            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        OCTOBER SESSION, 1997                FILED
                                                             October 17, 1997

HARVEY QUALLS,               )                               Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk
                             )   No. 02C01-9610-CC-00331
      Appellant              )
                             )   LAKE COUNTY
vs.                          )
                             )   Hon. JOE G. RILEY, JR., Judge
BILLY COMPTON, Warden,       )
and STATE OF TENNESSEE,      )   (Writ of Habeas Corpus)
                             )
      Appellee               )



For the Appellant:               For the Appellee:

HARVEY QUALLS, Pro Se            CHARLES W. BURSON
Register Number 150422           Attorney General and Reporter
Route 1, Box 330
Tiptonville, TN 38079-9775       KENNETH W. RUCKER
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493


                                 C. PHILLIP BIVENS
                                 District Attorney General
                                 P. O. Drawer E
                                 Dyersburg, TN 38024




OPINION FILED:

AFFIRMED



David G. Hayes,
Judge
                                               OPINION



        The appellant, Harvey Qualls, appeals the trial court’s dismissal of his pro se

application for writ of habeas corpus. On March 18, 1991, the appellant pled guilty

in the Shelby County Criminal Court to two counts of aggravated rape for which he

received an effective sentence of twenty-five years. 1 The appellant is currently

confined at the Lake County Regional Correctional Facility for these offenses. On

August 12, 1996, the appellant filed an application for a writ of habeas corpus

alleging that the judgment entered against him for the November 1989 aggravated

rape is void because the indictment failed to allege the mens rea of the offense

charged. On August 16, 1996, the trial court found that the appellant’s petition failed

to state “a proper subject of habeas corpus relief since the judgment is not void on

its face” and dismissed the petition. The appellant now appeals the trial court’s

dismissal.



        After a review of the record, we affirm the decision of the trial court.



        The trial court dismissed the appellant’s petition for failure to state a ground

for which habeas relief was available. The appellant asserts, relying exclusively

upon federal habeas corpus law, that the “defective” indictment against him

effectively denied the trial court the jurisdiction to enter a judgment against him,

thereby, rendering his convictions void. We reject this argument by the appellant.

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. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). It is well-


        1
         We note that the appellant pled guilty to two counts of aggravated rape, one offense
occurring between November 1, 1987 and October 31, 1989, and one offense occurring between
November 1, 1989, and November 30, 1989. In his petition and, again, in his brief, the appellant
only challeng es the of fense w hich occ urred be tween N ovem ber 1, 19 89, and N ovem ber 30, 1 989.



                                                  2
established that allegations concerning the sufficiency of the indictment are not the

proper subject of state 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). Clearly, the appellant is attempting to expand the scope

of habeas corpus in Tennessee to that which applies in the federal courts. See 28

U.S.C.S. § 2241 et seq. However, we are not obligated to incorporate federal

habeas limits and laws into our state procedure. Turks v. State, No. 02C01-9502-

CR-00035 (Tenn. Crim. App. at Jackson, Jan. 3, 1997). This argument is without

merit.



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

The appellant, in his application for writ of habeas corpus, alleges, relying upon

State v. Hill, No. 01C01-9508-CC-00267 (Tenn. Crim. App. at Nashville, June 20,

1996) and State v. White, No. 03C01-9408-CR-00277 (Tenn. Crim. App. at

Knoxville, June 7, 1995), that the judgments entered against him for the offense

aggravated rape is void because the indictment fails to allege the mens rea of the

offenses charged. In order for an indictment to satisfy both constitutional and

statutory guidelines, it must contain the material elements of the offense and must

sufficiently apprise the accused of the offense he is called upon to defend. State v.

Tate, 912 S.W.2d 785, 789 (Tenn. Crim. App. 1995); see also Tenn. Code Ann.

§40-13-202 (1990); State v. Perkinson, 867 S.W.2d 1, 5 (Tenn. Crim. App. 1992).

No requisite mental state is included in the definition of these offenses. See Tenn.

Code Ann. § 39-13-502 (1990). When the legislature fails to define a specific

mental state in the definition of an offense, permitting proof of either intent,

knowledge, or recklessness, Tenn. Code Ann. § 39-11-301(c)(1991), an allegation

of criminal conduct will provide the accused constitutionally adequate notice of the

facts constituting the offense. Moreover, since under these circumstances the

accused's mental state is not a material element of the offense and need not be


                                          3
included in the indictment, the appellant’s challenge is not jurisdictional in nature,

i.e., a defect that renders the indictment invalid. State v. Dison, No. 03C01-9602-

CC-00051 (Tenn. Crim. App. at Knoxville, Jan. 31, 1997). Other panels of this court

have upheld the validity of indictments under similar challenges. See, e.g., Slagle

v. State, No. 03C01-9704-CR-00145 (Tenn. Crim. App. at Knoxville, June 25, 1997);

State v. Vann, No. 03C01-9602-CC-00066 (Tenn. Crim. App. at Knoxville, June 10,

1997); State v. James, No. 01C01-9601-CR-00016 (Tenn. Crim. App. at Nashville,

Mar. 27, 1997); State v. Burrell, No. 03C01-9404-CR-00157 (Tenn. Crim. App. at

Knoxville, Feb. 11, 1997).



         Contrary to the appellant's assertions, the allegations in the indictment

sufficiently apprise the accused of the aggravated rape. Consequently, we find the

indictment valid.2 The trial court's dismissal of the appellant's petition for writ of

habeas corpus is affirmed.




                                               ____________________________________


         2
            Mor eove r, altho ugh not q ues tione d by th e app ellant in the p rese nt pro cee ding, we w ould
furth er find that a ny sim ilar ch alleng e in the futur e to th e pre -198 9 off ens e of a ggra vated rape is
likewise without merit. The decisions in Hill and W hite involve post-1989 indictments and
specifically address Tenn. Code Ann. § 39-11-301(c)(1990) (requirement of culpable mental
state). The appeal now before this court involves an indictment returned in 1987. Prior to 1989,
the Cod e did not c ontain a p rovision co mpa rable to T enn. Co de Ann . § 39-11 -301(c ).
Accordingly, the decisions in Hill and W hite do not control review of this issue. On the date of the
offe nse s in th is cas e, the offe nse of ag grav ated rape requ ired a defe nda nt to h ave a n “un lawfu l”
or “felonious” intent. Tenn. Code. Ann. § 39-02-603 (1982). The indictment in the present case
cha rged that th e app ellant did “u nlaw fully” an d “fe loniou sly” co mm it the c harg ed of fens e. Th is
languag e was s ufficient un der the law as it existed at the time . See Cam pbell v. State , 491
S.W .2d 3 59, 3 61 (T enn . 197 3) (an indict me nt us ing th e wo rds “ felon ious ly” or “u nlaw fully” is
sufficien t).

                                                       4
                          DAVID G. HAYES, Judge




CONCUR:




___________________________________

JOHN H. PEAY, Judge




___________________________________

PAUL G. SUMMERS, Judge




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