             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                                  July 2000 Session

                 JERREL LIVINGSTON v. JAMES M. DUKES, Warden

                     Direct Appeal from the Circuit Court for Lauderdale County
                                No. 5341 Joseph H. Walker, Judge



                       No. W2000-00840-CCA-R3-CD - Decided August 22, 2000


This appeal results from the trial court's denial of the petitioner's petition for writ of habeas corpus
based on the fact that the challenged judgment was not invalid on its face, nor had the petitioner's
sentence expired. The court also considered this request as a petition for post-conviction relief but
dismissed the petition for lack of jurisdiction. Based upon our review of the record, we affirm the
trial court's dismissal of the petitioner's request for habeas corpus or post-conviction relief.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID H. WELLES, J., and
CORNELIA A. CLARK , SP.J., joined.

Jerrel Livingston, Henning, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; and Mark E. Davidson, Assistant Attorney
General; for the appellee, State of Tennessee.

                                                         OPINION

        Procedurally, this case is made confusing because of the petitioner’s multiple filings of post
guilty plea petitions in Lauderdale County, where he is incarcerated, and Davidson County, where
he pled guilty and where his probation was revoked.

        The petitioner filed a pro se petition for writ of habeas corpus in the Lauderdale County
Clerk's Office on March 16, 2000.1 The request for the writ was based on the petitioner's claim that


         1
           In his petition, Livingston states that this is the second petition for writ of habeas corpus, the first having been
dismissed by the Lauderdale Coun ty Circuit Court on February 10, 1999. O ur research re veals the dismissal of a
petition for habeas corpus by the Lauderdale County Circuit Court, which action was affirmed by this court on October
19, 1999. Jerrell Livingsto n v. State , No. 02C01-9903-CC-00084, 1999 WL 1095614 (Tenn. Crim. App. Oct. 19,
1999), perm. app. denied, (Tenn. 2000). We assume this is the same petition as that referred to by the petitioner and
                                                                                                                  (continu ed...)
the attorney who represented him at his probation revocation hearing in Davidson County was
ineffective, that the trial court committed plain error in revoking his probation, and that he was
denied the right to appeal the revocation of his probation. The record provided to us does not contain
the warrant from the Davidson County Criminal Court, a transcript of the hearing, or the court order
revoking probation.

        This appeal resulted after the petitioner challenged the Davidson County court’s decision via
this habeas corpus petition filed in Lauderdale County. The Lauderdale County court dismissed the
habeas petition, which it also treated as a post-conviction petition, because the court found that the
petitioner had not alleged grounds that would entitle him to habeas corpus relief, and the Lauderdale
County court, not being the convicting court, lacked jurisdiction to grant post-conviction relief. The
petitioner appealed the court’s denial of his petition to this court.

        Although the petitioner states only one issue on appeal, he actually raises three issues in his
brief: (1) whether the lower court erred in denying his writ of habeas corpus without a proper
finding of facts and/or determination as to whether the claims were valid; (2) whether the lower court
[Davidson County] committed plain error in allowing the district attorney to bring up grounds not
alleged in the probation violation warrant; and (3) whether he was denied his right to appeal that
revocation. Based upon our review, we conclude that the trial court properly dismissed the
petitioner's request for relief and affirm the judgment of the trial court.

                                                  ANALYSIS

                                                       I.

                                              Habeas Corpus Relief

        It is well-established in Tennessee that the remedy provided by a writ of habeas corpus is
limited in scope and may only be invoked where the judgment is void or the petitioner’s term of
imprisonment has expired. State v. Richie, 20 S.W.3d 624, 629 (Tenn. 2000); State v. Davenport,
980 S.W.2d 407, 409 (Tenn. Crim. App. 1998); Passarella v. State, 891 S.W.2d 619, 626 (Tenn.
Crim. App.), perm. app. denied, (Tenn. 1994). A void, as opposed to a voidable, judgment has been
defined by our supreme court as “one in which the judgment is facially invalid because the court did
not have the statutory authority to render such judgment.” Dykes v. Compton, 978 S.W.2d 528, 529
(Tenn. 1998); see also Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The judgment of a court
of general jurisdiction is conclusive and presumed to be valid, and such a judgment can only be
impeached if the record affirmatively shows that the rendering court was without personal or subject
matter jurisdiction. Archer v. State, 851 S.W.2d 157, 162 (Tenn. 1993); Passarella, 891 S.W.2d at
626. Thus, habeas corpus relief is available 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


          1
           (...continued)
in the cou rt order de nying h is petition.

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without jurisdiction or authority to sentence a defendant, or that a defendant’s sentence of
imprisonment . . . has expired.” Archer, 851 S.W.2d at 164 (citation omitted).

        To obtain habeas corpus relief, the petitioner must show by a preponderance of the evidence
that his sentence is void and not merely voidable. See Davenport, 980 S.W.2d at 409; Passarella,
891 S.W.2d at 627. Consequently, a petitioner cannot collaterally attack a facially valid judgment
of the trial court in a petition for habeas corpus relief. Archer, 851 S.W.2d at 162. The proper
means of challenging a facially judgment based on a constitutional violation is a petition for post-
conviction relief. Lewis v. Metro. Gen. Sessions Court for Nashville, 949 S.W.2d 696, 699 (Tenn.
Crim. App. 1996), perm. app. denied, (Tenn. 1997); Fredrick v. State, 906 S.W.2d 927, 929 (Tenn.
Crim. App. 1993). Furthermore, an allegation of ineffective assistance of counsel merely renders
a judgment voidable and not void. Passarella, 891 S.W.2d at 627.

        In the present case, the petitioner is challenging his probation revocation on constitutional
grounds and trial court error, rather than based upon the fact that the court was without jurisdiction
to revoke his probation or that his sentence had expired. There is nothing in the record before us that
would cause us to question the jurisdiction of the Davidson County court to revoke the petitioner’s
probation or the status of the petitioner's sentence. Therefore, the judgment of the trial court was not
subject to habeas corpus relief. The petitioner failed to carry his burden of showing that the order
of revocation was invalid on its face, and the judgment of the trial court is affirmed.

                                                        II.
                                               Post-Conviction Relief

        After finding that a habeas corpus petition was not the appropriate vehicle for the petitioner's
claims, the trial court considered the petition as a request for post-conviction relief.2 Because this
pro se petition was filed after March 26, 1996, it is governed by the 1995 Post-Conviction Procedure
Act. Tenn. Code Ann. § 40-30-201 et. seq. (1997) (Compiler’s Notes); 1995 Tenn. Pub. Acts ch.
207, § 3. Tennessee Code Annotated § 40-30-203 allows void or voidable judgments to be
challenged on constitutional grounds using the post-conviction procedure.

       On March 23, 2000, the court dismissed the petition pursuant to Tennessee Code Annotated
§ 40-30-103(a). That section of the statute was repealed in 1995. It was replaced by § 40-30-204(a),
which states that “[a] post-conviction proceeding is commenced by filing, with the clerk of the court
in which the conviction occurred, a written petition naming the state as the respondent.” (emphasis


         2
           From our review of the record, it appears that this post-conviction petition may have been the second one filed
in this case. In the defendant’s inmate affidavit attached to his petition, he states that he filed a post-conviction petition
in the Davidson County Criminal Court in case number 89-F-1537. The Davidson County petition was dismissed as
time barred. That petition was seeking relief apparently alleging his not receiving credit for time served following the
revocation hearing. If the Lauderdale County petition was the second one filed in this case, this trial court, when
considering the petition as one for post-conviction relief, could have dismissed the petition pursuant to Tennessee Code
Annotated § 40-30-202(c), which states, “This part contemplates the filing of only one (1) petition for post-conviction
relief. In no event may more than one (1) petition for post-conviction relief be filed attacking a single judgment.”

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added). Since the petitioner was convicted in Davidson County, the Lauderdale County court found
that it lacked jurisdiction to hear the petition.

          We find no error in the trial court’s decision. Tennessee Code Annotated § 40-30-206 (1997)
states:

                 (b) If it plainly appears from the face of the petition, any annexed
                 exhibits or the prior proceedings in the case that the petition was not
                 filed in the court of conviction or within the time set forth in the
                 statute of limitations, or that a prior petition was filed attacking the
                 conviction and was resolved on the merits, the judge shall enter an
                 order dismissing the petition. (emphasis added).

Pursuant to the statute, the Lauderdale County court was required to dismiss the petitioner’s post-
conviction petition and properly did so. We, therefore, affirm the judgment of the trial court.

                                           CONCLUSION

          Based upon our review, we affirm the judgment of the trial court.




                                                         ___________________________________
                                                         ALAN E. GLENN, JUDGE




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