         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE            FILED
                         AUGUST SESSION, 1998            January 6, 1999

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

JAMES R. TWITTY,                   )    C.C.A. NO. 03C01-9707-CR-00310
                                   )
           Appe llant,             )
                                   )    JOHNSON COUNTY
V.                                 )
                                   )
HOWARD CARLTON, Warden,            )    HON. LYNN W. BROWN, JUDGE
and S TATE O F TEN NES SEE ,       )
                                   )
           Appellee.               )    (HABEAS COR PUS)



FOR THE APPELLANT:                      FOR THE APPELLEE:

JAME S R. TW ITTY, pro se               JOHN KNOX WALKUP
Northeast Correctional Center           Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683-5000            ELIZABETH B. MARNEY
                                        Assistant Attorney General
                                        2nd Floor, Cordell Hull Building
                                        425 Fifth Avenue North
                                        Nashville, TN 37243




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                    OPINION
       The Petitioner, James R. Twitty, appeals as of right the trial court’s dismissal

of his p etition fo r writ of habeas corpus. In this pro se appea l, Petitioner p resents

the following seven (7) issues for review: (1) whether the indictment was defective;

(2) whether his plea was coerced; (3) whether he received ineffective assistance of

trial counsel; (4) whether he is serving an exc essive sente nce; (5 ) wheth er he is

serving a sentence for a non-existent crime ; (6) wh ether th e trial co urt erre d in

dismissing his petition without appointment of counsel or an evidentiary hearing;

and; (7) whether he is being held unconstitutionally because of the defective

indictment and the excessive sentence.            In this opinion, we will summarize

Defe ndan t’s seven (7) issues as basic ally four (4) ch allenges : a defective indictme nt,

a coerced plea, ineffective assistance of trial counsel, and an excessive sentence

for a non-existent crime. After a careful review of the issues, we affirm the judgment

of the trial cou rt.



       It is a well-established principle of law that the remedy of habeas corpus is

limited in its nature and its scope. Archer v. State, 851 S.W.2d 157, 161-62 (Tenn.

1993); Passa rella v. State , 891 S.W.2d 619, 626 (Tenn. Crim . App. 19 94). In

Tennessee, habeas corpus relief is available only if “‘it appears upon the face of the

judgment or the record of the proce eding s upo n whic h the ju dgm ent is rendered’ that

a convicting court was without jurisdiction or authority to sentence a defendant, or

that a defenda nt’s sentence o f imprisonm ent or other restraint ha s expired.” Archer,

851 S.W .2d at 164 (citation omitted in original). The petitioner has the burden of

establishing either a void judgment or an illegal confinement by a preponderance of

the evide nce. Pass arella, 891 S .W .2d at 6 27. Mo reove r, wher e a jud gme nt is not

                                            -2-
void, but is m erely voidable, such judgment may not be co llaterally a ttacke d in a su it

for habe as corp us relief. Id.



       Norma lly, defenses based on defects in the indictment are usually foreclosed

if they are not raised prior to trial. Tenn . R. Crim . P. 12( b)(2) a nd (f). H owev er, Ru le

12(b)(2) also provides that a court shall notice at any time during the pendency of

the proce eding s the d efens e that th e indic tmen t fails to show jurisdiction in the court

or that it fails to charge an offense. Dykes v. Compton, __S.W.2d __, No. 02-S-01-

9711-CC-00105, Lake Coun ty (Tenn ., Nashville, S ept. 21, 19 98). A valid indictment

is an essen tial jurisdictional element, without which there can be no prosecution.

See State v. Hill, 954 S.W.2d 725, 72 7 (Ten n. 1997 ); State v. Stokes, 954 S.W.2d

729, 730 (T enn. 1 997). “B ecau se a h abea s corp us pro ceed ing will allow us to

examine the record -- including the indictment -- it is an appropriate vehicle to

determine whether a jud gment is void.” Dykes, No. 02-S -01-9 711-C C-00 105, s lip

op. at 2-3.



                                              I.



       In his first issue, Petitioner argues that th e indic tmen t is invalid beca use it

does not allege an y injury to the victim, nor does it allege any type of weapon used

for the atte mpte d mu rder. P etitione r’s reliance on State v. Kimbrough, 924 S.W.2d

888 (Tenn. 1996), to attack his indictment for attempted first degree m urder is

misplaced. The Kimbrough case dealt with a conviction for attempt to commit felony

murder, not an attempt to commit premeditated first degree murder. Nonetheless,

we find that the indictment properly charges him with the com mission of a

substantive offense, a ttempt to comm it murde r in the first deg ree. See State v.

                                              -3-
Stampley, C.C.A. No. 02-C-01-9409-CR-00208, slip op. at 7, Shelby County (Tenn.

Crim. App., Ja ckson, A ug. 16, 19 96), perm. to appeal denied (Tenn. 1997). The

Stampley case invo lved an ind ictmen t almost identic al to the indictment in the

present case. The indictment in the case before us reads in pertinent part as follows:

             [O]n the 20th day of January, 1991, in Washington
             County, Tennessee, [Petitioner] did unlawfully, deliberately
             and with premeditation attempt to kill [victim], in violation
             of Section 39-12-101, Tennessee Code Annotated, and
             against the peace and dignity of the State of Tennessee.



Although the Court in Stampley was fo cusin g on th e petitio ner’s argument that the

indictment failed to allege an overt act, this Court nonetheless held that the

“language clearly a lleges that the appe llant comm itted the offe nse of atte mpt to

com mit murder in the first deg ree,” and that the issu e was w ithout me rit. Id. We

also note that case law reveals that including a type of weapon used in the offense

or that the victim sustained bodily injury in the indictment is not required when

charging attemp ted first deg ree mu rder. See, e.g., State v. Nix, 922 S.W.2d 894

(Tenn. Crim. A pp. 199 5), perm. to appeal denied (Tenn . 1996); State v. Jimmie Lee

Demoss, C.C.A. No. 02C01-9406-CC-00127, Madiso n Cou nty (Ten n. Crim. A pp.,

Jackson, Apr. 26, 1 995); State v. Edwin Jesperson, C.C.A. No. 03C01-9206-CR-

00212, Monroe C ounty (Tenn. Crim. A pp., Kno xville, Aug. 11 , 1993), perm. to appeal

denied (Tenn . 1993). T his issue is without m erit.




                                      II. and III.




                                          -4-
       Petitioner’s next two issues, the coerced plea and ineffective assistance of

counsel, are not c ognizable in a habeas corpus proceeding.               These kinds of

collateral attacks based on constitutional challenges to an otherwise valid conviction

are proper for post-conviction relief procee dings, but not in a petition for habeas

corpus relief. See, e.g., Archer v. State, 851 S.W.2d 157, 164-65 (Tenn. 1993).

Thes e issues are witho ut merit.



                                            IV.



       As to his last issue, Petitioner fails to carry his b urden of estab lishing by a

preponderance of the evidence that his term of imprisonment has expired.

Pass arella, 891 S.W .2d at 6 26-27 . Petition er sim ply says that his sente nce is

excessive and that he has served his sentence. However, Petitioner offers no

evidence to support his arguments.         Furthermore, he does not allege that the

convicting court was without jurisdiction, thereby making his conviction and sentence

void. The refore, this iss ue is witho ut merit.



       This Court has held that if it is clear from the face of the petition that the

petitioner is not entitled to relief, then the trial court is not required to hold a hearing

or inquire into the allegations in the petition, but may dismiss the petition sum marily.

Id. We agree with the trial court’s dismissal of Petitioner’s petition.




       Accordingly, the judgment of the trial court is affirmed.



                                    ____________________________________

                                            -5-
                         THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JOE G. RILEY, Judge




                               -6-
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE                    FILED
                      AUGUST 1998 SESSION                          January 6, 1999

                                                                  Cecil Crowson, Jr.
                                                                  Appellate C ourt Clerk
JAMES R. TW ITTY,        )
                   )
     Appe llant,   )     No. 03C01-9707-CR-00310
                   )
                   )     Johns on Co unty
v.                 )
                   )      Honorable Lynn W. Brown, Judge
                   )
HOW ARD CARLTO N, Warden       )      (Habeas Corpus)
and STATE OF TENNESSEE, )
                   )
     Appellees.    )



                               DISSENTING OPINION




      I agree w ith mos t of the resu lts and rea soning in the ma jority opinion . I

respe ctfully disagree with its conclusion that the indictment in this case is sufficient

to allege th e offense of attem pt to com mit first deg ree mu rder.



      The majority opinion relies upon State v. Cedric E. Stampley, No. 02-C-01-

9409-CR-00208, Shelby County (Tenn. Crim. App. Aug. 16, 1996), app. denied

(Tenn. Jan. 27, 199 7), which held that a n indictm ent simila r to the one in this case

was sufficient to allege the offense o f attemp t to comm it first degree murde r. In

Stampley, the defendant argued that the indictment failed to allege a n overt ac t. In

full, this court’s reasoning was as follows: “The fallacy with this argument is that the

indictment does not charge the appellant with conspiring to commit an offense. The

indictment charge s him w ith the com mission of a subs tantive offen se, attem pt to




                                           -7-
com mit murder in the first degree.” Slip op. at 9. The court then merely stated that

the allega tions allege d the offen se of attem pted first de gree m urder.



       On the other hand, in State v. Michael K. Ch ristian, Jr., No. 03C01-9609-CR-

00336, Sullivan County (Tenn. Crim. App. Mar. 23, 1998), applic. filed (May 22,

1998), this court m ade a d etailed an alysis of the eleme nts of a criminal attem pt.

Christian claimed that the presentment against him charging attempted first degree

murder failed to alleg e the elem ents of an attemp t. The pertinent allegations w ere

that the defenda nt “did attemp t to kill [the victim] b y stabb ing [he r] with a d eadly

weapon . . . which conduct constituted a substantial step toward the commission of

the said offense.” This court stated the following:

               “An indictment or information charging an attempt to commit a
       crime should specifically allege intent and the overt act done tow ard
       commission of the offense . . . .” Indictments and Informations, 41 Am.
       Jur. 2d, § 132, p. 748 (2d Ed. 1995) (footnotes omitted) . In Gervin v.
       State, 371 S.W.2d 449, 451 (Tenn. 1963), our supreme court ruled that
       an indictment cha rging so licitation would not sustain a conviction for
       attemp t. The cou rt described criminal attempt as follows: “An attempt
       . . . requires . . . (1) an intent to commit a specific crime; [and] (2) an
       overt act . . . . In attem pts, the intent must be to commit the
       contemplated crime.
       . . . To constitute an attempt there must also be an act of perpetration,
       that is an overt act.” Id. (Citations o mitted).

             This genera l concep t of crimina l attempt carried over into the
       1989 c odification o f criminal a ttempt:

                 Criminal attempt is an offense directed at the individual
              whos e inten t is to com mit an offense, but whose actions,
              while strongly corrobora tive of crimin al intent, fail to
              achieve the criminal objective intended. Accordingly, the
              offense is basically one of criminal intent cou pled with a cts
              that clearly dem onstrate the offender’s proclivity toward
              criminality.

       Sentencing Commission Comments to Tenn. Code Ann. § 39-12-101.


Slip op. at 13-14 (footnote omitted). This court concluded that the allegation

regar ding th e defe ndan t stabb ing the victim w ith a de adly we apon sufficie ntly


                                            -8-
showed the conduct that was a substantial step toward commission of a first

degree murde r.



       The ind ictmen t is required to state the facts that co nstitute the offense.

T.C.A . § 40-1 3-202 . Each of the th ree m eans of crim inal atte mpt p rovide d in

T.C.A. § 39-12-101 requires an act or actions to go with the intent to commit an

offense , in this case first degree murde r. The failur e of the ch arging ins trumen t to

allege any co nduc t or actio n by the petition er relativ e to him intend ing to c omm it

first degree murde r renders the indictm ent fatally de ficient.



                                          _____________________________
                                          Joseph M. Tipton, Judge




                                            -9-
