IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

MICHAEL L. SMITH v. STATE OF TENNESSEE

 Appeal from the Circuit Court for Johnson County

No. 4441 Robert E. Cupp, Judge

No. E2004-02752-CCA-R3-HC Filed July 13, 2005

The petitioner, Michael L. Smith, appeals from the trial court's order denying 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 of the Rules of the Court of Criminal Appeals. The petitioner has failed

to establish a cognizable claim for habeas corpus relief. 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 GARY R. WADE, P.J., and

JAMES CURWOOD WITT, JR., J., joined. 

Michael L. Smith, Mountain City, Tennessee, Pro se. 

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General; Joe

C. Crumley, Jr., District Attorney General, for the Appellee, State of Tennessee. 

MEMORANDUM OPINION

On July 24, 1986, the petitioner entered a plea of guilty to the offense of robbery with a

deadly weapon. Pursuant to his plea agreement, the trial court sentenced the petitioner as a Range

II, persistent and aggravated offender, to serve forty (40) years in the Department of Correction. No

direct appeal was taken. Thereafter, the petitioner sought post-conviction relief based on a claim of

ineffective assistance of trial counsel. The trial court denied the petition following an evidentiary

hearing. On appeal, the judgment was affirmed. See Michael L. Smith v. State, No. 03C01-9205-

CR-00157 (Tenn. Crim. App. Feb. 24, 1993), app. denied (Tenn. June 1, 1993). On August 10,

2004, the petitioner filed a pro se petition for writ of habeas corpus. He claimed that his guilty plea

was not knowingly and voluntarily entered in that it was based on a “non-existent” statutory waiver

of rights provision and that the trial court either failed to accurately inform him or misrepresented

to him the law regarding acceptance of his guilty plea. The trial court summarily denied relief,

concluding that the petitioner had failed to present a cognizable claim for habeas corpus relief. The

petitioner timely appealed. 
-2-

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. 

The petitioner’s claim of an involuntary and unknowing guilty plea would not support

issuance of the writ because, even if proven, it would render the judgment merely voidable rather

than void. See Archer, 851 S.W.2d at 164. 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). As noted, however, the petitioner has previously sought post-conviction relief and the trial

court determined the merits of the claims presented following a full evidentiary hearing. Thus, the

petitioner is barred by the single-petition provision from seeking post-conviction relief in a

subsequent petition attacking the same judgment. See Tenn. Code Ann. § 40-30-102 (c) (2003).

Based on the foregoing, the trial court properly denied the petition for writ of habeas corpus. 

 

Upon due consideration of the pleadings, the record, and the applicable law, the court

concludes that the petitioner has not presented a cognizable claim for habeas corpus relief.

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. 

___________________________________

 NORMA McGEE OGLE, JUDGE