         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE

                   BYRON EDWARDS v. STATE OF TENNESSEE

                        Appeal from the Circuit Court for Johnson County
                               No. 4344 Lynn W. Brown, Judge


                    No. E2004-00918-CCA-R3-HC - Filed December 20, 2004


The petitioner, Byron Edwards, appeals the trial court's order dismissing 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, Rules of the Court of Criminal Appeals. The petition fails to establish
either a void judgment or an expired sentence. Accordingly, the state's motion 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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOSEPH M. TIPTON AND JAMES
CURWOOD WITT , JR., JJ., joined.

Byron Edwards, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michelle Chapman McIntire, Assistant Attorney
General; Joe C. Crumley, Jr., District Attorney General, for the appellee, State of Tennessee.

                                    MEMORANDUM OPINION

        The petitioner was convicted in April 1998 of aggravated robbery and sentenced to thirty
years as a career offender. On direct appeal, the judgment of the trial court was affirmed. See State
v. Byron M. Edwards, No. 03C01-9812-CC-00436 (Tenn. Crim. App., Feb. 2, 2000), app. denied
(Tenn. Oct. 9, 2000).

        On February 23, 2004, the petitioner filed a petition for writ of habeas corpus. He argued that
there was insufficient evidence to support his conviction for aggravated robbery because no evidence
was presented that he personally, as opposed to his co-defendant, took anything from the victim. He
further claimed that this lack of proof resulted in a “fatal material variance” between the indictment
and the proof at trial which the petitioner alleges rendered the indictment void. The trial court
denied relief, finding that the petition established neither a void conviction nor an expired sentence.
Before this court, the petitioner asserts that the trial court “denied his petition because [the petitioner]
cannot utilize habeas corpus under the present circumstances.” He further asserts that the “appellate
courts” of this state have unconstitutionally suspended the writ.

        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)).
A writ of habeas corpus may be granted only when the petitioner has established lack of jurisdiction
for the order of confinement or that he is otherwise entitled to immediate release because of the
expiration of his sentence. See Ussery v. Avery, 222 Tenn. 50, 432 S.W.2d 656 (1968); State ex rel.
Wade v. Norvell, 1 Tenn. Crim. App. 447, 443 S.W.2d 839 (1969). 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. Tenn. Code Ann. § 29-21-109.

         This court concludes that the petitioner has not presented a cognizable claim for habeas corpus
relief. Clearly, his thirty-year sentence has not expired. Neither does the petition establish a void
judgment, “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). The
petitioner’s claim of insufficient evidence, if proven, would render his conviction voidable rather than
void. The "authorized avenue for attacking a voidable judgment is a petition for post-conviction
relief." State v. McClintock, 732 S.W.2d 268, 272 (Tenn. 1987). Tennessee Code Annotated Section
40-30-102 (a) provides that a person must petition for post-conviction relief within one year of the
date on which the judgment became final or consideration of the petition will be time-barred. In this
case, however, the one-year limitations period for pursuing post-conviction relief has expired. The
petitioner further contends for the first time that the indictment is also invalid because it did not
provide him with adequate notice that he could be held criminally responsible for the conduct of
another. Nonetheless addressing the petitioner’s argument, the court concludes that it is without
merit. As the state correctly notes, this court has repeatedly held that an indictment that charges a
defendant with the principle offense is sufficient to place the defendant on notice that he may be held
criminally responsible for the conduct of another. See State v. Johnson, 910 S.W. 2d 897, 900 (Tenn.
Crim. App. 1995); State v. Lequire, 634 S. W. 2d 608, 615 (Tenn. Crim. App. 1981).

       Upon due consideration of the pleadings, the record, and the applicable law, the court
concludes that the petitioner has not established that he is entitled to habeas corpus relief based on
a void judgment. Accordingly, the state’s motion is granted. The judgment of the trial court is
affirmed




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in accordance with Rule 20, Rules of the Court of Criminal Appeals.


                                                    ___________________________________
                                                      NORMA MCGEE OGLE, JUDGE




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