            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                       DECEMBER SESSION, 1997           FILED
                                                        January 12, 1998

                                                    Cecil Crowson, Jr.
EARL THOMAS MITCHELL, JR.,)                             Appellate C ourt Clerk
                          )         No. 03C01-9704-CR-00125
     Appellant            )
                          )         JOHNSON COUNTY
vs.                       )
                          )         Hon. LYNN BROWN, Judge
HOWARD CARLTON, Warden, )
and STATE OF TENNESSEE, )
                          )         (Writ of Habeas Corpus)
     Appellee             )



For the Appellant:                  For the Appellee:

Earl Thomas Mitchell, Jr., Pro Se   John Knox Walkup
T.D.OC. #106783                     Attorney General and Reporter
N.E.C.C.
Post Office Box 5000                Peter M. Coughlan
Mountain City, TN 37683-5000        Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                             OPINION



        The appellant, Earl Thomas Mitchell, Jr., appeals the denial of his petition for

the writ of habeas corpus. Upon review, we affirm the judgment of the trial court.



        On February 5, 1985, the appellant pled guilty to one count of burglary and

five counts of concealing stolen property for which he received an effective sentence

of five years.1 The appellant did not appeal these convictions. He is currently

confined at the Northeast Correctional Center located in Johnson County. On

January 2, 1997, the appellant filed a pro se petition for writ of habeas corpus. The

petition alleges that the evidence was insufficient to convict him of these offenses,

that the five counts in the indictment were improperly presented to the grand jury,

that the respective counts of the indictment fail to state an offense, and that trial

counsel was ineffective. The Johnson County Criminal Court dismissed the

appellant’s petition.



        The trial court determined that the appellant’s petition failed to state a

cognizable ground for habeas corpus relief. Habeas corpus relief is only available

when a conviction is void because the convicting court was without jurisdiction or

authority to sentence a defendant, or that a defendant’s sentence has expired and

he is being illegally restrained. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).

Moreover, it is well established law in this state that the writ of habeas corpus may

not be used as a substitute for, or in lieu of an appeal. State v. Bomar, 368 S.W.2d

748, 749 (Tenn. 1963). In distinguishing habeas corpus relief from post-conviction

relief, this court, in Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.

1994), held that:

        If the court rendering a judgment has jurisdiction of the person, the
        subject matter, and has the authority to make the challenged


        1
        The appellant’s petition states that, following his guilty pleas, he escaped and remained
on escape status for ten years.

                                                2
       judgment, the judgment is voidable, not void; and the judgment may
       not be collaterally attacked in a suit for habeas corpus relief.
       Conversely, if the face of the record reveals that the court did not have
       personal and subject matter jurisdiction, or the authority to make the
       challenged judgment, the judgment is void.


Only one of the appellant’s claims alleges a void conviction, i.e., the indictments are

fatally defective because they do not state an offense. However, the appellant fails

to explain the basis of his claim. Moreover, from a review of the various counts in

the indictment, it is clear that a statutory offense has been stated. Thus, the trial

court correctly concluded that the petition failed to state a cognizable claim for

habeas corpus relief. Notwithstanding this conclusion, the trial court noted that the

appellant’s claim of ineffective assistance of counsel is cognizable as a post-

conviction claim, see Tenn. Code Ann. § 40-30-205(c) (1996 Supp.). However, the

court correctly concluded that a post-conviction claim is nonetheless time-barred as

the petition was filed outside the applicable three year statute of limitations period.

Tenn Code Ann. § 40-30-102 (1990) (repealed 1995).



       The appellant also argues that the trial court erred by dismissing his petition

without the appointment of counsel. A petition for writ of habeas corpus relief may

be summarily dismissed by the trial court without appointment of counsel, without an

evidentiary hearing, and without the opportunity to amend the petition, if, from the

face of the petition, the reviewing court finds nothing to indicate that the appellant’s

challenged convictions might be void. See Tenn. Code Ann. § 29-21-101, -109

(1980); see also Villaneuva v. Carlton, No. 03C01-9611-CR-00425 (Tenn. Crim.

App. at Knoxville, Oct. 3, 1997). We conclude that the trial court properly followed

the provisions of Tenn. Code Ann. § 29-21-101 et seq. in summarily dismissing the

petition.



       For the foregoing reasons, we affirm the trial court’s summary dismissal of

the appellant’s application for the writ of habeas corpus.



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                          ____________________________________
                          DAVID G. HAYES, Judge



CONCUR:



________________________________
DAVID H. WELLES, Judge


________________________________
THOMAS T. W OODALL, Judge




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