            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                           MAY SESSION, 1998     FILED
                                                      June 9, 1998
JAMES YATES,                     )
                                 )     No. 01C01-9707-CC-00299
                                                Cecil W. Crowson
        Appellant                )
                                              Appellate Court Clerk
                                 )     HICKMAN COUNTY
vs.                              )
                                 )     Hon. DONAL P. HARRIS, Judge
DON SUNDQUIST, Governor of,      )
the State of Tennessee,          )     (Writ of Habeas Corpus)
DONAL CAMPBELL,                  )
Commissioner of the              )
Tennessee Department of          )
Correction, DAVID MILLS,         )
Warden of the Tennessee          )
State Prison for Men,            )
CHARLES TRAUGHBER,               )
Chairman of the Tennessee        )
Board of Paroles, THE            )
TENNESSEE SENTENCING             )
COMMISSION, in their             )
individual and official          )
capacities,                      )

        Appellees


For the Appellant:               For the Appellees:

Trippe Steven Fried              John Knox Walkup
King, Turnbow & Brisby           Attorney General and Reporter
203 Third Avenue South
Franklin, TN 37064               Daryl J. Brand
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                 Joseph D. Baugh
                                 District Attorney General
                                 P. O. Box 937
                                 Franklin, TN 37065-0937




OPINION FILED:

AFFIRMED

David G. Hayes

Judge
                                              OPINION


        The appellant, James Yates, appeals the summary dismissal of his pro se

application for writ of habeas corpus. The appellant is currently incarcerated in the

Turney Center correctional facility in Hickman County, where he is serving concurrent

sentences of life imprisonment and nine years for his convictions for open rebellion with

the intent to kill and aggravated assault upon a corrections officer. These convictions

occurred in July, 1985, while the appellant was confined as an inmate in the Ft. Pillow

correctional facility in Lauderdale County. 1



        The appellant’s petition for writ of habeas corpus challenges both his conviction

and resulting sentence for the crime of open rebellion based upon the following

grounds: (1) his confinement constitutes ex post facto punishment; (2) his sentence is

violative of equal protection; (3) incarceration has denied him due process of law; and

(4) his sentence constitutes cruel and unusual punishment. On June 23, 1997, the trial

court, without conducting a hearing, entered a “Memorandum” and Order dismissing

the appellant’s petition. The appellant appeals this ruling.



                                          BACKGROUND



        On July 11, 1985, a state of open rebellion, instigated by the appellant and two

other inmates, existed at the Ft. Pillow State Prison in Lauderdale County. During the

confrontation and melee between inmates and correctional officers, three officers were

severely injured. The disturbance was eventually quashed by the prison’s TACT team.

It was later determined that the appellant was a leader in the prison riot and participated

in the assaults. The appellant was subsequently convicted by a jury of open rebellion,

aggravated assault, and simple assault. These convictions and sentences were

affirmed by this court on direct appeal. See State v. Willis, C.C.A. No. 3, (Tenn. Crim.


        1
         The a ppellant’s inc arcera tion in Laud erdale C ounty stem med from Shelby C ounty
convictions.

                                                 2
App., at Jackson, Jan. 21, 1987), perm. to appeal denied, (Tenn., 1987).




                                                      ANALYSIS



          The appellant argues that, under the current criminal code, which became

effective in 1989, “the term of the sentence applied to Open Rebellion [in 1985] was

significantly reduced from life imprisonment to an 8 to 30 year period of incarceration.”

Thus, he contends that the disparate punishment in the two criminal codes violates his

right of equal protection, imposes cruel and inhuman punishment, violates due process

and constitutes ex post facto punishment.



          The appellant asserts that the trial court’s memorandum order addressed only

the issue of “equal protection.” Therefore, he contends that, because the court failed

to address the issues of ex post facto punishment, violation of due process and cruel

and unusual punishment, the case must be remanded for a determination of these

issues.2 For the following reasons, we disagree.



          First, a state writ of habeas corpus will issue only in the case of a void judgment

or to free a prisoner held in custody after his term of imprisonment has expired. Tenn.

Const. Art. 1, §15; Tenn. Code Ann. § 29-21-101 et. seq. (1990). A petitioner cannot

collaterally attack a facially valid conviction in a habeas corpus proceeding. Potts v.

State, 833 S.W.2d 60, 62 (Tenn. 1992). Unless it appears on the face of the judgment

or the record of the proceedings that the convicting court lacked jurisdiction or that the

defendant’s sentence has expired, a habeas corpus proceeding cannot be maintained.


          2
          In rejecting the appellant’s equal protection argument that he should have the benefit of
the redu ced pe nalties of the current law , the trial court p roperly foun d that “the 1 989 Ac t by its
express language did ‘not affect rights and duties that matured, penalties that were incurred, or
proceedings that were begu n before its effective date.’” See 1989 T enn. Pu b. Acts, C h.591, § 1 15.
See also State ex re l Crum v. Mc W herte r, et al, No. 02C01-9108-CC-00181 (Tenn. Crim. App. at
Jackson, May 13, 1992) (rejecting virtually the identical argument presented in this case and
holdin g tha t “soc iety ha s a st rong intere st in p rese rving the fin ality of c rim inal litiga tion re sultin g in
a conviction and sentence which w ere valid at the time of their imposition”).

                                                           3
See Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). Because the Circuit Court

of Lauderdale County had jurisdiction to try and decide the case and the record reflects

that the sentence imposed has not expired, habeas corpus relief is not available.

Moreover, if from the face of the petition, the reviewing courts finds nothing to indicate

that the appellant’s challenged convictions might be void, the court shall dismiss the

petition and refuse the issuance of the writ. See Tenn. Code Ann. §§ 29-21-101; - 109.



       Again, the appellant argues “that when the Tennessee Sentencing Reform Act

of 1989 was incorporated into law, the term of the sentence applied to Open Rebellion

was significantly reduced from life imprisonment to an 8 to 30 year period of

incarceration consistent with its classification as a Class B felony.” This argument is

misplaced. The crime of Open Rebellion as codified at Tenn. Code Ann. § 39-5-712

(1982) was repealed upon enactment of the 1989 Criminal Code.                               There is no

equivalent or corresponding crime found in our current criminal code for the repealed

offense of open rebellion. An indictment charging the conduct previously proscribed

for the crime of open rebellion would require the charging of multiple offenses under our

current criminal code.3 The statutory provision referred to by the appellant simply

provides that, “for . . . sentencing purposes after November 1, 1989,” in determining

the classification of a felony committed prior to November 1, 1989, i.e., “[r]ebellion by

a convict with the intent to kill or escape shall be classified as a class B felony in

establishing the appropriate sentence range.” Tenn. Code Ann. § 40-35-118 (1990).



       Finally, the appellant attempts to utilize habeas procedures as a vehicle for direct

appeal. Indeed, in the appellant’s direct appeal to this court, he presented the same

issue as in the instant petition, i.e., “[w]hether the imposition of a life sentence,


       3
           Open rebellion as codified a t 39-5-71 2, was d efined as follows:

       Rebellion with intent to kill or escape. - If any convict confined in the penitentiary
       for a term less than life, openly rebel with intent to kill the warden or any other
       officer thereof, or with intent, by open violence to escape, he shall, on conviction
       thereof, be imprisoned in the penitentiary for life.




                                                    4
pursuant to Tenn. Code Ann. § 39-5-712, is violative of the appellant’s Eighth

Amendment right to be free from cruel and unusual punishment.” Willis, C.C.A. No. 3.

Not only is this issue inappropriate for consideration, it is res judicata. Similarly

presented are the issues of due process and ex post facto punishment. A petition for

habeas corpus relief is an inappropriate procedure in which to review potential errors

of a trial court. Richmond v. Barksdale, 688 S.W.2d 86, 88 (Tenn.Ct.App. 1984)

(quoting State ex rel. Anglin v. Mitchell, 575 S.W.2d 284 (Tenn. 1979)). Moreover, we

note that the factual allegations of this case do not permit invocation of an ex post facto

challenge.



       For these reasons, we find summary dismissal of the appellant’s writ for habeas

corpus proper. The judgment of the trial court is affirmed.




                                    ____________________________________
                                    DAVID G. HAYES, Judge



CONCUR:



________________________________
GARY R. WADE, Presiding Judge



________________________________
JERRY L. SMITH, Judge




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