IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs January 8, 2013

MICHAEL L. SMITH v. STATE OF TENNESSEE 

Direct Appeal from the Circuit Court for Lake County

No. 11-CR-9640 R. Lee Moore, Jr., Judge

No. W2012-01604-CCA-R3-HC - Filed July 15, 2013

Petitioner, Michael L. Smith, appeals from the trial court’s summary dismissal of the pro se

petition for habeas corpus relief filed by Petitioner. After a thorough review of the record

and the briefs, we affirm the judgment of the habeas corpus trial court.

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

THOMAS T. WOODALL,J., delivered the opinion of the Court, in which JERRY L. SMITH and

D. KELLY THOMAS, JR., JJ., joined.

Michael L. Smith, Pro Se.

Robert E. Cooper, Jr., AttorneyGeneral andReporter; Meredith Devault, Assistant Attorney

General; and C. Phillip Bivens, District Attorney General, for the appellee, the State of

Tennessee.

OPINION

Background

On July 24, 1986, Petitioner pled guilty to armed robbery, a Class X crime, that

occurred on February 25, 1986. He received an agreed upon forty-year sentence as a Range

II, Aggravated and Persistent offender. The plea agreement stated that the parole eligibility

date would be at 40%, and the agreement also stated that Petitioner’s sentence “may result

in revocation of parole in [the] State of Wisconsin. Wisconsin may then order that sentence

consecutive (in addition to - on top of his Tennessee sentence.)” The judgment entered on

July 24, 1986, reflected a 50% parole release eligibility date. An amended judgment was

entered on that same date reflecting a 40% parole release eligibility date. 
Petitioner filed his first petition for post-conviction relief on July 22, 1987, which he

moved to withdraw, and on April 11, 1988, the trial court dismissed the petition. Michael

L. Smith v.State, No. 1176, 1991 WL 64550 (Tenn. Crim. App. April 26, 1991) perm. app.

denied (Tenn. Dept. 9, 1991). On June 30, 1989, Petitioner filed another petition for postconviction relief essentially raising the same grounds as the first petition. The postconviction court then dismissed the petition without an evidentiary hearing holding that all

issues had been waived because Petitioner had an opportunity to present them in his first

petition “but, at his own request, decided not to do so.” Id. at *1. On appeal, this Court held

that the post-conviction court erred in concluding that all of Petitioner’s claims for relief had

been waived and remanded the cased for an evidentiary hearing. Id. at *2. After an

evidentiary hearing, the post-conviction court denied the post-conviction petition, and this

Court affirmed the denial on appeal. Michael L. Smith v. State, No. 03-C-01-9205-CR00157, 1993 WL 46587 (Tenn. Crim. App. Feb. 24, 1993) perm. app. denied (Tenn. June

1, 1993). 

On March 15, 1994, Petitioner filed a third petition for post-conviction relief alleging

that his counsel in his second post-conviction proceeding was ineffective. The postconviction court denied the petition without an evidentiary hearing. On appeal, this Court

affirmed the denial holding that the petition was barred by the three-year statute of

limitations and that the Post-Conviction Procedure Act did not provide a remedy for errors

of counsel in post-conviction suits. Michael L. Smith v. State, No. 03C01-9501-CR-00010,

1995 WL 380083 (Tenn. Crim. App. June 22, 1995) perm. app. denied (Tenn. Nov. 6,

1995). 

On August 10, 2004, Petitioner filed a pro se petition for writ of habeas corpus. He

alleged that his guilty plea was not knowing and voluntary “in that it was based on a ‘nonexistent’ statutorywaiver of rights to accurately informhimor misrepresented to himthe law

regarding the acceptance of his guiltyplea.” The trial court summarily dismissed the petition

concluding that Petitioner failed to present a cognizable claim for relief. This court affirmed

the trial court’s denial. Michael L. Smith v. State, No. E2004-02752-CCA-R3-HC, 2005

WL 1651744 (Tenn. Crim. App. July 13, 2005). 

On November 10, 2011, Petitioner filed a second petition for writ of habeas corpus. 

He argued:

The defendant was sentenced under the Class X Sentence Law and the

judgment order has him charged in multiple ranges (Range II, persistent and

habitual criminal). The defendant was sentenced at 50%, but TOMIS

Offender Sentence Letter indicates 40% [.] Tennessee Department of

Corrections lacks jurisdiction to correct or change a order of the court. 

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Petitioner noted that in accordance with the “Sentencing Act of 1989,” aggravated robbery

was a Class B felony with a sentencing range of twelve to twenty years at thirty-five percent

for a Range II multiple offender, and twenty to thirty years at forty percent for a Range III

persistent offender. Petitioner argued that he could not be charged with “multiple ranges

and convicted in this manner.” 

Petitioner also asserted that at the time of his conviction, he had only two prior

felonies which made him a Range II multiple offender and that he was sentenced outside the

established guidelines for a Range II offender. Finally, he alleged that there was a

discrepancy in the length of sentence that he received and the length that he would have

received under the Sentencing Reform Act of 1989. More specifically, Petitioner stated: 

The Sentence Reform Act of 1989 states Aggravated [Robbery] as a Class B

felony, at only the Career Offender Range could you encompass a sentence of

40 years, but the percentage could exceed 50% to 60%. This solely displays

the reasoning, that the defendant was or may have been convicted as a career

offender, outside the guidance established Tennessee’s General Assembly. 

The habeas corpus court denied the petitioner’s petition finding that Petitioner failed

to state a cognizable claim for habeas corpus relief. The trial court further stated: 

Discrepancies between the sentence in 1986 and what a sentence for the same

offense or offenses might have been after the Sentencing Act of 1989, do not

render the judgment void or illegal. In fact, there is no allegation of fact that

would make the judgment void or illegal. At best the judgment is voidable. 

Analysis 

On appeal, Petitioner argues that the judgment in his case was “void/voidable”

because there was a mistake on the judgment form indicating that his sentence was to be

served at fifty percent. He also argues that he was illegally sentenced under the “Habitual

Criminal Law and a Class X Crime” and that he should be resentenced under the Tennessee

Sentencing Reform Act of 1989. Petitioner asserts that his sentence was excessive because

he was sentenced outside of the range for a Range II offender, and he contends that he

received ineffective assistance of trial counsel. 

The right to habeas corpus relief is available “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 or authority to sentence a defendant, or that a

defendant’s sentence of imprisonment or other restraint has expired.” Summers v. State, 212

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S.W.3d 251, 255 (Tenn. 2007) (quoting Archer v. State, 851 S.W.2d 157, 164 (Tenn.

1993)). In contrast to a post-conviction petition, a habeas corpus petition is used to challenge

void and not merely voidable judgments. Summers, 212 S.W.3d at 255-56. A voidable

judgment is one that is facially valid and requires proof beyond the face of the record or

judgment to establish its invalidity. Id. at 256; Dykes v. Compton, 978 S.W.2d 528, 529

(Tenn. 1998). A void judgment “is one in which the judgment is facially invalid because

the court lacked jurisdiction or authority to render the judgment.” Taylor v. State, 995

S.W.2d 78, 83 (Tenn. 1999); Dykes, 978 S.W.2d at 529.

A petitioner bears the burden of proving a void judgment or illegal confinement by

a preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). 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. See Summers, 212 S.W.3d at

260; Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004).

The determination of whether habeas corpus relief should be granted is a question of

law. Summers, 212 S.W.3d at 255; Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000).

Therefore, our review is de novo with no presumption of correctness given to the findings

and conclusions of the lower court. Summers, 212 S.W.3d at 255; State v. Livingston, 197

S.W.3d 710, 712 (Tenn. 2006).

The procedural requirements for habeas corpus relief are mandatory and must be

scrupulously followed. Summers, 212 S.W.3d at 260; Hickman, 153 S.W.3d at 19-20;

Archer, 851 S.W.2d at 165. The formal requirements for an application or petition for writ

of habeas corpus are found at T.C.A. § 29-21-107:

(a) Application for the writ shall be made by petition, signed by either the

party for whose benefit it is intended, or some person on the petitioner’s

behalf, and verified by affidavit.

(b) The petition shall state:

(1) That the person in whose behalf the writ is sought, is illegally

restrained of liberty, and the person by whom and place where

restrained, mentioning the name of such person, if known, and if

unknown, describing the personwith asmuch particularityas practicable;

(2) The cause or pretense of such restraint according to the best

information of the applicant, and if it be by virtue of any legal process,

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a copy thereof shall be annexed, or a satisfactory reason given for its

absence;

(3) That the legality of the restraint has not already been adjudged upon

a prior proceeding of the same character, to the best of the applicant’s

knowledge and belief; and

(4) That it is the first application for the writ, or, if a previous

application has been made, a copy of the petition and proceedings there

shall be produced, or satisfactory reasons should be given for the

failure to do so.

T.C.A. § 29-21-107.

Initially we point out, as argued by the State, that Petitioner in this case failed to

comply with the mandatory requirements for habeas corpus relief. First, Petitioner failed to

state that he had previously sought habeas corpus relief from the present judgment or attach

“a copy of the petition and proceedings . . . or [give] satisfactory reasons . . . for the failure

to do so.” T.C.A. § 29-21-107(b)(4). In his petition, Petitioner stated: “Petitioner aver[s]

that this is his first application for Writ of Habeas Corpus of this judgment and that that the

legality of such restraints has not been adjudged in a prior proceeding of the same

character.” However, as previously discussed, Petitioner filed a petition for writ of habeas

corpus challenging his judgment in this case on August 10, 2004, and he appealed the denial

of his petition to this Court. Michael L. Smith v. State, No. E2004-02752-CCA-R3-HC,

2005 WL 1651744 (Tenn. Crim. App. July 13, 2005). Petitioner also failed to comply with

T.C.A. § 29-21-107(a) by failing to verify his petition by affidavit. “A habeas corpus court

may properly choose to dismiss a petition for failing to complywith the statutory procedural

requirements. . . .” Summers, 212 S.W.3d at 260; Hickman, 153 S.W.3d at 21.

Although Petitionerfailed to follow the procedural requirements necessaryfor habeas

review, we will briefly address his claims. Petitioner seeks review of his sentence claiming

that he was sentenced outside of his range and that he should be resentenced under the

Tennessee Sentencing Reform Act of 1989. However, Petitioner received the sentence that

was agreed upon in his plea agreement under the 1982 Sentencing Act. “[A] knowing and

voluntary guilty plea waives any irregularity as to offender classification or release

eligibility.” Hicks v. State, 945 S.W.2d 706, 709 (Tenn. 1997). Under the applicable law

at the time Petitioner was sentenced, a term of imprisonment of not less than ten years to life

imprisonment was authorized for the crime of robbery accomplished by the use of a deadly

weapon. T.C.A. § 39-2-501(1982)(repealed 1989); See also Steve V. Walker v. State, No.

W2006-01170-CCA-R3-HC, 2007 WL 2935620, at *1, 3 (Tenn. Crim. App. Oct. 9, 2007).

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Therefore, Petitioner’s sentence was proper. Petitioner also argues that there was a mistake

on the judgment form indicating that his sentence was to be served at fifty percent rather

than the agreed-upon forty percent. However, as previously noted, an amended judgment

was later entered reflecting the correct release eligibility of forty percent. 

Finally, Petitioner arguesthat he received ineffective assistance oftrial counsel. First,

we note that this issue was not raised in the trial court in Petitioner’s habeas corpus petition. 

Therefore, it is waived. Tenn. R. App. P. 36(a). Claims of ineffective assistance of counsel

are not cognizable grounds for habeas corpus relief. Passarella v. State, 891 S.W.2d 619,

627 (Tenn. Crim. App. 1994). 

It is obvious that nothing in the record indicates that Petitioner’s conviction or

sentence is void. The habeas corpus trial court may summarily dismiss a habeas corpus

petition without an evidentiary hearing if there is nothing on the face of the record or

judgment to indicate that the conviction or sentence are void. Passarella, 891 S.W.2d at

627; see also Tenn. Code Ann. § 29-21-109 (2010 Repl.). Petitioner is not entitled to relief

on appeal. The judgment of the habeas corpus trial court is affirmed.

_________________________________

THOMAS T. WOODALL, JUDGE

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