         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                       HEARD AT JACKSON
                                   September 12, 2000 Session

                  WILLIAM COLLINS v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Washington County
                              No. 20408 Lynn W. Brown, Judge


                                   No. E1999-02759-CCA-R3-PC
                                        November 2, 2000

Because the trial court properly treated a habeas corpus petition as one for post-conviction relief and
because the statute of limitations barred any review of constitutional issues, the petition was properly
dismissed.

                   Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T.
WOODALL , JJ., joined.

William Collins, Mountain City, Tennessee, pro se.

Paul G. Summers, Attorney General & Reporter, Patricia C. Kussmann, Assistant Attorney General,
Victor Vaughn, Assistant District Attorney General, for the appellee, State of Tennessee.

                                               OPINION

         The petitioner, William Collins, filed a petition for writ of habeas corpus and, in the
alternative, post-conviction relief. The trial court treated the petition as one for post-conviction relief
and entered an order of dismissal. The record demonstrates that the petitioner filed a motion to
amend along with several other motions after the order of dismissal was entered. While those
motions were originally denied, the trial court's ruling was later set aside, after which the petitioner
filed a notice of appeal. Because there has been no disposition by the trial court of any of the issues
presented after the entry of the order of dismissal, those issues will not be considered in this appeal.

       The single issue presented for review is whether the petition was properly dismissed as
barred by the applicable statute of limitations. The judgment dismissing the petition is affirmed.

       On May 17, 1984, the petitioner was convicted of the September 19, 1980, first degree
murder of James Bailey. The victim was shot in the neck by a .38 caliber Derringer. The petitioner
received a life sentence. On direct appeal, the conviction and sentence were affirmed. State v.
Collins, 698 S.W.2d 87 (Tenn. Crim. App. 1985). Application for permission to appeal to the
supreme court was denied on September 3, 1985. Later, the petitioner filed a petition for post-
conviction relief, arguing that the jury instructions on malice violated his constitutional rights and
claiming that he was denied his right to confront witnesses. The trial court denied relief. On direct
appeal, this court affirmed. William T. Collins, Jr. v. State, No. 222 (Tenn. Crim. App., at
Knoxville, July 24, 1987). Permission to appeal to the supreme court was denied on October 12,
1987. The petitioner filed another post-conviction petition, alleging ineffective assistance of
counsel. The trial court denied relief. This court affirmed on direct appeal. William T. Collins, Jr.
v. State, No. 279 (Tenn. Crim. App., at Knoxville, Mar. 5, 1991). Application for permission to
appeal was denied April 5, 1991.

         This petition, filed September 13, 1993, included, among other issues, allegations that the
jury instructions on malice violated the petitioner's constitutional rights and that the petitioner was
denied the effective assistance of counsel at trial and on post-conviction. Both the petitioner and the
state filed several other pleadings. The petitioner made no claim that he had either served his
sentence or that the trial court was without jurisdiction to enter the judgment. On August 3, 1998,
Judge Arden Hill denied relief, concluding that the petition was barred by the statute of limitations.
The trial judge also ruled that as thirteenth juror in the original trial, he was satisfied with the verdict
of first degree murder. In September of 1993, the petitioner was subject to the following statute of
limitations:

                  A prisoner in custody under sentence of a court of this state must
                  petition for post-conviction relief under this chapter within three (3)
                  years of the date of the final action of the highest state appellate court
                  to which an appeal is taken or consideration of such petition shall be
                  barred.

Tenn. Code Ann. § 40-30-102 (repealed).

        Tennessee Code Annotated Section 40-30-1081 authorized trial courts to treat a petition for
habeas corpus as a petition for post-conviction relief "when the relief and procedure authorized by
[that] chapter appear[ed] adequate and appropriate . . . ." Tenn. Code Ann. § 40-30-108 (repealed).
Because the petitioner asserted no grounds for habeas corpus relief, the trial court, in our view,
properly treated the petition as one for post-conviction relief.

        When a petitioner attempts to set aside a conviction because of the abridgement of a
constitutional right, the statutory post-conviction procedure is a single means of relief. Luttrell v.
State, 644 S.W.2d 408 (Tenn. Crim. App. 1982). In contrast, it is well settled in this state that the
writ of habeas corpus, codified at Tenn. Code Ann. §§ 29-21-101 to 29-21-130, will issue only in

         1
           Under current law, Tenn. Code Ann. § 40-30-205(c), "[a] petition for habeas corpus may be treated as a
petition [for post-c onviction relief] whe n the relief an d proce dure au thorized b y this part appears adequate and
appropriate, notwithstanding anything to the contrary in title 29, chapter 21, or any other statute."

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the case of a void judgment or to free a prisoner held in custody after his term of imprisonment has
expired. State ex rel. Hall v. Meadows, 215 Tenn. 668, 389 S.W.2d 256, 259 (1965). Unlike the
post-conviction petition, the purpose of a habeas corpus petition is to contest a void, not merely
voidable, judgment. State ex rel. Newsome v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189
(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); State ex rel. Holbrook v. Bomar, 211
Tenn. 243, 364 S.W.2d 887, 888 (1963). In Archer v. State, our supreme court held as follows:

               When the restraint, from which relief is sought by a writ of habeas
               corpus, proceeds from a judgment erroneous but not void, the writ
               will not lie. Nor, under it, can the party impeach a judgment as
               contrary to the facts. And, in general, this is not the remedy where
               the imprisonment is on judicial process. But where the sentence is
               void, not merely voidable, or the term of imprisonment under it has
               expired, relief may be had by the writ. . . . [J]udicial officers . . .
               sometimes use the writ as if it were a writ of error, under which they
               might correct the errors and irregularities of other tribunals. "Any
               such employment of the writ is an abuse."

851 S.W.2d 157, 161 (Tenn. 1993) (quoting State ex rel. Karr v. Taxing District of Shelby County,
84 Tenn. (16 Lea) 240, 249-50 (1886) (citations omitted).

        Clearly, the petitioner seeks post-conviction relief. The attack on the conviction is collateral
in nature. The 1967 Act, as amended, provided for a three-year statute of limitations for post-
conviction relief. Abston v. State, 749 S.W.2d 487 (Tenn. Crim. App. 1988). Because our supreme
court denied the petitioner's application for permission to appeal his conviction on September 3,
1985, some eight years prior to this filing, the trial court correctly determined that the petition was
filed beyond the applicable statute of limitations.

        The petitioner also argues that he is entitled to have his erroneous jury instruction claim
considered under Tenn. Code Ann. § 40-30-202(b)(1). That is, he argues, that his claim is "based
upon a final ruling of an appellate court establishing a constitutional right that was not recognized
as existing at the time of trial . . . ." In Sullivan v. Louisiana, 508 U.S. 275 (1993), upon which the
petitioner relies, the Supreme Court held that a constitutionally deficient jury instruction on
reasonable doubt that misstated the burden of proof was reversible error, not subject to a harmless
error analysis. The Court observed that the Constitution requires that all jury verdicts of guilt be
reached on a beyond a reasonable doubt basis. Id. at 281. In making its determination, the high
court ruled as follows:

               Insofar as the possibility of harmless-error review is concerned, the
               jury-instruction error in this case is quite different from the jury-
               instruction error of erecting a presumption regarding an element of
               the offense. . . . "[W]hen a jury is instructed to presume malice from

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               predicate facts, it still must find the existence of those facts beyond
               a reasonable doubt." . . . A reviewing court may thus be able to
               conclude that the presumption played no significant role in the
               finding of guilt beyond a reasonable doubt. . . .

Id. at 280-81 (citations omitted). The petitioner correctly points out that the jury instructions on
malice in his case were disapproved of in Sandstrom v. Montana, 442 U.S. 510 (1979), which held
unconstitutional an instruction entitling the jury to presume malice, an element of murder. The
Supreme Court reasoned that the jury might consider the instruction mandatory and thus place the
burden of "disposing" of that element on the defendant. In State v. Martin, our supreme court ruled
that such an instruction may be harmless error if found to be harmless beyond a reasonable doubt.
702 S.W.2d 560, 565 (Tenn. 1985). In the petitioner's first post-conviction petition, decided by this
court on October 12, 1987, the instructions were deemed harmless beyond a reasonable doubt. That
determination is final. As such, the ruling in Sullivan is distinguishable and would not afford the
petitioner any procedural relief.

       Accordingly, the judgment is affirmed.



                                                      ___________________________________
                                                      GARY R. WADE, PRESIDING JUDGE




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