         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs August 20, 2002

          WILLIE TOM ENSLEY v. HOWARD CARLTON, WARDEN
                     AND STATE OF TENNESSEE

                  Direct Appeal from the Circuit Court for Johnson County
                            No. 3653     Robert E. Cupp, Judge


                                  No. E2002-00878-CCA-R3-PC
                                        October 21, 2002

In 1986, a Davidson County jury convicted the Petitioner of first degree murder and aggravated rape.
The trial court sentenced the Petitioner to an effective sentence of life plus twenty-seven and a half
years in the Tennessee Department of Correction. This Court affirmed the Petitioner’s convictions
and sentences on direct appeal, and the Tennessee Supreme Court denied permission to appeal. The
Petitioner filed a petition for writ of habeas corpus in 2000, alleging that he is entitled to habeas
corpus relief because: (1) count one of the indictment, charging the Petitioner with felony murder,
contains no reference to the applicable statute; (2) count two of the indictment, charging him with
aggravated rape, fails to state an offense because it omits the required allegation of the appropriate
mens rea for aggravated rape; and (3) count one of the indictment is not signed by the district
attorney general. The trial court denied the Petitioner’s request for habeas corpus relief, finding that
the sufficiency of an indictment cannot be properly challenged in a habeas corpus proceeding and
finding that the Petitioner failed to establish that the indictment was insufficient. After review, we
conclude that the Petitioner has failed to establish a claim for habeas corpus relief, and we affirm the
judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JAMES CURWOOD WITT, JR., J., joined.

Willie Tom Ensley, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
and Glen Watson, Assistant Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                        I. Procedural History
        In January 1986, a Davidson County jury convicted the Petitioner, Willie T. Ensley, of
aggravated rape and first degree murder. The trial court sentenced the Petitioner to life
imprisonment in the Tennessee Department of Correction for the first degree murder conviction and
imposed a consecutive sentence of twenty-seven and a half years in the Tennessee Department of
Correction for the aggravated rape conviction. This Court affirmed the convictions and sentences
on direct appeal, and the Tennessee Supreme Court denied permission to appeal. See State v. Willie
Tom Ensley, No. 86-65-III, 1987 Tenn. Crim. App. LEXIS 2213 (Tenn. Crim. App., Nashville, Apr.
7, 1987), perm. app. denied (Tenn. June 29, 1987).

         On November 17, 2000, the Petitioner filed a petition for a writ of habeas corpus in the
Johnson County Circuit Court, alleging that he is entitled to habeas corpus relief because: (1) count
one of the indictment, charging him with felony murder, contains no reference to the applicable
statute; (2) count two of the indictment, charging him with aggravated rape, fails to state an offense
because it omits the required allegation of the appropriate mens rea for aggravated rape; and (3)
count one of the indictment is not signed by the district attorney general. The trial court denied the
Petitioner’s request for habeas corpus relief, finding that the sufficiency of an indictment cannot
properly be challenged in a habeas corpus proceeding. Moreover, the trial court determined that
even if the challenge to the sufficiency of the indictment was proper in a habeas corpus proceeding,
the Petitioner had failed to establish that the indictment was insufficient. This appeal ensued.

                                             II. Analysis

        Article I, Section 15 of the Tennessee Constitution guarantees its citizens the right to seek
habeas corpus relief. In Tennessee, a “person imprisoned or restrained of [his] liberty, under any
pretense whatsoever . . . may prosecute a writ of habeas corpus, to inquire into the cause of such
imprisonment . . . .” Tenn. Code Ann. § 29-21-101. A writ of habeas corpus is available only when
it appears on the face of the judgment or the record that the convicting court was without jurisdiction
to convict or sentence the defendant, or that the sentence of imprisonment or other restraint has
expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); See also Potts v. State, 833 S.W.2d
60, 62 (Tenn. 1992). Thus, the grounds upon which habeas corpus relief will be granted are very
narrow. See State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000). Additionally, the procedural
requirements for habeas corpus relief are mandatory and must be scrupulously followed. Archer,
851 S.W.2d at 165. 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, when the petition fails to state a cognizable
claim. In such event, the suit may be summarily dismissed by the trial court. Passarella v. State, 891
S.W.2d 619, 627 (Tenn. Crim. App. 1994) (citation omitted), superceded by statute, as stated in
Larry Wayne Baxter v. State, No. 02C01-9707-CC-00233, 1998 Tenn. Crim. App. LEXIS 281, at
*2n.2 (Tenn. Crim. App., Jackson, Mar. 11, 1998). Because the determination of whether habeas
corpus relief should be granted is a question of law, our review is de novo with no presumption of
correctness. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000).

       In his petition, the Petitioner relies on alleged defects in the original indictment charging him
with aggravated rape and first degree murder. As the State points out in its brief, in most instances


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a challenge to the sufficiency of an indictment is not cognizable in a habeas corpus proceeding. See
Haggard v. State, 475 S.W.2d 186, 187-88 (Tenn. Crim. App. 1971); Tenn. R. Crim. P. 12(b)(2)
(stating that “[d]efenses and objections based on defects in the indictment” must be raised prior to
trial). However, if an indictment fails to state an offense, the subsequent conviction on the defective
indictment is void because no crime is before the court and because the court lacks jurisdiction.
Charles Edward Orren v. Howard Carlton, No. 03C01-9704-CR-00141, 1998 Tenn. Crim. App.
LEXIS 193, at *3 (Tenn. Crim. App., Knoxville, Feb. 13, 1998) citing State v. Nixon, 977 S.W.2d
119 (Tenn. Crim. App. 1997)). Therefore, if an invalid indictment fails to properly charge an offense
and causes the convicting court to be without jurisdiction, that indictment may be challenged in a
habeas corpus proceeding. Id. at *4. It is well settled that an indictment must provide sufficient
information “(1) to enable the accused to know the accusation to which answer is required, (2) to
furnish the court adequate basis for the entry of a proper judgment, and (3) to protect the accused
from double jeopardy.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997).

        The Petitioner argues that the felony murder count of the indictment is invalid because it does
not cite the statute which the Petitioner is accused of violating. However, our review of the
indictment in question indicates that the indictment would certainly satisfy all three requirements of
Hill. See id. Count one of the indictment states that on November 17, 1984, the Petitioner
        unlawfully, feloniously, willfully, deliberately, premeditatedly, or while in the
        perpetration of a felony, to wit: rape or larceny, and maliciously did make an assault
        upon the body of one Brenda Kay Cotten . . . and there did unlawfully, feloniously,
        willfully, deliberately, premeditatedly, or while in the perpetration of a felony, to wit:
        rape or larceny, and of his malice aforethought, kill and murder, against the peace and
        dignity of the State.

        We conclude, as did the trial court, that this indictment would certainly enable the Petitioner
to know that he is accused of murdering Brenda Kay Cotten with premeditation, or while raping or
committing larceny against her. As the State points out in its brief, a reference to the statute which
the accused has allegedly violated is not required. See Malone v. State, 707 S.W.2d 541, 543 (Tenn.
Crim. App. 1985). Thus, the Petitioner’s first claim is without merit.

        Next, the Petitioner complains that count two of the indictment is invalid because it fails to
state the required mens rea for aggravated rape. Count two of the indictment alleges that the
Petitioner
        unlawfully and feloniously did engage in unlawful sexual penetration of Brenda Kay
        Cotten and the said Willie Tom Ensley used force or coercion, was armed with a
        knife and caused personal injury to the said Brenda Kay Cotten and did thereby
        commit the crime and felony of aggravated rape in violation of Section 39-2-603
        Tennessee Code Annotated and against the peace and dignity of the State of
        Tennessee.

       The aggravated rape statute in effect at the time the Petitioner was indicted provides as
follows:


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       (a) Aggravated rape is unlawful sexual penetration of another accompanied by any
       of the following circumstances:
               (1) Force or coercion is used to accomplish the act and the defendant
               is armed with a weapon or any article used or fashioned in a manner
               to lead the victim reasonably to believe it to be a weapon; [or]
               (2) The defendant causes personal injury to the victim . . . .
Tenn. Code Ann. § 39-2-603 (1982).

         O u r s u p r e m e c o u rt, in D y k e s v . C o m p to n , 9 7 8 S .W .2 d 5 2 8 , 5 3 0 (T e n n .
1 9 9 8 ), h e l d th at th e a n aly s is d ev e lo p e d in S tate v . H ill, 9 5 4 S .W .2 d 7 2 5 , 7 2 7
(T e n n . 1 9 9 7 ) , s h o u ld b e u s e d t o d e te r m in e th e su fficien cy o f ind ictm en ts fo r
b o th p re - a n d p o st-1 9 8 9 c rim e s. In H ill, th e s u p re m e c o u rt ru led th at th e
failure to c h a r g e a c u l p a b l e m e n t a l s ta te is n o t a d efe ct s o lo n g a s th e
in d ic tm e n t p e r f o r m s its e ss e n tia l c o n st itu tio n a l a n d st a tu to ry p u rp o se s. H ill,
9 5 4 S .W .2 d at 7 2 9 . T h u s, th e c o u rt h eld th at:
         fo r o ffe n se s w h ich n eith er ex p re ss ly re q u ire n o r p lain ly d i s p e n s e
         w ith th e r e q u i re m e n t f o r a c u l p a b le m e n t a l s ta te , a n i n d i ctm e n t
         w h i c h fa ils to alle g e s u ch m en tal s tate w ill b e s u fficien t to su p p o rt
         p r o s e c u tio n a n d c o n v i c tio n f o r th a t o f fe n s e s o lo n g a s
         (1 ) th e la n g u ag e o f th e in d ictm en t is s u ffic ien t to m ee t th e
         c o n s t itu t io n a l r e q u ir e m e n t s o f n o t ic e to th e ac cu s ed o f th e c h arg e
         a g a i n s t w h ic h th e ac cu se d m u st d ef en d , ad eq u ate b as is fo r e n try o f
         a p ro p er ju d g m en t, an d p ro tec tio n fro m d o u b le je o p ar d y ;
         (2 ) th e f o rm o f th e in d ictm en t m ee ts th e re q u ire m e n ts o f T e n n .
         C o d e A n n . § 4 0 -1 3 -2 0 2 ; a n d
         (3 ) th e m e n t a l s ta te c a n b e lo g i c a lly i n f er re d f ro m th e c o n d u c t
         a lle g ed .
Id . a t 7 2 6 -2 7 .

           T h e in d i c tm e n t in t h is c a se c o m p lie s w ith t h e H ill re q u ire m e n ts . In a
f o o t n o te , th e D y k es v . C o m p to n c o u rt s ta te d t h a t “ th e o f f e n s e o f ag g r a v a t e d
ra p e w a s a ‘g e n e r a l in t e n t’ c rim e , f o r w h i c h a c u lp a b l e m e n t a l s ta te w a s
n e ce ss ary , b u t eas ily in fera b le fro m th e c o n d u c t w h ic h c o m p ris e s t h e o ffe n se .”
9 7 8 S . W .2 d a t 5 3 0 (c itin g M o r is s e tte v . U n i te d S ta te s, 3 4 2 U .S . 2 4 6 , 2 5 1 -5 2
(1 9 5 2 ); W a ld e n v . S t a te , 1 7 8 T e n n . 7 1 , 7 7 , 1 5 6 S .W .2 d 3 8 5 , 3 8 7 (1 9 4 1 ) (“In
th e c rim e o f ra p e n o in te n t is re q u isite o th er th an th at e v id en ce d b y th e d o in g
o f th e a cts co n stitu tin g th e o ffe n se .”) ; C h e r ry v . S t a te , 5 3 9 S .W .2 d 5 1 , 5 4
(T en n . C rim . A p p . 19 7 6 )).

           F in a lly , th e P etitio n er alle g es th at th e a b se n ce o f th e s ig n atu re o f th e
d i s tr ic t a tto rn e y o n th e f ir st d e g r e e m u r d e r c o u n t o f th e i n d i ctm e n t c a u s e s th a t
c o u n t to b e in v alid . H o w ev er , th e s ig n atu re o f th e d i s tr ic t a tto r n e y d o e s a p p e a r
a t th e e n d o f th e in d ictm en t fo llo w in g co u n t tw o , th e a g g ra v ate d ra p e c o u n t.


                                                           -4-
T h i s C o u rt ha s d eterm ine d tha t there is n o re q u ire m en t th at th e s ig n atu re o f th e
d i s tr ic t a tto r n e y g e n e r a l f o llo w e a c h co u n t o f a n in d ictm en t; it is s u ffic ien t if
th e s ig n a t u r e fo l lo w s th e s e c o n d c o u n t o f a tw o -c o u n t in d ic tm e n t. J a m e s E .
M ar tin v . H o w a rd C a rlto n , N o . 0 3 C 0 1 -9 8 0 7 -C R - 0 0 2 5 3 , 1 9 9 9 T en n . C rim .
A p p . L E X IS 5 6 0 , a t * * 9 -1 0 (T e n n . C rim . A p p ., K n o x v ille , J u n e 7 , 1 9 9 9 ).
F u r th e r m o r e , “a n o b jectio n to a d efe c t o f th i s n atu re m u st b e m ad e p re -tria l,
a n d n o t in a c o llateral, po st-trial h a b e a s c o r p u s p e t itio n . ” Id . a t * 1 0 . In o u r
v i e w , th e i n d i ctm e n t a g a in s t th e P e titio n e r , w h i c h c o n ta in s th e s ig n a tu re o f th e
d i s tr ic t atto rn ey g en er al f o llo w in g th e s ec o n d co u n t o f a tw o - c o u n t in d i c tm e n t
is v alid . T h is is su e is w ith o u t m er it.

                                                III. C o n clu sio n

          B a s e d u p o n o u r d e n o v o r e v ie w , w e c o n c l u d e t h a t th e P e titio n e r h a s
f a ile d to e stab lish a claim fo r h a b e a s c o r p u s r e lie f a n d A F F I R M th e j u d g m e n t
o f th e tr ial c o u rt.




___________________________________
                                 ROBERT                                              W.       W EDEMEYER,
JU D G E




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