IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 12, 2005

WILSON H. TUCKER v. STEPHEN DOTSON, WARDEN

Direct Appeal from the Circuit Court for Hardeman County

No. 9764 Jon Kerry Blackwood, Judge

No. W2004-02969-CCA-R3-HC - Filed August 24, 2005

The petitioner, Wilson H. Tucker, filed a petition for writ of habeas corpus in the Hardeman County

Circuit Court. The trial court summarily dismissed the petition, and the petitioner timely appealed.

Upon review of the record and the parties’ briefs, we affirm the judgment of the habeas corpus court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES

CURWOOD WITT, JR., JJ., joined.

Wilson H. Tucker, Pro se.

Paul G. Summers, AttorneyGeneral andReporter, andRachel E. Willis, Assistant Attorney General,

for the appellee, State of Tennessee.

OPINION

I. Factual Background

The record reflects that in 1988, the petitioner pled guilty to four counts of grand larceny, and

the trial court sentenced him to consecutive sentences of three years on each count. The trial court

also ordered that the petitioner serve the sentences consecutively to prior sentences in Franklin and

GrundyCounties. The petitioner did not file a petition for post-conviction relief. However, in 2004,

he filed a petition for writ of habeas corpus, alleging that his guilty pleas were involuntarily entered

because the trial court failed to inform him at the guilty plea hearing about his right against selfincrimination as required by Rule 11(c)(3), Tenn. R. Crim. P., and failed to inform him that his

convictions could be used to enhance any sentences he received for future convictions as provided

in State v. Mackey, 553 S.W.2d 337, 341 (Tenn. 1977). The habeas corpus court summarily denied

the petition for writ of habeas corpus, and the petitioner appealed. 
We also note that “[t]o the extent [a] petitioner’s claim is based upon the requirements for the taking of guilty

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pleas imposed by Mackey and Rule 11, Tenn. R. Crim. P., but not related to constitutional rights, it is not cognizable in

a suit for post-conviction relief.” Matthew Melton Jackson v. State, No. M2004-01342-CCA-R3-PC, 2005 Tenn. Crim.

App. LEXIS 481, at *31 (Nashville, May 18, 2005), application for perm. to appeal filed, (June 3, 2005).

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II. Analysis

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)). Habeas corpus relief is available only when

it appears on the face of the judgment or the record that the trial court was without jurisdiction to

convict or sentence the defendant or that his sentence has expired. Archer, 851 S.W.2d at 164. 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 trial court

may summarily dismiss a petition for writ of habeas corpus without the appointment of counsel and

without an evidentiary hearing if there is nothing on the face of the judgment to indicate that the

convictions addressed therein are void. Passarella v. State, 891 S.W.2d 619 (Tenn. Crim. App.

1994).

As pointed out in the State’s brief, in State v. Tansil, 72 S.W.3d 665, 667 (Tenn. Crim. App.

2001), a panel of this court stated, 

In State v. Neal, 810 S.W.2d 131, 134 (Tenn. 1991), the [Tennessee

Supreme Court] stated that a failure to advise a defendant fully of the

rights waived by a guilty plea “merely renders the related judgment

voidable, not void.” In Archer v. State, 851 S.W.2d 157, 163-64

(Tenn. 1993), the court held that a conviction resulting from a guilty

plea entered without a knowing and voluntary waiver of the right

against self-incrimination was not open to attack through a habeas

corpus proceeding because the lack of a proper waiver only rendered

the conviction voidable, not void. It noted that a post-conviction

proceeding is the proper avenue for relief. Id.

Therefore, the petitioner’s claim would at best render his convictions and sentences voidable and not

void. Moreover, the petitioner pled guilty in 1988, and the petition in this case was not filed until

2004. Thus, even if we were to consider the petition as a petition for post-conviction relief, it would

be barred by the statute of limitations. See Tenn. Code Ann. § 40-30-102 (1986). 1
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III. Conclusion

Upon review of the record and the parties’ briefs, we affirm the judgment of the habeas

corpus court. 

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NORMA McGEE OGLE, JUDGE