              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT NASHVILLE



DAVID PETERS,                                  )
                                               )   C.C.A. NO. 01C01-9706-CR-00217
       Appellant,                              )
                                               )   DAVIDSON COUNTY
VS.                                            )   (No. 2557 Below)
                                               )
RICKY BELL, WARDEN,                            )   The Hon. J. Randall Wyatt
                                               )
       Appellee.                               )   (Dismissal of Habeas Corpus Petition)
                                               )   AFFIRMED PURSUANT TO RULE 20



                                         ORDER



               This matter is before the Court upon the state’s motion requesting that the

judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of

Criminal Appeals Rules. Although not for the reasons set forth in the state’s motion, we

find that this is an appropriate case for affirmance pursuant to Rule 20.



              According to the trial court’s order denying relief, the petitioner is currently

serving a 40-year sentence for aggravated kidnapping, which began to run on May 12,

1986, and a 2-year sentence for felony escape. In his petition for habeas corpus relief and

in this appeal, the petitioner challenges his 1993 conviction for felony escape, asserting

that the indictment failed to specify the underlying conviction or classification thereof and

that the indictment failed to state the necessary mens rea element for the offense. In

dismissing the petition, the trial court stated:



              Habeas corpus relief is available in Tennessee only if “it appears upon
       the face of the judgment or the record of the proceedings upon which the
       judgment is rendered 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.” Archer v. State, 851 S.W.2d
       157, 164 (Tenn. 1993). This language, however, does not provide a vehicle
       for habeas relief on an individual sentence while a prisoner continues to
       serve other sentences. Arendall v. State, C.C.A. No. 01C01-9510-CR-
       00341, filed December 30, 1996. The law in this State is clear that habeas
       corpus relief is available only to persons eligible for immediate release from
       custody. Arendall, supra, citing Taylor v. Morgan, 909 S.W.2d 17, 20 (Tenn.
       Cr. App. 1995) (emphasis added). See T.C.A. §29-21-122(b)(2).
              In the case sub judice, petitioner only challenges his conviction and
      sentence for felony escape, and not his conviction and sentence for
      aggravated kidnapping. Irrespective of the validity of petitioner’s challenge
      to the escape conviction, then, in light of petitioner’s current forty (40) year
      sentence on the latter charge, such a challenge is premature at this time and
      is not appropriate for review.



             Finding that the trial court properly dismissed the petitioner’s petition for

habeas corpus relief as premature, we grant the state’s motion to affirm the judgment.



             IT IS, THEREFORE, ORDERED that the judgment of the trial court is hereby

affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeal Rules.



             ENTER this the ____ day of September, 1997.



                                                   ___________________________
                                                   JERRY L. SMITH, JUDGE


CONCUR:


___________________________
JOHN H. PEAY, JUDGE


___________________________
THOMAS T. WOODALL, JUDGE




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