            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT JACKSON

                              AUGUST 1996 SESSION



JEROME SYDNEY BARRETT,           *          C.C.A. # 02C01-9508-CC-00233
                                 *
                 Appellant,      *          LAKE COUNTY
VS.                              *
                                 *          Hon. Joe G. Riley, Jr., Judge
STATE OF TENNESSEE,

                 Appellee.
                                 *
                                 *
                                 *
                                            (Habeas Corpus)      FILED
                                 *                               March 26, 2008

                                                                 Cecil Crowson, Jr.
                                                                  Appellate Court Clerk


For Appellant:                              For Appellee:

Jerome Sydney Barrett                       Charles W. Burson
Pro Se                                      Attorney General & Reporter
Lake County Regional Correctional
  Facility                                  Ellen H. Pollack
Rt. 1, Box 330                              Assistant Attorney General
Tiptonville, TN 38079                       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




GARY R. WADE, JUDGE
                                        OPINION

              The petitioner appeals the trial court's denial of his petition for a writ of

habeas corpus. There was no evidentiary hearing. While the petitioner submits an

extensive brief outlining a number of issues, we have summarized his claims as

follows:

              (1)    whether the trial court erred when it determined
              that sentence reform legislation adopted in 1979 and
              1989 did not apply to petitioner's sentence;

              (2)   whether the subsequent sentence reform acts
              deny petitioner equal protection under the law and due
              process of the law;

              (3)  whether the petitioner's sentence is cruel and
              unusual punishment;

              (4)   whether the trial court erred by not appointing
              counsel to represent the petitioner during this habeas
              corpus proceeding;

              (5)     whether the trial court erred by not allowing the
              petitioner an evidentiary hearing on this petition; and

              (6)    whether the trial court erred by determining that it
              did not have jurisdiction to alter the petitioner's sentence
              in a habeas corpus proceeding.



              We affirm the judgment of the trial court.



              The record does not include the original judgment. The pleadings

indicate the petitioner was convicted of rape in 1976 and sentenced to a term of

sixty years. In 1979 and then again in 1989, our state legislature changed the

statute which governed the sentence for the offense. The petitioner filed this

petition for writ of habeas corpus in June of 1995. The trial court denied the petition

without an evidentiary hearing, holding that it had no jurisdiction to modify the

sentence and ruling that the petitioner was not entitled to habeas corpus relief.




                                   2
              Initially, we must point out that habeas corpus is limited in scope. The

writ of habeas corpus, codified at Tenn. Code Ann. §§ 29-21-101 to -130, will issue

only in the case of a void judgment or to free a prisoner held in custody after his

term of imprisonment has expired. State ex rel. Hall v. Meadows, 389 S.W.2d 256,

259 (Tenn. 1965). Unlike the post-conviction petition, the purpose of a habeas

corpus petition is to contest void, and not merely voidable, judgments. See State

ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968). "A petitioner

cannot collaterally attack a facially valid conviction in a habeas corpus proceeding."

Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). Habeas corpus actions may,

however, be brought to contest an illegal confinement at any time while the

petitioner is incarcerated. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).



                                            I

              The petitioner asserts that he is being held beyond the expiration date

of his sentence. He argues that the 1989 Criminal Sentencing Reform Act repealed

the law applicable at the time of his sentence and thus, mandates a resentencing

within the 1989 guidelines. He asserts that under the new guidelines he would be

entitled to immediate release.



              We cannot agree. The language of Tenn. Code Ann. § 40-35-117(c)

is clear: "For all persons who committed crimes prior to July 1, 1982, prior law shall

apply and remain in full force and effect in every respect, including, but not limited

to, sentencing, parole and probation." In State ex rel. Stewart v. McWherter, 857

S.W.2d 875 (Tenn. Crim. App. 1992), this court held that the "1989 Sentencing Act

provides that it applies only to those offenders who are sentenced after its effective

date" on November 1, 1989. Id. at 876. While the 1989 Act benefitted some

offenders who committed their crimes between 1982 and 1989 and were sentenced


                                   3
after its effective date, it does not apply to the petitioner. See Tenn. Code Ann. §

40-35-117(b). The Criminal Sentencing Reform Act of 1989, by its express

language, did "not affect rights and duties that matured, penalties that were

incurred, or proceedings that were begun before its effective date." 1989 Tenn.

Pub. Acts ch. 591, § 115. Those persons who had been convicted of crimes prior to

July 1, 1982, such as the petitioner, remained under the "prior law ... in every

respect, including, but not limited to, sentencing, parole and probation." Tenn. Code

Ann. § 40-35-117(c).



              In the alternative, the petitioner argues that Tenn. Code Ann. § 39-

114 (1975), which has been repealed and replaced by § 39-1-105 (1982) and later

§ 39-11-112 (1989), would require the state to reduce his sentence. The petitioner

claims that § 39-114 must be applied because it was the statute in force both at the

time of the offense and his sentence:

              39-114. Repealed or amended laws--Application in
              prosecution for offense--Whenever any penal statute
              or penal legislative act of the state is repealed or
              amended by a subsequent legislative act, any offense,
              as defined by such statute or act being repealed or
              amended, committed while such statute or act was in full
              force and effect shall be prosecuted under such act or
              statute in effect at the time of the commission of the
              offense. In the event the subsequent act provides for a
              lesser penalty, any punishment imposed shall be in
              accordance with the subsequent act.

(emphasis added). The petitioner claims the definition of "prosecution" includes the

total period during which he is serving his sentence under the prior law; he asserts

that any favorable changes in the sentencing statute must be applied to his

sentence.




              We cannot agree. The term "prosecution" does not include the


                                  4
enforcement of the sentence. Section 39-114, Tenn. Code Ann., applies only in

cases where the accused is to be tried under the substantive law in effect at the

time of the offense and a new statute, calling for a lesser punishment, is enacted

before the imposition of the sentence. Here the petitioner was sentenced some

three years before the first change in the rape statute in 1979 and thirteen years

before the second in 1989.



                                         II and III

              The petitioner claims that his lengthier sentence denies equal

protection under the law and due process of the law. Article 11, section 8 of the

Tennessee Constitution prohibits legislation providing favorable treatment to any

individual or class of individuals. The Fourteenth Amendment to the United States

Constitution is closely akin to our state's constitutional provision. See Marion

County, Tenn., River Transp. Co. v. Stokes, 117 S.W.2d 740 (Tenn. 1938). All

persons similarly situated must be treated alike. The legislature may, however, treat

a class of persons differently so long as the classification has a reasonable

relationship to a legitimate state interest.



       In State ex rel. Bobby L. Crum v. Ned McWherter, et al., our court applied this

"rational basis" test in similar circumstances:

              [T]here is a legitimate state interest at stake in not
              allowing the reopening of a virtual [P]andora's box of all
              cases involving sentences imposed before November 1,
              1989, but which are presently being served by
              confinement, parole or probation.

                       Society has a strong interest in preserving the
              finality of criminal litigation resulting in a conviction and
              sentence which were valid at the time of their imposition.
              The wholesale unsettling of final judgments of conviction
              and sentence which would occur if the 1989 Act were
              applicable as the petitioner claims is a price the
              legislature was justified in not paying when it provided
              that the Act would not apply to previously sentenced

                                    5
              offenders.

No. 02C01-9108-CC-0018 slip op. at 4 (Tenn. Crim. App., at Jackson, May 13,

1992).



              While we do not find any reason to apply a more stringent

constitutional standard, this particular statute would also pass constitutional muster

under a strict scrutiny test. Applying a strict scrutiny test would not automatically

invalidate the legislation. If a compelling state interest can be shown, legislation can

survive a strict scrutiny test even though a fundamental right is involved or a

"suspect class" and other persons are not treated equally. Doe v. Norris, 751

S.W.2d 834, 841 (Tenn. 1988).



              Although there were other reasons, the 1989 Act was primarily

developed to relieve prison overcrowding. By applying the reforms to current and

future cases, the legislature was able to reduce, or at least better control, prison

populations. See State ex rel. Stewart, 857 S.W.2d at 877. The avoidance of the

time and expense associated with any resentencing procedure for previously

convicted and sentenced prison inmates is, standing alone, a compelling reason to

justify different treatment. Thus, we find neither equal protection nor class legislation

violations under even the most stringent test possible.



              In a related argument, the petitioner asserts that the passage of the

1989 Act impliedly declared the prior sentencing range, eight years to life, to be

cruel, unusual, and disparate. We disagree. The Eighth Amendment prohibits

sentences disproportionately severe when compared to the crime committed. Just

because a penalty is reduced by new legislation does not mean, however, that the

sentence under the prior law was disproportionate.


                                   6
               The petitioner has not cited any authority to support his claim that his

sixty-year sentence is disproportionate for the offense of rape. In State v. Gann,

733 S.W.2d 113 (Tenn. Crim. App. 1987), this court held a sentence of ninety-nine

years for aggravated rape was not cruel and unusual punishment. The legislature

may limit a new sentencing enactment to prospective application without

determining that the old sentencing structure was a violation of the Eighth

Amendment. That is the very case here. We do not find the prior sentence

constitutionally infirm.



                                        IV and V

               The petitioner also claims that the trial court erred when it declined to

appoint counsel to represent the petitioner for this proceeding and failed to afford an

evidentiary hearing.



               This court has previously held as follows:

               [There is no requirement] that counsel should be
               appointed in all cases requesting the writ of habeas
               corpus before dismissal of incompetent petitions. While
               it is true that Tennessee Code Annotated Section 40-14-
               204 allows the appointment of counsel "if necessary" in
               habeas corpus proceedings, there is no constitutional
               right to counsel in a habeas corpus proceeding.

Elmer Lester Fritts v. State, No. 02C01-9210-CC-00243 slip op. at 3 (Tenn. Crim.

App., at Jackson, Sept 22, 1993)(citations omitted). "It is elementary that a habeas

corpus petition may be dismissed without a hearing, and without the appointment of

counsel for a hearing, unless it alleges facts showing the denial of state or federal

constitutional rights or some fatal jurisdictional fault." State ex rel. Edmondson v.

Henderson, 421 S.W.2d 635, 636-37 (Tenn. 1967). See also State ex rel. Wood v.

Johnson, 393 S.W.2d 135 (Tenn. 1965); State ex rel. Hall v. Meadows, 389 S.W.2d

256 (Tenn. 1965); Bland v. State, 451 S.W.2d 699 (Tenn. Crim. App. 1969); State


                                   7
ex rel. Goss v. Heer, 413 S.W.2d 688 (Tenn. 1967); Horace Jones v. Raney, No.

02C01-9402-CC-00021 (Tenn. Crim. App., at Jackson, June 21, 1995).



              First, the petitioner has no absolute right to counsel. Nothing in this

record demonstrates that one was "necessary" with the meaning of the statute.

Secondly, there is no mandatory right to a hearing and the trial court is not required

to hear proof unless the petitioner raises a colorable claim in his petition. See State

ex rel. Byrd v. Bomar, 381 S.W.2d 280 (Tenn. 1964). Section 29-21-109, Tenn.

Code Ann., provides as follows:

              If, from the showing of the petitioner, the plaintiff would
              not be entitled to any relief, the writ may be refused, the
              reasons for such refusal being briefly endorsed upon the
              petition, or appended thereto.



              The trial court followed the statutory procedure. None of the

petitioner's claims, even if factually accurate, would have established that the

conviction was void or his sentence had expired.



                                           VI

              In the alternative, the petitioner seeks some form of equitable relief by

having the trial court modify or correct his sentence. He argues he is entitled to this

relief because of the constitutional deprivations, namely class legislation and denial

of equal protection of the laws. See 42 U.S.C. § 1983. The trial court held that it

had no jurisdiction to modify the sentence. We must agree with the trial court; the

petitioner is simply not entitled to relief no matter what the procedure. The only

relief available under the state writ of habeas corpus is release from custody. Tenn.

Code Ann. § 29-21-122(a). "No statutory provision is made for passing on the

validity of the judgment other than to release or detain. Ussery v. Avery, 432

S.W.2d 656, 658 (Tenn. 1968). Accordingly, the trial court could not resentence the

                                  8
defendant. Neither declaratory judgment nor other equitable remedies may be used

to challenge the fact or duration of imprisonment.



              In this state, one who is restrained of his liberty may inquire into the

cause of his imprisonment through the remedy of habeas corpus. Tenn. Code Ann.

§ 29-21-101. If his conviction or sentence is void or voidable because of an

abridgment of any right guarded by the Tennessee Constitution or the United States

Constitution he may seek relief under the Post-Conviction Procedure Act. Tenn.

Code Ann. § 40-30-202. Except in limited circumstances under the Uniform

Administrative Procedure Act and writ of certiorari, these two remedies are the

exclusive means by which a prisoner may obtain relief from confinement.



              In the federal courts, the remedies of declaratory judgment, injunctive

relief, civil rights remedies, and mandamus cannot be used by a prisoner to

challenge the length of his sentence. See Preiser v. Rodriguez, 411 U.S. 475

(1973). Habeas corpus is the only federal remedy:

                      The broad language of § 1983 . . . is not
              conclusive of the issue before us. The statute is a
              general one, and, despite the literal applicability of its
              terms, the question remains whether the specific federal
              habeas corpus statute, explicitly and historically designed
              to provide the means for a state prisoner to attack the
              validity of his confinement, must be understood to be the
              exclusive remedy available in a situation ... where it so
              clearly applies.

Id. at 489.



              Similarly, state courts should limit the procedural avenues available to

challenge confinement to those specifically designed to do so. See Williams v.

Davis, 386 So.2d 415, 417 (Ala. 1980). In our view, habeas corpus and petitions

filed pursuant to the Post-Conviction Procedure Act have such a design. As such,


                                   9
they are the exclusive state remedies for relief.



              Accordingly, the judgment is affirmed.



                                   Gary R. Wade, Judge

CONCUR:




William M. Barker, Judge




Jerry L. Smith, Judge




                                  10
