        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE            FILED
                        DECEMBER 1998 SESSION
                                                      April 20, 1999

                                                   Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk
TROY LEON BROADRICK,              )
                                  )
           Appellant,             )      C.C.A. No. 03C01-9801-CC-00011
                                  )
vs.                               )      Bledsoe County
                                  )
STATE OF TENNESSEE,               )      Hon. J. Curtis Smith, Judge
                                  )
           Appellee.              )      (Habeas Corpus)



FOR THE APPELLANT:                       FOR THE APPELLEE:

TROY LEON BROADRICK (pro se)             JOHN KNOX WALKUP
Rt. 4 Box 600                            Attorney General & Reporter
Pikeville, TN 37367-3243
                                         R. STEPHEN JOBE
                                         Assistant Attorney General
                                         425 Fifth Ave. N., 2d Floor
                                         Nashville, TN 37243-0493

                                         JAMES MICHAEL TAYLOR
                                         District Attorney General

                                         JAMES W. POPE III
                                         Assistant District Attorney
                                         Twelfth Judicial District
                                         265 Third Ave., Suite 300
                                         Dayton, TN 37321



OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE




                               OPINION
               The petitioner, Troy Leon Broadrick, appeals from the Bledsoe County

Circuit Court’s order dismissing his petition for habeas corpus relief. In 1987, a jury

convicted the petitioner of nine counts of aggravated rape, three counts of rape, and

one count of sexual battery. The judge sentenced him to an effective sentence of

63 years in the Department of Correction. He appealed his convictions, and this

court affirmed on June 29, 1989. See State v. Troy Broadrick, No. 88-257-III (Tenn.

Crim. App., Nashville, June 29, 1989). On July 28, 1997, he filed a pro se petition

for habeas corpus relief. The court below dismissed the action without a hearing

because the court found that the petitioner did not assert grounds which would

entitle him to the writ of habeas corpus. The petitioner contends that the trial court

erred in not addressing issues presented in the petition, not ordering an evidentiary

hearing, and not appointing counsel. The issues presented on the petition are: (1)

whether the indictments were defective because they did not state a mens rea or

did not state a specific date for the offense charged, or both,1 (2) whether his wife,

at the time of prosecution, was coerced to testify against him in violation of

Tennessee Code Annotated section 24-1-201, and (3) whether she should have

testified in view of the fact that she was under psychiatric care with heavy

medication. Following a review of the record and the briefs of the parties, we affirm

the trial court’s dismissal of the petition.



               The petitioner filed an untimely notice of appeal, but this court may

waive the time requirement for filing a notice of appeal “in the interest of justice.”

Tenn. R. App. P. 4(a); see State v. Scales, 767 S.W.2d 157 (Tenn. 1989). The

untimely filing by the petitioner has not prejudiced the state; therefore, we waive this


       1
             The issue of the element of mens rea being omitted from an
indictment and the habeas corpus court’s failure to review the issue are not
presented on appeal. We, therefore, deem these issues waived. Tenn. R. App.
P. 13(b).

                                               2
requirement in the interest of justice. See State v. Mullins, 767 S.W.2d 668, 669

(Tenn. Crim. App. 1988). Accordingly, we will address the merits of the petition.



              Habeas corpus relief is very limited because it is only available 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)

(quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37 (Tenn. 1868)). In other

words, except for cases of expired sentences, habeas corpus relief is granted only

when a judgment is void. “A void judgment is one in which the judgment is facially

invalid because the court did not have the statutory authority to render such

judgment.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998) (citing Archer,

851 S.W.2d at 161).       A petition for habeas corpus relief may be summarily

dismissed “[i]f, from the showing of the petitioner, the plaintiff would not be entitled

to any relief.” Tenn. Code Ann. § 29-21-109 (1998); see also James R. Twitty v.

Howard Carlton, No. 03C01-9707-CR-00310, slip op. at 5 (Tenn. Crim. App.,

Knoxville, Jan. 6, 1999) (citing Passarella v. State, 891 S.W.2d 619, 627 (Tenn.

Crim. App. 1994)). The court need not appoint counsel if, from the face of the

petition, there are no grounds for relief. See Earl Thomas Mitchell, Jr. v. Howard

Carlton, No. 03C01-9704-CR-00125, slip op. at 3 (Tenn. Crim. App., Knoxville, Jan.

12, 1998).



              We must first determine if the allegations made by the petitioner may

be reviewed in a habeas corpus proceeding. First, the petitioner contends that the

indictments were defective because they did not state a specific date for the offense

charged. In Dykes v. Compton, the Tennessee Supreme Court addressed the issue

of whether a challenge to indictments could be reviewed in a habeas corpus

                                           3
proceeding. The court stated that “the validity of an indictment and the efficacy of

the resulting conviction may be addressed in a petition for habeas corpus when the

indictment is so defective as to deprive the court of jurisdiction.” Dykes, 978 S.W.2d

at 529.



              The petitioner challenges certain indictments because specific dates

were not stated for the time of the offenses. Rather, less specific times, such as

“heretofore on or about mid-Summer, 1984,” were listed on certain indictments.

The petitioner contends that he could not prepare an adequate defense without

specific dates stated in the indictments. “The rule of law is well-established in

Tennessee that the exact date, or even the year, of an offense need not be stated

in an indictment or presentment unless the date or time ‘is a material ingredient in

the offense.’” State v. Byrd, 820 S.W.2d 739, 740 (Tenn. 1991) (quoting Tenn. Code

Ann. § 40-13-207 (1991)). Examples of a time or date being a material ingredient

of an offense are statutes requiring an offense to occur on a certain day, such as

a Sunday, or at a certain time, such as at night. See, e.g., Tenn. Code Ann. § 39-

17-1702 (1997) (The Child Curfew Act of 1995 requires individuals under eighteen

years of age to be away from public places by certain times on certain days. In

order to prosecute an individual under this act, the indictment would have to specify

the exact day and time of the offense). The offenses of aggravated rape, rape and

sexual battery do not require an exact day or time. See Tenn. Code Ann. §§ 39-2-

603, -604, -607 (1986) (repealed 1989); State v. West, 787 S.W.2d 790, 792-93

(Tenn. Crim. App. 1987). Because time is not a material ingredient of the offenses

charged, the state did not have to specify dates in the indictment. Byrd, 820 S.W.2d

at 740.



              If it is not apparent from the face of the record that a judgment is void,

then habeas corpus review is not appropriate. See Archer v. State, 851 S.W.2d

                                          4
157, 164 (Tenn. 1993); Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.

1994). From reviewing the record, we find that the trial court possessed jurisdiction

over the petitioner and the subject-matter, and possessed the statutory authority to

render the judgments. In this case, the petitioner would have to prove prejudice to

his defense due to the state’s inability to specify dates in the indictment. State v.

Ealey, 959 S.W.2d 605, 609 (Tenn. Crim. App. 1997). This would require proof

beyond the record itself, which may be appropriate in a post-conviction proceeding,

but not in a habeas corpus proceeding. Dykes v. Compton, 978 S.W.2d 528, 529

(Tenn. 1998). As the Tennessee Supreme Court stated in Archer, “[t]he petition in

this case, . . ., alleges only that, upon introduction of further proof and after

appropriate findings of fact by the trial judge, the facially valid judgment may be

voided.” Archer, 851 S.W.2d at 164. The lack of specific dates in the indictments

does not render the judgments void. Therefore, this issue is not cognizable in a

habeas corpus proceeding.



              Next, the petitioner contends that his wife, at the time of prosecution,

should not have been coerced to testify against him, and she should not have

testified because she was under psychiatric care with heavy medication.

These issues are not cognizable in a habeas corpus proceeding. See Archer v.

State, 851 S.W.2d 157, 164 (Tenn. 1993).



              When claims are not cognizable in a habeas corpus proceeding, a

court may treat a petition for habeas corpus relief as a petition for post-conviction

relief. Tenn. Code Ann. § 40-30-205(c) (1997). In order to treat this petition as one

for post-conviction relief, the petition must comply with the provisions of the Post-

Conviction Procedure Act of 1995. Under the act, the petition is time-barred

because it was filed beyond the one year statute of limitations period. Tenn. Code

Ann. § 40-30-202(a) (1997). The petitioner has stated no reason for avoiding the

                                          5
statute of limitations. Additionally, the petition is barred as one for post-conviction

relief because it is not filed, as required, in the court in which the conviction

occurred. Tenn. Code Ann. § 40-30-204(a) (1997).



              Because we find that the petition does not state grounds for habeas

corpus relief, we affirm the trial court’s dismissal of the petition without a hearing.


                                           ________________________________
                                           JAMES CURWOOD WITT, JR., JUDGE



CONCUR:



_______________________________
DAVID G. HAYES, JUDGE



_______________________________
JERRY L. SMITH, JUDGE




                                          6
