        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE             FILED
                          OCTOBER SESSION, 1998        December 1, 1998

                                                   Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
TERRY NICHOLS,                )    C.C.A. NO. 03C01-9803-CR-00106
                              )
      Appe llant,             )
                              )
                              )    JOHNSON COUNTY
VS.                           )
                              )    HON. LYNN W. BROWN
HOW ARD C ARLT ON,            )    JUDGE
WARDEN,                       )
                              )
      Appellee.               )    (Habeas Corpus)

                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF JOHNSON COUN TY


FOR THE APPELLANT:                 FOR THE APPELLEE:

TERRY NICHOLS                      JOHN KNOX WALKUP
Pro Se                             Attorney General and Reporter
N.E.C.C.
P.O. Box 5000                      MICH AEL J . FAHE Y, II
Mountain City, TN 37683            Assistant Attorney General
                                   425 Fifth Avenu e North
                                   Nashville, TN 37243

                                   DAVID CROCKETT
                                   District Attorney General
                                   Route 19, Box 99
                                   Johnson City, TN 37601



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                    OPINION

       The Defenda nt, Te rry Nich ols, ap peals the trial c ourt’s d ismiss al of his

petition for habeas corpus relief. Defendant filed his petition with the Criminal

Court for Johnson County on December 1, 1997, and he filed an amended

petition on January 1, 1998. The petition alleges prim arily ineffective assistance

of counsel at his trial for aggra vated rape in 1980 . The tr ial cou rt dism issed his

petition on Jan uary 18, 1 998 for fa ilure to state a claim upon which relief can be

granted. We agree that the petition must be d ismissed, an d we therefore affirm

the dec ision of the trial court.



       As the State asserts, the remedy of habeas corpus in Tennessee is limited

in nature and in s cope. Ou r supreme court has explained, “[a]s late as 1963, we

recognized that habeas corpus proceedings were collateral attacks upon a

court’s judgment and that such challenges ‘cannot prevail unless such judgment

is void.’” Archer v. State, 851 S.W.2d 157, 161-62 (Tenn. 1993) (quoting State

ex. rel Holbrook v. Bomar, 364 S.W.2d 887, 888 (Tenn. 1963)). Claims of

ineffective assistance of counsel, such as those alleged in Defendant’s petition,

may render a judgment voidable, not void; and as such are improper grounds for

a petition for habeas corpus relief. See Passa rella v. State , 891 S.W.2d 619, 627

(Tenn . Crim. A pp. 199 4).



       In Archer, the court again quoted Holbrook to define precisely which cases,

if meritorious, render the conviction void as oppos ed to void able. Archer, 851

S.W .2d at 162 . The co urt stated,



                                          -2-
       “Upon a collateral attack on a judgment of a court of general
       jurisdiction . . . , such judgmen t is presum ed to be in all respec ts
       regular and valid, unless the record affirmatively shows that the
       court rende ring the judgm ent lac ked ju risdiction of the subject matter
       or of the pe rson . . . .”

Id. (quoting Holbrook, 364 S.W .2d at 889 ). “Habeas corpu s relief is availab le in

Tennessee only whe n [it appea rs] that a convicting court was without jurisdiction

or authority to sentence a defendant, or that a defendant’s sentence of

imprisonment or other restraint has expired.” Id. at 164. We do not have such

a case before us. Defendant does not raise any claims that can be construed as

challenges to jurisdiction over either his case or his person, and he does not

claim to have satisfied his sentence.



       Although a petition for habeas corpus may be treated as a petition for post-

conviction relief unde r appro priate c ircum stanc es, we need not do so in this case

because (1) the appropriate court for a post-conviction petition is the court in

which the conviction occurred, Tenn. Code Ann. § 40-30-204(a); (2) Defendant

has previously filed a post-conviction petition in the Criminal Court for Shelby

County, see id. § 40-3 0-202 (c) (con temp lating th e filing o f only one such petition);

and (3) the limitations period for filing a post-conviction petition in this case has

now expired.1




       1
           It appears from Defendant’s petition that this Court affirmed his conviction on
December 11, 1980. Defendant filed no application for permission to appeal to the Supreme
Court of Tennessee. Because the statute of limitations required Defendant to file any post-
conviction petition within three years of enactment of Tennessee Code Annotated § 40-30-102,
which occurred on July 1, 1986, his time has expired. See Abston v. State, 749 S.W.2d 487,
488 (Tenn. Crim. App. 1988).

                                            -3-
       Based upon a thorough reading of the record, the briefs of both parties,

and the law governing the issues presented for review, we affirm the trial c ourt’s

dismiss al of Defe ndant’s p etition for ha beas c orpus re lief.




                                   ____________________________________
                                   DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
THOMAS T. WOODALL, JUDGE




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