FILED

March 25, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL 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 Habeas Corpus)

Appellee. *

For Appellant: For Appellee:

Cecil Ray Collins, pro se John Knox Walkup

NECC #209223 Attorney General and Reporter

P.O. Box 5000

Mountain City, TN 37683 Marvin E. Clements, Jr. 

Assistant Attorney General

Cordell Hull Building, Second Floor 

425 Fifth Avenue North 

Nashville, TN 37243-0493

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, JUDGE
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OPINION

On July 8, 1992, the petitioner, Cecil Ray Collins, entered a plea

agreement to second degree murder and received a Range II rather than a Range I

sentence. On December 4, 1996, the petitioner filed for a writ of habeas corpus in

the Criminal Court of Johnson County. He alleged that his guilty plea was neither

knowingly nor voluntarily made and, among other things, that his counsel was

ineffective. The trial court dismissed the petition without an evidentiary hearing. In

this appeal of right, the petitioner concedes the validity of his guilty plea but argues

that his Range II sentence is illegal in violation of Tenn. Code Ann. § 40-35-

106(b)(5), that his counsel was ineffective, and that the trial court erred by

dismissing his petition without the appointment of counsel for an evidentiary hearing.

We affirm the judgment. 

After a review of the petition, the trial court entered an order of

dismissal on the following grounds:

As grounds[,] the petitioner alleges that he was unaware

of the significant consequences of ... his guilty plea and

that his attorney ... was ineffective. All of these grounds

must be presented in a petition for post-conviction relief

in the Criminal Court for Knox County. However, the

three (3) year statute of limitations for post-conviction

relief [barred any petition after] July, 1995. 

Relief by habeas corpus is available ... only when it

appears on the face of the judgment or record that the

trial court was without jurisdiction to convict or sentence

the petitioner, or that the sentence of imprisonment has

otherwise expired. The relief requested by the petitioner

in this cause is not available by habeas corpus. 

Habeas corpus relief is limited to instances where the petitioner

establishes by a preponderance of the evidence that the judgment is void on its face

or that the term of imprisonment has expired. State ex rel. Hall v. Meadows, 389
1

The m ost rece nt Post-C onviction Procedu 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 state a cognizable claim, the

petition may be dismissed summarily. Passarella v. State, 891 S.W.2d 619, 627

(Tenn. Crim. App. 1994). 

If a petitioner attempts to set aside a conviction because of the

abridgment of a constitutional right, the statutory post-conviction procedure 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-barred 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 rights 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 is a three-year statute of limitations upon actions for post-conviction relief,

Tenn. Code Ann. § 40-30-102 (repealed 1995),1

 habeas corpus has no statutory

period of limitations. A petitioner may not, however, file a habeas corpus action as

a means of circumventing the statute of limitations contained in the Post-Conviction

Procedure Act. See Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). Habeas

corpus relief is available in this state only when it appears on the face of the

judgment or the record that the trial court was without jurisdiction to convict or

sentence the defendant or that the sentence of imprisonment has otherwise expired. 

Archer, 851 S.W.2d at 164. 

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

knowingly and voluntarily entered, the trial court, in our view, properly rejected the
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claim. This action seeks to set aside the conviction based in part upon the failure of

counsel to adequately represent the petitioner. We view that as an attack upon a

voidable rather than a void 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 has been shown here. 

In Hicks v. State, 945 S.W.2d 706 (Tenn. 1997), our supreme court

ruled that a Range II sentence imposed under a plea bargain, even though the

defendant would otherwise qualify as only a Range I offender, was valid so long as

the plea was knowingly and voluntarily made. Thus, the petitioner would not be

entitled to relief on the merits of the claim whether made through a habeas corpus

or post-conviction petition. 

________________________________

Gary R. Wade, Judge 

CONCUR:

_____________________________

William M. Barker, Judge

_____________________________

Curwood Witt, Judge