### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE Assigned on Briefs October 4, 2016

JOSE LUIZ DOMINQUEZ v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County
No. 2007

- D

- 3022 Monte Watkins, Judge

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No. M2016

- 00302

- CCA

- R3

- HC

– Filed February 17, 2017

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The Petitioner, Jose Luiz Dominguez, appeals the dismissal of his petition for writ of habeas corpus by the Davidson County Criminal Court . On appeal, the Petitioner argues
that the indictment was defective and that he received ineffective assistance of counsel

, which rendered his guilty plea involuntary. Upon review, we affirm the judgment of the habeas corpus court

.

Tenn. R. App. P. 3 Appeal as o f Right; Judgment of the Criminal Court Affirmed

C AMILLE R. M C M ULLEN

, J. , delivered the opinion of the court, in which A LAN E. G LENN and T IMOTHY L. E ASTER

, JJ., joined.

Manuel B. Russ, Nashville

, Tennessee, for the Petitioner

, Jose Luiz Dominguez.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel ; Glenn R. Funk , District Atto rney General; and Roger D. Moore , Assistant District Attorney General, for the A ppellee, State of Tennessee.

OPINION

On November 2, 2007, the Petitioner was indicted by a Davidson County Grand Jury on one count of premeditated first degree murder. On March 1 8, 2008, the Petitioner ple d guilty to second degree murder and received a total effective sentence of
twenty year s‟ incarceration. The Petitioner filed his first petition for habeas corpus relief
in the Wayne County Circuit Court

, alleging that the indictment failed to include the statutory element of “intent ,” his sentence was outside the appropriate sentencing ran ge, and he received ineffective assist ance of counsel. The Wayne County Circuit Court- 2

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dismissed the petition on both “procedural and subs tantive grounds.” 1 On August 21, 2015, the Petitioner filed a second petition for writ of habeas corpus in th e Davidson County Criminal Court alleging the same grounds

. The State filed a “Motion to Dismiss

Petition for Writ of Habeas Corpus” stating that the petition was “improperly filed” in the Davidson County Cr iminal Court and failed to “de monstrate that the i ndictment [was] void or that his sentence [had] expired.” The Petitioner filed a response to the Sta te‟s
motion to dismiss

, and on Ja nuary 20, 2016, the habeas corpus court held a hearing on both motions and the petition.

At the hearing, the Petitioner‟s counsel asked the habeas corpus court if the
Petitioner could testify and elaborate on the claims raised in his petition. The State objected stating that any t estimony the Petitioner provided would be irr elevant. Noting
the S tate‟s objection

, the habeas corpus court allowed brief test imony from the Petitioner. The Petitioner testified, throug h a Spanish interpreter, that when he ple d guilty in 2008

, he did not realize that he was pleading guilty to twenty years at one hundred percent. He
cl aimed that his attorney told him that his sentence would be t en years at one hundred
percent

. The Petitioner also testified that his attorney failed to explain the possible sentencing range for second degree murder and failed to explain the elements of th e offense to the Petitioner before he ple d guilty. Furthermore

, because the Spanish interpreter provided at the guilty plea hearing did not “speak Spanish very well ,” the Petitioner could not understand what was happening during the guilty plea hearing

. Finally, t he habeas corpus court asked the Petitioner if he remembered signing both the English and Spanish version s of the plea petition

. The Petitioner denied signing any
document i n Spanish and denied that his signature was on the plea petition.

The habeas corpus court took the matter under advisement , and on January 27, 2016, it dismissed the petition. T he habeas corpus court reasoned that this was the Petitioner‟s second petition for writ of habeas corpus

, and he did not show “ sufficient

reason s for filing the petition in the court of conviction.” Despite this procedural defect,

t he habeas corpus court found that the “indictment was sufficient to charge the offense and to vest jurisdiction in the trial court

, and the sentence imposed was not il legal.” The

court also found that the Petitioner‟s claims of “ineffective assistance of counsel and an involuntary guilty plea are not cognizable claims in habeas corpus.” It is from this order
that the Petitioner now timely appeals.

1 The petition failed to include a copy of the judgment as required by statute and failed to affirm that the legality of restraint had not already been dete rmined in a previous proceeding. See T.C.A. § 221

- 107. The pe tition also included claims of ineffective assistance of counsel, which are not cognizable in a petition for writ of habeas corpus.- 3

- ANALYSIS

On appeal, the Petitioner argues that the “indictment was facially in sufficient ” and
that he received ineffective assistance of counsel

, which rendered his guilty plea involuntary. B ecause t he Petitioner fai ls to provide support in his brief for his claim that
the indictment was facially insufficient

, the State argues that the Petitioner has waived
this issue. T he State also argues that the Petitioner‟s claim of in effective assistance of counsel, which led to an involuntary guilty plea , is not a cognizabl e cl aim for habeas corpus relief. Upon review, we agree with the State.

“The determination of whether habeas corpus relief should be granted is a question
of law.” Faulkner v. State , 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State , 21 S.W.3d 901, 903 (Tenn. 2000)). Accordingly, our review is de novo without a presumption of correctness. Summers v. State , 212 S.W.3d 251, 255 (Tenn. 2007) (citing State v. Livingston , 197 S.W.3d 710, 712 (Tenn. 2006)).

A prisoner is guaranteed th e right to habeas corpus relief under Article I, section 15 of the Tennessee Constitution. Tenn. Const. art. I, § 15; see T.C.A. §§ 29

- 21

- 101 to

- 130. The grounds upon which a writ of habeas corpus may be issued, however, are very

narrow. Taylor v. Stat e , 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 o r 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). A habeas corpus petition challenges void and not merely voidable judgments. Summers

, 212 S.W.3d at 255 (citing Potts v. State , 833 S.W.2d 60, 62 (Tenn. 1992)). “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 (citing Dykes v. Compton , 978 S.W.2d 528, 529 (Tenn. 1998); Archer , 851 S.W.2d at 161

- 64). However, a voidable judgment “is facially valid and requires proof beyond the face of the record or judgment to

establish its in validity.” Summers , 212 S.W.3d at 256 (citing Dykes , 978 S.W.2d at 529). Thus, “[i]n 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.” State v. Ritchie , 20 S.W.3d 624, 633 (Tenn. 2000). Moreover, it is the petitioner‟s burden to demonstrate, by a preponderance of the evidence, that the judgment

is v oid or that the confinement is illegal. Wyatt v. State , 24 S.W.3d 319, 322 (Tenn. 2000). If this burden is met, the Petitioner is entitled to immediate release. State v.- 4

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Warren , 740 S.W.2d 427, 428 (Tenn. Crim. App. 1986) (citing Ussery v. Avery , 432

S. W.2d 656, 658 (Tenn. 1968)).

Also, “[t]he application should be made to the court or judge most convenient in point of distance to the applicant, unless a sufficient reason be given in the petition for
not app lying to such court or judge.” T.C.A. § 29

- 2 1

- 105 ; see Davis v. State , 261 S.W.3d 16, 21 (Tenn. Crim. App. 2008) (“[I]f a petition does state a reason explaining why it was filed in a court other than the one nearest the petitioner, the petition may be dismissed pursuant to this section only if the stated reason is insufficient.”). “A trial court properly may choose to summarily dismiss a petition for failing to comply with the statutory procedural requirements.” Summers , 212 S.W.3d at 260; see Hickman , 153 S.W.3d at

21.

As an initial matter, the Petitioner did not file his petition in the court “most convenient in point of distance” as required by Tennessee Co de Annotated S ection 29

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- 105 . The record indicates that the Petitioner is incarcerated at the South Central

Corre ctional Facility, in Clifton, Tennessee , which is located in Wayne County. The
Petitioner filed his second petition in Davidson County because his sentence was illegal and it was “proper” for the Davidson County Criminal Court to hear his petition

. The
habeas corpus c ourt de termined, and we agree, that the Wayne County Circuit Court “is the court closest to [the Petitioner‟s] place of confinement” and “[h]e has not shown sufficient reasons for also filing the petition in the court of conviction .” Notwithstanding
the Petition er‟s failure to follow the aforementioned procedural requirements, we conclude that the habeas corpus court properly dismissed the petition

. T he Petitioner

argues that the indictment was “facially insufficient and, therefore, void

. ” However, the
Petition er‟s brief fails to explain why the indic tment was “ facially insufficient ” and only provides his “belief” that the indictment was insufficient and void. He fails to provide
this court with an y legal authority to support h is argument . Accordingly, this issue has
been waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation to authorities, or appropriate references to the record will be treated as waived in this court.”).

T he Petitioner als o argues that he received ineffective assistance of counsel, which rendered his guilty plea involuntary . He claims that his original attorney “ erroneously
informed [him] about the true nature of the plea he was entering.” H owever, as the habeas corpus co urt found

, claim s of ineffective assistance of counsel and an involuntary guilty plea are not cognizable claims in habeas corpus. See Michael Aaron Pounds v.
Rolan d Colson, Warden , No. M2012

- 02254

- CCA

- R3

- H C

, 2013 WL 6001951, at *4 (Tenn. Crim. App. Nov. 12, 2013) (holding that claims of ineffective assistance of- 5

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counsel are not cognizable claims because it “would render [the] judgment voidable rather than void”). Therefore, the Petitioner is not entitled to relief.

CONCLUSION

Ba sed on the aforementioned reasoning and authorities, we affirm the judgment of the habeas corpus court.

____________________________________ CAMILLE R. M c MULLEN, JUDGE