         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE             FILED
                         FEBRUARY SESS ION, 1999          May 19, 1999

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

JONATHAN STEPHENSON,              )    C.C.A. NO. 03C01-9807-CR-00255
                                  )
           Appe llant,            )
                                  )    JOHNSON COUNTY
V.                                )
                                  )
HOWARD CARLTON, WARDEN,           )    HON. LYNN W. BROWN, JUDGE
and STATE OF TENNESSEE,           )
                                  )
           Appellee.              )    (HABEAS CORPUS)



FOR THE APPELLANT:                     FOR THE APPELLEE:

JON ATHAN STEP HEN SON , pro se        JOHN KNOX WALKUP
Northeast Correction Complex #140145   Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683                ELLEN H. POLLACK
                                       Assistant Attorney General
                                       2nd Floor, Cordell Hull Building
                                       425 Fifth Avenue North
                                       Nashville, TN 37243

                                       JOE C. CR UM LEY, J R.
                                       District Attorney General
                                       114 Alf Taylor Road
                                       Johnson City, TN 37601




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       The Petitioner, Jonathan Stephe nson , appe als from the dis miss al of his

petition for habeas corpus relief. Petitioner was tried and convicted in 1990 for

conspiracy to com mit first degree murder and for the first degree murder of his wife.

He was originally senten ced to death . Petitioner’s convictions w ere affirmed on

appe al, but the death sentence was reversed and the case was remanded to the trial

court for resen tencing. State v. Stephenson, 878 S.W.2d 530 (Tenn. 1994). On

October 6, 1994, Petitioner was resentenced to life without parole for the first degree

murder conviction and to sixty (60) years for conspiracy to commit the murd er.

While Petitioner did file a petition for post-conviction relief, he later requested it be

dismissed. In this pe tition for h abea s corp us relie f filed in 1998, Petitioner raises the

following issues:

       1)    The trial court erred in failing to suppress the confession taken
       from Petition er in tha t it was take n involunta rily and in violatio n of both
       the Tennessee and United States’ constitutions;

       2)    The trial court erre d in failing to d ismiss ind ictmen ts which were
       multiplicitous;

       3)     The trial court erred in failing to order disco very of the notes of
       investigators of the State;

       4)    The trial court erred in ordering counsel for Petitioner at trial to
       give m emo s from his file ov er to the State a s Jen cks m aterial;

       5)   The trial cou rt erred in failing to order the State to disclose
       whether they inte nded to try Petitioner a s a principal or acc essory;

       6)    The trial court erred in failing to order a mistrial after improper
       and prejudicial op ening argum ent by the State p rosecutor;

       7)    The trial court erred during preliminary charges when it referred
       to quotes from the Bible;

       8)    The trial court erred in calling jurors back in after the verdict had
       been re ndered for ques tioning reg arding th e verdict;



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         9)    The trial court erred in failing to charge the jury on all lesser
         included offenses;

         10) The trial court erred in allowing a State’s witness to quote from
         and refer to the written statement of Petitioner’s co-defendant, Ralph
         Thom pson, without a llowing cross-exa mination by the Petitioner;

         11)   Petition er did n ot rece ive the e ffective a ssista nce o f coun sel;

         12) The trial cou rt violate d the P etitione r’s due process rights by
         sentencing Petitioner in excess of the order on remand by the
         Tenn essee Supre me C ourt;

         13) The prosecutor a llowed the alleged victim’s family to set
         Petition er’s punishment by which Petitioner would receive on a plea
         bargain;

         14) The court erred in knowingly, willfully and with careless disreg ard
         allowing the State’s witness to perjure himself; and

         15) The trial court permitted testimony that the Petitioner took and
         clearly stated that he failed a lie detector test to be presented as
         evidence to the jury.

In an order, the trial court dismisse d the petition on gro unds that no ne of the abo ve

issues were “groun ds for habea s corpus relief.” We affirm the judgment of the trial

court.



         It is a well-establis hed p rinciple of law th at the re med y of hab eas c orpus is

limited in its nature a nd sco pe. Archer v. State, 851 S.W.2d 157, 164 (Ten n. 1993);

Pass arella v. State, 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994). 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 the convicting cou rt

was without jurisdiction or autho rity to sente nce a defen dant, o r that the defen dant’s

sentence had exp ired. Archer, 851 S.W .2d at 164 . A petitioner bears the burden

of establishing that by a preponderance of the evidence the judgm ent he attack s is

void or that the term of imprison ment h as expire d. Pass arella, 891 S.W.2d at 627.

Moreover, where a judgment is not vo id, but is merely voidable, such judgment may

                                              -3-
not be collaterally attacked in a suit for habeas corpus relief. Id. The Petition er’s

pleading in the case sub judice fails to make allegations either regarding a lack of

jurisdiction by the Cocke County Criminal Court or that his sentence has expired.



       As the State correctly no tes within its brief to this court, this habeas corpus

petition may not be considered by this court as a post-conviction petition under

Tennessee Code Annota ted section 40-30-205(c). A post-conviction petition may

not be used to relitigate issues which have p reviou sly bee n dete rmine d on a ppea l.

Tenn. Code Ann. § 40-30-206(h). Petitioner himself concedes that the majority of

his issues have p reviou sly bee n con sidere d on a ppea l. In add ition, the applic able

statute of limitations would b ar cons ideration o f the plead ing as a p etition for po st-

conviction relief.



       Petition er’s convictions were affirmed on May 9, 1994, and the rehearing

denied on June 20, 1994. He was resentenced by the trial court on October 6, 1994.

There is nothing in the reco rd to indicate that Petitioner appealed his resentencing.

This petition wa s filed a pprox imate ly four (4 ) years past th e Sup reme Cour t’s

decision to affirm his conviction and reve rse his de ath sente nce a nd the trial cou rt’s

resentencing of the Petitioner. The Post-Conviction Procedure Act of 1995 stated

that a petition for post-conviction relief must have been filed “within one (1) year of

the date of the final action o f the highe st appe llate court to which an appeal is taken,

or if no appeal is taken within one (1) year of the date on which the judgment

became final, or consideration of such petition shall be barred.” Tenn. Code Ann.

§ 40-30-202(a). As Petitioner would have had three (3) years under the prior Pos t-

Conviction Procedure Act during which to file his post-conviction petition (Tennessee

Code Annotated section 40-30-102 (Repealed May 10, 1995)), he had one (1) year

                                            -4-
from May 10 , 1995, to file a claim under the new provisions of section 40-30-202.

Carter v. State, 952 S .W .2d 41 7, 419 (Ten n. 199 7). Th e availa ble time period

allowed to Petitio ner to file his pe tition had long since e xpired when he filed his

petition for h abeas corpus relief.



      We affirm the ju dgme nt of the trial co urt.




                                  ____________________________________
                                  THOMAS T. W OODALL, Judge




CONCUR:



___________________________________
JERRY L. SMITH, Judge


___________________________________
L. T. LAFFERTY, Senior Judge




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