         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs January 8, 2002

           STATE OF TENNESSEE v. CHARLES DAMIEN DARDEN

                    Direct Appeal from the Circuit Court for Lake County
                         No. 01-CR-8103     R. Lee Moore, Jr., Judge



                  No. W2001-01833-CCA-R3-CD - Filed February 12, 2002


The Appellant, Charles Damien Darden, proceeding pro se, appeals as of right from an order of the
Lake County Circuit Court denying his petition for the writ of habeas corpus. After a review of the
record, we reverse the judgment of the trial court and remand for the appointment of counsel.

       Tenn. R. App. P. 3; Judgment of the Circuit Court is reversed and remanded.

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN, JJ., joined.

Charles Damien Darden, Tiptonville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kim R.
Helper, Assistant Attorney General; C. Phillip Bivens, District Attorney General; and Marcia Fogle,
Assistant District Attorney General, for the Appellee, State of Tennessee.



                                             OPINION

         On January 12, 1996, the Appellant was convicted, in Robertson County, of felony murder,
attempted aggravated kidnapping, and civil rights intimidation. The Appellant is currently
incarcerated at Northwest Correctional Facility in Lake County, where he is serving a life sentence.
On February 5, 2001, after his convictions and sentences were affirmed by this court and the
Tennessee Supreme Court, the Appellant filed a pro se petition in the Lake County Circuit Court
captioned “Petition for a Writ of Habeas Corpus or in the Alternative For Post-Conviction Relief."
In his thirty-eight-page petition, he asserts numerous grounds for relief and requests the appointment
of counsel. The trial court found that it was precluded from considering any of the Appellant’s post-
conviction claims and that only one issue was appropriate for adjudication in the habeas corpus
proceeding; i.e., that the indictment was vague, and the Appellant was therefore, denied notice of
the charges against him.1

        On appeal, the Appellant has filed a lengthy non-responsive brief in which he simply
reasserts the same claims alleged in his petition and his entitlement to post-conviction and habeas
corpus relief. Additionally, he contends that he was “uninformed” and “ill advised” as to the law
and that he is entitled to “the appointment of counsel so that counsel can amend and assist on remand
and appeal.”

        The Appellant’s petition was dismissed on November 27, 1999, without appointing counsel
and without conducting an evidentiary hearing. The trial court found that the indictment was
sufficient, reasoning as follows:

         The court has reviewed the copy of the indictment the petitioner has filed with the
         record and has found the indictment has meet the following requirements
         (1) the language of the indictment is sufficient to meet the constitutional
         requirements of notice to the accused of the charge against which the accused must
         defend, adequate basis for entry of a proper judgment, and protection from double
         jeopardy;
         (2) the form of the indictment meets the requirements of T.C.A.. 40-13-202; and
         (3) the mental state can be logically inferred from the conduct alleged.

        We believe the procedural posture of this case is similar to that addressed by our supreme
court in McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001), wherein the court held: “[h]ad the Appellant
been represented by counsel, we would find no error in this dismissal; however, because the
Appellant was not represented by counsel, the case is remanded for the appointment of counsel and
an evidentiary hearing.” Id. at 94. Tennessee Supreme Court Rule 13, Section 1, provides in
pertinent part:




         1
             In the Appellant’s 39 th issue of error, he asserts:

         The indictment is so defective as to fail to vest jurisdiction in the trial court, which may be challenged
         at any stage of the proceedings, including in a habeas corp us petition. Wyatt v. State, 24 S.W.3d 319
         (Tenn. 2000). Indictment became useless and invalid the moment the offense upon which the hearing
         in Juvenile court was b ased, was dism issed in the circuit court.

Again, in another section of the Appellant’s petition, he argues that an indictment “cannot charge two distinct offenses
in the same count” and that “[t]he vagueness o f the charging instrument denied him no tice” because it was duplicitous.
It is unclear from the petition whether the above challenges to the indictment are related or co nstitute separate claims.
Of gre ater imp ortance, it is also unclear as to whether these challenges are the same challenges which were addressed
by the supreme court on direct ap peal. See State v. Charles D. Darden, 12 S.W .3d 455 (T enn. 2000). Obviously if the
issue is the same, principles of collateral estoppel preclude relitigation of this issue o n remand. This d etermination is
for the trial court upon remand.

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         (d) In the following cases and in all other cases required by law, the court or
         appointing authority shall advise any party who is without counsel that he or she has
         the right to be represented by counsel throughout the case and that counsel will be
         appointed to represent the party if he or she is indigent and requests the appointment
         of counsel. (Emphasis added).
         ...
                 (4) In proceedings initiated by a petition for habeas corpus, early release from
         incarceration, suspended sentence or probation revocation;

We would emphasize that appointment of counsel is necessary only in cases in which the petition
for writ of habeas corpus raises a cognizable claim, i.e., “when it appears upon the face of the
judgment or the record of the proceedings upon which the judgment is rendered that a court lacked
jurisdiction or authority to sentence a defendant or that the sentence has expired.” McLaney, 59
S.W.3d at 93 (citing Stephenson v. Carlton, 28 S.W.2d 910, 911 (Tenn. 2000)).2


        With regard to the post-conviction issues, the trial court determined that it was “without
jurisdiction to address the issues of post-conviction,” and therefore, did not have the authority to
transfer such issues to Robertson County, the proper county for post-conviction relief, being the
county in which the Appellant was convicted. We agree with the trial court that it was without
jurisdiction over the case, and therefore, without the authority to transfer to Robertson County. See
Tenn. Code Ann. § 40-30-204(a); White v. Carlton, No. E2000-02246-CCA-R3-CD (Tenn. Crim.
App. 2001) (citing Norton v. Everhart, 895 S.W.2d 317, 319 (Tenn. 1995)).

                                                CONCLUSION

       Based up the foregoing reasons, the judgment of the Lake County Circuit Court is reversed
and remanded for the determination of indigency and appointment of counsel regarding the
Appellant’s challenge to the validity of the indictment and for further proceedings as may be
necessary.



                                                               ___________________________________
                                                               DAVID G. HAYES, JUDGE




         2
           In considering the validity of a judgment, an examination of the underlying record is appropriate in habeas
corp us pro ceed ings. Dykes v. Compton, 978 S.W .2d 528, 529 (Tenn. 1998 ).

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