         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs March 1, 2005

               ERVIN DAVIS v. WARDEN GLENN TURNER AND
                         STATE OF TENNESSEE

                Direct Appeal from the Circuit Court for Hardeman County
                         No. 9738 Jon Kerry Blackwood, Judge



                     No. W2004-01985-CCA-R3-HC - Filed May 20, 2005


The petitioner appeals from the trial court’s summary dismissal of his pro se petition for writ of
habeas corpus. Following our review, we affirm the trial court’s judgment.

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

J.C. MC LIN , J., delivered the opinion of the court, in which THOMAS T. WOODALL and JAMES
CURWOOD WITT , JR., JJ., joined.

Ervin Davis, Hardeman County Correctional Facility, Whiteville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
and Elizabeth T. Rice, District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

                                      Factual Background

        On August 23, 1999, the petitioner, Ervin Davis, pled guilty to second degree murder and
possession of cocaine with intent to sell and was sentenced to fifteen years for the second degree
murder conviction and eight years for the cocaine conviction. On July 27, 2004, the petitioner filed
a pro se petition for writ of habeas corpus, which the trial court summarily dismissed.

        In his habeas corpus petition, the petitioner claimed that his guilty pleas were involuntary
because he was pressured to plead guilty to second degree murder after he was charged by a
superceding indictment for first degree murder some twenty-six months after he was charged by the
original indictment for second degree murder. In essence, the petitioner claimed that he pled guilty
to second degree murder to avoid a conviction on the first degree murder indictment. In addition,
the petitioner claimed that his convictions derived from his guilty pleas were void because the
indictments violated Rule 8(a) of the Tennessee Rules of Criminal Procedure. On appeal, the
petitioner contends that the trial court erred in summarily dismissing his petition without a hearing
or appointment of counsel because his petition stated a cognizable claim.

                                                       Analysis

         Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas corpus
relief. Tennessee Code Annotated section 29-21-101 et seq. codifies the applicable procedures for
seeking a writ. 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 on the face of the judgment or the record of the proceedings upon which the judgment was
rendered that a court was without jurisdiction to convict or sentence the defendant or that the
defendant is still imprisoned despite the expiration of his sentence. Archer v. State, 851 S.W.2d 157,
164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). The purpose of a habeas corpus
petition is to contest void and not merely voidable judgments. Archer, 851 S.W.2d at 163. The
burden is on the petitioner to establish, by a preponderance of the evidence, “that the sentence is void
or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). Moreover, it
is permissible for a trial court to summarily dismiss a petition for habeas corpus relief, without the
appointment of counsel and without an evidentiary hearing, if the petitioner does not state a
cognizable claim. See Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004); Passarella v. State, 891
S.W.2d 619 (Tenn. Crim. App. 1994).

         At the outset, we note that the petitioner has failed to state any cognizable claim for habeas
corpus relief. First, the petitioner’s claim that his guilty pleas were involuntary is not a claim for
which habeas corpus relief is available. Claims of an involuntary guilty plea would render a
conviction voidable, not void, and thus are appropriately challenged through post-conviction
procedures, not by writ of habeas corpus. See Archer, 851 S.W.2d at 164. Additionally, the
petitioner’s claim that the indictments for first and second degree murder were defective because
they violated Rule 8(a) of the Tennessee Rules of Criminal Procedure is equally not a proper claim
for habeas corpus relief.1 While a petitioner may challenge, by habeas corpus petition, an indictment
that is so defective as to fail to vest jurisdiction in the trial court, the petitioner’s indictments are not
defective. See Wyatt, 24 S.W.3d at 322.

        The petitioner essentially cloaks his involuntary plea claim around his claim that his
indictments were defective. This claim is completely without merit. The record reflects that the
petitioner was indicted for second degree murder in December of 1996. The State subsequently
obtained a superseding indictment for first degree murder in February of 1999. The petitioner then
pled guilty to second degree murder. The power to seek a superceding indictment lies within the
broad discretion granted to the State by the United States Constitution and the law of our state. State


         1
             Tenn. R. Crim. P. 8(a) provides in relevant part: “Two or more offenses shall be joined in the same indictment
. . . with each offense stated in a separate count . . . if the offenses are based upon the same conduct or arise from the
same criminal episode and if such offenses are known to the appropriate prosecuting official at the time of the return of
the indictment(s) . . . .”

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v. Harris, 33 S.W.3d 767, 771 (Tenn. 2000). A superseding indictment is an indictment obtained
without the dismissal of a prior indictment. Id. “Although the State may not bring a superseding
indictment to harass or intimidate the accused, a legitimate decision to bring a superseding
indictment is uniquely within the State’s authority.” Id. Therefore, “the State may obtain a
superseding indictment at any time prior to trial without dismissing the pending indictment and may
then select the indictment under which to proceed at trial.” Id.

         Reviewing the petitioner’s claim, we fail to see how the State’s decision to bring a
superseding indictment violates Rule 8(a) of the Tennessee Rules of Criminal Procedure. More
importantly, we observe that the petitioner’s claim fails to establish an indictment that is so defective
that it deprived the trial court of jurisdiction, thereby rendering the trial court’s judgments void.
Consequently, we affirm the trial court’s dismissal of the petition for writ of habeas corpus.




                                                        ___________________________________
                                                        J.C. McLIN, JUDGE




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