         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                           JANUARY 1998 SESSION
                                                             FILED
                                    )
JOE L. RUSSELL,                     )                       February 17, 1998
                                    ) C.C.A. No. 02C01-9701-CR-00030
      Appellant,                     )                     Cecil Crowson, Jr.
                                     ) Shelby County        Appellate C ourt Clerk
V.                                   )
                                     ) Honorable John P. Colton, Jr., Judge
STATE OF TENNESSEE,                  )
                                     ) (Post-Conviction)
      Appellee.                      )
                                     )




FOR THE APPELLANT:                  FOR THE APPELLEE:

Joe L. Russell, Pro Se              John Knox Walkup
TDOC #209487                        Attorney General & Reporter
7575 Cockrill Bend Road
Nashville, TN 37209-1057            Kenneth W. Rucker
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-4351

                                    William L. Gibbons
                                    District Attorney General

                                    Janet Shipman
                                    Assistant District Attorney General
                                    201 Poplar Avenue, Suite 301
                                    Memphis, TN 38103




OPINION FILED: _______________________


AFFIRMED


PAUL G. SUMMERS,
Judge




                                OPINION
       The appellant, Joe L. Russell, was convicted by a jury in August 1992 of

aggravated rape and was sentenced to fifteen years in the Tennessee

Department of Correction. In November 1996, the appellant filed a petition for

writ of habeas corpus in which he challenged the sufficiency of his aggravated

rape indictment. The trial court denied habeas corpus and alternatively, post-

conviction relief. The appellant now appeals this denial of relief.



       The appellant’s sole issue on appeal is whether the trial court erred in

dismissing his petition for writ of habeas corpus. We affirm.



       The appellant asserts that his petition for writ of habeas corpus was

inappropriately converted by the trial court to a petition for post-conviction relief,

which was subsequently denied because the post-conviction petition was time

barred. The appellant’s basis for his writ of habeas corpus is that his indictment

was fatally flawed for not alleging a mens rea, citing State v. Roger Dale Hill, Sr.,

No. 01C01-9508-CC-00267 (Tenn. Crim. App. at Nashville, filed June 20, 1996).



       The state argues that the trial court properly denied the petition because it

“did not represent a cognizable claim for habeas relief or post-conviction relief”

and because the petition for post-conviction relief was time barred. The state

further asserts that the appellant’s indictment was not flawed, and thus, his

conviction is valid.



       First, the trial court improperly converted the appellant’s writ of habeas

corpus to a petition for post-conviction relief. The Post-Conviction Act allows an

individual to challenge a conviction based upon constitutional grounds.

However, the appellant in this case challenges his indictment, and thus, a writ of

habeas corpus is the proper procedure for such a challenge. However, the

Tennessee Supreme Court, which had not rendered its decision in Hill at the



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time the parties filed their briefs in this matter, reversed the decision in Hill.   See

State v. Hill, 954 S.W.2d 725 (Tenn. 1997) (holding that failure of indictment to

allege culpable mental state was not a fatal defect). Therefore, the appellant’s

contention that his indictment was flawed and his conviction invalid based on Hill

is erroneous. We affirm the trial court’s dismissal of the appellant’s petition.




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                                     _______________________
                                     PAUL G. SUMMERS, Judge



CONCUR:




____________________________
DAVID G. HAYES, Judge




____________________________
JOE G. RILEY, Judge




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