# FILED

June 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1998 SESSION

MOHAMED F. ALI ) ) NO. 03C01-9704-CR-00163 Appellant ) ) JOHNSON COUNTY v. ) ) HO N. LY NN BR OWN STATE OF TENNESSEE ) ) (Habeas Corpus) Appellee. ) )

For the Appellant : For the Appellee : Mohamed F. Ali, pro se John Knox Walkup N.E.C.C. 226333 Attorney General & Repor ter P.O. Box 5000 Mountain City, TN. 37683 Michael J. Fahey, II Assistant Attorney Gener al 2nd Floor, Cordell Hul l Building 425 Fifth Avenue North Nashville, TN. 37243 David E. Crockett District Attorney General Route 19, Box 99 Johnson City, TN. 37601

OPINION FILED:______________________ AFFIRMED WILLIAM M. BARKER, JUDGE2 OPINION The appellant, Mohamed F. Ali, appeals the John son County Criminal Court’s dismissal of his pro se

petition for a writ of habeas corpus. We affirm the judgment of the trial court. The appellant was origi nally convicted by a jury of rape and attempting to bribe a witness and was sentenced to a consecutive term of fifteen (15 ) years. In his direct appeal, this Court affirmed appella nt’s convictions, but vacated the sentences for further proceedings. See State v. Mohamed F. Ali , No. 03C01-9405-CR-00171 ( Tenn. Crim. App. at Knoxvi lle, Sept. 26, 1996), perm. app. denied (Ten n. Ju ne

2, 19 97 ). We remanded the case to the trial c ourt for a determination of whether the appellant had affirmatively waived his right to counsel in the post-trial proceedings. If no such finding could be made from the recor d, then a new sentencing hea ring was to be conducted. See separate op. at 5-6. Thereafter, the appellant filed an appli cation for permission to appeal in our state supreme court. That applic ation was still pendi ng on March 7, 1997, when appellant filed his pro se petition for a writ of habeas corpus. Appellant contended that he was entitled to habeas corpus relief based upon two grounds: (1) his sentences had expired pursuant to this Court’s decision on direct appeal; an d (2) his convictions and sentences were void as a res ult of the alleged denial of his right to counsel at the sentencing hearing. The trial court summarily dismissed appellant’s petition upon finding that his application for permission to appeal was still pendi ng before the supreme court and that any denial of his right to cou nsel was not a cognizable claim for habea s corpus. On appeal, the appellant challeng es the trial court’s di smissal of his petition and reasserts the above grounds for relief. He further contend s that habeas corpus is appropriate due to the alleged denial of his right to counsel at the he aring on his motion for a new trial.3 Initially, we note

that the appellant was seek ing permission to appeal i n our supreme court when he filed hi s habeas corpus petition. It is well establish ed that a petition for a writ of habeas corpus or a petition under the Post Conviction Proce dure Act, complaining of a conviction and sentence, cannot be maintained while a direct appeal of the same conviction and s entence is being prosecuted. See Crain v. State , 451 S.W.2d 695, 696 (Tenn. Crim. App. 1969), perm. app. denied (Tenn. 1970); Hunter v. State , 443 S.W.2d 532 (Tenn. Crim. App. 1969), perm. app. denied (Tenn. 1969). Habeas corpus may not be used as a substitute for or t o serve the purpose of an appeal. See State ex rel. Daws on v. Bomar , 354 S.W.2d 763, 76 6 (Tenn. 1962), cert. denied. 370 U.S. 962 (1962). In both the habeas corpus petition and the app lication for permission to appeal, the appellant alleged that he w as denied the right to couns el during the post-tri al hearings. That simultaneous pu rsuit of relief from the same conv ictions and sentences was improper and the habeas corpus petition w as properly dismissed

. Nevertheless, even i

f addressed on the merits, appellant’s petition for a writ of habeas corpus must fail. A cri minal defendant is not entitled to a writ of habeas corpus unless he or she pro ves by a preponderance of the evidence that the judgment is void or the term of impr isonment has expired. See State ex rel. Jordan v . Bomar , 398 S.W.2d 724, 726 (Tenn. 1965); State ex rel. Kuntz v. Bomar , 381 S.W.2d 290, 291 (Tenn. 1964). Trial courts may summarily dismis s a petition for a writ of habeas corpus if the petition fails to state a cognizable cl aim on its face. See Tenn. Code Ann. § 29-21-109 (Supp. 1994). In this case, appellant contende d that his sentences had expi red pursuant to this Court’s opinion in

the direct appeal and that his sentences were void from the alleged denial of his right to counsel at the sentencing hearing. The trial court dismissed appellant’s petition upon finding that the “cause fails to state a claim upon which relief can be gr

anted.” We find nothing to disturb the trial court’s decision. The1 The s uprem e court d enied ap pellant’s ap plication for p erm ission to ap peal on J une 2, 19 97. In that regar

d, the opi nion of t his Court i n the dir ect appeal became fi nal and the case should be addressed by the trial cour t consiste nt with that op inion. See State v. Irick , 906 S.W .2d 440, 443 (Tenn. 1995 ); Tenn . R. App. P . 43(c). 4 record reflects that appellant’s application for permiss ion to appeal was pending when he filed his habeas corpus petition. Therefore, at that time, this Court’s decision in the direct appeal was stay

ed pending final disposition by the high court. Tenn. R . App. P. 42(b). Appellant’s sentenc es were not expired. 1 Moreover, the trial court correctly r uled that any infringement of appel lant’s right to counsel was not cogni zable by habeas corpus.This Court has previo usly held that a claim alleging ineffecti ve assistance of counsel may render a judgment voidabl e, but not void, unless th e face of the recor d establi shes tha t the tria l court did not have jurisdiction of the defendant, the co nvicted offense, or the authority to render the judgment. See Passarella v. State , 891 S.W.2d 619, 62 6 (Tenn. Crim. App. 1994), perm. app. denied

(Tenn. 1994). Similarly , a denial of the right to coun sel under the Sixth Amendment to the United Sta tes Constitution and Artic le I, section 9 of our state constitution would make the judgment voidable, not v oid. Based upon the foregoing, w e conclude that the trial cou rt properly dismiss ed appellant’s pro se

petition for a writ of habeas corpus. The judgment of th e trial court is affirmed.

____________________________ WILLIAM M. BARKER, JUDGE

CONCUR:

_____________________________ JOSEPH M. TIPTON, JUDGE

_____________________________ J. CURWOOD WITT, JR., JUDGE