          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON        FILED
                             JULY 1997 SESSION          July 18, 1997

                                                     Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk
CHARLES R. SMITH,                      )
                                       )    NO. 02C01-9607-CC-00241
      Appellant,                       )
                                       )    LAUDERDALE COUNTY
VS.                                    )
                                       )    Hon. Joseph H. Walker, Judge
JIMMY HARRISON, WARDEN,                )
                                       )    (Petition for Writ of Habeas Corpus)
      Appellee.                        )



FOR THE APPELLANT:                          FOR THE APPELLEE:

CHARLES R. SMITH, pro se                    JOHN KNOX WALKUP
Cold Creek Correctional Facility            Attorney General and Reporter
P.O. Box 1000
Henning, TN 38041-1000                      DEBORAH A. TULLIS
                                            Assistant Attorney General
                                            450 James Robertson Parkway
                                            Nashville, TN 37243-0493

                                            ELIZABETH T. RICE
                                            District Attorney General
                                            302 Market Street
                                            Somerville, TN 38068




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                       OPINION



       The petitioner, Charles R. Smith, appeals the order of the Circuit Court of

Lauderdale County dismissing his petition for writ of habeas corpus. He is presently

serving consecutive sentences of twelve (12) years for the offense of rape and one

(1) year for the offense of sexual battery. The trial court dismissed his petition

without a hearing. We affirm the judgment of the trial court.



                                            I



       Petitioner alleges that he is being illegally confined because: (1) the judge

sitting at petitioner’s trial formerly represented petitioner on criminal charges, thus

making the judge biased against petitioner; (2) he received ineffective assistance

of counsel at trial; and (3) he was tried on a different indictment than that returned

by the grand jury.



       Initially, the petition does not have annexed to it a copy of the judgments of

conviction and no reason is given in the petition for their absence. Tenn. Code Ann.

§ 29-21-107(b)(2) provides that if the petitioner in a petition for writ of habeas

corpus is restrained of his liberty “by virtue of any legal process, a copy thereof shall

be annexed, or a satisfactory reason given for its absence.” This provision of the

statute is “mandatory and the failure to comply with same may be grounds for

dismissing the petition.” State ex rel. Wood v. Johnson, 393 S.W.2d 135, 136

(Tenn. 1965); see State ex rel. Kuntz v. Bomar, 381 S.W.2d 290 (Tenn. 1964).

Accordingly, the trial court did not err in dismissing the petition.1



       Moreover, petitioner’s allegations that the trial judge was biased and his trial

counsel was ineffective do not render the judgment void, but merely raise the


       1
         Petitioner’s allegation that he was tried on a different indictment is
unsupported by any documentation. We do not understand the nature of this naked
allegation.

                                           2
possibility of a voidable judgment. A petitioner is only entitled to habeas corpus

relief 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 the sentence

has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). There is nothing

on the face of the record or the pleadings to indicate that the trial court lacked

jurisdiction or authority to sentence the petitioner. Nor is there any indication that

petitioner’s sentence has expired.



           The petitioner cannot establish that the judgments convicting him are void or

that his sentence terms have expired. Therefore, we find that the petition for a writ

of habeas corpus was properly dismissed.



                                               II



           Furthermore, the trial court found that it had no jurisdiction to hear a claim for

post-conviction relief. Tenn. Code Ann. § 40-30-205(c) allows a trial court to treat

a petition for habeas corpus as one for post-conviction relief. However, Tenn. Code

Ann. § 40-30-204(a) provides that a petition for post-conviction relief shall be filed

in the county of the petitioner's conviction. Smith was convicted in Fayette County

but filed this petition for relief in Lauderdale County.             The trial court acted

appropriately in not treating the habeas corpus petition as one for post-conviction

relief.2




                                               III




           2
        Additionally, it appears that a petition for post-conviction relief would be
barred under the statute of limitations. According to his petition, Smith was
convicted on December 30, 1991. An agreement dismissing his appeal was filed
on October 5, 1992. His petition for a writ of habeas corpus was filed on June 13,
1996.


                                               3
       We conclude that the petitioner's claims do not show that his judgments are

void or that his sentences have expired, making habeas corpus relief inappropriate.

Furthermore, the trial court properly refused to treat the petition as one for post-

conviction relief. The judgment of the trial court is affirmed.




                                                  JOE G. RILEY, JUDGE




CONCUR:




JOE B. JONES, PRESIDING JUDGE




DAVID H. WELLES, JUDGE




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