            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE

                               MAY 1998 SESSION



JERRY D. SAULMON,               *    C.C.A. # 01C01-9707-CC-00303

             Appellant,         *    HICKMAN COUNTY

VS.                             *    Hon. Henry Denmark Bell, Judge

JACK MORGAN, WARDEN,            *    (Habeas Corpus)

             Appellee.          *




For Appellant:                       For Appellee:

Jerry Dallas Saulmon, pro se         John Knox Walkup
HCCF FA-211                          Attorney General and Reporter
5240 Union Springs Road
Whiteville, TN 38075                 Elizabeth B. Marney
                                     Assistant Attorney General
                                     Criminal Justice Division
                                     425 Fifth Avenue North
                                     Nashville, TN 37243-0493




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, PRESIDING JUDGE
                                       OPINION

              The petitioner, Jerry D. Saulmon, is an inmate in Turney Center in

Hickman County. On June 3, 1997, he filed a petition for writ of habeas corpus.

Tenn. Code Ann. § 29-21-101, et seq. The trial court denied relief. In this appeal of

right, the only issue presented for review is whether the petition was properly

dismissed. We affirm the judgment of the trial court.



              On or about March 17, 1981, the petitioner was convicted of second

degree murder and sentenced to a term of ninety-nine years. A subsequent

conviction of jail escape resulted in a consecutive one-year sentence. The

conviction for second degree murder was affirmed on direct appeal. State v. Jerry

D. Saulmon, No. 81-203-III (Tenn. Crim. App., at Nashville, May 8, 1982). The

supreme court denied permission to appeal on July 12, 1982.



              Later, a petition for post-conviction relief was denied. This court

affirmed on direct appeal. Jerry D. Saulmon v. State, No. 86-128-III (Tenn. Crim.

App., at Nashville, Mar. 31, 1987). Application for permission to appeal to the

supreme court was denied on June 8, 1987.



              In this petition for writ of habeas corpus, the petitioner maintains that

the second degree murder conviction is void and that he should be released from

custody. The petitioner asserts that the trial judge violated the constitution in the

instructions to the jury on the definition of reasonable doubt; he contends that the

use of such terms as "moral certainty" and "an inability to let the mind rest easily as

to the certainty of guilt" served to relieve the state of its burden to prove guilt beyond

a reasonable doubt. See Sullivan v. Louisiana, 113 S. Ct. 2078 (1993); Cage v.

Louisiana, 111 S. Ct. 328 (1990).

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              If the petitioner had been found guilty on a standard below that of a

reasonable doubt, that would qualify as a constitutional violation and render the

judgment voidable. Constitutional violations must be addressed under the Post-

Conviction Procedure Act. The petitioner's conviction was final prior to July 1, 1986;

therefore, a post-conviction petition had to be filed within three years of that date in

order for the petitioner to be eligible for relief. Abston v. State, 749 S.W.2d 487

(Tenn. Crim. App. 1988).



              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). Habeas

corpus has no statutory period of limitations. Yet the petitioner has failed to assert

any grounds which would entitle him to habeas corpus relief. Archer v. State, 851

S.W.2d 157 (Tenn. 1993); Potts v. State, 833 S.W.2d 60 (Tenn. 1992). In our view,

the trial court properly ruled that relief was not warranted.



              When a petitioner attempts to set aside a conviction because of the

abridgement of a constitutional right, the Post-Conviction Procedure Act must be

utilized. Luttrell v. State, 644 S.W.2d 408 (Tenn. Crim. App. 1982). Habeas corpus

is not a viable alternative.



              Of equal importance is that the use of the term "moral certainty" in

conjunction with the reasonable doubt standard has not been considered as

constitutional error so long as the term is not used in connection with other

qualifying phrases such as "substantial" or "grave." State v. Hallock, 875 S.W.2d

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285 (Tenn. Crim. App. 1993); State v. Gary Lee Blank, No. 01C01-9105-CC-00139

(Tenn. Crim. App., at Nashville, Feb. 26, 1992). In proper context, the instruction

utilized in the petitioner's trial did not violate his right to due process. So, even if the

post-conviction remedy had been available, the petitioner would not have been

entitled to a favorable judgment.



              Accordingly, the judgment is affirmed.



                                            ________________________________
                                            Gary R. Wade, Presiding Judge

CONCUR:



_____________________________
David G. Hayes, Judge



_____________________________
Jerry L. Smith, Judge




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