           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                            MARCH 1997 SESSION



SYVESSLE REDMOND,               *      C.C.A. # 02C01-9603-CR-00105

             Appellant,         *      SHELBY COUNTY

VS.                             *      Hon. Bernie Weinman, Judge

STATE OF TENNESSEE,             *      (Post-Conviction)

             Appellee.          *




For Appellant:                         For Appellee:

Syvessle Redmond                       Charles W. Burson
Pro Se                                 Attorney General & Reporter
No. 121145
Northwest Correctional Center          Clinton J. Morgan
Route 1, P.O. Box 660                  Assistant Attorney General
Tiptonville, TN 38079                  450 James Robertson Parkway
                                       Nashville, TN 37243-0493

                                       Reginald Henderson
                                       Asst. District Attorney General
                                       Criminal Justice Center
                                       Third Floor
                                       201 Poplar
                                       Memphis, TN 38103


OPINION FILED:_____________________



AFFIRMED



PER CURIAM
                                       OPINION

              The petitioner, Syvessle Redmond, appeals the trial court's denial of

his petition for post-conviction relief. The issue presented for review is whether the

trial court correctly dismissed the petition without an evidentiary hearing on the basis

that it was barred by the statute of limitations. We affirm the judgment of the trial

court.



              The petitioner pled guilty in 1988 to second degree murder and

received a Range II sentence of thirty-five years. No prior appeals or post-

conviction petitions have been filed. This petition, seeking either post-conviction or

habeas corpus relief, was filed on December 7, 1995. It alleges that the petitioner

received ineffective assistance of counsel and that his guilty plea was involuntary.

The trial court dismissed the petition as being time-barred. On appeal, the petitioner

raises the additional arguments that the evidence was insufficient to sustain his

conviction and that his sentence was excessive.



              Effective May 10, 1995, the new Post-Conviction Procedure Act

replaced the prior act in its entirety. See 1995 Tenn. Pub. Act 207, §§ 1 and 3.

Because this petition was filed in December of 1995, the new act applies. The most

recent legislation replaced a three-year with a one-year limitation:

              (a) ...[A] person in custody under a sentence of a court of
              this state must petition for post-conviction relief under
              this part within one (1) year of the date of the final action
              of the highest state appellate court to which an appeal is
              taken or, if no appeal is taken, within one (1) year of the
              date on which the judgment became final, or
              consideration of such petition shall be barred. The
              statute of limitations shall not be tolled for any reason....

              (b) No court shall have jurisdiction to consider a petition
              filed after such time unless:

                     (1) The claim in the petition is based upon a final
              ruling of an appellate court establishing a constitutional

                                           2
              right that was not recognized as existing at the time of
              trial, if retrospective application of that right is required.
              Such petition must be filed within one (1) year of the
              ruling of the highest state appellate court or the United
              States [S]upreme [C]ourt establishing a constitutional
              right that was not recognized as existing at the time of
              trial;

                      (2) The claim in the petition is based upon new
              scientific evidence establishing that such petitioner is
              actually innocent of the offense or offenses for which the
              petitioner was convicted; or

                      (3) The claim asserted in the petition seeks relief
              from a sentence that was enhanced because of a
              previous conviction and such conviction in the case in
              which the claim is asserted was not a guilty plea with an
              agreed sentence, and the previous conviction has
              subsequently been held to be invalid, in which case the
              petition must be filed within one (1) year of the finality of
              the ruling holding the previous conviction to be invalid.

Tenn. Code Ann. § 40-30-202 (Supp. 1996).



              Because the conviction in this case became final in 1988, this petition

appears to have been barred not only by the current one-year statute of limitations

but also the former three-year statute. Moreover, the grounds raised in the petition

and on appeal do not appear to fall within any of the exceptions set out in Tenn.

Code Ann. § 40-30-202(b)(1), (2), or (3) (Supp. 1996).



              In Arnold Carter v. State, No. 03C01-9509-CC-00270 (Tenn. Crim.

App., at Knoxville, July 11, 1996), appeal granted, (Tenn., Dec. 2, 1996), a panel of

this court, by a two-to-one margin, ruled that the literal terms of the new statute

created a one-year window, starting on May 10, 1995, during which post-conviction

petitions may be filed, notwithstanding the date of the judgment:

              This act shall take effect upon becoming a law, the public
              welfare requiring it and shall govern all petitions for post-
              conviction relief filed after this date, and any motions
              which may be filed after this date to reopen petitions for
              post-conviction relief which were concluded prior to the
              effective date of this act. Notwithstanding any other

                                             3
              provision of this act to the contrary, any person having a
              ground for relief recognized under this act shall have at
              least one (1) year from the effective date of this act to file
              a petition or a motion to reopen under this act.

1995 Tenn. Pub. Act 207, § 3 (emphasis added).



              This majority found no ambiguities in the terminology of the statute

despite the reasonable argument by the dissent to the contrary. In Carter, our

supreme court granted the state's application for permission to appeal. While no

decision has yet been filed, other panels of this court have adopted the dissenting

view in Carter and have held that the new act did not create a new one-year filing

period. See, e.g., Ronald Albert Brummitt v. State, No. 03C01-9512-CC-00415

(Tenn. Crim. App., at Knoxville, Mar. 11, 1997); Jimmy Earl Lofton v. State, No.

02C01-9603-CR-00073 (Tenn. Crim. App., at Jackson, Mar. 7, 1997); Roy Barnett v.

State, No. 03C01-9512-CV-00394 (Tenn. Crim. App., at Knoxville, Feb. 20, 1997);

Stephen Koprowski v. State, No. 03C01-9511-CC-00365 (Tenn. Crim. App., at

Knoxville, Jan. 28, 1997); Johnny L. Butler v. State, No. 02C01-9509-CR-00289

(Tenn. Crim. App., at Jackson, Dec. 2, 1996). A majority of this panel now adheres

to the holding in these subsequent cases. Thus, treating the petition as one for

post-conviction relief, this claim is barred by the statute of limitations.



              We also note the petitioner sought habeas corpus relief. The habeas

corpus remedy in this state is limited. The writ may be granted only where a

petitioner has established lack of jurisdiction for the order of confinement or that he

is otherwise entitled to immediate release because of the expiration of his sentence.

See Ussery v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell,

443 S.W.2d 839 (Tenn. Crim. App. 1969). If, however, a petitioner attempts to set

aside a conviction because of the abridgement of a constitutional right, the petitioner

must use the Post-Conviction Procedure Act. Luttrell v. State, 644 S.W.2d 408

                                             4
(Tenn. Crim. App. 1982).



              While there is a statute of limitations upon actions for post-conviction

relief, 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 v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts, 833

S.W.2d at 62.



              This action seeks to set aside the prior convictions based upon the

sufficiency of the evidence, the excessiveness of the sentence, the involuntariness

of the guilty plea, and ineffectiveness of counsel. We do not view these arguments

as attacks upon a void judgment. See Passarella v. State, 891 S.W.2d 619, 627-28

(Tenn. Crim. App. 1994). 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.



              Because the petition is filed beyond the statute of limitations for

seeking post-conviction relief and does not assert a basis for habeas corpus relief,

the judgment is affirmed.



                                                  PER CURIAM


                                            5
    Joe B. Jones, Presiding Judge
    Gary R. Wade, Judge
    Curwood Witt, Judge




6
