             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT KNOXVILLE              FILED
                           FEBRUARY 1999 SESSION
                                                                 April 20, 1999

                                                               Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk


SAMMY J. MILLER,                 )
                                 )      C.C.A. No. 03C01-9807-CR-00262
      Appellant,                 )
                                 )      Johnson County
v.                               )
                                 )      Honorable Lynn W . Brown, Judge
STATE OF TENNESSEE,              )
                                 )      (Habeas Corpus)
      Appellee.                  )




FOR THE APPELLANT:                      FOR THE APPELLEE:

Sammy J. Miller #85359, pro se          John Knox Walkup
Northeast Correction Complex            Attorney General & Reporter
P. O. Box 5000                          425 Fifth Avenue North
Mountain City, TN 37683                 Nashville, TN 37243-0493

                                        R. Stephen Jobe
                                        Assistant Attorney General
                                        425 Fifth Avenue North
                                        Nashville, TN 37243-0493




OPINION FILED: ____________________________________


AFFIRMED


L. T. LAFFERTY, SENIOR JUDGE
                                       OPINION


         The appellant, Sammy J. Miller, herein referred as “the petitioner,” appeals the

Johnson County Criminal Court’s dismissal of his pro se petition for habeas corpus relief.

After a jury trial in Hamilton County in December, 1977, the petitioner was found guilty of

murder first degree and sentenced to death. On direct appeal, the petitioner’s conviction

for murder first degree was affirmed, but the Supreme Court modified the sentence of

death to reflect a sentence of life imprisonment. Miller v. State, 584 S.W.2d 758 (Tenn.

1979).



         The petitioner filed a petition for post-conviction relief, alleging certain jury

instructions given at his trial violated his constitutional rights. The trial court denied relief

and this Court affirmed that dismissal. Sammy J. Miller v. State, Hamilton County, No.

1100 (Tenn. Crim. App., Knoxville, May 17, 1989), per. app. denied (Tenn. 1989).



         The instant habeas corpus petition was filed May 20, 1998.1 In seeking relief via the

petition, the petitioner contends: (1) he suffered from ineffective assistance of counsel; (2)

he is innocent of the crime; (3) he was tried and convicted under an unconstitutional and

repealed law or statute; and (4) it is unclear what law was in effect at the time the petitioner

allegedly committed his crime. The trial court dismissed the petition in that the relief sought

is not available by habeas corpus.



         After a review of the entire record, briefs of the parties, and appropriate law, we

affirm the trial court’s dismissal.



                                               I.


         1
        On May 1, 1997, the petitioner filed a petition for habeas corpus relief in the
Hamilton County Criminal Court, while an inmate at the Northeast Correction Complex in
Mountain City, Tennessee. The trial court dismissed the petition pursuant to Tenn. Code
Ann. § 29-21-105, “[t]he application should be made to the Court or Judge most convenient
in point of distance to the applicant unless a sufficient reason be given in the petition for
not applying to such court or judge.” This Court affirmed the trial court’s dismissal of the
petition. Sammy J. Miller v. State, No. 03C01-9710-CR-00444 (Tenn. Crim. App.,
Knoxville, May 6, 1998).

                                               -2-
                      GROUNDS FOR HABEAS CORPUS RELIEF

       It is well recognized in Tennessee that habeas corpus relief is only available when

a conviction is void because the convicting court was without jurisdiction or authority to

sentence a defendant, or that a defendant’s sentence has expired, and the petitioner is

being illegally restrained. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); see also

Passarella v. State, 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994). A void judgment is one

which shows “upon the face of the judgment or the record of the proceedings upon which

the judgment is rendered” that the convicting court was without jurisdiction. Archer, 851

S.W.2d at 161; Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992).



       In the case at bar, the petitioner presents two central arguments. First, the

petitioner contends he received ineffective assistance of counsel at trial. Second, the

petitioner contends that he was convicted pursuant to an unconstitutional or repealed

statute.

                                              II.

                CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

       A claim of ineffective assistance of counsel is not applicable to petitions for habeas

corpus relief. Such a claim, if sustainable, would only make the petitioner’s conviction

voidable, not void. Our post-conviction process, set out in Tenn. Code Ann. § 40-30-201,

et seq. (§ 40-30-101, et seq. repealed), provides for challenges to convictions that are

alleged to be void or voidable because of the abridgment of constitutional rights. A

petitioner cannot collaterally attack a facially valid conviction in a habeas corpus

proceeding. Potts, 833 S.W.2d at 62; State ex rel. Holbrook v. Bomar, 211 Tenn. 243,

247, 364 S.W.2d 887, 889 (Tenn. 1963). Consideration of such claim was ripe for

determination in the petitioner’s claim for post-conviction relief in 1989. We find the trial

court was correct in holding this claim was not a ground for habeas relief, and the petition

could not be treated as a petition for post-conviction relief, as it is time barred.



                                             III.

                             UNCONSTITUTIONAL STATUTE


                                             -3-
       In this complaint, the petitioner contends that the indictment in his cause should

have contained the law, rule, statute, or regulation in effect when the alleged offense was

committed. Also, the petitioner contends (a) the Tennessee legislature repealed all

statutes (murder first degree) for a period of two weeks, and during such hiatus the alleged

crime of murder was committed and (b) there was no law in place at the time the jury

verdict was returned. The state argues the substance of this claim has been previously

determined on direct appeal. Miller v. State, 584 S.W.2d 758, 762 (Tenn. 1979).



       We believe the petitioner is confused when he claims there was no murder statute

in effect at the time of the alleged offense, April 7, 1976. However, there arose a

controversy over the constitutionality of the death penalty under the murder statutes, Tenn.

Code Ann. § 39-2405 and § 39-2406. In Miller, the Supreme Court found, after a review

of the record, the defendant was convicted upon legally sufficient evidence in a fair and

error-free trial, and affirmed the conviction without hesitation. The controversy over the

application of the death penalty did not have the effect of invalidating the provisions in

defining murder first degree or the convictions obtained thereunder. It is clear from the

analysis applied by the Supreme Court in its opinion that the statutes under which the

petitioner was convicted for murder first degree and eventually sentenced were

constitutional. There is no merit to this claim.



       The trial court’s order of dismissal is affirmed.




                                           ________________________________________
                                           L. T. LAFFERTY, SENIOR JUDGE




                                             -4-
CONCUR:



___________________________________
JERRY L. SMITH, JUDGE



___________________________________
THOMAS T. WOODALL, JUDGE




                                 -5-
