            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE  FILED
                                  AT NASHVILLE
                                                              July 11, 1997
                              FEBRUARY 1997 SESSION
                                                           Cecil W. Crowson
                                                          Appellate Court Clerk

HENRY B. WAGGONER,                *       C.C.A. # 01C01-9604-CC-00142
                                  *
                 Appellant,       *       HICKMAN COUNTY
VS.                               *
                                  *       Hon. Donald P. Harris, Judge
STATE OF TENNESSEE,               *
                                  *       (Habeas Corpus)
                 Appellee.        *
                                  *




For Appellant:                            For Appellee:

Henry B. Waggoner                         Charles W. Burson
Pro Se                                    Attorney General & Reporter
DeBerry Special Needs Facility
7575 Cockrill Bend Ind. Road              William David Bridgers
Nashville, TN 37243                       Assistant Attorney General
                                          Criminal Justice Division
                                          450 James Robertson Parkway
                                          Nashville, TN 37243-0493
                                          (on appeal)

                                          Robin L. Harris
                                          Assistant Attorney General
                                          Criminal Justice Division
                                          450 James Robertson Parkway
                                          Nashville, TN 37243-0493




OPINION FILED:



AFFIRMED



GARY R. WADE, JUDGE
                                         OPINION

               The petitioner appeals the trial court's denial of his petition for writ of

habeas corpus. There was no evidentiary hearing. The single issue presented for

review is whether the dismissal was appropriate.



               We affirm the judgment of the trial court.



               The petitioner was convicted of second degree murder in 1976 and

sentenced to a term of one hundred ninety-nine years. This court affirmed the

conviction. Hawkins and Waggoner v. State, 555 S.W.2d 876 (Tenn. Crim. App.

1977). The petitioner filed this petition for writ of habeas corpus in December of

1995. The trial court dismissed the petition for habeas corpus relief on January 13,

1996, holding that the facts alleged in the petition, taken as true, would not entitle

the petitioner to habeas corpus relief. The state filed a motion to dismiss two weeks

after the ruling.



               The petitioner first claims he "has been seriously prejudiced" because

the state's motion to dismiss had been added to the record without any opportunity

for his response. Next, the petitioner contends there were two constitutional

violations: ineffective assistance of counsel and an unconstitutional jury instruction

on "reasonable doubt." Lastly, he complains that he has no constitutional remedy

now that his post-conviction statute of limitations has expired.



               Initially, the late filing of the state's response has no bearing on the

merits of the petition. Moreover, habeas corpus relief in this state is limited in

scope. The writ of habeas corpus, codified at Tenn. Code Ann. §§ 29-21-101 to -

130, will issue only in the case of a void judgment or to free a prisoner held in


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custody after his term of imprisonment has expired. State ex rel. Hall v. Meadows,

389 S.W.2d 256, 259 (Tenn. 1965). Unlike the post-conviction petition, the purpose

of a habeas corpus petition is to contest void, and not merely voidable, judgments.

See State ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968). "A

petitioner cannot collaterally attack a facially valid conviction in a habeas corpus

proceeding." Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). The denial of a

constitutional right makes a judgment voidable and not void, "unless the face of the

record established that the trial court did not have jurisdiction." Passarella v. State,

891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). A post-conviction petition would

have been the only possible alternative for relief.



              Finally, Tennessee Code Annotated section 29-21-109 provides as

follows:

              If, from the showing of the petitioner, the plaintiff would
              not be entitled to any relief, the writ may be refused, the
              reasons for such refusal being briefly endorsed upon the
              petition, or appended thereto.

When a trial court reviews a petition for habeas corpus relief and assumes all the

facts the petitioner alleges are true, if there is still no ground for state habeas corpus

relief under the statute, it is correct for the court to dismiss the petition. See Byrd v.

Bomar, 381 S.W.2d 280, 283 (Tenn. 1964). This procedure does not violate the

petitioner's right to due process even if no state remedy is available.



              Accordingly, the judgment is affirmed.



                                    Gary R. Wade, Judge




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CONCUR:




David G. Hayes, Judge




Curwood Witt, Jr., Judge




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