FILED

September 30, 1997

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JULY 1997 SESSION

JAMES H. TURNER, )

) C.C.A. NO. 01C01-9608-CC-00365

Appellant, )

) HICKMAN COUNTY

VS. )

) HON. CORNELIA A. CLARK,

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Habeas Corpus)

FOR THE APPELLANT: FOR THE APPELLEE:

JAMES H. TURNER, pro se JOHN KNOX WALKUP

TCIP ANNEX, #99071 Attorney General & Reporter

Route 1

Only, TN 37140 LISA A. NAYLOR

Attorney for the State

 450 James Robertson Pkwy.

Nashville, TN 37243-0493

JOSEPH D. BAUGH

District Attorney General

RONALD L. DAVIS

Asst. District Attorney General

P. O. Box 937

Franklin, TN 37065-0937

OPINION FILED:____________________

AFFIRMED

JOHN H. PEAY,

Judge
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O P I N I O N

The petitioner, an inmate with the Department of Correction, received three

concurrent forty-five year sentences for two convictions of aggravated kidnapping and

one conviction of accessory before the fact to murder in the second degree. By petition

for a writ of habeas corpus, he challenges his restraint alleging that it is “illegal and void

on the face of the records.” His petition was dismissed without a hearing by the court

below.

In this appeal as of right, the petitioner contends that the trial court erred

in dismissing his petition without an evidentiary hearing. After consideration of the record

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

the trial court’s action.

The lengthy history of this case was fully summarized in a previous appeal

to this Court. See State v. James Howard Turner, No. 01C01-9404-CR-00122, Davidson

County (Tenn. Crim. App. filed September 20, 1995, at Nashville). Suffice it to say that

the petitioner has had at least two prior appeals in this Court along with a habeas corpus

proceeding in the federal system that went to the United States Supreme Court.

In this case, the petitioner alleges that his restraint is illegal and void

because the trial court lacked jurisdiction, because he was convicted of charges based

on an indictment that was dismissed, and other grounds relying on evidentiary issues.

The dismissal of the petition by the trial judge, without a hearing, found that all matters

raised by the petitioner had been previously litigated and had been “corrected or

resolved.” The trial judge’s order concluded that the petitioner had made no showing that
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he is being illegally restrained.

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 complaints made by the petitioner are not ones that would render the

trial court judgment void but, rather, voidable. Tennessee courts have consistently

construed the scope of review by habeas corpus very strictly. Luttrell v. State, 644

S.W.2d 408, 409 (Tenn. Crim. App. 1982). Pursuant to this narrow scope, this Court, in

Willie Edward Thornton v. Fred Raney, Warden, No. 02C01-9302-CC-00025, Lauderdale

County (Tenn. Crim. App. filed January 26, 1994, at Jackson), held that erroneous jury

instructions meet none of the requirements for habeas corpus relief. The Court further

stated that “the only method of collaterally attacking the judgment because of

constitutional deprivations occasioned by erroneous instructions is by petition for postconviction relief.”

The petitioner has alleged no facts that would cause his convictions to be

void or to show that the term of his imprisonment has expired. He merely seeks to have

this Court reconsider the evidence and/or weigh the credibility of witnesses. The mere

conclusory allegation that his convictions are void, without valid support or basis, is

insufficient for habeas corpus relief.
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We affirm the trial court’s dismissal, without a hearing, of the petition in this

case.

______________________________

JOHN H. PEAY, Judge

CONCUR:

______________________________

WILLIAM M. BARKER, Judge

______________________________

JERRY L. SMITH, Judge