            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE              FILED
                          JUNE SESSION, 1999          July 23, 1999

                                                                Cecil Crowson, Jr.
                                                                Appellate C ourt
                                                                    Clerk


ALONZO STEWART,               )
                              )     No. 03C01-9810-CR-00380
      Appellant               )
                              )     MORGAN COUNTY
vs.                           )
                              )     Hon. E. Eugene Eblen, Judge
STATE OF TENNESSEE,           )
                              )     (Writ of Habeas Corpus)
      Appellee                )



For the Appellant:                  For the Appellee:

Joe H. Walker                       Paul G. Summers
Public Defender                     Attorney General and Reporter
119-1/2 East Broadway
Lenoir City, TN 37771               Ellen H. Pollack
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    425 Fifth Avenue North
                                    2d Floor, Cordell Hull Building
                                    Nashville, TN 37243-0493


                                    Scott McCluen
                                    District Attorney General

                                    Roger Delp
                                    Asst. District Attorney General
                                    P. O. Box 703
                                    Kingston, TN 37763




OPINION FILED:


AFFIRMED



David G. Hayes
Judge
                                                   OPINION



         The appellant, Alonzo Stewart, also known as Ishaaq1 appeals as of right,

from the summary dismissal of his pro se petition for the writ of habeas corpus. The

appellant alleges in his petition that he is currently serving an effective 120 year

sentence in the Department of Correction stemming from five 1983 armed robbery

convictions in Davidson County. These convictions were affirmed by this court on

direct appeal. See State v. Stewart, No. 84-2-III (Tenn. Crim. App. at Nashville, Oct.

24, 1984).2 According to his petition, these robberies occurred on various dates

before July 1, 1982, the effective date of the 1982 Criminal Sentencing Reform Act;

however, his sentencing was conducted after the effective date and in accordance

with the 1982 Act. Based upon this fact, he argues on appeal (1) sentencing him

under the 1982 Act resulted in “enhanced” sentences and was “in violation of the ex

post facto law” and (2) the reasonable doubt jury instruction was unconstitutional.



         After review, we affirm dismissal of the petition.



         First, the appellant contends that sentencing him under the provisions of the

1982 Sentencing Act, rather than the 1975 Sentencing Act resulted in his sentences

being “enhanced.”3 Following his 1983 jury conviction for five counts of armed

robbery, he was sentenced to 40 years on each count. Because of partial,



         1
          The appe llant a lleges in his p etition that h is lega l nam e is no w “Ish aaq .” No proo f of th is
assertion is included in the record. Accordingly, absent this proof or an order of amendment, we
use the name under which he was convicted for purposes of identity with prior proceedings.
         In this regard, we note this is the appellant’s fifth proceeding challenging directly or
collaterally his armed robbery convictions. In addition, the appellant has filed five civil proceedings
while incarc erated a lleging variou s civil rights violation s.

         2
          The appellant has failed to comply with Tenn. Code Ann. § 29-21-107(b)(2) (1980)
requiring production of legal process relevant to and forming the grounds for the alleged illegal
restraint, which would include indictments and judgments of conviction. This noncompliance
sub jects the p etition to dis mis sal.

         3
         We note that in a prior petition for habeas corpus relief, the appellant argued that he
should h ave bee n sente nced u nder the 1989 C riminal S entenc ing Refo rm A ct. See State ex re l.
Stewart v. McW herter, 857 S.W .2d 875 ( Tenn . Crim. A pp. 1992 ), perm. to appeal denied, (Tenn.
1993).

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consecutive sentencing, the trial court imposed an effective sentence of 120 years.

Stewart, No. 84-2-III n. 2. In his petition, the appellant alleges, “[i]n cases where the

jury failed to stipulate how the sentence was to be served (in prior law), the

sentence was to be served concurrently,” citing Rule 32(c)(1), Tenn. R. Crim. P. and

Ray v. State, 576 S.W.2d 598 (Tenn. Crim. App. 1978). The appellant’s reliance

upon Rule 32 and the case of Ray v. State as authority for his position is misplaced.

As responded by the State in its Motion to Dismiss, “under either ‘Jury Sentencing’

or the 1982 Judge Sentencing Act, the determination of whether sentences ran

concurrently or consecutively to each other always rested with the Court and not the

jury.”



         More importantly, however, an issue of enhancement or excessive sentence

will not support a claim for habeas corpus relief. Habeas corpus relief is limited and

available in Tennessee only when the face of the judgment rendered reveals that

the convicting court was without jurisdiction or authority over the appellant or that the

appellant’s sentence of imprisonment has expired. Archer v. State, 851 S.W.2d

157, 164 (Tenn. 1993); Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.

1994). Accordingly, excluding cases where the sentence has expired, habeas

corpus relief is granted only for a void judgments, i.e., “one in which the judgment is

facially invalid because the court did not have the statutory authority to render such

judgment.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998) (citing Archer,

851 S.W.2d at 161). If, from the face of the petition, the reviewing court finds

nothing to indicate that the appellant’s challenged convictions might be void or not

entitled to any relief, the court shall dismiss the petition and refuse the issuance of

the writ. Tenn. Code Ann. § 29-21-101, -109 (1980). Because we find the

appellant’s petition fails to establish that his convictions were void or that his

sentences have expired, this issue is without merit.



         Next, the appellant contends that the reasonable doubt jury instruction


                                           3
submitted at his trial was constitutionally infirm. Again, no authenticated

“reasonable doubt” jury instruction is included within the record. Even so,

challenges to a jury instruction are not cognizable within the context of a state

habeas corpus proceeding. See Hall v. Mills, No. 01C01-9510-CV-00339 (Tenn.

Crim. App. at Nashville, Aug. 1, 1996), perm. to appeal denied, (Tenn. 1996); Voss

v. Raney, No. 02C01-9501-CC-00022 (Tenn. Crim. App. at Jackson, Aug. 2, 1995),

perm. to appeal denied, (Tenn. 1995). Moreover, the United States Sixth Circuit

Court of Appeals and the appellate courts of this state have upheld the validity of

this state’s pattern instruction on reasonable doubt. See Austin v. Bell, 126 F.3d

843, 846-47 (6th Cir. 1997); State v. Nichols, 877 S.W.2d 722, 734 (Tenn. 1994),

cert. denied, 513 U.S. 1114, 115 S.Ct. 909 (1995); Pettyjohn v. State, 885 S.W.2d

364, 365-66 (Tenn. Crim. App.), perm. to appeal denied, (Tenn. 1994). This issue is

without merit.



       Moreover, we are unable to treat the appellant’s petition as one for post-

conviction relief. See Tenn. Code Ann. § 40-30-205(c) (1997). Post-conviction

relief must be filed in the county of the appellant’s conviction, Davidson County, and

not Morgan County Criminal Court. Tenn. Code Ann. § 40-30-204, -205(c) (1997).

Additionally, the appellant’s convictions became final in October of 1984. See

Stewart, No. 84-2-III Thus, under the applicable statute of limitation, the appellant

had until July 1, 1989, to file a post-conviction petition. Again, as the instant petition

was not filed until July 28, 1998, the trial court correctly dismissed the petition.

Accordingly, a petition for post-conviction relief is time-barred. See Abston v. State,

749 S.W.2d 487 (Tenn. Crim. App.), perm to appeal denied, (Tenn. 1988).



       For the foregoing reasons, the trial court’s summary dismissal of the petition

is affirmed.




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                          ____________________________________
                          DAVID G. HAYES, Judge




CONCUR:



_______________________________________
JOHN H. PEAY, Judge



_______________________________________
JOHN EVERETT W ILLIAMS, Judge




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