         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs August 6, 2002

                  JAMES CARTER v. FRED J. RANEY, WARDEN

                    Direct Appeal from the Circuit Court for Lake County
                         No. 02-CR-8243     R. Lee Moore, Jr., Judge



                   No. W2002-00879-CCA-R3-CD - Filed October 31, 2002


Petitioner was denied habeas corpus relief by the trial court. He now appeals, claiming the trial court
erred in failing to hold an evidentiary hearing and in failing to appoint counsel to assist him with his
habeas corpus claim. We affirm the denial of habeas corpus relief.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
THOMAS T. WOODA LL, JJ., joined.

James Carter, Tiptonville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner and Marcia Fogle, Assistant
Attorneys General; and C. Phillip Bivens, District Attorney General, for the appellee, State of
Tennessee.


                                              OPINION

                                            Background

         Petitioner’s first trial for the 1991 first degree murder of Lisa Watkins ended when a mistrial
was declared. Upon retrial in 1994, a jury found him guilty of first degree murder and sentenced him
to life in prison. This Court affirmed the conviction on direct appeal. State v. Carter, 970 S.W.2d
509, 516 (Tenn. Crim. App. 1997). Petitioner sought post-conviction relief, alleging improper jury
instructions and ineffective assistance of counsel. The trial court denied that petition, and this Court
affirmed that denial. Carter v. State, No. W1999-00799-CCA-R3-PC (Tenn. Crim. App. Oct. 23,
2000) perm. to app. den. (Tenn. April 9, 2001). Petitioner now appeals from the trial court’s denial
of his writ of habeas corpus. In this appeal, the petitioner alleges the following: (1) Ineffective
assistance of counsel; (2) Improper jury instructions on circumstantial evidence; (3) His retrial
violated double jeopardy; and (4) Violation of due process. The trial court summarily dismissed the
petition for petitioner’s failure to state a colorable claim upon which habeas corpus relief could be
granted. Petitioner appeals from the dismissal, alleging the denial of his petition for habeas corpus
was in error and that the petition should not have been dismissed absent his appointment of counsel
for the habeas proceeding. We affirm the trial court’s dismissal.

                                                      Analysis

        Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas corpus
relief. Tennessee Code Annotated sections 29-21-101 et seq. codifies the applicable procedures for
seeking a writ1. While there is no statutory time limit in which to file for habeas corpus relief,
Tennessee law provides very narrow grounds upon which such relief may be granted. Taylor v.
State, 995 S.W.2d 78, 83 (Tenn. 1999). A habeas corpus petition may be used only to contest void
judgments which are facially invalid because (1) the convicting court was without jurisdiction or
authority to sentence a defendant; or (2) defendant’s sentence has expired. Archer v. State, 851
S.W.2d 157, 164 (Tenn. 1993).

        It is well settled that a judgment that is not void, but is merely voidable, is not subject to a
collateral attack in a habeas corpus suit. Archer, 851 S.W.2d at 163; Passarella v. State, 891 S.W.2d
619, 627 (Tenn. Crim. App. 1994). While any person imprisoned or restrained of liberty may seek
a writ of habeas corpus, Tenn. Code Ann. § 29-21-101, the remedy is limited to situations when it
appears on the face of the judgment that a convicting court lacked jurisdiction or authority or that
a defendant is being imprisoned after expiration of his sentence. Potts v. State, 833 S.W.2d 60, 62
(Tenn. 1992). Indeed, summary dismissal is authorized if, on the showing of the petitioner, he would
not be entitled to any relief. Tenn. Code Ann. § 29-21-109.

        The judgments against petitioner are not void on their face. Petitioner alleges no grounds
that, even if true, would entitle him to habeas corpus relief. The issues raised by petitioner are issues
properly addressed in a post-conviction hearing, not in a habeas corpus claim for relief. Petitioner’s
sentence has not expired nor do any of the issues he raises, if true, render his conviction facially void.
They only render his conviction voidable. We hold the trial court made no error in dismissing the
habeas corpus petition.

       We will briefly address petitioner’s claims that the trial court erred in declining to appoint
him counsel for this proceeding and for summarily dismissing the habeas corpus petition without
holding an evidentiary hearing. While Tennessee Code Annotated section 40-14-204 allows for the
appointment of counsel in habeas cases when necessary, nothing in the record indicated that counsel
was necessary in this case. There is no constitutional right to counsel in a habeas corpus proceeding.
Denton v. State, No. 03C01-9712-CR-00536, 1999 Tenn. Crim. App. LEXIS 493, at *3 (citing
Weatherly v. State, 704 S.W. 2d 730, 732 (Tenn. Crim. App. 1985)). Additionally, Tennessee Code


         1
            Tenn essee Code Annotated section 29-21-101 states: “Grounds for Writ.- Any person imprisoned or restrained
of liberty, under any pretense whatsoever, except in cases specified in section 29-21-102 (Federal prisoners)[”], may
prosecute a writ of ha beas corp us to inq uire into the cause of suc h imprisonm ent and restraint.

                                                         -2-
Annotated section 29-21-109 allows for the refusal of the writ with only a brief endorsement as to
the reasons why. There is no mandatory right to an evidentiary hearing unless the petitioner raises
a colorable claim. See Presnell v. Craven, No. W2002-00304-CCA-R3-CO, 2002 Tenn. Crim. App.
LEXIS 630, at *6, (Tenn. Crim. App. July 23, 2002) (citing Byrd v. Bomar, 214 Tenn. 476, 483, 381
S.W.2d 280, 283 (Tenn. 1964)). The trial court determined that, even if true, petitioner’s allegations
are not proper matters for habeas relief. We hold no error was committed in the failure to hold an
evidentiary hearing. Accordingly, the dismissal of petitioner’s habeas relief is affirmed.




                                                       ____________________________________
                                                       JOHN EVERETT WILLIAMS, JUDGE




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