             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE

                             JULY 1996 SESSION
                                                            FILED
                                                             August 12, 1997

                                                            Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk

JIMMY WAYNE WILSON                )
                                  )     C.C.A. NO. 03C01-9604-CC-00142
             Appellant            )
v.                                )     Sullivan Criminal
                                  )
STATE OF TENNESSEE                )     Honorable Arden L. Hill
                                  )
             Appellee             )     Habeas Corpus




For Appellant:                          For Appellee:

Jimmy Wayne Wilson, Pro Se              Charles W. Burson
P. O. Box 5000                          Attorney General and Reporter
Mountain City, TN 37683
                                        Elizabeth T. Ryan
                                        Assistant Attorney General
                                        450 James Robertson Parkway
                                        Nashville, TN 37243-0493

                                        H. Greeley Wells, Jr.
                                        District Attorney General

                                        Joseph Eugene Perrin
                                        Asst. District Attorney General
                                        P.O. Box 526
                                        Blountville, TN 37617-0526




OPINION FILED_____________

AFFIRMED

WILLIAM M. DENDER, SPECIAL JUDGE
                              OPINION
       This is an appeal as of right from the order of the Sullivan County Criminal Court,

dated February 20, 1996, dismissing appellant's petition for a writ of habeas corpus,

without appointing counsel and without a hearing. We find no merit in any of the issues

raised on appeal, and the trial court is affirmed.



       The petition for habeas corpus alleged that appellant is being "unlawfully

restrained of his liberty" because the statute under which he was sentenced as an

habitual criminal is unconstitutional. T.C.A. § 40-20-112 is the statute in question. A

copy of the petition was never served on the Tennessee Attorney General; however,

the district attorney general filed a response to the petition and alleged that the petition

should be dismissed because (1) it was not filed in "the Court most convenient in point

of distance to the petitioner pursuant to T.C.A. § 29-21-105, (2) the petitioner has not

established that his conviction is void, and (3) the issues raised in the petition have

been raised and decided in previous petitions for post-conviction relief.



                                          FACTS



       A jury convicted the appellant of rape in the Sullivan County Criminal Court, and

on July 22, 1985, judgment was entered sentencing appellant to life imprisonment as

an habitual criminal. At the time appellant was convicted of rape, he had several

previous convictions which included perjury, burglary and felonious assault. Habitual

criminal status at that time required three prior felony convictions, of which two were to

be from a designated class. See T.C.A. § 39-1-801 (1982). Perjury and burglary fell

within the class. At the time the current petition for habeas corpus was filed, appellant

was incarcerated in the Northeast Correctional Center in Mountain City, Carter County,

Tennessee. Appellant does not allege that his sentence has expired. He alleges his

conviction for burglary on June 5, 1979 and his conviction for perjury on November 17,

                                              2
1980 cannot be used to enhance his punishment, as an habitual criminal, to life

imprisonment on his conviction for rape on July 22, 1985. He alleges that T.C.A. § 40-

20-112, as it existed prior to May 18, 1981 and at the time of his convictions for burglary

and perjury, has been held to be unconstitutional in Gaskin v. Collins, 661 S.W.2d 865;

and that by reason thereof his convictions are void. He does not allege "it appears

upon the face of the judgment or the record of the proceedings upon which the

judgment is rendered" that the convicting court in either the burglary case or the perjury

case was without jurisdiction or authority to sentence him.



                                ANALYSIS AND HOLDING



       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).



       It is a well-established principle of law that the remedy of habeas corpus is
       limited in scope as well as relief. In criminal cases, the remedy is limited to
       cases were the judgment is void or the term of imprisonment has expired.

       A trial court is not required, as a matter of law, to grant the writ and conduct an
       inquiry into the allegations contained in the petition. If the petition fails to state a
       cognizable claim, the suit may be summarily dismissed by the trial court.
       Passarella v. State, 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994).



       A judgment of a court of general jurisdiction is presumed to be valid. This
       presumption is said to be conclusive unless the judgment is impeached by the
       record. If the court rendering a judgment has jurisdiction of the person, the
       subject-matter, and has the authority to make the challenged judgment, the
       judgment is voidable, not void; and the judgment may not be collaterally attacked
       in a suit for habeas corpus relief. Id., at 627.



       Appellant appealed his conviction for rape and habitual criminal status, and this

Court affirmed the trial court on November 14, 1986. Appellant later filed a petition for

post-conviction relief concerning the 1985 rape conviction resulting in a life sentence as

                                               3
an habitual criminal and the 1980 perjury conviction; and this Court affirmed the trial

court, except as it related to the effective assistance of counsel on appeal, and the case

was remanded to the trial court for an appropriate evidentiary hearing on that issue.



       It is clear that the trial court had jurisdiction of the person and the subject matter;

and that it had the authority to make the challenged judgment in each of the burglary,

perjury, felonious assault and rape cases. The judgments against appellant are clearly

voidable, not void.



       Appellant insists that his petition for writ of habeas corpus should not be treated

as a petition for post-conviction relief; however, he relies upon the post-conviction relief

statutes to claim that he is entitled to appointed counsel. There is no indication that the

trial court treated the petition as a petition for post-conviction relief; and if it had done

so, the petition would properly have been immediately dismissed because the petition

was not filed within three years after May 11, 1987, the date the Tennessee Supreme

Court denied his application for permission to appeal in the rape case. The trial judge

has discretion under T.C.A. § 40-14-204 to appoint counsel, if necessary, in habeas

corpus proceedings; but there is no statutory or constitutional right to assistance of

counsel in habeas corpus proceedings, or on appeal from the denial of the writ of

habeas corpus. See House v. State, 911 S.W.2d 705 (Tenn. 1995). The petition in this

case adequately set forth the various grounds claimed for the writ of habeas corpus,

and under the facts of this case, there was no reason to appoint counsel. This issue

has no merit.



       It is not necessary for the purposes of this decision to consider the statute

appellant says has been held to be unconstitutional; however, in order to clarify the

misunderstanding we will address this issue. A careful reading of Gaskin v. Collins,

supra, clearly shows that the only part of the statute declared unconstitutional was the

                                               4
part which retroactively disenfranchised convicted felons who had never been adjudged

infamous. This part of the statute was codified in T.C.A. § 2-2-139(d) and § 2-19-

143(4), and it was not codified as T.C.A. § 40-20-112.



       In Gaskin v. Collins, supra, at 866, the Tennessee Supreme Court affirmed the

trial court and said:

       By judgment entered March 16, 1983, the Chancellor held that "Section 8 of
       Chapter 345 of the Tennessee Public Acts of 1981, as codified at T.C.A. § 2-2-
       139(d) and § 2-19-143(4), is declared to be unconstitutional in that it violates
       Article I, § 5 of the Tennessee Constitution." The Chancellor found that the
       remaining sections of Chapter 345 were not affected because of the severability
       clause found in Section 9 of the Act.



       Appellant claims that T.C.A. § 40-2-112, as it existed prior to May 18, 1981, was

declared unconstitutional, but that simply is not correct.



       Prior to 1972, T.C.A. § 40-2712 included the words "it shall be part of the

judgment of the court that the defendant be infamous, and be disqualified to exercise

the elective franchise." By Chapter 740, § 4, Acts of Adjourned Session 1972, T.C.A. §

40-2712 was amended, and the above quoted words then read "it shall be part of the

judgment of the court that the defendant be infamous." Notice that the words "and be

disqualified to exercise the elective franchise" are left out of the act as amended in

1972. This change does not change the crimes listed in any way. It simply does not

require that persons convicted of the listed crimes lose the right to exercise the elective

franchise. In 1981 the legislature again amended this code section and included the

words "and be immediately disqualified from exercising the right of suffrage."

       At the time appellant was convicted of rape and his punishment enhanced under

T.C.A. § 30-1-801, T.C.A. § 40-20-112 clearly limited the previous crimes to be

considered in determining habitual criminal status to those listed prior to May 18, 1981;

and burglary and perjury were among those listed crimes. Gaskin v. Collins, supra, has


                                             5
no bearing, one way or the other, on the habitual criminal status of the petitioner.



       Appellant also filed a Motion For Recusal, claiming "that sullivan county district

attorney office and criminal court of sullivan county went outside of it jurisdiction or

authority and hand pick a bias and prejudice judge Arden L. Hill, from Carter County

Criminal Court, At Elizabethton, Tennessee to come into sullivan county criminal court

to hear petitioner writ of habeas corpus in violation of the united states constitution

under the 14th Amendment to due process clause." He also alleged "it is mandatory

disqualification or recusal when a party has filed a timely and sufficient motion, the

judge accused of bias and prejudice shall proceed no further, ..." The last quotation is

simply is not the law; and such statement requires no further comment.



       The order of the trial court dismissing the habeas corpus petition was signed by

Judge Hill on February 12, 1996, and filed by the clerk on February 20, 1996. The

Motion For Recusal was filed on February 21, 1996. Notice of appeal was filed on

February 26, 1996.



       The motion was filed too late. The court had already ruled, and under the facts

of this case the ruling would have been the same regardless of which judge considered

the petition, or if a hearing had been allowed, any evidence that could have been

presented under the petition. There is nothing in the record to indicate that Judge Hill

did anything wrong in this case, or that there was any reason for him to recuse himself.

We find the issue concerning the Motion For Recusal to be totally without merit.

       We further note that the same baseless complaint has been filed by appellant

against other judges. Also, intentionally or not, appellant states in his brief a wrong

date for the date his Motion for Recusal was filed, and he misquotes the trial court's

order. If appellant were a lawyer, sanctions against him would be considered.




                                              6
         Appellant also alleged that Judge Hill did not have jurisdiction to hear his petition.

Appellant does not allege that Judge Hill is not a duly elected judge of the 1st Judicial

District of the State of Tennessee, and in fact appellant states that Judge Hill is from

the Carter County Criminal Court, which is part of that judicial district.



         Criminal judges may have the right to interchange with each other and with
         judges of all other courts of record in the state when causes exist making an
         interchange necessary or desirable, or mutually convenient by agreement.
         T.C.A. § 17-2-205.



         In all cases, the judge or chancellor holding court in the circuit or division of
         another, shall have the same power and jurisdiction as the judge or chancellor in
         whose place the judge or chancellor is acting. T.C.A. § 17-2-205.



         Clearly the issue concerning the jurisdiction of Judge Hill to hear the case has no

merit.



         Since the judgments against the appellant clearly are not void, it is not necessary

to consider other reasons why the petition cannot succeed.



         We find no merit in any of the issues raised by the appellant, and the trial court is

affirmed. The case is remanded to the trial court for all necessary proceedings not

inconsistent with this opinion.




                                            ________________________________
                                            William M. Dender, Special Judge




CONCUR:



__________________________________

                                               7
Joseph B. Jones, Presiding Judge



__________________________________
David G. Hayes, Judge




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