            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                       SEPTEMBER SESSION, 1997       FILED
                                                      October 3, 1997

                                                 Cecil Crowson, Jr.
JOHN J. VILLANEUVA,     )                            Appellate C ourt Clerk
                        )        No. 03C01-9611-CR-00425
     Appellant          )
                        )        JOHNSON COUNTY
vs.                     )
                        )        Hon. LYNN W. BROWN, Judge
HOWARD CARLTON, Warden, )
and STATE OF TENNESSEE, )
                        )        (Writ of Habeas Corpus)
     Appellee           )



For the Appellant:               For the Appellee:

John J. Villanueva, Pro Se       Charles W. Burson
117376 NECC POB 5000             Attorney General and Reporter
Mountain City, TN 37683
                                 Michael J. Fahey, II
                                 Assistant Attorney General
                                 Criminal Justice Division
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493


                                 (AT TRIAL AND ON APPEAL)




OPINION FILED:


AFFIRMED


David G. Hayes
Judge
                                                     OPINION



         The appellant, John J. Villaneuva, appeals the trial court’s summary dismissal

of his pro se application for writ of habeas corpus. 1 On July 16, 1987, the appellant

was found guilty by a Jefferson County jury of first degree burglary. Based upon this

“triggering” offense and requisite qualifying felony convictions, the appellant received

an enhanced sentence of life imprisonment after a jury found him to be an habitual

offender. 2 See Tenn. Code Ann. § 39-1-801(repealed 1989). On November 10,

1987, the appellant pled guilty in the Jefferson County Criminal Court to one count

of rape, one count of sexual battery, and two counts of first degree burglary. The

court imposed an effective sentence of twenty-five years for these convictions and

ordered that this sentence run concurrently to his life sentence. The appellant is

currently incarcerated at the Northeast Correctional Center in Johnson County.



         On August 12, 1996, the appellant filed an application for a writ of habeas

corpus alleging that the judgments entered against him on the charges of rape,

sexual battery, and habitual criminality are void because the indictment failed to

allege the mens rea of the offenses charged. The appellant’s petition also contends

that his “conviction” as an habitual criminal is void because his Illinois guilty plea

convictions establishing this classification were not knowingly entered pursuant to

Tennessee law. 3 Finding that the appellant’s claims were not appropriate for

habeas corpus relief, the Johnson County Criminal Court summarily dismissed the

appellant’s application. The appellant now appeals this decision alleging, inter alia,

         1
           We note that the spelling of the appellant’s surname in the State’s indictment and on
direct appeal is reflected as “Villaneuva.” However, the appellant’s pro se brief reflects the
spe lling “V illanue va.” F or pu rpos es of cons isten cy, we use t he na me of the appe llant a s it
appea rs on the indictm ent.

         2
         Spe cifica lly, in add ition to the “tr igger ing” o ffen se, th e Sta te’s n otice to the appe llant in
count fourteen of the indictment includes nine prior felony convictions from Illinois and one prior
felony conviction from Indiana.

         3
         The appellant contends that the Illinois court that accepted his guilty pleas did not inform
him that his convictions could subsequently be used to enhance any future out-of-state sentence.

                                                         2
that the trial court erred in summarily dismissing his petition and, in the alternative,

that the trial court should have treated his petition as one for post-conviction relief.



         After a review of the record, we affirm the decision of the trial court.




             I. Summary Dismissal of Application for Writ of Habeas Corpus



         The appellant first asserts that, regardless of the merits of his claims, the trial

court’s summary dismissal of his application for writ of habeas corpus without an

evidentiary hearing, without the appointment of counsel, without a reasonable

opportunity to amend his petition, and without requiring the State to file an answer to

the petition violated the appellant’s due process and equal protection rights. We

disagree.



         The appellant misreads the procedural requirements involved in the issuance

of writs of habeas corpus. Briefly, to obtain such relief in Tennessee, a “prisoner”

must submit an application, in the form of a petition, for the issuance of a writ to the

court most convenient in location to the “prisoner.”4 See Tenn. Code Ann. § 29-21-

101, -105, -107 (1980). If, from the face of the petition, the reviewing court finds

nothing to indicate that the appellant’s challenged convictions might be void, the

court shall dismiss the petititon and refuse the issuance of the writ.5 See Tenn.

Code Ann. § 29-21-101, -109. Therefore, it follows that if the writ is refused, a

hearing on the petition is precluded, thereby obviating any response from the State.



         4
          Contrary to the appellant’s assertions, the law in this State does not require the
appointm ent of lega l counse l in drafting an application for writ of ha beas c orpus. See State v.
Har ris, No. 01C 01-930 9-CR -00304 (Tenn . Crim. A pp. at Na shville, Nov . 10, 1994 ), perm. to app.
denied to app. denied to appeal denied, (Tenn. Mar. 6, 1995).

         5
          Add itiona lly, we n ote th at, in th at ha bea s co rpus proc eed ings are e sse ntially c ivil in
nature, the Rules of Civil Procedure are applicable where consistent with Tenn. Code Ann. § 29-
21-101 et seq. Tenn. R. Civ. P. 12 provides trial courts the authority to dismiss complaints sua
sponte when the pleadings thereon fail to state a claim upon which relief may be granted.

                                                      3
See Harris, No. 01C01-9309-CR-00304.



       The procedural provisions pertaining to habeas corpus relief are mandatory

and must be scrupulously followed. Harris, No, 01C01-9309-CR-00304 (citing

Bateman v. Smith, 183 Tenn. 541, 543, 194 S.W.2d 336, 337 (1946)). Again, the

trial court found that the appellant’s application failed to state a claim which could

form the basis for habeas relief. W e agree. Allegations concerning the sufficiency

of the indictment are not the proper subject of habeas corpus relief. See Haggard v.

State, 475 S.W.2d 186, 187 (Tenn. Crim. App. 1971); Brown v. State, 445 S.W.2d

669, 674 (Tenn. Crim. App. 1969); Barber v. State, No. 01C01-9408-CR-00281

(Tenn. Crim. App. at Nashville, Feb. 23, 1995). Moreover, it is well-established that

the appellant may not collaterally attack his Illinois convictions in this State. See

U.S. CONST . art. IV, § 1. See also Rhoden v. State, 816 S.W.2d 56, 66 (Tenn. Crim.

App. 1991). We conclude that the trial court properly followed the provisions of

Tenn. Code Ann. § 29-21-101 et seq. in summarily dismissing the petition. This

contention of the appellant is without merit.




      II. Failure to Treat Application as Petition for Post-Conviction Relief



        Next, the appellant argues that, regardless of this court’s ruling on the trial

court’s summary dismissal, the trial court should have considered his application for

writ of habeas corpus as a petition for post-conviction relief. See Tenn. Code. Ann.

§ 40-30-205(c) (1996 Supp.). The appellant pursued a direct appeal of his burglary

conviction and habitual criminal status. These judgments were affirmed. See State

v. Villaneuva, C.C.A. No. 77 (Tenn. Crim. App. at Knoxville, July 5, 1988), perm. to

app. denied to app. denied to appeal denied, (Tenn. Oct. 3, 1988). The appellant

did not pursue a direct appeal of his November 10, 1987, guilty plea convictions.

Accordingly, a petition for post-conviction relief was barred by the three-year statute


                                          4
of limitations. See Tenn. Code Ann. § 40-30-102 (repealed 1995). Notwithstanding

being time-barred on its face, the petition raises no viable exception for tolling the

statute. Furthermore, a petition for post-conviction relief must be filed in the county

or judicial district in which the conviction occurred. See Tenn. Code Ann. § 40-30-

204(a) (1996 Supp.). Accordingly, we conclude that the trial court did not err by

failing to treat the application as a petition for post-conviction relief. This issue is

without merit.




                                   III. Sufficiency of the Indictments



         Notwithstanding our previous holdings in this matter, we find the substance of

the appellant’s claim to be without merit. The appellant, in his application for writ of

habeas corpus, alleges that the judgments entered against him for the offenses of

“habitual criminal,” rape, and sexual battery are void because the indictment fails to

allege the mens rea of the offenses charged.6



          Initially, we note that the appellant’s claim attacking his “conviction as an

habitual criminal” is ill-founded. This State’s habitual criminal statute, now repealed,

did not create an independent crime but defined a status prescribing circumstances

under which there was an enhanced penalty for the “triggering” offense. See

Pearson v. State, 521 S.W.2d 225 (Tenn. 1975). See also Tenn. Code. Ann. § 39-

1-801. In order to establish the appellant’s status as an habitual criminal, the State

need only prove that the appellant has, in addition to the triggering offense, three

prior felony convictions, two of which must be included in the statutory list of

enumerated felonies. See Tenn. Code Ann. § 39-1-801. Accordingly, no mental

element on behalf of the appellant is necessary for classification as an habitual


         6
           Although we con sider his c onvictions for rape a nd sex ual battery in this appea l, we note
that th e app ellant ’s brie f doe s not spec ifically c onte st the se c onvic tions , rathe r it is lim ited to his
“conviction as an ha bitual crim inal.”

                                                          5
criminal.



       Moreover, considering all convictions herein challenged by the appellant, we

conclude that his reliance on State v. Hill, No. 01C01-9508-CC-00267 (Tenn. Crim.

App. at Nashville, June 20, 1996) and State v. White, No. 03C01-9408-CR-00277

(Tenn. Crim. App. at Knoxville, June 7, 1995) is misplaced. The decisions in Hill

and White involve post-1989 indictments and specifically address Tenn. Code Ann.

§ 39-11-301(c)(1989) (requirement of culpable mental state). The appeal now

before this court involves an indictment returned in 1987. Prior to 1989, the Code

did not contain a provision comparable to Tenn. Code Ann. § 39-11-301(c).

Accordingly, the decisions in Hill and White do not control review of the issue before

us.



       On the date of the offenses in this case, rape and sexual battery were crimes

that required a defendant to have an “unlawful” or “felonious” intent. Tenn. Code.

Ann. § 39-2-604 (1982); Tenn. Code Ann. § 39-2-607 (1987 Supp.). The indictment

in the present case charged that the appellant did “unlawfully” and “feloniously”

commit each charged offense. This language was sufficient under the law as it

existed at the time. See Campbell v. State, 491 S.W.2d 359, 361 (Tenn. 1973) (an

indictment using the words “feloniously” or “unlawfully” is sufficient). This issue is

without merit.




                                    IV. Conclusion



       After reviewing the appellant’s challenges on appeal and the substantive

merits of the claims raised in the appellant’s petition, we affirm the trial court’s

summary dismissal of the application for writ of habeas corpus.




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                          ___________________________________
                          DAVID G. HAYES, Judge




CONCUR:




_________________________________
JOHN H. PEAY, Judge



_________________________________
WILLIAM M. BARKER, Judge




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