              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                       AT JACKSON



DARREL HAYES,                              )
                                           )
       Petitioner,                         ) C. C. A. NO. W1999-01850-CCA-R3-CO
                                           )
vs.                                        ) LAKE COUNTY
                                           )
STATE OF TENNESSEE,                        ) No. 99-7900
                                           )
                                                                    FILED
       Respondent.                         )
                                                                 January 12, 2000

                                                                   Cecil Crowson, Jr.
                                         ORDER                    Appellate Court Clerk



              This matter is before the Court upon motion of the state to affirm the
judgment of the trial court pursuant to Rule 20, Rules of the Court of Criminal Appeals.

This case represents an appeal from the trial court’s dismissal of the petitioner’s petition

for a writ of habeas corpus. In May 1987, the petitioner was indicted on five counts of
aggravated rape and two counts of aggravated sexual battery. The record reflects that

he was found guilty by a jury in January 1988 on three counts of aggravated sexual

battery and one count of aggravated rape, and received an effective forty-five year

sentence. In his present petition, the petitioner claims 1) that the state should have

been required to elect the particular offense on which it would rely for convictions and 2)
that the trial court should have instructed the jury to decide upon the particular offenses

of which the petitioner was guilty. The trial court dismissed the petition finding that

these claims not proper subject for habeas corpus relief.


              Habeas corpus relief is available in Tennessee only when “it
              appears upon the face of the judgment or the record of the
              proceedings upon which the judgment is rendered” that a
              convicting court was without jurisdiction or authority to
              sentence a defendant, or that a defendant’s sentence of
              imprisonment or other restraint has expired.
Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (emphasis added). The record

before us reflects that the convicting court had jurisdiction over this petitioner and that

the petitioner’s sentence has not expired. However, even if the petitioner’s claims have

merit, such claims render the judgment voidable, not void, and it may not be collaterally
attacked in a suit for habeas corpus relief. Passarella v. State, 891 S.W.2d 619, 627

(Tenn. Crim. App. 1994). Moreover, when a petition for a writ of habeas corpus fails to

state a cognizable claim, the trial court may summarily dismiss the petition. See Id.



              Accordingly, it is hereby ORDERED that the state’s motion is granted and
the judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Court

of Criminal Appeals. Since the record reflects the petitioner is indigent, costs of this

proceeding shall be taxed to the state.




                                          ____________________________
                                          DAVID G. HAYES, JUDGE



                                          ____________________________
                                          JOE G. RILEY, JUDGE


                                          ____________________________
                                          JOHN EVERETT WILLIAMS, JUDGE




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