction void.” Even if true, this

allegation is not a proper claim for habeas corpus relief as it would render the judgments merely

voidable, not void. See Luttrell v. State, 644 S.W.2d 408, 409 (Tenn. Crim. App. 1982); see also

Douglas Hayden Kirkham v. State, No. M2004-02635-CCA-R3-HC (Tenn. Crim. App. at Nashville,

May 3, 2005) (citing Luttrell, 644 S.W.2d at 409); Torrey Caldwell v. State, No. M2002-02436-

CCA-R3-CO (Tenn. Crim. App. at Nashville, July 9, 2003). Moreover, because the petition was

filed two and a half years after the judgments became final, the petition cannot be treated as a

petition for post-conviction relief. See T.C.A. § 40-30-102(a) (2003). Accordingly, we conclude

that habeas corpus relief is not available.



                                          CONCLUSION


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       Based upon the foregoing, the Wayne County Circuit Court’s dismissal of the Appellant’s

habeas corpus petition is affirmed.




                                                   ___________________________________

                                                   DAVID G. HAYES, JUDGE




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