          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT NASHVILLE           FILED
                         SEPTEMBER 1998 SESSION
                                                         October 29, 1998

                                                      Cecil W. Crowson
                                                    Appellate Court Clerk
MICHAEL E. BASS,                   )   No. 01C01-9802-CC-00066
                                   )
      Appellant                    )
                                   )   Hickman County
vs.                                )
                                   )   Honorable Donald P. Harris, Judge
STATE OF TENNESSEE,                )
                                   )   (Habeas Corpus)
      Appellee.                    )



FOR THE APPELLANT:                     FOR THE APPELLEE:

MICHAEL E. BASS                        JOHN KNOX WALKUP
(Pro Se)                               Attorney General & Reporter
Turney Center Industrial Prison
Route 1                                TIMOTHY F. BEHAN
Only, TN 37140-9709                    Assistant Attorney General
                                       Criminal Justice Division
                                       425 Fifth Ave. North
                                       2d Floor, Cordell Hull Bldg.
                                       Nashville, TN 37243-0493

                                       JOSEPH D. BAUGH, JR.
                                       District Attorney General
                                       P.O. Box 937
                                       Franklin, TN 37065-1469




OPINION FILED: ____________________


AFFIRMED


CURWOOD WITT
JUDGE
                                      OPINION

              The petitioner, Michael E. Bass, appeals the trial court’s denial of his

petition for a writ of habeas corpus. The trial court did not appoint counsel and

dismissed the petition without an evidentiary hearing. In this appeal, the petitioner

contends that although he was convicted and sentenced in 1981, the provisions of

the 1989 Sentencing Reform Act apply and his sentence has expired. W e affirm

the judgment of the trial court.



              The record does not include the original judgment. The pleadings

indicate that the petitioner was convicted of second-degree murder, a Class X

felony, on January 8, 1981. The petitioner received a life sentence. This court

affirmed his conviction and sentence in State v. Michael E. Bass, No. 82-198-III

(Tenn. Crim. App., Nashville, July 8, 1983). In 1982 and again in 1989, the state

legislature made wide-ranging changes to the sentencing laws. In November, 1997,

the petitioner filed this petition for writ of habeas corpus asserting that

              (1)    the legislature has mandated the
                     application of the 1982 and 1989
                     sentencing reform acts to his sentences,

              (2)    his constitutional rights to equal protection
                     and due process require the application
                     of the 1989 Criminal Sentencing Reform
                     Act to his sentence, and

              (3)    the passage of a more lenient sentencing
                     structure without extending its provisions
                     to those who were sentenced under
                     harsher standards results in cruel and
                     unusual punishment in violation of the
                     Eighth Amendment to the United States
                     Constitution.

The trial court dismissed his petition without a hearing on December 12, 1997. In

a thoughtful and thorough memorandum of law, the trial judge found that the 1989

Act did not affect penalties imposed before the Act’s effective date, that section 39-

11-112 has no bearing on the petitioner’s sentence, that the state has a legitimate

interest in the finality of criminal convictions, and that the exclusion of those

sentenced prior to 1982 from the Act’s provisions has a reasonable relationship to

a legitimate state interest. We agree.

                                           2
              The petitioner’s position stems from the fact that pursuant to the 1989

Act, the sentencing range for a Range I offender convicted of second-degree

murder is not less than fifteen (15) nor more than twenty-five (25) years. Tenn.

Code Ann. § 40-35-112(a)(1) (1997).1 In 1981, the petitioner, a first-time offender,

was sentenced to life imprisonment and because second-degree murder was

defined as a Class X felony, his sentence is not subject to reduction “for good,

honor or incentive or other sentence credits of any sort.” Tenn. Code Ann. § 39-

5403 (Supp. 1979) (repealed 1982). The petitioner contends that he has served in

excess of eighteen years as a model prisoner, and, therefore, under current

sentencing law, he is entitled to immediate release.2



              First, we must point out that in this state the remedy of habeas corpus

is very limited in scope. The writ, as codified at Tennessee Code Annotated

sections 29-21-101 to -130, will issue only in the case of a void judgment or to free

a prisoner held in custody after his term of imprisonment has expired. State ex rel.

Hall v. Meadows, 215 Tenn. 668, 675, 389 S.W.2d 256, 259 (Tenn. 1965). The

purpose of a habeas corpus petition is to contest void and not merely voidable

judgments. Archer v. State, 851 S.W.2d 157, 163 (Tenn. 1993). Habeas corpus

relief is available only when it appears on the face of the judgment or record of

proceedings upon which the judgment is rendered that the convicting court was

without jurisdiction or authority to sentence the defendant or that the defendant’s

sentence has expired. Id. at 164.



              In this instance, the petitioner alleges that his sentence has expired.

We cannot agree. This court has previously addressed the issues the petitioner

raises in this appeal. See State ex rel. Stewart v. McWherter, 857 S.W.2d 875

(Tenn. Crim. App. 1992); Jerome Sydney Barrett v. State, No. 02C01-9508-CC-

       1
              The 1982 Act changed neither the penalty for second-degree
murder nor its classification as a Class X felony. See Tenn. Code Ann. § 39-1-
701 and 39-2-212 (1982) (repealed 1989).
       2
            The petitioner has attached numerous letters, certificates and other
documents to support his contention that his conduct has been exemplary.

                                         3
00233 (Tenn. Crim. App., Jackson, Feb. 27, 1997); Patrick Simpson v. State, No.

01C01-9203-CR-00098 (Tenn. Crim. App., Nashville, Nov. 18, 1992). Our earlier

rulings control the results in this case.



              The language of Tennessee Code Annotated section 40-35-117(c) is

clear: “For all persons who committed crimes prior to July 1, 1982, prior law shall

apply and remain in full force and effect in every respect, including, but not limited

to, sentencing, parole and probation.” In State ex rel. Stewart, this court held that

the “1989 Sentencing Act provides that it applies only to those offenders who are

sentenced after its effective date” on November 1, 1989. State ex rel. Stewart, 857

S.W.2d at 876. Although the 1989 Act benefited some offenders who committed

their crimes between 1982 and 1989, the Act’s provisions do not apply to the

petitioner. See Tenn. Code Ann. § 40-35-117(b)(1997). The 1989 Act did “not

affect rights and duties that matured, penalties that were incurred, or proceedings

that were begun before its effective date.” 1989 Tenn. Pub. Acts ch. 591, § 115.

Thus the petitioner, who was convicted and sentenced prior to July 1, 1982, remains

“under the prior law . . . in every respect, including, but not limited to, sentencing,

parole and probation.” Tenn. Code Ann. § 40-35-117(c).



              Tennessee Code Annotated section 39-114 (1975), which was

replaced by section 39-1-105 (1982) and later by section 39-11-112 (1989) does

not require the state to reduce his sentence. The statute in effect at the time of the

petitioner’s conviction provided that

              Whenever any penal statute or penal legislative act of
              the state is repealed or amended by a subsequent
              legislative act, any offense, as defined by such statute
              or act being repealed or amended, committed while
              such statute or act was in full force and effect shall be
              prosecuted under such act or statute in effect at the
              time of the commission of the offense. In the event the
              subsequent act provides for a lesser penalty, any
              punishment imposed shall be in accordance with the
              subsequent act.

Tenn. Code Ann. § 39-114 (1975) (emphasis added). This provision applies only

to those cases in which the accused is to be prosecuted under the substantive law


                                            4
in effect at the time of the offense and a new statute, calling for a lesser

punishment, is enacted before the imposition of the punishment. State ex rel.

Stewart, 857 S.W.2d at 877. The term “prosecution” does not include enforcement

of a sentence. Barrett, No. 02C01-9508-CC-00233, slip op. at 5. The statute is not

relevant to those cases in which judgment was entered and sentence imposed prior

to passage of the new law. Id. The 1989 statute is identical to the earlier law

except that it contains an additional clause excluding from its provisions those

convicted of offenses before July 1, 1982.3 Therefore, even if the statute allowed

for the reduction of a previously imposed sentence in some cases, it would not grant

relief to this petitioner. The petitioner is entitled to no reduction of his sentence

under these statutory provisions.



               Next we address the petitioner’s contention that his sentence violates

his rights under the constitutions of the United States and the State of Tennessee.

The gist of the petitioner’s constitutional argument is that his lengthier sentence

denies him equal protection and due process under Article 11, section 8 of the

Tennessee Constitution and the Fourteenth Amendment to the United States

Constitution which prohibit legislation that provides favorable treatment to any

individual or class of individuals. Equal protection requires that all persons similarly

situated must be treated alike.       State ex rel. Stewart, 857 S.W.2d at 876.

Legislatures, however, may treat a class of persons differently so long as the

classification has a reasonable relationship to a legitimate state interest. Doe v.

Norris, 751 S.W.2d 834, 841 (Tenn. 1988). In State ex rel. Stewart, this court found

that the state has a legitimate interest in preserving the finality of criminal

judgments. Reconsideration of all cases involving sentences imposed before

November 1, 1989 but which are presently being served by confinement, parole or

probation, would constitute opening “a virtual Pandora’s box ” that would disrupt the




       3
             The last sentence of section 39-11-112 reads: “Except as provided
under the provisions of § 40-35-117, in the event the subsequent act provides for
a lesser penalty, any punishment imposed shall be in accordance with the
subsequent act. “ Tenn. Code Ann. § 39-11-112 (1997) (emphasis added).

                                           5
judicial system. State ex rel. Stewart, 857 S.W.2d at 877 (quoting State ex rel.

Bobby L. Crum v. Ned McWherter, No. 02C01-9108-CC-00181, slip op. at 4 (Tenn.

Crim. App., Jackson, May 13, 1992)).4 Because a reasonable relationship exists

between the legislative decision to exclude those who were sentenced prior to 1982

from the provisions of the 1989 Act and society’s interest in preventing a wholesale

disruption of the criminal justice system, the constitutional right to equal protection

and due process are not violated.



              In a related argument, the petitioner asserts that the great disparity

between the sentence he is currently serving and that which he would serve under

the 1989 Act causes psychological torment of mind as well as of body which

amounts to cruel and unusual punishment under the Eighth Amendment to the

United States Constitution. The Eighth Amendment, however, prohibits sentences

that are disproportionately severe when compared to the crime committed. Solem

v. Helm, 463 U.S. 277, 297, 103 S. Ct. 3001, 3011 (1983). The fact that a penalty

is reduced by new legislation does not mean that the sentence under the prior law

was disproportionate to the subject crime. Barrett, No. 02C01-9508-CC-00233, slip

op. at 7; Patrick Simpson v. State, No. 01C01-9203-CR-00098, slip op. at 7 (Tenn.

Crim. App., Nashville, Nov. 18, 1992). The petitioner has cited no authority to

demonstrate that a life sentence is unconstitutionally disproportionate for the

offense of second-degree murder. We have found none. See Simpson, slip op. at

7. We do not find the petitioner’s sentence constitutionally infirm.



              A trial court is not required to conduct an inquiry into the allegations

raised in a petition for habeas corpus if the petition fails to state a cognizable claim.


       4
              In Crum, the petitioner received a life sentence for aggravated
kidnapping in January, 1982. State ex rel. Bobby L. Crum, slip op. at 2. He
argued that under the 1989 act, he would be treated as a Range II, Class A
offender subject to a range of punishment of twenty-five to forty years. Slip op.
at 4. As we point out in Crum, determination of which classification applied and
development of the evidence relevant to sentencing under the 1989 Act would
require that new sentencing hearings be held in each case. We concluded that
society should not be forced to undergo such a disruption of its justice system.
Id.

                                           6
See State ex rel. Byrd v. Bomar, 381 S.W.2d 280 (Tenn. 1964); Tenn. Code Ann.

§ 29-21-109 (1980).       A petitioner has the burden of establishing by a

preponderance of the evidence that the judgment is void or that his term of

imprisonment is expired. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim.

App. 1994).



              In this instance, the petitioner does not allege that the original

judgment is void, and he has not alleged any facts indicating that his term of

imprisonment has expired. Even if every factual allegation of his petition is taken

as true, he is not entitled to habeas corpus relief. The trial court did not err by

dismissing his petition without an evidentiary hearing.



              We affirm the judgment of the trial court.




                                                 __________________________
                                                 CURWOOD W ITT, Judge

CONCUR:



______________________________
GARY R. WADE, Presiding Judge



______________________________
THOMAS T. W OODALL, Judge




                                         7
