            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                       SEPTEMBER SESSION, 1997       FILED
                                                      October 2, 1997

                                                 Cecil Crowson, Jr.
JOHN C. TOMLINSON,      )                            Appellate C ourt Clerk
                        )        No. 03C01-9610-CR-00389
     Appellant          )
                        )        JOHNSON COUNTY
vs.                     )
                        )        Hon. LYNN W. BROWN, Judge
HOWARD CARLTON, Warden, )
and STATE OF TENNESSEE, )        (Writ of Habeas Corpus)
                        )
     Appellee           )



For the Appellant:               For the Appellee:

John C. Tomlinson, Pro Se        Charles W. Burson
99306 NECC POB 5000              Attorney General and Reporter
Mountain City TN 37683
                                 Michael J. Fahey, II
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                 (AT TRIAL AND ON APPEAL)




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                           OPINION



        The appellant, John C. Tomlinson, appeals the trial court’s dismissal of his

pro se petition for writ of habeas corpus. In April 1983, the appellant was convicted

in the Davidson County Criminal Court of aggravated kidnaping and two counts of

robbery with a deadly weapon. For these convictions, he was sentenced to 30 years

imprisonment. In December 1983, the appellant was convicted in the Wilson

County Criminal Court of aggravated rape and armed robbery resulting in sentences

totaling 35 years. The appellant is currently confined at the Northeast Correctional

Center where he is serving an effective sentence of 65 years for the convictions

from both counties. The appellant now appeals the trial court’s dismissal of his

petition for writ of habeas corpus. Specifically, the appellant contends that the trial

court’s summary dismissal denied him his right to due process of the law.



        We affirm the judgment of the trial court.



        At the outset, we note that the appellant misconstrues the procedural

requirements involved in the issuance of writs of habeas corpus. Briefly, to obtain

such relief in Tennessee, a “prisoner” must submit an application, in the form of a

petition, for the issuance of a writ to the court most convenient in location to the

“prisoner.” See Tenn. Code Ann. § 29-21-101, -105, -107 (1980). If, from the face

of the petition, the reviewing court finds nothing to indicate that the appellant’s

challenged convictions might be void, the court shall dismiss the petition and refuse

the issuance of the writ.1 See Tenn. Code Ann. § 29-21-101, -109. Therefore, it

follows that if the writ is refused, a hearing on the petition is precluded, thereby

eliminating the necessity of any response from the State. See State v. Harris, No.

01C01-9309-CR-00304 (Tenn. Crim. App. at Nashville, Nov. 10, 1994); Archer v.

        1
         Additiona lly, we note that h abeas corpus procee dings are essen tially civil in nature.
Thus, the Rules of Civil Procedure are applicable where consistent with Tenn. Code Ann. § 29-21-
101 et seq. Tenn. R. Civ. P. 12 provides trial courts the authority to dismiss complaints sua
sponte when the pleadings thereon fail to state a claim upon which relief can be granted.

                                                2
State, 851 S.W.2d 157, 164 (Tenn. 1993); Russell v. State ex rel. Willis, 437 S.W.2d

529, 531 (Tenn. 1969). The trial court was acting within its discretion when it

dismissed the appellant’s petition. This issue is without merit.



       Although we find the appellant’s issue as it is framed on appeal without merit,

we elect to address the contentions raised in his petition for writ of habeas corpus.

Specifically, the appellant asserts that the judgments entered against him are void

because the indictments failed to allege the mens rea of the offenses charged in

each of the above noted convictions. Moreover, the appellant asserts that his

indictments are void because the district attorney general failed to sign each count

of the indictment. The trial court properly dismissed the petition on the basis that the

law in effect before November 1, 1989 did not require the state to prove a culpable

mental state. The court also stated that the appellant’s claim was not one which is

appropriate for habeas corpus relief.



       Initially, as the trial court stated, we note that allegations concerning the

sufficiency of the indictment are not the proper subject of habeas corpus relief. See

Haggard v. State, 475 S.W.2d 186, 187 (Tenn. Crim. App. 1971); Brown v. State,

445 S.W.2d 669, 674 (Tenn. Crim. App. 1969); Barber v. State, No. 01C01-9408-

CR-00281 (Tenn. Crim. App. at Nashville, Feb. 23, 1995). In the alternative, the

appellant asks us to consider his petition as one that is appropriate for post-

conviction relief. However, the appellant’s case is also inappropriate for post-

conviction relief. His claim is barred by the statute of limitations due to the fact that

the last judgment entered against him occurred more than three years ago. See

Passarella v. State, 891 S.W.2d 619 (Tenn. Crim. App. 1994). Even if the

appellant’s claim had not been time barred, the trial court was without jurisdiction to

consider the appellant’s post-conviction claim. A post-conviction claim must be filed

within the county in which the judgment was entered. Tenn. Code Ann. § 40-30-

204(a).


                                          3
         Moreover, we find the substance of the appellant’s claim to be without merit.

The appellant’s reliance on State v. Roger Dale Hill, No. 01C01-9508-CC-00267

(Tenn. Crim. App. June 20, 1996) and State v. Nathaniel White, 03C01-9408-CR-

00277 (Tenn. Crim. App. at Knoxville, June 7, 1995) is misplaced. The decisions in

Hill and White involve post-1989 indictments and specifically address Tenn. Code

Ann. § 39-11-301(c)(1989) (requirement of a culpable mental state). The appeal

now before this court involves a pre-1989 Code indictment. Prior to 1989, the Code

did not contain a provision comparable to Tenn. Code Ann. § 39-11-301(c).

Accordingly, the decisions in Hill and White do not control review of the issue before

us.



         On the dates of the offenses in this case, aggravated rape, aggravated

kidnaping, and armed robbery were crimes that required a defendant to have an

“unlawful” or “felonious” intent. Tenn. Code Ann. §§ 39-2-603(a)(2) (1982); Tenn.

Code Ann. § 39-2-301(1982); Tenn. Code Ann. § 39-2-501 (1982). In the present

case, the counts contained within the respective indictments charged that the

appellant did “unlawfully” and “feloniously” commit each separate crime. This

language was sufficient under the law as it existed at the time. See Campbell v.

State, 491 S.W.2d 359, 361 (Tenn. 1973) (an indictment using the words

“feloniously” or “unlawfully” is sufficient). This issue is without merit.



         The appellant also contends that his indictment is insufficient to support his

convictions because the district attorney general failed to sign each count of the

indictment. The appellant’s argument is misplaced. Contrary to the appellant’s

assertion, the record contains one indictment from Davidson County, number 83-W-

185, listing eight separate counts. The record does not contain eight separate

indictments.2 The district attorney general’s signature on the last page of the

         2
          The appellant bases his contention on Usary v. S tate, 112 S.W .2d 7, 9 (T enn. 193 8).
However, he misreads the import of this case. Specifically, the case stands for the fact that the
State must prove each element of each count in a n indictm ent. Also, the court reitera tes that a
jury m ay retu rn a v erdic t findin g a de fend ant g uilty of s om e cou nts a nd no t guilty o f othe r cou nts in

                                                         4
indictment is sufficient. In any case, the appellant’s assertion is barred from our

consideration by statute. Pursuant to Tenn. R. Crim. App. 12(b)(2), any objection

based on a defect in the indictment must be made prior to trial. The appellant made

no such assertion. See Applewhite v. State, 597 S.W.2d 328, 330 (Tenn. Crim.

App. 1979). This issue is also without merit.



        The trial court’s dismissal of the appellant’s petition for writ of habeas corpus

is affirmed.




                                         ___________________________________
                                         DAVID G. HAYES, Judge



CONCUR:




______________________________
JOHN H. PEAY, Judge



______________________________
WILLIAM M. BARKER, Judge




the same indictment. This case does not require a district attorney general to sign each count of
an indictm ent.

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