             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON

                            OCTOBER 1999 SESSION              FILED
                                                             December 16, 1999

STATE OF TENNESSEE,                   )                    Cecil Crowson, Jr.
                                      )                   Appellate Court Clerk
                                            C.C.A. No. W1999-01628-CCA-R3-CO
      Appellee,                       )
                                      )     Lake County
v.                                    )
                                      )     Honorable R. Lee Moore, Jr., Judge
ROY LAVERNE MORRIS, JR.,              )
                                      )     (Habeas Corpus)
      Appellant.                      )




FOR THE APPELLANT:                          FOR THE APPELLEE:

ROY L. MORRIS, pro se                       PAUL G. SUMMERS
NWCX, Site 2, Annex                         Attorney General & Reporter
Route 1, Box 660
Tiptonville, TN 38079                       J. ROSS DYER
                                            Assistant Attorney General
                                            425 Fifth Avenue North
                                            Nashville, TN 37243-0493

                                            C. PHILLIP BIVENS
                                            District Attorney General
                                            115 East Market Street
                                            P. O. Box E
                                            Dyersburg, TN 38025-2005




OPINION FILED: __________________________________________


AFFIRMED


ALAN E. GLENN, JUDGE




                                  OPINION

      The petitioner, Roy Laverne Morris, Jr., was convicted in 1989, in the Fayette

County Circuit Court of aggravated rape and sentenced to fifty years as a Range II
offender.   Following a direct appeal, the conviction and sentence were affirmed.
Subsequently, he filed a petition for post-conviction relief, alleging ineffective assistance

of counsel. That petition was dismissed by the trial court, the dismissal later being affirmed

on appeal. The petitioner has now filed a petition for writ of habeas corpus, claiming that
his trial counsel was ineffective for failing to object to the fact that the Fayette County

Grand Jury, which indicted him on the aggravated rape charge, was allegedly illegally

composed and empaneled, no minority having served as foreperson in twenty-five years.
His petition for writ of habeas corpus was denied by the trial court and he filed a timely

appeal. Based upon our review, we affirm the judgment of the trial court.



                                           FACTS

       The petitioner, Roy Laverne Morris, Jr., was indicted in November 1988, by the

Fayette County Grand Jury for the aggravated rape of a two-year-old girl. He was
convicted of this offense on August 15, 1998, as a Range II offender and sentenced to

confinement for fifty years. That conviction was affirmed by this court in State v. Roy

Laverne Morris, No. 02C01-_______________, 1991 WL 16289 (Tenn. Crim. App.,
Jackson, Feb. 13, 1991).



       Subsequently, the petitioner filed a petition for post-conviction relief, alleging

ineffective assistance of counsel. That petition was denied by the trial court, the denial

later being affirmed on appeal in Roy L. Morris, Jr. v. State, No. 02-C-01-9408-CR00050

(Tenn. Crim. App., Jackson, Sept. 21, 1994).



       The petitioner then filed a petition for writ of habeas corpus in the Lake County
Circuit Court, alleging that his trial counsel was ineffective for failing to challenge the

indictment against him because the Fayette County Grand Jury was “illegally composed

and un-constitutionally empaneled.” The grand jury was defective, according to the
petitioner, because no minority has served as the grand jury foreperson in Fayette County.

The trial court entered an order denying the petition for writ of habeas corpus, and the

petitioner filed a timely appeal, alleging as error that the trial court should have ordered an

evidentiary hearing following the filing of his petition and that the State of Tennessee
should have been required to file a response before the petition was dismissed.



                                         ANALYSIS
       In Tennessee, habeas corpus relief is available only in limited circumstances, which

do not include ineffective assistance of counsel or alleged improprieties in the selection of
a grand jury foreperson:
                         Habeas corpus relief is available in Tennessee only
                 when “it appears upon the face of the judgement 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 or
                 imprisonment or other restraint has expired.

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



          Thus, the petitioner’s claims of ineffective assistance of counsel and utilization of

an alleged illegal selection process for the foreperson of the grand jury can be addressed
only in a petition for post-conviction relief, not a petition for writ of habeas corpus. That

being the case, we will next determine whether these claims can be maintained as a

petition for post-conviction relief.


          The Post-Conviction Procedure Act allows an inmate to file only one petition for

relief:
                 This part contemplates the filing of only one (1) petition for
                 post-conviction relief. In no event may more that one (1)
                 petition for post-conviction relief be filed attacking a single
                 judgment. If a prior petition has been filed which was resolved
                 on the merits by a court of competent jurisdiction, any second
                 or subsequent petition shall be summarily dismissed. A
                 petitioner may move to reopen a post-conviction proceeding
                 that has been concluded, under the limited circumstances set
                 out in § 40-30-217.

Tenn. Code Ann. § 40-30-202(c).



          In the petitioner’s first petition for post-conviction relief, the trial court dismissed his
claims, following an evidentiary hearing. Affirming that dismissal, this court ruled:



                 The evidence presented by the appellant and the evidence
                 presented by the state is in direct conflict and cannot be
                 reconciled. The trial court accredited the evidence presented
                 by the state. Based upon a review of the record, the evidence
                 does not preponderate against the findings made by the trial
                 court.

Roy Morris, Jr., v. State, No. 02-C-01-9408-CR00050 (Tenn. Crim. App., Jackson,

Jackson, Sept. 21, 1994).



          Thus, the petitioner cannot maintain this action as a petition for post-conviction relief

either, since it would be his second such petition, as well as the second time that he has

made a claim of ineffective assistance of counsel, although this time he has alleged a
different inadequacy. Thus, the petitioner’s present claim cannot be considered. However,

even if the claim could be considered, it would be without merit. Our supreme court
recently considered an identical claim regarding alleged “racial discrimination in the
selection of the [Giles County] grand jury foreperson” and found it to be without merit. In

State v. Bondurant, ___S.W.2d ___ (Tenn. 1999), our supreme court considered the

defendant’s claim that, although twelve percent of the adult population of Giles County is
African-American, no African-American had served as foreperson of the county grand jury

from 1919 to 1990. Noting that a similar claim had been raised and rejected in State v.

Jefferson, 769 S.W.2d 875 (Tenn. Crim. App. 1988), perm. app. denied (Tenn. 1989), the
court stated:

                We agree with intermediate appellate court’s discussion of
                Rose and Hobby and therefore hold that the role of the grand
                jury foreperson in Tennessee is ministerial and administrative.
                We also reject the defendant’s claim that Campbell v.
                Louisiana, ___U.S. ___, 118 S.Ct. 1419, 140 L.Ed.2d 551
                (1998) requires that the indictment be quashed. As we read
                Campbell, the method of selection of the grand jury foreperson
                is relevant only to the extent that it affects the racial
                composition of the entire grand jury. Here, the defendant
                offered no proof as to the racial composition of the entire grand
                jury. In addition, we note that the disputed issue in Campbell
                was whether a while defendant has standing to claim
                discrimination against African-Americans in the selection of
                grand jurors. Louisiana law, rather than Tennessee law, was
                at issue. Accordingly, we hold that the defendant has failed to
                establish a prima facie claim because he failed to offer proof
                showing that racial discrimination tainted the entire grand jury.
                We, therefore, reject the defendant’s claim that his indictment
                must be quashed.

State v. Bondurant, ___S.W.2d ___, 23* (Tenn. 1999).



       Thus, were we able to consider the petitioner’s claim regarding the selection of a
grand jury foreperson, it would be dismissed as without merit, based upon the holding in

Bondurant. That being the case, ineffective assistance of counsel did not occur when trail

counsel did not raise such claims.


                                        CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the order of the trial
court dismissing the petitioner’s petition for writ of habeas corpus.




                                            _____________________________________
                                            ALAN E. GLENN, JUDGE


CONCUR:




__________________________________
JOHN H. PEAY, JUDGE
__________________________________
NORMA McGEE OGLE, JUDGE
