      IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON

                     OCTOBER 1997 SESSION           FILED
                                                    October 20, 1997

                                                    Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
RAY DARRIS THOMPSON,
                                   ) C.C.A. No. 02C01-9608-CC-00249
      Appellant,                   )
                                   ) Lake County
V.                                 )
                                   ) Honorable Joe G. Riley, Jr., Judge
                                   )
FRED J. RANEY, WARDEN,             )
                                   ) (Habeas Corpus-Rape)
      Appellee.                    )




FOR THE APPELLANT:                 FOR THE APPELLEE:

Mark A. Mesler                     John Knox Walkup
Ballin, Ballin & Fishman, P.C.     Attorney General & Reporter
200 Jefferson Avenue, Suite 1250
Memphis, TN 38103                  Elizabeth T. Ryan
                                   Assistant Attorney General
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   C. Phillip Bivens
                                   District Attorney General
                                   P.O. Drawer E
                                   Dyersburg, TN 38024




OPINION FILED: ___________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                               OPINION
        In May 1975 the appellant, Ray Darris Thompson, was convicted by a jury

of rape. He received a seventy-five year sentence. In June of 1996 he filed a

petition for writ of habeas corpus. The trial court dismissed the petition finding

that the conviction was not void and that the appellant’s sentence had not

expired. He appeals this dismissal. Upon review, we affirm the judgment of the

trial court.



        The appellant contends that his conviction is void because the trial judge

failed to exercise his duty as thirteenth juror. He claims that after the jury found

him guilty of rape the trial judge approved the verdict after stating that he

disagreed with the jury’s decision.



        We first note that habeas corpus relief is limited to cases where the

judgement is void or the petitioner’s sentence has expired. Passarella v. State,

891 S.W.2d 619, 626 (Tenn. Crim. App. 1994). Even if we assume the

appellant’s allegations true, his conviction would not be void. If a trial judge fails

to exercise his role as thirteenth juror, the appellant’s conviction would be

voidable and he would be entitled to a new trial. Therefore, the appellant fails to

allege a cognizable claim for habeas corpus relief.



        Furthermore, the appellant has failed to provide this Court with a transcript

of the proceedings in which the trial judge expressed dissatisfaction with the

jury’s verdict. Without a transcript it is impossible for this Court to determine the

merits of the appellant’s claim. Tenn. Ct. Crim. App. Rule 10.



        Accordingly, we find no error of law mandating reversal. The judgment of

the trial court is affirmed.




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                                   __________________________
                                   PAUL G. SUMMERS, Judge


CONCUR:




__________________________
JOHN H. PEAY, Judge




__________________________
DAVID G. HAYES, Judge




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