# FILED
February 17, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY 1998 SESSION

) JOE L. RUSSELL, ) ) C.C.A. No. 02C01-9701- CR-00030 Appellant, ) ) Shelby County V. ) ) Honorable John P. Colton, Jr., Ju dge STATE OF TENN ESSEE, ) ) (Post-Convicti on) Appellee. ) )

FOR THE APPE LLANT: FOR THE APPELLEE: Joe L. Russell, Pro Se John Knox Walkup TDOC #209487 Attorney General & Repor ter 7575 Cockrill Bend Road Nashville, TN 37209-1057 Kenneth W. Rucker Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-4351 William L. Gibbons District Attorney General Janet Shipman Assistant District A

ttorney General 201 Poplar Avenue, Suite 301 Memphis, TN 38103

OPINION FILED: _______________________
AFFIRMED
PAUL G. SUMM ERS, Judge

O P I N I O N-2- The appellant, Joe L. Russell, was convicted by a jury in August 1992 of aggravated rape and w as sentenced to fifteen years in the Tennessee Department of Correction. In N ovember 1996, the appellant filed a petition for writ of habeas corpus in w hich he challenged the sufficienc y of his aggravated rape indictment. The trial c ourt denied habeas corpus and alternatively, postconvic tion re lief. Th e appell ant now appeals this de nial of r

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

his petiti on for writ

of habeas corp us. We affirm.
The appellant asserts that his petition for writ of habeas c orpus was inappro priatel

y conv erted by the tri al cour

t to a pet ition fo r post- convic tion re lief, which wa

s subsequently denied

because the p

ost-convi ction petit ion was ti me barred. The appellant’s basis for his writ of habeas cor pus 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 becau se it “did not represent a cog nizabl e claim for habea s relie f or post -convi ction r

elief” and because the petition for post-c onviction relief was

time barred. The state further asserts that the appellant’s indictment was not fla wed, and thus, his conviction is val id.
First, the trial cour

t improperly conver

ted the appellant’s writ of habeas corpus to a petition for post-conviction relief. The Pos t-Conviction Act all ows an individual to challeng e a conviction based upon cons titutional grounds. However, the appellant in this case challeng es his indictment, and thus, a writ of habeas corpus is the proper p rocedure for such a challeng e. However, the Tennessee Supreme Court, whic h had not rendered its decisi on in Hill at the-3- time the parties filed their briefs in this matter, rev ersed the decision in Hill

. See State v. Hill , 954 S.W.2d 725 (Tenn. 1997) (holding that failur e of indictment to allege culpable mental state was not a fatal defect). The refore, the appellant’s contention that his indictment was flawed and his conv iction invalid based on Hill is erroneous. We affirm the trial court’s dismissal of the appellant’s petition.-4- _______________________ PAUL G. SUMMERS, Ju dge

CONCUR:

____________________________ DAVID G. HAYES, Jud ge

____________________________ JOE G. RILEY, Judge