            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT KNOXVILLE                 FILED
                                                               February 19, 1999
DONALD R. WEST,                            *      C.C.A. No. 03C01-9812-CC-00437
                                                             Cecil Crowson, Jr.
       Appellant,                          *      Hawkins County
                                                             Appellate C ourt Clerk

VS.                                        *      HON. JAMES E. BECKNER

STATE OF TENNESSEE,                        *      AFFIRMED - RULE 20

       Appellee.                           *


                                        ORDER

       This matter is before the Court upon the State’s motion requesting that the

judgment in the above-styled cause be affirmed pursuant to Ct. of Crim. App. Rule

20. On September 23, 1998, the petitioner, Donald R. West, filed a “Petition for Writ

of Habeas Corpus or, in the Alternative, Motion to Dismiss Illegal Sentence, and Re-

Sentence According to the Law.” In his petition, the petitioner alleged that the trial

court had improperly applied enhancement and mitigating factors in determining his

sentence. On November 18, 1998, pursuant to the State’s motion, the trial court

summarily dismissed the petitioner’s petition. On December 9, 1998, the petitioner

appealed the trial court’s judgment. We conclude that this is an appropriate case for

affirmance pursuant to Rule 20.



       The petitioner was convicted by a jury in the Criminal Court for Hawkins

County of second degree murder and sentenced as a Range I offender to thirty

years incarceration in the Tennessee Department of Correction. This Court affirmed

the petitioner’s conviction and sentence on October 16, 1990. State v. West, No.

128, 1990 WL 154637 (Tenn. Crim. App. at Knoxville, October 16, 1990), perm. to

appeal denied, (Tenn. 1991). In 1994, the petitioner filed a petition for post-

conviction relief. This Court reviewed the trial court’s dismissal of the petitioner’s

petition and addressed, in part, the performance of defense counsel on direct
appeal. In this context, we again concluded that the trial court properly sentenced

the petitioner. West v. State, No. 03C01-9407-CR-00253 (Tenn. Crim. App. at

Knoxville, April 26, 1995), perm. to appeal denied, (Tenn. 1995). 1 Nevertheless, the

petitioner seeks to challenge his sentence in these habeas corpus proceedings.



        The remedy of the writ of habeas corpus is limited to relief from void and not

merely voidable judgments. Archer v. State, 851 S.W.2d 157, 163 (Tenn. 1993);

Passarella v. State, 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994); Donald v. State,

No. 01C01-9710-CR-00481, 1998 WL 468646, at *1 (Tenn. Crim. App. at Nashville,

August 12, 1998), perm. to appeal denied, (Tenn. 1999). In other words, it must

appear 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 has

expired. Archer, 851 S.W.2d at 164; Ritchie v. State, No. 03C01-9601-CC-00029,

1998 WL 855517, at *2 (Tenn. Crim. App. at Knoxville, December 10, 1998).

Accordingly, we have previously noted that a defendant who is incarcerated

pursuant to an illegal sentence may generally obtain relief by filing a petition for writ

of habeas corpus. Cupples v. State, No. 02C01-9511-CC-00333, 1996 WL 601730,

at *1 (Tenn. Crim. App. at Jackson, October 22, 1996). See also State v. Burkhart,

566 S.W.2d 871, 873 (Tenn. 1978). The habeas petitioner bears the burden of

establishing a ground for relief by a preponderance of the evidence. Passarella,

891 S.W.2d at 627.



        In Donald v. State, the petitioner alleged in part that the trial court in his case

had misapplied enhancement and mitigating factors in imposing a sentence.

Donald, No. 01C01-9710-CR-00481, 1998 WL 468646, at *1. This Court concluded


        1
         The C ourt m ay take jud icial notice of e arlier proce edings in this case . State ex rel. Wilkerson
v. Bomar, 376 S.W .2d 451, 4 53 (Te nn. 1964 ); Ingram v. State , 462 S.W .2d 2 59, 2 60 (T enn . Crim .
App. 19 70).
that the petitioner’s allegations would at most render his sentence voidable and not

void and therefore did not constitute cognizable grounds in habeas corpus

proceedings. Id. We similarly conclude that, in this case, although the petitioner

contends that his sentence is illegal, his actual argument is that his sentence is too

harsh. Cupples, No. 02C01-9511-CC-00333, 1996 WL 601730, at *1.



       Additionally, the State correctly argues that the petitioner’s petition is

inadequate pursuant to Tenn. Code Ann. § 29-21-107(b) (1980). The procedural

provisions of the habeas corpus statute are mandatory and must be scrupulously

followed. Archer, 851 S.W.2d at 165. W e also note that the petitioner is

incarcerated in Johnson County. Tenn. Code Ann. § 29-21-105 (1980) provides that

a petition for habeas corpus relief should be filed in the court most convenient in

point of distance to the applicant. Nevertheless, the petitioner filed his petition in

Hawkins County. Although the petitioner states that the records pertaining to his

appeal are located in Hawkins County, we have previously held that this contention

does not constitute “sufficient reason” under Tenn. Code Ann. § 29-21-105 for filing

a petition for writ of habeas corpus in the court of conviction rather than the court

closest to the applicant. See Muhammad v. State, No. 01C01-9707-CC-00300,

1997 WL 779095, at *1 (Tenn. Crim. App. at Nashville, December 18, 1997).



       For all the foregoing reasons, we affirm the judgment of the trial court

pursuant to Rule 20. Costs are taxed to the State as the petitioner is indigent.



                                           ________________________
                                           Norma McGee Ogle, Judge




CONCUR:


________________________
Gary R. Wade, Presiding Judge


________________________
Joseph M. Tipton, Judge
