        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs September 18, 2012

             JESSE L. ROGERS, III v. DAVID SEXTON, WARDEN

                  Appeal from the Criminal Court for Johnson County
                          No. 6025    Robert E. Cupp, Judge


                No. E2012-00795-CCA-R3-HC - Filed January 23, 2013


The petitioner, Jesse L. Rogers, III, pro se, appeals the trial court’s dismissal of his petition
for a writ of habeas corpus from his 1994 convictions for first degree murder and attempted
first degree murder. He claims the judgment is void due to an invalid waiver of his
constitutional rights during the entry of his guilty plea. The trial court denied relief without
appointing counsel, concluding that the petitioner failed to state a cognizable claim for
habeas corpus relief. Following our review, we affirm the judgment of the trial court.


 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER and D. K ELLY T HOMAS, J R., JJ., joined.

Jesse L. Rogers, III, Mountain City, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Joe Crumley, District Attorney General; for the appellee, State of Tennessee.

                                          OPINION


                                     Procedural History

        From the habeas corpus petition, the attachments to the petition, and a 2011 opinion
from the Tennessee Court of Appeals, we surmise that in 1994, the petitioner pled guilty to
first degree murder and attempt to commit first degree murder and was sentenced to
consecutive terms of life and twenty years. Jesse L. Rogers, III v. State, No. E2010-01353-
COA-R3-CV (Tenn. Ct. App., at Knoxville, Mar. 31, 2011). On April 15, 2010, the
petitioner filed a petition for writ of certiorari in the Johnson County Chancery Court seeking
review of the Johnson County Circuit Court’s March 2, 2010 denial of his petition for habeas
corpus relief, which he had filed on October 9, 2006. Id. The writ of certiorari also
independently sought habeas corpus relief. Id. The Chancery Court dismissed the petition
on May 25, 2010 without a hearing. The Tennessee Court of Appeals affirmed the judgment
of the Chancery Court. Id.

       On January 24, 2012, the petitioner filed the instant petition for a writ of habeas
corpus alleging that his judgment is void due to an invalid plea bargain/waiver of
constitutional rights and that the criminal court has no jurisdiction or authority to sentence
or order imprisonment without a true conviction. By order dated April 2, 2012, the trial court
found that the petitioner failed to state a cognizable claim for habeas corpus relief and
summarily dismissed the petition. The petitioner appealed.


                                          Analysis

      On appeal, the petitioner claims the trial court erred when it dismissed his petition
without appointing counsel and without considering the merits of the petition. We disagree.

        A prisoner is guaranteed the right to habeas corpus relief under Article I, section 15
of the Tennessee Constitution. See also T.C.A. § 29-21-101, et seq (2010). However, the
grounds upon which a writ of habeas corpus may be issued are very narrow. Taylor v. State,
995 S.W.2d 78, 83 (Tenn. 1999). “Habeas corpus relief is available 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.” Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). “[T]he presumption of a
habeas corpus petition is to contest void and not merely voidable judgments.” Id. at 163. 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, 995 S.W.2d at 83. In contrast,

       a voidable judgment is facially valid and requires the introduction of proof
       beyond the face of the record or judgment to establish its invalidity. Thus, in
       all cases where a petitioner must introduce proof beyond the record to establish
       the invalidity of his conviction, then that conviction by definition is merely
       voidable, and a Tennessee court cannot issue the writ of habeas corpus under
       such circumstances.



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Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004) (internal citations and quotations
omitted); see also Summers v. State, 212 S.W.2d 251, 256 (Tenn. 2007). Moreover, it is the
petitioner’s burden to demonstrate, by a preponderance of the evidence, that the judgment
is void or that the confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

       If the habeas corpus court determines from the petitioner’s filings that no cognizable
claim has been stated and that the petitioner is not entitled to relief, the petition for writ of
habeas corpus may be summarily dismissed. See Hickman, 153 S.W.3d at 20. Further, the
habeas corpus court may summarily dismiss the petition without the appointment of a lawyer
and without an evidentiary hearing if there is nothing on the face of the judgment to indicate
the convictions are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

       Initially, we note that the petitioner indicates in the instant petition that this is his first
application for habeas corpus relief. However, based on the references in the record to a
prior petition and its denial, this affirmation appears to be inaccurate. Notwithstanding this
erroneous representation, the Court will examine the petitioner’s issues related to the trial
court’s summary dismissal of petition now before us.

        Throughout his habeas corpus petition and accompanying documents, the petitioner
describes his guilty plea as an invalid contract, an invalid plea bargain, an invalid waiver of
constitutional rights, and a void legal proceeding. He adds that, because of the invalid plea,
the trial court was without jurisdiction or authority to sentence him. Although couched in
a variety of ways, the petitioner’s primary claim is that his guilty plea was not knowingly,
voluntarily, and intelligently given because the record does not reveal an express waiver of
his constitutional rights. This attack on the adequacy of the record is premised upon his
present inability to obtain a verbatim transcript of the guilty plea colloquy from 1994.

       Here, we cannot conclude that the petitioner’s judgments are facially invalid. A
document contained in the petitioner’s attachments to his petition entitled “Plea of Guilty”
and dated June 30, 1994, indicates the plea was taken in the Criminal Court for Knox County.
The plea form contains the following language:

               The [petitioner], appearing in person in this cause, and having
               been fully advised by the Court of the crime against him, the
               punishment which could be meted out if the [petitioner] is found
               guilty and his Constitutional rights therein, hereby voluntarily
               pleads guilty to the offense of First Degree Murder, as charged
               in the 2nd count; & Attempt to Commit First Degree Murder as
               charged in the 3rd count. The [petitioner] also states to the Court
               that his attorney being present . . . has fully informed him of all

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              of his rights and that after full explanation of these rights, the
              [petitioner] informed his attorney that he wanted to voluntarily
              enter a plea of guilty, and to this decision of the [petitioner], said
              attorney agrees.

        This “Plea of Guilty” bears the signatures of the two attorneys who served as
petitioner’s counsel at the trial level along with what purports to be the signature of the
petitioner, his social security number, and his date of birth. The judgment forms reflect a
guilty plea to first degree murder for which petitioner received a life sentence and a guilty
plea to attempt to commit first degree murder for which he received a consecutive twenty-
year sentence.
        We find nothing on the face of this record that would have stripped the court of its
jurisdiction to accept the plea and subsequently sentence the petitioner. The petitioner places
great emphasis on the absence of a verbatim transcript of the guilty plea proceedings. The
petitioner suggests that because no transcript has been provided, the record is necessarily
“silent” as to the waiver of his constitutional rights in contravention of the long standing
requirements established in Boykin v. Alabama, 359 U.S.238 (1969). We find it unnecessary
to resolve the transcript issue but would note that absence of the transcript does not equate
to evidence that the plea was not knowingly, voluntarily and intelligently given or that the
record is silent in the constitutional context. See generally Parke v. Raley, 506 U.S. 20
(1992); Hickman, 153 S.W.3d at 16.

       Here, the fact remains that petitioner’s claims necessarily require the introduction of
proof beyond the record to establish invalidity of the convictions, including some basis for
his claim that the guilty plea form he and his counsel signed failed to include proper
admonition of his constitutional rights though they were specifically referenced within the
plea form. The petitioner’s claims are not void but are merely voidable. Accordingly, these
claims are not within the narrow purview of the habeas corpus statute.

       Furthermore, our court has previously concluded that challenges to convictions based
upon constitutional violations in the conviction proceedings, including a claim that a guilty
plea was not knowingly and voluntarily entered, are issues to be addressed in the post-
conviction setting rather than in habeas corpus proceedings. Luttrell v. State, 664 S.W.2d
408, 409 (Tenn. Crim. App. 1982); Archer, 851 S.W.2d at 163. It does not appear from the
record that the petitioner availed himself of that avenue of review.

      The petitioner has failed to meet his burden of establishing a cognizable claim for
habeas corpus relief. As such, we conclude that no error resulted from the trial court’s
summary dismissal of the petitioner’s petition for habeas corpus relief.



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                              CONCLUSION

Based upon the foregoing, the judgment of the trial court is affirmed.




                                           _________________________________
                                           JOHN EVERETT WILLIAMS, JUDGE




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