dissenting.
In my opinion, the majority erroneously holds that, in a habeas corpus proceeding, the State has the burden of establishing that the petitioner’s guilty plea was knowingly, voluntarily, and intelligently made. The State is not a party to this, or any other, habeas case. A petition for habeas relief institutes a civil, not a criminal, action. “It is a collateral attack that is separate and distinct from direct review, and occurs only after a prisoner has failed to obtain relief by direct appeal. [Cit.] It is not an extension of [a] direct appeal .... [Cit.]” Gibson v. Turpin, 270 Ga. 855, 857 (1) (513 SE2d 186) (1999). Accordingly, I believe that Shaffer, as the petitioner in this civil proceeding, properly bears the ultimate burden of proving that his guilty plea was not constitutionally valid. In addition to its conclusion regarding the burden of proof, the majority holds that the habeas court was authorized to resolve the conflicting evidence “in the manner in which it did.” To the contrary, however, I believe that the habeas court premised its decision upon both a clearly erroneous finding of fact and a faulty legal analysis. Therefore, it is my opinion that this Court should vacate the judgment of the habeas court and remand the case, and I dissent to the affirmance of the order granting habeas *695relief to Shaffer.
1. In Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969), the Supreme Court of the United States required that the State make an affirmative showing on the record that a guilty plea is constitutionally valid. Jones v. Lee, 244 Ga. 837-838 (262 SE2d 130) (1979). However, Boykin was not a habeas corpus case, but a direct appeal from a criminal conviction and sentence entered on a guilty plea. This Court nevertheless held that, under Boykin and its progeny, the respondent in a habeas case may not rely upon a presumption, but must make an affirmative showing that the plea of guilty is constitutionally valid. Roberts v. Greenway, 233 Ga. 473, 476 (2) (211 SE2d 764) (1975); Purvis v. Connell, 227 Ga. 764 (182 SE2d 892) (1971). In 1992, however, the Supreme Court of the United States held that Boykin does not apply in collateral proceedings, such as habeas actions.
To import Boykin’s presumption of invalidity into this very different context would . . . improperly ignore another presumption deeply rooted in our jurisprudence: the “presumption of regularity” that attaches to final judgments, even when the question is waiver of constitutional rights. [Cit.]
Parke v. Raley, 506 U. S. 20, 29 (II) (B) (113 SC 517, 121 LE2d 391) (1992).
In Bowers v. Moore, 266 Ga. 893, 895 (1) (471 SE2d 869) (1996), we cited this Court’s decision in Roberts v. Greenway, supra, as authority for placing upon the respondent the burden of showing the validity of a guilty plea, but we failed to consider the effect of the opinion in Parke v. Raley, supra. See also Knight v. Sikes, 269 Ga. 814, 816 (2) (504 SE2d 686) (1998). In our recent decision in Nash v. State, 271 Ga. 281 (519 SE2d 893) (1999), however, we applied Parke to collateral attacks on guilty pleas which are used for the purpose of sentence enhancement. There is no logical reason why a recidivism defendant during his trial should have a greater burden with respect to a prior guilty plea than a petitioner in his civil habeas action attacking his conviction. There is no material or conceptual difference between these two collateral attacks. See Parke v. Raley, supra at 29-30 (II) (B). Therefore, under Parke and Nash, Boykin is not applicable to any collateral attacks on final judgments in non-death penalty cases, and the burden is on the criminal defendant to prove by a preponderance of the evidence that his guilty plea was not knowingly and voluntarily entered. This holding is consistent with the well-settled principle that one who petitions for a writ of habeas corpus after conviction of a crime “has the burden of proving by a preponderance of the evidence that the judgment attacked is invalid because the prisoner’s constitutionally-protected rights were violated *696in obtaining the judgment. [Cits.]” Gaither v. Gibby, 267 Ga. 96, 97 (1) (475 SE2d 603) (1996). Thus, the logical import of Nash is to return Georgia to the proper pre-Boykin procedure, whereby the petitioner in a habeas corpus proceeding bears the burden of overcoming the presumption of the validity of the conviction and sentence entered on his guilty plea. See Sharpe v. Smith, 225 Ga. 52, 54 (6) (165 SE2d 656) (1969); Dutton v. Parker, 222 Ga. 532, 533 (150 SE2d 833) (1966). To the extent that Roberts, Purvis, or any other case misconstrues Boykin as authority for requiring the habeas respondent to prove the constitutionality of a guilty plea, those decisions are erroneous and, having been implicitly overruled in Nash, should now be overruled explicitly. This habeas action constitutes Shaffer’s collateral attack on his convictions and sentences for non-capital offenses. Therefore, in accordance with the controlling authority of Nash, Shaffer has the burden to rebut the presumption of validity, and to prove by a preponderance of the evidence that he did not enter his guilty pleas knowingly and voluntarily.
2. Where, as here, the habeas petitioner presents some initial evidence that a constitutional infirmity exists, the respondent only has the burden of producing evidence of a waiver of three constitutional rights, which are the defendant’s
“right to trial by jury, [the] privilege against self incrimination, and [the] right to confront his accusers. If the [respondent] introduces anything less than a ‘perfect’ transcript, . . . the judge then must weigh the evidence submitted by the defendant and by the [respondent] to determine whether . . . defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.” [Cit.]
(Emphasis supplied.) Nash v. State, supra at 285. A review of the habeas court’s order shows that it was based, at least in part, upon the absence of proof that Shaffer properly waived the constitutional right to trial by jury. The habeas court specifically found that the Warden “did not show that the Petitioner understood that, by pleading not guilty or remaining silent and not entering a plea, one obtains a jury trial.” The record demonstrates, however, that this finding is clearly erroneous. The guilty plea transcript shows that the trial court informed Shaffer, and that he affirmatively expressed his understanding, , of the following: “If you plead not guilty you will be afforded a jury trial, but if you plead guilty this Court will impose sentence upon you as provided by law.” This certainly constitutes a showing that Shaffer understood that he was waiving his constitutional right to trial by jury.
The habeas court also relied upon the erroneous legal theory *697that Uniform Superior Court Rule 33.8 is a basis for granting habeas relief. Although that Rule requires the trial judge to inform the defendant that, by pleading not guilty, he waives the presumption of innocence and the right to testify, it is inapplicable here because “habeas corpus is available to review constitutional deprivations only. . . .” Valenzuela v. Newsome, 253 Ga. 793, 795 (2) (325 SE2d 370) (1985). See also Black v. Hardin, 255 Ga. 239 (1) (336 SE2d 754) (1985). Thus, the question of whether the requirements of USCR 33.8 “were violated is not cognizable in a habeas action. . . .” Parker v. Abernathy, 253 Ga. 673, 674 (324 SE2d 191) (1985). Compare State v. Evans, 265 Ga. 332, 333 (1) (454 SE2d 468) (1995) (non-habeas case holding that the provisions of USCR 33 are mandatory). Because it is clear that the habeas court relied on the absence of a waiver of nonBoykin rights, its order was based upon an erroneous legal theory and, therefore, cannot be affirmed. Gwinnett County v. Davis, 268 Ga. 653, 655 (492 SE2d 523) (1997).
Although the guilty plea transcript does not show any waiver by Shaffer of his privilege against self-incrimination or the right of confrontation, defense counsel’s testimony and a plea questionnaire with each question initialed by Shaffer constitute extrinsic evidence of a valid waiver of those two remaining Boykin rights. Compare Knight v. Sikes, supra at 816-817 (2); Bowers v. Moore, supra at 895 (2). Furthermore, the transcript of the plea hearing indicates that the trial court not only informed Shaffer of his right tb a jury trial, but also ascertained that he understood the meaning and consequences of a guilty plea and that he was entering such plea freely and voluntarily, without the influence of any promises or threats. Compare King v. State, 270 Ga. 367, 371 (1) (509 SE2d 32) (1998). In affirming the grant of habeas relief to Shaffer, the majority ignores the habeas court’s erroneous finding of fact and legal theory, and relies instead only upon Shaffer’s testimony that his trial attorney did not inform him of the waiver of his rights. Even acknowledging that Shaffer’s testimony would otherwise be sufficient to authorize the grant of habeas relief, the judgment in this case nevertheless should “be vacated and the case remanded for this issue to be ‘ “considered under a correct theory of law because we cannot say what the [habeas] judge would have concluded if he had been relying on the correct theory. (Cit.)” (Cit.)’ [Cit.]” Gwinnett County v. Davis, supra at 655. If the habeas court properly places the burden of proof on Shaffer, correctly considers all of the evidence which was adduced and does not rely upon inapplicable provisions of USCR 33.8, we cannot say that it would reach the same conclusion that it did here. Accordingly, I dissent to the judgment affirming the grant of habeas relief.
I am authorized to state that Justice Hines joins in this dissent.
*698Decided November 15, 1999. Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellant. Marcus C. Chamblee, Stephen D. Pereira, for appellee.