         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE


                   BRYAN PEARSON v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Knox County
                       No. 77694, 38234 Mary Beth Leibowitz, Judge


                       No. E2003-02597-CCA-R3-CD - Filed July 16, 2004


The petitioner, Bryan Pearson, appeals the trial court’s dismissal of his petition for writ of habeas
corpus. The state has filed a motion requesting that this court affirm the trial court's denial of relief
pursuant to Rule 20, Tenn. Ct. Crim. App. R. The petitioner has not established that the challenged
judgment is void or that his sentence has expired. Accordingly, the motion for summary affirmance
is granted and the judgment of the trial court is affirmed.

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

GARY R. WADE, P.J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR., and
NORMA MCGEE OGLE, J.J., joined.

Bryan Pearson, Pikeville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee.

                                   MEMORANDUM OPINION

        The petitioner was convicted pursuant to a guilty plea of second degree murder and was
sentenced in August 1993 to a term of twenty-five years in prison. No direct appeal was apparently
taken. On June 30, 2003, the petitioner filed a pro se petition for writ of habeas corpus in the
Criminal Court for Knox County. The petitioner alleged that his conviction judgment was void, that
his sentence had expired and that his guilty plea was not knowingly and voluntarily given. The trial
court summarily dismissed the petition. The petitioner timely appealed.

        In Tennessee, “[a]ny person imprisoned or restrained of his liberty, under any pretense
whatsoever, except [those held under federal authority], may prosecute a writ of habeas corpus to
inquire into the cause of such imprisonment and restraint.” Church v. State, 987 S.W. 2d 855, 857
(Tenn.Crim.App. 1998); Tenn. Code Ann. §29-21-101. The purpose of a habeas corpus petition is
to contest void and not merely voidable judgments. Archer v. State, 851 S.W. 2d 157, 163 (Tenn.
1993) (citing State ex rel. Newsom v. Henderson, 221 Tenn. 24, 424 S.W. 2d 186, 189 (1968)).
Habeas corpus relief is available only when it appears on the face of the judgment or the record that
the trial court was without jurisdiction to convict or sentence the defendant or that his sentence has
expired. Archer, 851 S.W. 2d at 164. 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, 214 Tenn. 500, 504, 381 S.W.
2d 290, 291-92 (1964). A petition seeking issuance of a writ of habeas corpus may be summarily
dismissed by a trial court if it fails to indicate that the petitioner's conviction is void. See Tenn. Code
Ann. § 29-21-109.

         The petitioner has not complied with the statutory requirements for pursuing a writ of habeas
corpus. First, the petitioner has provided no reason for filing his petition in Knox County rather than
in Bledsoe County, in the court located closest in point of distance to him as required. See Tenn.
Code Ann. § 29-21-105. Further, pursuant to Tennessee Code Annotated Section 29-21-107, a
petition for habeas corpus relief shall state “[t]hat it is first application for the writ, or, if a previous
application has been made, a copy of the petition and proceedings thereon shall be produced, or
satisfactory reasons be given for the failure so to do.” The petitioner asserts that this is his first
application for writ of habeas corpus. In fact, it appears that the petitioner previously sought habeas
corpus relief in the Circuit Court of Bledsoe County from the same judgment. That court summarily
dismissed his petition in which the petitioner had also asserted that his conviction was void because
he did not waive his rights knowingly, voluntarily, or intelligently. This court affirmed the judgment
on appeal, concluding that the petition did not state a cognizable claim for habeas corpus relief.
Returning to the instant case, the petitioner has failed to attach a copy of his previously filed petition
and judgment or to address his failure to do so. “Without question, the procedural provisions of the
habeas corpus statutes are mandatory and must be followed scrupulously.” Archer v. State, 851 S.W.
2d at 165 (citing Bateman v. Smith, 183 Tenn. 541, 543, 194 S.W.2d 336, 337 (1946)). In view of
the petitioner’s failure to comply with the mandatory statutory provisions for seeking habeas corpus
relief, the court concludes that summary dismissal of the petition was proper. State ex rel. Allen v.
Johnson, 394 S.W. 2d 652, 653, 217 Tenn. 28 (1965).

         Even considering the petition on its merits, however, the trial court properly denied relief.
As this court concluded in rejecting the petitioner's previous appeal from the denial of habeas corpus
relief, the petitioner's claim of an unknowing and involuntary guilty plea is not cognizable in a
habeas corpus action because, even if true, the judgment would not be thereby rendered void, but
merely voidable. See Bryan Pearson v. State, No. E2002-02817-CCA-R3-PC (Tenn. Crim. App. at
Knoxville, May 12, 2003). Neither has the petitioner established that the trial court erroneously
sentenced him under the wrong statute upon his conviction for second degree murder, a Class A
felony. See Tenn. Code Ann. §39-13-210. The record reflects that the conviction offense occurred
in March 1989 and the petitioner was sentenced in August 1993. Pursuant to Tennessee Code
Annotated Section 40-35-117(b) of the Tennessee Criminal Sentencing Reform Act of 1989, "any
person sentenced on or after November 1, 1989, for an offense committed between July 1, 1982 and
November 1, 1989, shall be sentenced under the provisions of this chapter." The petitioner's
sentence to twenty-five years imprisonment is within the statutory range of fifteen to twenty-five



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years for a Class A felony as provided by Section 40-35-112(a)(1). The petitioner has established
neither a void judgment nor an expired sentence.

       Accordingly, 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.


                                                     _______________________________________
                                                       GARY R. WADE, PRESIDING JUDGE




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