FILED

February 17, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE 

AT JACKSON

JANUARY 1998 SESSION

)

JOE L. RUSSELL, )

) C.C.A. No. 02C01-9701-CR-00030

Appellant, )

) Shelby County

V. )

) Honorable John P. Colton, Jr., Judge

STATE OF TENNESSEE, ) 

) (Post-Conviction)

Appellee. ) 

)

FOR THE APPELLANT: FOR THE APPELLEE:

Joe L. Russell, Pro Se John Knox Walkup

TDOC #209487 Attorney General & Reporter

7575 Cockrill Bend Road

Nashville, TN 37209-1057 Kenneth W. Rucker

Assistant Attorney General

Criminal Justice Division

450 James Robertson Parkway

Nashville, TN 37243-4351 

William L. Gibbons

District Attorney General

Janet Shipman

Assistant District Attorney General

201 Poplar Avenue, Suite 301

Memphis, TN 38103

OPINION FILED: _______________________

AFFIRMED

PAUL G. SUMMERS,

Judge

O P I N I O N
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The appellant, Joe L. Russell, was convicted by a jury in August 1992 of

aggravated rape and was sentenced to fifteen years in the Tennessee

Department of Correction. In November 1996, the appellant filed a petition for

writ of habeas corpus in which he challenged the sufficiency of his aggravated

rape indictment. The trial court denied habeas corpus and alternatively, postconviction relief. The appellant now appeals this denial of relief.

The appellant’s sole issue on appeal is whether the trial court erred in

dismissing his petition for writ of habeas corpus. We affirm.

The appellant asserts that his petition for writ of habeas corpus was

inappropriately converted by the trial court to a petition for post-conviction relief,

which was subsequently denied because the post-conviction petition was time

barred. The appellant’s basis for his writ of habeas corpus is that his indictment

was fatally flawed for not alleging a mens rea, citing State v. Roger Dale Hill, Sr.,

No. 01C01-9508-CC-00267 (Tenn. Crim. App. at Nashville, filed June 20, 1996).

The state argues that the trial court properly denied the petition because it

“did not represent a cognizable claim for habeas relief or post-conviction relief”

and because the petition for post-conviction relief was time barred. The state

further asserts that the appellant’s indictment was not flawed, and thus, his

conviction is valid. 

First, the trial court improperly converted the appellant’s writ of habeas

corpus to a petition for post-conviction relief. The Post-Conviction Act allows an

individual to challenge a conviction based upon constitutional grounds. 

However, the appellant in this case challenges his indictment, and thus, a writ of

habeas corpus is the proper procedure for such a challenge. However, the

Tennessee Supreme Court, which had not rendered its decision in Hill at the
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time the parties filed their briefs in this matter, reversed the decision in Hill. See

State v. Hill, 954 S.W.2d 725 (Tenn. 1997) (holding that failure of indictment to

allege culpable mental state was not a fatal defect). Therefore, the appellant’s

contention that his indictment was flawed and his conviction invalid based on Hill

is erroneous. We affirm the trial court’s dismissal of the appellant’s petition. 

 
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_______________________ 

PAUL G. SUMMERS, Judge

CONCUR:

____________________________

DAVID G. HAYES, Judge

____________________________

JOE G. RILEY, Judge