            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE             FILED
                            JANUARY 1998 SESSION
                                                          March 25, 1998

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk
CECIL RAY COLLINS,             *    C.C.A. # 03C01-9704-CR-00148

      Appellant,               *    JOHNSON COUNTY

VS.                            *    Hon. Lynn W. Brown, Judge

STATE OF TENNESSEE,            *    (Petition for Writ of Habeas Corpus)

      Appellee.                *




For Appellant:                      For Appellee:

Cecil Ray Collins, pro se           John Knox Walkup
NECC #209223                        Attorney General and Reporter
P.O. Box 5000
Mountain City, TN 37683             Marvin E. Clements, Jr.
                                    Assistant Attorney General
                                    Cordell Hull Building, Second Floor
                                    425 Fifth Avenue North
                                    Nashville, TN 37243-0493




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, JUDGE
                                       OPINION

              On July 8, 1992, the petitioner, Cecil Ray Collins, entered a plea

agreement to second degree murder and received a Range II rather than a Range I

sentence. On December 4, 1996, the petitioner filed for a writ of habeas corpus in

the Criminal Court of Johnson County. He alleged that his guilty plea was neither

knowingly nor voluntarily made and, among other things, that his counsel was

ineffective. The trial court dismissed the petition without an evidentiary hearing. In

this appeal of right, the petitioner concedes the validity of his guilty plea but argues

that his Range II sentence is illegal in violation of Tenn. Code Ann. § 40-35-

106(b)(5), that his counsel was ineffective, and that the trial court erred by

dismissing his petition without the appointment of counsel for an evidentiary hearing.



              We affirm the judgment.



              After a review of the petition, the trial court entered an order of

dismissal on the following grounds:

              As grounds[,] the petitioner alleges that he was unaware
              of the significant consequences of ... his guilty plea and
              that his attorney ... was ineffective. All of these grounds
              must be presented in a petition for post-conviction relief
              in the Criminal Court for Knox County. However, the
              three (3) year statute of limitations for post-conviction
              relief [barred any petition after] July, 1995.

              Relief by habeas corpus is available ... only when it
              appears on the face of the judgment or record that the
              trial court was without jurisdiction to convict or sentence
              the petitioner, or that the sentence of imprisonment has
              otherwise expired. The relief requested by the petitioner
              in this cause is not available by habeas corpus.



              Habeas corpus relief is limited to instances where the petitioner

establishes by a preponderance of the evidence that the judgment is void on its face

or that the term of imprisonment has expired. State ex rel. Hall v. Meadows, 389

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S.W.2d 256, 259 (Tenn. 1965). If a petition fails to state a cognizable claim, the

petition may be dismissed summarily. Passarella v. State, 891 S.W.2d 619, 627

(Tenn. Crim. App. 1994).



                 If a petitioner attempts to set aside a conviction because of the

abridgment of a constitutional right, the statutory post-conviction procedure is the

single means of relief. Luttrell v. State, 644 S.W.2d 408 (Tenn. Crim. App. 1982).

In this instance, classification of the petition as one for post-conviction relief, as is

authorized by statute, see Tenn. Code Ann. § 40-30-108 (repealed 1995), would

have resulted in a time-barred dismissal. See Tenn. Code Ann. § 40-30-102

(repealed 1995); Archer v. State, 851 S.W.2d 157 (Tenn. 1993). The failure to

advise the defendant fully of rights waived by the entry of a guilty plea renders the

judgment voidable rather than void. See Passarella, 891 S.W.2d at 627-28. While

there is a three-year statute of limitations upon actions for post-conviction relief,

Tenn. Code Ann. § 40-30-102 (repealed 1995),1 habeas corpus has no statutory

period of limitations. A petitioner may not, however, file a habeas corpus action as

a means of circumventing the statute of limitations contained in the Post-Conviction

Procedure Act. See Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). Habeas

corpus relief is available in this state only when it appears on the face of the

judgment or the record that the trial court was without jurisdiction to convict or

sentence the defendant or that the sentence of imprisonment has otherwise expired.

Archer, 851 S.W.2d at 164.



                 While the petitioner concedes in this appeal that the guilty plea was

knowingly and voluntarily entered, the trial court, in our view, properly rejected the



        1
        The m ost rece nt Post-C onviction P rocedu re Act pro vides for a one-year statute of lim itations.
Tenn. Code A nn. § 40-30-202 (Supp. 199 6).

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claim. This action seeks to set aside the conviction based in part upon the failure of

counsel to adequately represent the petitioner. We view that as an attack upon a

voidable rather than a void judgment. See Passarella, 891 S.W.2d at 627-28. The

writ of habeas corpus is available only upon an expiration of the sentence or a

showing of deficiency on the face of the judgment. Neither has been shown here.



              In Hicks v. State, 945 S.W.2d 706 (Tenn. 1997), our supreme court

ruled that a Range II sentence imposed under a plea bargain, even though the

defendant would otherwise qualify as only a Range I offender, was valid so long as

the plea was knowingly and voluntarily made. Thus, the petitioner would not be

entitled to relief on the merits of the claim whether made through a habeas corpus

or post-conviction petition.




                                         ________________________________
                                         Gary R. Wade, Judge

CONCUR:



_____________________________
William M. Barker, Judge



_____________________________
Curwood Witt, Judge




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