             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE            FILED
                           OCTOBER 1997 SESSION
                                                       February 5, 1998

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
VANCE MCCASLIN,                   )    No. 01C01-9611-CC-00480
                                  )
      Appellant                   )
                                  )    HICKMAN COUNTY
V.                                )
                                  )    HON. H. DENMARK BELL,
STATE OF TENNESSEE,               )    JUDGE
                                  )
      Appellee.                   )    (Habeas Corpus)
                                  )
                                  )


For the Appellant:                     For the Appellee:

Vance McCaslin                         John Knox Walkup
Turney Center 4B                       Attorney General and Reporter
Route 1
Only, TN 37140-9709                    Peter M. Coughlan
                                       Assistant Attorney General
                                       425 Fifth Avenue North
                                       Nashville, TN 37243-0493


                                       Joseph D. Baugh, Jr.
                                       District Attorney General
                                       Williamson County Courthouse
                                       P.O. Box 937
                                       Franklin, TN 37065-0937




OPINION FILED: ___________________



AFFIRMED



William M. Barker, Judge
                                        OPINION


       The appellant, Vance McCaslin, appeals as of right the dismissal by the

Hickman County Circuit Court of his petition seeking a writ of habeas corpus. On

appeal, appellant contends that his convictions are void because of erroneous jury

instructions at his trial and because he received the ineffective assistance of counsel.

Finding no error in the trial court’s summary dismissal, we affirm the judgment.

       Appellant was convicted of aggravated rape and aggravated kidnapping in

1982. Trial error was discovered on appeal to this Court and a new trial was

conducted. See State v. Vance McCaslin, No. 82-225-III (Tenn. Crim. App. at

Nashville, October 7, 1983). In 1984, a jury again convicted him of aggravated rape

and aggravated kidnapping and appellant received an effective sentence of 101 years.

On appeal for the second time, this Court affirmed those convictions and sentences.

See State v. Vance McCaslin, No. 85-51-III (Tenn. Crim. App. at Nashville, June 14,

1985), perm. app. denied (Tenn. 1985).

       On August 29, 1996, appellant filed a petition seeking a writ of habeas corpus.

He alleged that unconstitutional jury instructions on reasonable doubt and the

ineffective assistance of counsel rendered his convictions void. Upon motion of the

State, the trial court summarily dismissed appellant’s petition.

       A writ of habeas corpus is an extraordinary remedy and has application only in

very narrow and limited circumstances. Our supreme court has stated:

       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) (internal quotations omitted)

(emphasis added). As it is commonly understood, habeas corpus relief is available

only when a judgment is void, not merely when the judgment is voidable. See id at

161-62. See also Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992) (citations omitted).


                                            2
This is in contrast to post-conviction procedures, which entitle a petitioner to relief

upon a showing of either a void or voidable judgment. See Tenn. Code Ann. §40-30-

203 (Supp. 1996). Here, in spite of an articulate and thorough petition, the appellant

has failed to demonstrate that his convictions are void.

       As a general rule, neither erroneous jury instructions nor the ineffective

assistance of counsel entitle a petitioner to habeas corpus relief. Even if taken as

true, such allegations only render a conviction voidable, not void. See e.g. Passarella

v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994); Luttrell v. State, 644 S.W.2d

408, 409 (Tenn. Crim. App. 1982); Elwood Dewayne Howard v. David Mills, No.

01C01-9603-CC-00099 (Tenn. Crim. App. at Nashville, January 16, 1997), perm. app.

denied (Tenn. 1997); Frank Glen Hall v. David Mills, No. 01C01-9510-CC-00352

(Tenn. Crim. App. at Nashville, September 13, 1996), perm. app. denied (Tenn. 1996);

Chester Ray Hall v. David Mills, No. 01C01-9510-CV-00339 (Tenn. Crim. App. at

Nashville, August 1, 1996), perm. app. denied (Tenn. 1996); Isaac Lydell Herron v.

Fred Raney, No. 02C01-9502-CC-00033 (Tenn. Crim. App. at Jackson, July 19,

1995); perm. app. denied (Tenn. 1995). As a result, appellant’s grounds are not

cognizable in a petition seeking a writ of habeas corpus.

       Moreover, we note that challenges to jury instructions nearly identical to those

in appellant’s case have been repeatedly rejected by our courts. See e.g. State v.

Nichols, 877 S.W.2d 722, 734 (Tenn. 1994), cert. denied, 513 U.S. 1114, 115 S.Ct.

909, 130 L.Ed. 2d 791(1995); Pettyjohn v. State, 885 S.W.2d 364, 365 (Tenn. Crim.

App. 1994); State v. Hallock, 875 S.W.2d 285, 294 (Tenn. Crim. App. 1993); Michael

Eugene Sample and Larry McKay v. State, No. 02C01-9505-CR-00129 (Tenn. Crim.

App. at Jackson, September 30, 1996), perm. app. denied (Tenn. 1997). Therefore,

even if the claim was cognizable in this proceeding, it would be meritless.

       Appellant’s reliance on authority from a federal district court is not persuasive.

See Groseclose v. Bell, 895 F.Supp. 935 (M. D. Tenn. 1995); Rickman v. Dutton, 864

F.Supp. 686 (M. D. Tenn. 1994); Austin v. Bell, No. 3:89-0293 (M. D. Tenn. filed

                                             3
January 26, 1996).1 Moreover, with regard to federal authority, we are bound only by

the applicable constitutional rulings of the United States Supreme Court. State v.

McKay, 680 S.W.2d 447, 450 (Tenn. 1984); State v. Bowers, 673 S.W.2d 887, 889

(Tenn. Crim. App. 1984).

         After reviewing the judgments in this case, we are unable to find any infirmity

on their face. The judgments were rendered by a trial judge of the Giles County

Circuit Court for crimes committed by the appellant in Giles County. Therefore, the

trial court had jurisdiction of the appellant, the criminal offenses which he committed,

and authority to make the judgment. See Passarella, 891 S.W.2d at 627. Nothing on

the face of the judgment indicates that the court was without jurisdiction or authority to

order the sentence. Neither has appellant demonstrated that his sentence has

expired.

         Upon concluding that appellant has failed to present any ground cognizable in a

habeas corpus proceeding and that procedural rules2 bar his petition as one for post-

conviction relief, we affirm the trial court’s dismissal of appellant’s petition.



                                                               _______________________________
                                                               William M. Barker, Judge



____________________________
Joe B. Jones, Presiding Judge



____________________________
Joe G. Riley, Judge


         1
          W e note tha t the Sixth C ircuit has re viewed th ese distric t court dec isions. Gro sec lose v. Bell ,
103 F.3 d 1161 (6th Cir. 19 97); Rick ma n v. Be ll, Nos. 94-5721/6232/6538 (6th Cir. filed December 2,
1997); Aus tin v. B ell, 126 F.3d 843 ( 6th C ir. 199 7). H owe ver, th e con stitutio nality o f the r eas ona ble
doubt jur y instruction w as add ressed in only one de cision an d uphe ld as con stitutional. Aus tin, 126 F.3d
at 847.

         2
         Appellan t conce des tha t his petition wa s filed outs ide the sta tute of lim itations for p ost-
conviction relief. Tenn. Code Ann. §40-30-202 (Supp. 1996). We note also that his petition was not filed
in the court of conviction as required by our Post-Conviction Act. Tenn. Code Ann. §40-30-204(a)
(Supp. 1996).

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