# FILED
March 25, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1998 SESSION

CECIL RAY COLLINS, * C.C.A. # 03C01-9704-CR-00148 Appellant, * JOHNSON COUNTY VS. * Hon. Lynn W . Brown, Judge STATE OF TENNESSEE, * (Petition for Writ of Habea s Corpus) Appellee. *

For Appellant : For Appellee : Cecil Ray Collins, pro se John Knox Walkup NECC #209223 Attorney General and Repor ter P.O. Box 5000 Mountain City, TN 37683 Marvin E. Clements, J r. Assistant Attorney Gener al Cordell Hull Building, Second Floor 425 Fifth Avenue North Nashville, TN 37243-0493

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION On July 8, 1992, the petiti oner, Cecil Ray Col lins, entered a plea agreement to second degree mur der and received a Rang e II rather than a Range I sentence. On December 4, 1996, the petitioner f iled for a writ of habeas corpus in the Criminal Court of Johnson County. He alleged th at his guilty plea w as neither knowingly nor v

oluntarily made and, among other things, that his couns el was ineffective. The trial court dismissed the petition w ithout an evidentiary

hearing. In this appeal of right, the peti tioner concedes the vali dity of his guilty plea but argues that his Range II sentence i s illegal in vi olation of Tenn. Code Ann. § 40-35- 106(b)(5), that his counse l was ineffective, and that the trial court erred by dismissing his pet ition without the appointment of counsel fo r an evidentiary hea ring.

We affirm the judgment.
After a review of the petition, the trial court enter ed an order of dismissal on the following grounds:

As grounds[,] the petitioner alleges that he was unaware of the significant consequences of ... his guilty ple

a and that his attorney ... w

as ineffective. All of these g rounds must be presented in a petition for post-conviction rel ief in the Criminal Court for Knox County. How ever, the three (3) year statute of limitations for post-conv iction relief [barred any petiti on after] July, 1995. Relief by habeas corpus is available ... only when it appears on the face of the judgment or r ecord that the trial court was without jurisdiction to convict or sentence the petitioner, or that the se ntence of imprisonment has otherwise expired.The relief requested by the petitioner in this cause is not av

ailable by habeas corpus.
Habeas corpus relief is l imited to instances wher e the petitioner establishes by a preponderance of the evidence that the jud gment is void on its face or that the term of imprisonment has expired. State ex re l. Hall v. Mea dows , 3891 The m ost rece nt Post-C onviction P rocedu re Act pro vides for a one-year statute of lim itations. Tenn. Code A nn. § 40-30-202 (Supp. 199 6). 3 S.W.2d 256, 259 (Tenn. 1965). If a petition fails to stat e a cognizable claim, the petition may be dismissed s ummarily. Passarella v. State , 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

If a petitioner attempts to set asi de a conviction because of the abridgment of a constitutional right, the statutory post-conviction proc

edure is the single means of relief. Luttrell v. State , 644 S.W.2d 408 (Tenn. Crim. App. 1982). In this instance, classification of the petition as one for post-conviction relief, as is authorized by statute, see Tenn. Code Ann. § 40-30-108 (repealed 1995), would have resulted in a time-b arred dismissal. See Tenn. Code Ann. § 40-30-102 (repealed 1995); Archer v. State , 851 S.W.2d 157 (Tenn. 1993). The failure to advise the defendant fully of ri ghts waived by the entry of a guilty

plea renders the judgment voidable rather than void. See Passarella , 891 S.W.2d at 627-28 . While there i s a thre e-year

statute of limit ations u pon acti ons for post-con victi on reli ef, Tenn. Code Ann. § 40-30-102 (repealed 1995 ), 1 habeas corpus has no statutory period of limitations. A peti tioner may not, howev

er, file a habeas corpus actio n as a means of circumventing the statute of limitations contained in the Post-Convicti on Procedure Act. See Potts v. State , 833 S.W.2d 60, 62 (Tenn. 1992). Habeas corpus relief is avail able in this state only when it appears on the face of the judgment or the record that the trial court was without jurisdicti on to convict or sentence the defendant or that the sentence of imprisonment has otherwis e expired. Archer , 851 S.W.2d at 164.

While the petitioner concedes in this appeal that the guilty plea w

as knowingly and v

oluntarily entered, the trial court, in our v iew, properly r

ejected the4 claim. This action seeks to set aside the convicti on based in part upon the failure of counsel to adequately r epresent the petitioner. We view th at as an attack upon a voidable rather than a v oid judgment. See Passarella , 891 S.W.2d at 627-28. The writ of habeas corpus is available only upon an expiration of the sentence or a showing of deficiency on the face of the judgment. Neither ha s been shown here.

In Hicks v. State , 945 S.W.2d 706 (Te nn. 1997), our supreme court ruled that a Range II sentenc e imposed under a plea bargain,even though the defendant would otherwise q ualify as only a Rang e I offender, was valid so long as the plea was knowing ly and voluntarily made. Thus, the petitioner wo uld not be entitled to relief on the merit s of the claim whether made thr ough a habeas corpus or post-conviction pet ition.

________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ William M. Barker, Judge

_____________________________ Curwood Witt, Judge