             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE             FILED
                           JANUARY 1998 SESSION
                                                           June 12, 1998

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

MOHAMED F. ALI                    )
                                  )    NO. 03C01-9704-CR-00163
      Appellant                   )
                                  )    JOHNSON COUNTY
v.                                )
                                  )    HON. LYNN BROWN
STATE OF TENNESSEE                )
                                  )    (Habeas Corpus)
      Appellee.                   )
                                  )



For the Appellant:                     For the Appellee:

Mohamed F. Ali, pro se                 John Knox Walkup
N.E.C.C. 226333                        Attorney General & Reporter
P.O. Box 5000
Mountain City, TN. 37683               Michael J. Fahey, II
                                       Assistant Attorney General
                                       2nd Floor, Cordell Hull Building
                                       425 Fifth Avenue North
                                       Nashville, TN. 37243

                                       David E. Crockett
                                       District Attorney General
                                       Route 19, Box 99
                                       Johnson City, TN. 37601




OPINION FILED:______________________

AFFIRMED

WILLIAM M. BARKER, JUDGE
                                        OPINION

       The appellant, Mohamed F. Ali, appeals the Johnson County Criminal Court’s

dismissal of his pro se petition for a writ of habeas corpus. We affirm the judgment of

the trial court.

       The appellant was originally convicted by a jury of rape and attempting to bribe

a witness and was sentenced to a consecutive term of fifteen (15) years. In his direct

appeal, this Court affirmed appellant’s convictions, but vacated the sentences for

further proceedings. See State v. Mohamed F. Ali, No. 03C01-9405-CR-00171 (Tenn.

Crim. App. at Knoxville, Sept. 26, 1996), perm. app. denied (Tenn. June 2, 1997). We

remanded the case to the trial court for a determination of whether the appellant had

affirmatively waived his right to counsel in the post-trial proceedings. If no such

finding could be made from the record, then a new sentencing hearing was to be

conducted. See separate op. at 5-6.

       Thereafter, the appellant filed an application for permission to appeal in our

state supreme court. That application was still pending on March 7, 1997, when

appellant filed his pro se petition for a writ of habeas corpus. Appellant contended

that he was entitled to habeas corpus relief based upon two grounds: (1) his

sentences had expired pursuant to this Court’s decision on direct appeal; and (2) his

convictions and sentences were void as a result of the alleged denial of his right to

counsel at the sentencing hearing. The trial court summarily dismissed appellant’s

petition upon finding that his application for permission to appeal was still pending

before the supreme court and that any denial of his right to counsel was not a

cognizable claim for habeas corpus.

       On appeal, the appellant challenges the trial court’s dismissal of his petition

and reasserts the above grounds for relief. He further contends that habeas corpus is

appropriate due to the alleged denial of his right to counsel at the hearing on his

motion for a new trial.



                                            2
       Initially, we note that the appellant was seeking permission to appeal in our

supreme court when he filed his habeas corpus petition. It is well established that a

petition for a writ of habeas corpus or a petition under the Post Conviction Procedure

Act, complaining of a conviction and sentence, cannot be maintained while a direct

appeal of the same conviction and sentence is being prosecuted. See Crain v. State,

451 S.W.2d 695, 696 (Tenn. Crim. App. 1969), perm. app. denied (Tenn. 1970);

Hunter v. State, 443 S.W.2d 532 (Tenn. Crim. App. 1969), perm. app. denied (Tenn.

1969). Habeas corpus may not be used as a substitute for or to serve the purpose of

an appeal. See State ex rel. Dawson v. Bomar, 354 S.W.2d 763, 766 (Tenn. 1962),

cert. denied. 370 U.S. 962 (1962).

       In both the habeas corpus petition and the application for permission to appeal,

the appellant alleged that he was denied the right to counsel during the post-trial

hearings. That simultaneous pursuit of relief from the same convictions and

sentences was improper and the habeas corpus petition was properly dismissed.

       Nevertheless, even if addressed on the merits, appellant’s petition for a writ of

habeas corpus must fail. A criminal defendant is not entitled to a writ of habeas

corpus unless he or she proves by a preponderance of the evidence that the judgment

is void or the term of imprisonment has expired. See State ex rel. Jordan v. Bomar,

398 S.W.2d 724, 726 (Tenn. 1965); State ex rel. Kuntz v. Bomar, 381 S.W.2d 290,

291 (Tenn. 1964). Trial courts may summarily dismiss a petition for a writ of habeas

corpus if the petition fails to state a cognizable claim on its face. See Tenn. Code

Ann. § 29-21-109 (Supp. 1994).

       In this case, appellant contended that his sentences had expired pursuant to

this Court’s opinion in the direct appeal and that his sentences were void from the

alleged denial of his right to counsel at the sentencing hearing. The trial court

dismissed appellant’s petition upon finding that the “cause fails to state a claim upon

which relief can be granted.” We find nothing to disturb the trial court’s decision. The



                                            3
record reflects that appellant’s application for permission to appeal was pending when

he filed his habeas corpus petition. Therefore, at that time, this Court’s decision in the

direct appeal was stayed pending final disposition by the high court. Tenn. R. App. P.

42(b). Appellant’s sentences were not expired.1

        Moreover, the trial court correctly ruled that any infringement of appellant’s right

to counsel was not cognizable by habeas corpus. This Court has previously held that

a claim alleging ineffective assistance of counsel may render a judgment voidable, but

not void, unless the face of the record establishes that the trial court did not have

jurisdiction of the defendant, the convicted offense, or the authority to render the

judgment. See Passarella v. State, 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994),

perm. app. denied (Tenn. 1994). Similarly, a denial of the right to counsel under the

Sixth Amendment to the United States Constitution and Article I, section 9 of our state

constitution would make the judgment voidable, not void.

        Based upon the foregoing, we conclude that the trial court properly dismissed

appellant’s pro se petition for a writ of habeas corpus. The judgment of the trial court

is affirmed.



                                                             ____________________________
                                                             WILLIAM M. BARKER, JUDGE



CONCUR:


_____________________________
JOSEPH M. TIPTON, JUDGE


_____________________________
J. CURWOOD WITT, JR., JUDGE



        1
          The s uprem e court d enied ap pellant’s ap plication for p erm ission to ap peal on J une 2, 19 97. In
that regard, the opinion of this Court in the direct appeal became final and the case should be addressed
by the trial cour t consiste nt with that op inion. See State v. Irick, 906 S.W .2d 440, 443 (Tenn. 1995 );
Tenn . R. App. P . 43(c).

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