# FILED

January 12, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE DECEMBER SESSION, 1997

EARL THOMA

S MITCHELL, JR.,)

) No. 03C01-9704-CR-00125 Appellant ) ) JOHNSON COUNTY vs. ) ) Hon. LYNN BROWN, Judge HOWARD CARLTON, Warden, ) and STATE OF TENNESSEE, ) ) (Writ of Habeas Corp us) Appellee )

For the Appellant : For the Appellee : Earl Thomas Mitchell, Jr ., Pro Se John Knox Walkup T.D.OC. #106783 Attorney General and Repor ter N.E.C.C. Post Office Box 5000 Peter M. Coughlan Mountain City, TN 37683- 5000 Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493

OPINION FILED: AFFIRMED

David G. Hay

es Judge1 The appellant ’s peti tion states that,follo wing his gui lty

pleas, he escape d and remained on escape status f

or ten yea rs. 2

OPINION

The appellant, Earl Thomas Mitchel l, Jr., appeals the denial of his petition for the writ of habeas corpus. Upon review, w e affirm the judgment of the trial cour t.

On February 5, 1985, the appel lant pled guilty to on e count of burglary and five counts of concealing stolen property for which he received an effective sente nce of five years. 1 The appellant did not appeal these convictions. He is currently confined at the Northeast Corr ectional Center located in Johnson County. On January 2, 1997, the appellant filed a pro se petition for writ of habeas c orpus. The petition alleges that the evidence was insufficient to convict him of these offenses, that the five coun ts in the in dictmen t were impr operly pre sented t o the gran d jury, that the respective counts of the indictment fail to state an offense, and that trial counsel was ineffective. The Johnson County Criminal Court dismissed the appellant’s petition.

The trial court determined that the appellant’s petition fail ed to state a cognizable ground for habeas corpus relief. Habeas corpus relief is only available when a conviction is

void because the convi cting court was w ithout jurisdiction or authority to sentence a defendant, or that a defendant’s sentence has exp ired and he is being illegal ly restrained. Archer v. State , 851 S.W.2d 157, 164 (Tenn. 1993). Moreover, it is w

ell established law i n this state that the wri t of habeas corpus may not be used as a substitute for, or in lieu of an appeal. State v. Bomar , 368 S.W.2d 748, 749 (Tenn. 1963). In disting uishing habeas corpus rel ief from post-conviction relief, this court, in Passarella v. State , 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994), held that: If the court rendering a judg ment has jurisdiction of the per son, the subject matter, and has the author ity to make the challeng ed3 judgment, the judgment is v oidable, not void; and the j udgment may not be collaterally att

acked in a suit for habeas corpu s relief. Conversel y, if the f ace of th e record re veals that the court did not ha ve personal and subject matter j urisdiction, or the author ity to make the challenged judgment, the ju dgment is void.
Only one of the appellant’s cl aims alleges a void c onviction, i.e. , the indictments are fatally defective because they do not state an off ense. However, the appellant fails to explain the basis of his claim. Moreover, from a review of the various counts in the indictment, it is clear that a statutory offense has been st ated. Thus, the trial court correctly con cluded that the petition failed to state a cognizable cl aim for habeas corpus relief. Notw ithstanding this conclus ion, the trial court noted that the appellant’s claim of ineffective assistance of counsel is cog nizable as a postconviction claim, see Tenn. Code Ann. § 40-30-205(c) ( 1996 Supp.). However,the court correctly con cluded that a post-convic tion claim is nonetheless t ime-barred as the petition was filed outsi de the applicable three year statute of limitations period. Tenn Code Ann. § 40-30-102 (1990) ( repealed 1995).

The appellant also argues that the trial court erred by dismissing his petit ion without the appointment of counsel.A petition for writ of habeas corpus relief may be summarily dismissed by the trial court without appointment of counsel, without an evidentiary hearing , and without the opportunity to amend the petition, if, from the face of the petition, the reviewing court finds nothing to indicate that the appellant’s challenged convictio ns might be void. See Tenn. Code Ann. § 29-21-101, -109 (1980); see also Villaneuva v. Carl ton , No. 03C01-9611-CR-00 425 (Tenn. Cr

im. App. at Knoxville, Oc

t. 3, 1997). We conclude that the trial cour t properly followed the provisions of Tenn. Code Ann. § 29-21-101 et seq. in summarily dismiss ing the petition.

For the foregoing reasons , we affirm the trial court ’s summary dismissal o f the appellant’s application for the writ of habeas corpus.4 ____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

________________________________ DAVID H. W ELLES, Judge

________________________________ THOMAS T. W OODALL, Judge