IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 18, 2003

STATE OF TENNESSEE v. LAVONDAS CORDELL NELSON

Direct Appeal from the Circuit Court for Rutherford County

No. 49907 Don R. Ash, Judge

No. M2003-01525-CCA-R3-CO - Filed December 30, 2003

The Petitioner, Lavondas Cordell Nelson, pled guilty to one count of reckless endangerment with

a weapon and one count of possession of a handgun by a felon in the Rutherford County Circuit

Court, and the trial court imposed suspended two year sentences for each count, to be served

consecutively, plus four years of probation at the expiration of those terms. The Petitioner filed a

pro se petition for writ of habeas corpus and a motion requesting that the trial court appoint an

attorney to represent him during the habeas corpus proceeding. The trial court denied his motion and

dismissed his petition for writ of habeas corpus. On appeal, the Petitioner contends that: (1) the trial

court erred in dismissing his petition for writ of habeas corpus; and (2) the trial court erred by

denying his motion for appointment of counsel. Finding no reversible error, we affirm the trial

court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and

JERRY L. SMITH, JJ., joined.

Lavondas C. Nelson, pro se, for the appellant.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Renee W.

Turner, Assistant Attorney General; and William C. Whitesell, Jr., District Attorney General, for the

appellee, State of Tennessee.

Opinion

I. Facts

The Petitioner, Lavondas Cordell Nelson, pled guilty to one count of reckless endangerment

with a deadly weapon and one count of possession of a handgun by a felon, both Class E felonies,

in Rutherford County Circuit Court. The trial court imposed suspended two year sentences for each

count, to be served consecutively, plus four years of probation at the expiration of those terms.

These sentences were to be served consecutively to a prior conviction. The Petitioner filed a pro se
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petition for writ of habeas corpus, contending that he was coerced into signing his plea agreement

and that he did not enter his plea knowingly and voluntarily. The Petitioner also filed a motion

requesting that the trial court appoint an attorney to represent him during the habeas corpus

proceeding. The trial court denied his motion and dismissed his petition for writ of habeas corpus.

The trial court held that “it appears the Petitioner’s claims, considered in the light most favorable

to him, would at best render his conviction and sentence voidable and not void. Such claims cannot

form the basis for habeas corpus relief.” The Petitioner now appeals.

II. Analysis

On appeal, the Petitioner contends that: (1) the trial court erred in dismissing his petition for

writ of habeas corpus; and (2) the trial court erred by denying his motion for appointment of counsel.

Article I, Section 15 of the Tennessee Constitution guarantees its citizens the right to seek

habeas corpus relief. In Tennessee, a “person imprisoned or restrained of [his or her] liberty, under

any pretense whatsoever . . . may prosecute a writ of habeas corpus, to inquire into the cause of such

imprisonment . . . .” Tenn. Code Ann. § 29-21-101 (2000). The grounds upon which habeas corpus

relief will be granted are very narrow. See State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000).

“Unlike the post-conviction petition, the purpose of a habeas corpus petition is to contest void and

not merely voidable judgments.” Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). Therefore, in

order to state a cognizable claim for habeas corpus relief, the petition must contest a void judgment.

Id. “A void judgment is one in which the judgment is facially invalid because the court did not have

the statutory authority to render such judgment. . . . A voidable judgment is one which is facially

valid and requires proof beyond the face of the record or judgment to demonstrate its voidableness.”

Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998) (citing Archer v. State, 851 S.W.2d 157, 161

(Tenn. 1993)). Thus, a writ of habeas corpus is available only when it appears on the face of the

judgment or the record that the convicting court was without jurisdiction to convict or sentence the

defendant, or that the sentence of imprisonment or other restraint has expired. Archer, 851 S.W.2d

at 164; Potts, 833 S.W.2d at 62. 

The petitioner bears the burden of showing by a preponderance of the evidence that the

conviction is void or that the prison term has expired. Passarella v. State, 891 S.W.2d 619, 627

(Tenn. Crim. App. 1994),superceded by statute as stated in State v. Newman, No. 02C01-9707-CC00266, 1998 WL 104492, at *1 n.2 (Tenn. Crim. App., at Jackson, Mar. 11, 1998), no perm. app.

filed. Furthermore, the procedural requirements for habeas corpus relief are mandatory and must be

scrupulously followed. Archer, 851 S.W.2d at 165. It is permissible for a trial court to summarily

dismiss a petition of habeas corpus without the appointment of a lawyer and without an evidentiary

hearing if there is nothing on the face of the judgment to indicate that the convictions addressed

therein are void. See Passarella, 891 S.W.2d at 627; Buford v. State, No. M1999-00487-CCA-R3-

PC, 2000 WL 1131867, at *2 (Tenn. Crim. App., at Nashville, July 28, 2000), perm. app. denied

(Jan. 16, 2001). Because the determination of whether habeas corpus relief should be granted is a

question of law, our review is de novo with no presumption of correctness. Hart v. State, 21 S.W.3d

901, 903 (Tenn. 2000).
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The appointment of counsel in a habeas corpus proceeding is discretionary. Tennessee Code

Annotated section 40-14-204 (2003) provides that “[i]n all proceedings for the writ of habeas corpus

. . ., the court having jurisdiction of such matters shall determine the question of indigency and

appoint counsel, if necessary, in the manner set out in this part.” Furthermore, there is no

constitutional right to counsel in habeas corpus proceedings. Denton v. State, No. 03C01-9712-CR00536, 1999 WL 318820, at *1 (Tenn. Crim. App., at Knoxville, May 17, 1999) (citing Weatherly

v. State, 704 S.W.2d 730, 732 (Tenn. Crim. App. 1985)), no perm. app. filed. This Court has held

that “when a petition has been competently drafted and conclusively shows that the petitioner is

entitled to no relief, the trial court may order the petition dismissed without the appointment of

counsel and without an evidentiary hearing.” Id.

The Petitioner contends that the trial court erred in dismissing his petition for writ of habeas

corpus because his guilty pleas were not knowingly and voluntarily entered due to coercion, thereby

rendering his sentences void. The trial court found that the Petitioner’s claims “would at best render

his conviction and sentence voidable and not void. Such claims cannot form the basis for habeas

corpus relief.” We agree with the trial court. The Petitioner’s judgments and his plea agreement are

facially valid in this case. In order to prove that his guilty pleas were not knowingly and voluntarily

entered due to coercion, the Petitioner would have to present proof of the coercion and its effect on

him at a hearing. After examining the judgments, it does not appear that the convicting court was

without jurisdiction to convict or sentence the Petitioner, or that the sentence of imprisonment or

other restraint has expired. Archer, 851 S.W.2d at 164; Potts, 833 S.W.2d at 62. Accordingly, we

conclude, as the trial court did, that the Petitioner’s judgments are not void and that the Petitioner

failed to establish a claim for habeas corpus relief. Therefore, the trial court properly dismissed the

Petitioner’s petition for writ of habeas corpus.

Next, the Petitioner contends that the trial court erred in denying his motion for appointment

of counsel. We conclude that the trial court did not abuse its discretion in denying the Petitioner’s

motion for appointment of counsel in this habeas corpus matter because the petition failed to state

a cognizable claim for habeas corpus relief. Because the Petitioner’s judgments were facially valid

and not void, the trial court properly dismissed the petition for writ habeas corpus without appointing

counsel and without holding an evidentiary hearing.

III. Conclusion

Based upon our de novo review, we conclude that the Petitioner has failed to establish a

claim for habeas corpus relief and that the trial court did not err in dismissing his petition and

denying his motion for appointment of counsel. Therefore, we AFFIRM the trial court’s judgment.

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ROBERT W. WEDEMEYER, JUDGE 
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