         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


                     SHAUN GIVENS v. DAVID MILLS, WARDEN

                     Appeal from the Circuit Court for Lauderdale County
                             No. 5843 Joe H. Walker III, Judge



                      No. W2004-00768-CCA-R3-HC - Filed July 23, 2003


The Petitioner, Shaun Givens, appeals the trial court's denial of his petition for habeas corpus relief.
The State has filed a motion requesting that this Court affirm the trial court's denial of relief pursuant
to Rule 20, Rules of the Court of Criminal Appeals. After review, we conclude that the Petitioner
fails to assert a ground entitling him to habeas corpus relief. Accordingly, the State's motion is
granted and the judgment of the trial court is affirmed.

 Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of
                            the Court of Criminal Appeals

DAVID G. HAYES, J., delivered the opinion of the court, in which JOE G. RILEY and JOHN EVERETT
WILLIAMS, JJ., joined.

Shaun Givens, pro se.

Paul G. Summers, Attorney General & Reporter; Michael Markham, Assistant Attorney General, for
the appellee, State of Tennessee.

                                    MEMORANDUM OPINION

         On September 23, 1999, Petitioner entered a guilty plea to aggravated rape and received a
sentence of fifteen years in the Department of Correction. On March 15, 2004, Petitioner filed,
pro se, a petition for writ of habeas corpus relief. In this document, Petitioner alleged, in essence,
that his guilty plea was involuntarily and unknowingly entered in that the trial court failed to comply
with Rules 11(d) and (f) of the Tennessee Rules of Criminal Procedure and with the mandates of
Boykin v. Alabama.

        By order entered March 18, 2004, the trial court denied relief, finding that (1) the petition is
neither void on its face nor has the sentence expired and, thus, cannot be considered a petition for


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writ of habeas corpus relief, and (2) if treated as a petition for post-conviction relief, the court was
without jurisdiction to consider the same. A timely notice of appeal was filed on March 24, 2004.



        In Tennessee, habeas corpus relief is only available when a conviction is void because the
convicting court was without jurisdiction or authority to sentence a defendant, or that a defendant's
sentence has expired and he is being illegally restrained. Archer v. State, 851 S.W.2d 157, 164
(Tenn.1993). In other words, habeas corpus relief will only be granted where the petition shows that
the judgment is "void" and not merely "voidable." McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001)
(citing Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999)). The petitioner bears the burden of
establishing that the judgment is "void." McLaney, 59 S.W.3d at 92 (citing Wyatt v. State, 24
S.W.3d 319, 322 (Tenn. 2000); State ex rel. Kuntz v. Bomar, 214 Tenn. 500, 281 S.W.2d 290, 291-
92 (1964)). That burden entails showing that the jurisdictional defect appears in the record of the
original trial, thereby creating a void judgment. Id. (citing State v. Ritchie, 20 S.W.3d 624, 630
(Tenn. 2000)). In other words, "[t]he writ will issue only when it appears upon the face of the
judgment or the record of the proceedings upon which the judgment is rendered that a court lacked
jurisdiction or authority to sentence a defendant or that the sentence has expired." Id. (citing
Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000); Archer, 851 S.W.2d at 164). Where the
allegations in a petition for writ of habeas corpus do not demonstrate that the judgment is void, a trial
court may correctly dismiss the petition without a hearing. McLaney, 59 S.W.3d at 93 (citing Tenn.
Code Ann. § 29-21-109 (2000); see, e.g., Archer, 851 S.W.2d at 164 (parenthetical omitted)).

        In the present case, the trial court found that the petition failed to allege any ground
demonstrating that the judgment was void. We agree; a claim that a guilty plea is involuntary as the
result of the trial court’s failure to comply with Boykin and the Rules of Criminal Procedure is an
allegation that would render a conviction voidable, not void. Accord Archer, 851 S.W.2d at 163.
Additionally, the grounds alleged by Petitioner fail to assert that his sentence has expired.
Accordingly, upon our review of the record in this case, we conclude that the trial court properly
determined that the Petitioner's claims are not cognizable in a habeas corpus proceeding.

        Section 40-30-105 (2003), Tennessee Code Annotated, instructs trial courts to treat
habeas petitions as post-conviction petitions "when the relief and procedure authorized by [the
Post-Conviction Procedure Act] appear adequate and appropriate." The trial court treated the
present petition as both an application for habeas corpus relief and as a petition for post-
conviction relief. Treating the application as one for post-conviction relief, the application is
barred as a petition for post-conviction relief as it was filed outside the applicable statute of
limitations. See Tenn. Code Ann. § 40-30-102(a) (petition must be filed within one year of the
date of the final action of highest court to which appeal taken or one year of date on which
judgment became final if no appeal taken). Additionally, no ground exists as an exception to the
statute of limitations. See Tenn. Code Ann. § 40-30-102(b). Accordingly, we conclude that the
trial court did not err in dismissing the petition as one seeking post-conviction relief.


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        Accordingly, it is ORDERED that the State’s motion is GRANTED. The judgment of the
trial court is AFFIRMED in accordance with Rule 20, Rules of the Court of Criminal Appeals.




                                          ___________________________________
                                                 DAVID G. HAYES, JUDGE




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