           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE             FILED
                         JUNE 1996 SESSION             August 1, 1996

                                                    Cecil W. Crowson
                                                   Appellate Court Clerk
CHESTER RAY HALL,               )
                                )    C.C.A. NO. 01C01-9510-CV-00339
           Appellant,           )
                                )    HICKMAN COUNTY
VS.                             )
                                )    HON. CORNELIA A. CLARK,
DAVID MILLS, WARDEN,            )    JUDGE
                                )
           Appellee.            )    (Habeas Corpus)



FOR THE APPELLANT:                   FOR THE APPELLEE:


CHESTER RAY HALL, PRO SE             CHARLES W. BURSON
Turney Center, Unit 4                Attorney General & Reporter
Route 1
Only, TN 37140-9709                  CYRIL V. FRASER
                                     Attorney for the State
                                     450 James Robertson Pkwy.
                                     Nashville, TN 37243-0493

                                     JOE D. BAUGH
                                     District Attorney General

                                     RONALD DAVIS
                                     Asst. District Attorney General
                                     P. O. Box 937
                                     Franklin, TN 37065




OPINION FILED:____________________



AFFIRMED


JOHN H. PEAY,
Judge
                                         OPINION



               The petitioner, an inmate with the Department of Correction, was convicted

on ten charges of armed robbery. He filed a petition for a writ of habeas corpus pursuant

to T.C.A. § 29-21-101 in which he claimed his convictions and sentences are void. The

petition was dismissed without an evidentiary hearing.



               In this appeal as of right, the petitioner presents two issues for review. First,

he contends that the trial court erred in dismissing the petition, and second, that he was

denied effective assistance of counsel on direct appeal. After consideration of the record

in this cause, we find the petitioner’s complaints to be without merit and affirm the trial

court’s action.



               The petitioner asserts in his petition that his convictions and sentences are

void because they are not based upon proof beyond a reasonable doubt as a result of

an improper jury charge defining reasonable doubt as being doubt “to a moral certainty.”

He asserts that the allegedly incorrect instruction deprived the trial court of its jurisdiction,

making his convictions and sentences void. He also asserts that he received ineffective

assistance of counsel on appeal because his counsel failed to raise as an issue the

improper jury charge concerning reasonable doubt.



               A motion to dismiss the petition was filed by the State. This motion

asserted that the court lacked subject-matter jurisdiction because the petitioner’s

sentence has not expired nor is his conviction void. The trial court granted the State’s

motion to dismiss and the petitioner appeals from that order.



               In his first issue the petitioner contends that the trial court erred in

dismissing his petition for habeas corpus relief. In order for a court to issue a writ of

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habeas corpus, the petitioner’s sentence must have expired and/or the conviction must

be void and the petitioner eligible for immediate release. In Passarella v. State, 891

S.W.2d 619 (Tenn. Crim. App. 1994), this Court outlined the circumstances under which

habeas corpus relief is available:


                     It is a well-established principle of law that the remedy
              of habeas corpus is limited in scope as well as relief. In
              criminal cases, the remedy is limited to cases where the
              judgment is void or the term of imprisonment has expired....
              If the court rendering a judgment has jurisdiction of the
              person, the subject-matter, and has the authority to make the
              challenged judgment, the judgment is voidable, not void; and
              the judgment may not be collaterally attacked in a suit for
              habeas corpus relief.


Passarella, 891 S.W.2d at 626-27.



              The petitioner’s sentence has not expired as his petition shows on its face.

He does, however, argue that his conviction is void because the jury instruction given on

“reasonable doubt” was unconstitutional in that it allowed the jury to convict him by a

standard lower than that required by law. The jury instruction given at trial on “reasonable

doubt” was as follows:


                      Reasonable doubt is that doubt engendered by an
              investigation of all the proof in the case and an inability, after
              such investigation, to let the mind rest easily as to the cer-
              tainty of guilt. Reasonable doubt does not mean a captious,
              possible, or imaginary doubt. Absolute certainty of guilt is not
              demanded by the law to convict of any criminal charge, but
              moral certainty is required, and this certainty is required as to
              every proposition of proof requisite to constitute the offense.


              The petitioner argues that because of the improper jury instruction given,

he was not found guilty “beyond a reasonable doubt” and that his convictions are void

and therefore may be attacked by a petition for a writ of habeas corpus. We do not

agree.




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              This Court has previously held that such an instruction is not improper. See

Pettyjohn v. State, 885 S.W.2d 364, 366 (Tenn. Crim. App. 1994). Also, this Court has

held that even if the jury instruction was erroneous, it would result in a voidable judgment

and not a void judgment. See Willie Edward Thornton v. Raney, No. 02C01-9302-CC-

00025, Lauderdale County (Tenn. Crim. App. Filed January 26, 1994, at Jackson).



              In his other issue the petitioner asserts that he was denied the effective

assistance of counsel on appeal. This issue is also without merit as this, even if true,

again would result in a voidable judgment, making it an issue to be raised in a post-

conviction petition, not a petition for writ of habeas corpus. See Gene Voss v. Fred

Raney, No. 02C01-9501-CC-00022, Lauderdale County (Tenn. Crim. App. filed August

2, 1995, at Jackson).



              Finding the action of the trial court dismissing the petition to be appropriate,

the judgment of that court is affirmed.



                                                   ______________________________
                                                   JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID G. HAYES, Judge



______________________________
WILLIAM M. BARKER, Judge




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