          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                         MAY SESSION, 1997          FILED
                                                    July 30, 1997

                                               Cecil W. Crowson
GARY S. MAYES,             )
                                             Appellate Court Clerk
                           )    No. 01C01-9605-CR-00205
      Appellant            )
                           )    DAVIDSON COUNTY
vs.                        )
                           )    Hon. THOMAS H. SHRIVER, Judge
STATE OF TENNESSEE,        )
                           )    (Habeas Corpus)
      Appellee             )



For the Appellant:              For the Appellee:

THOMAS H. MILLER                CHARLES W. BURSON
P. O. Box 681662                Attorney General and Reporter
Franklin, TN 37068-1662
                                DARYL J. BRAND
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                VICTOR S. (TORRY) JOHNSON III
                                District Attorney General

                                JOHN ZIMMERMANN
                                Asst. District Attorney General
                                Washington Sq., Suite 500
                                222-2nd Ave. N.
                                Nashville, TN 37201-1649



OPINION FILED:

AFFIRMED PURSUANT TO RULE 20



David G. Hayes
Judge
                                             OPINION



        The appellant, Gary S. Mayes, appeals from the denial of his petition for

habeas corpus relief. Upon review, we conclude that affirmance of the lower

court's decision is proper pursuant to Rule 20, Tenn. Ct. Crim. App.



            On September 16, 1993, the appellant pled guilty in the Loudon County

Criminal Court to one count of aggravated sexual battery. He is presently

confined at the Riverbend Maximum Security Institution in Nashville where he is

serving a ten year sentence for this conviction. On July 12, 1995, the appellant

filed a pro se petition for writ of habeas corpus relief in the Davidson County

Criminal Court. Subsequently, on October 10, 1995, upon appointment of

counsel, this petition was amended and recaptioned "Petition for writ of habeas

corpus/post conviction relief."



        The appellant's petition set forth several allegations including, inter alia,

that Tenn. Code Ann. § 33-6-302 (1984)1 is unconstitutional; that the appellant

was denied admittance to the sex offender treatment program; that the appellant

was denied parole based upon his failure to complete the sex offender treatment

program; and that the appellant's trial counsel was ineffective. On November

22, 1995, the trial court dismissed the petition finding that the court lacked

jurisdiction over the appellant's claims in a habeas corpus setting; that the court

lacked jurisdiction over the appellant's post-conviction claims2; and that the

appellant's claim is based upon the Board of Parole's refusal to grant him parole


        1
         Tenn. Code Ann. § 33-6-302 provides:
        Sex offenders constitute a species of mentally ill persons in the eyes of the
        general assembly, and where this tendency is pronounced, they should have the
        same care and custody as mentally ill persons generally, and such persons
        should be given continu ed care and treatm ent so long as th eir rele ase would
        constitute a threat to them or to the general public.

        2
          Under the Post-Conviction Procedure Act, a petitioner must file a written petition with the
clerk of the court where the conviction occurred. Tenn. C ode Ann . § 40-30-103 [repe aled 199 5].
The appellant's conviction occurred in Loudon County and not Davidson.

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or to order his enrollment in a sex offender treatment program over which the

court had no jurisdiction.3 In the present appeal, however, the appellant's sole

issue is whether the mandated classification of a sex offender as a mentally ill

person, pursuant to Tenn. Code Ann. § 33-6-302, is a denial of both his state

and federal constitutional due process rights. Specifically, the appellant claims

that "[b]ut for this classification imposed under this unconstitutional statute, . . .

[the] appellant would have been paroled in 1995."



        In Tennessee, habeas corpus relief is only available when a conviction is

void because the convicting court was without jurisdiction or authority to

sentence a defendant, or that a defendant's sentence has expired and he is

being illegally restrained.4 Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).

The appellant's only asserted ground for habeas relief is the constitutionality of

Tenn. Code Ann. § 33-6-302.5 The appellant's petition does not allege that the

Criminal Court for Loudon County lacked jurisdiction to convict or sentence the

appellant nor does it allege that the appellant's sentence has already expired. If

a habeas corpus petition fails to state a cognizable claim for relief, it may be

summarily dismissed. Passarella 891 S.W.2d at 627. Thus, the trial court

properly dismissed the petition. In accordance with Tenn. Ct. Crim. App. R. 20,

we affirm the trial court's dismissal.




        3
        Ac tion s by the Parole Board are reviewable by the com m on law writ of certiorari,
Thandiwe v. Traugher, 909 S.W .2d 802, 803 (T enn. App. 199 4), and m ust be filed in chanc ery
court. Tenn. Code Ann. § 27-9-102.

        4
           If the face of the record reveals that the court did not have personal and subject matter
jurisdiction, or the autho rity to make the cha llenged judgm ent, the judgm ent is void. Pass arella v.
State , 891 S.W .2d 619, 627 (T enn. Crim . App. 1994).


        5
          In a class action suit filed on behalf of all convicted sex offenders in the custody of the
Tennessee Department of Correction, the Sixth Circuit determined that Tenn. Code Ann. § 33-6-
302 was con stitutiona l on its face. Dean v. McW herter, 70 F .3d 43, 46 (6th C ir. 1995 ); see also
Dalton v. Tennessee Board of Paroles, No. 01-A-01-9601-CH00029 (Tenn. App. at Nashville, May
8, 1996).

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                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:


_________________________________
PAUL G. SUMMERS, Judge



_________________________________
JERRY L. SMITH, Judge




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