FILED

October 17, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

OCTOBER SESSION, 1997

JAMES EDWARD LOPER, )

) No. 02C01-9611-CC-00398

Appellant )

) LAKE COUNTY

vs. )

) Hon. JOE G. RILEY. JR., Judge

BILLY COMPTON, Warden, )

and STATE OF TENNESSEE, )

) (Writ of Habeas Corpus)

Appellee )

For the Appellant: For the Appellee:

JAMES EDWARD LOPER, Pro Se CHARLES W. BURSON

Register Number 253396 Attorney General and Reporter

Route 1, Box 330

Tiptonville, TN 38079-9775 KENNETH W. RUCKER

Assistant Attorney General

Criminal Justice Division

450 James Robertson Parkway

Nashville, TN 37243-0493

C. PHILLIP BIVENS

District Attorney General

P. O. Drawer E

Dyersburg, TN 38024

OPINION FILED: 

AFFIRMED

David G. Hayes

Judge
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OPINION

The appellant, James Edward Loper, appeals the trial court’s dismissal of his

pro se application for writ of habeas corpus. On September 5, 1995, the appellant

pled guilty in the Madison County Circuit Court to one count of rape of a child, one

count of aggravated rape, and one count of aggravated sexual battery. The

appellant is currently serving an effective fifteen year sentence at the Lake County

Regional Correctional Facility for these offenses. On October 11, 1996, the

appellant filed an application for a writ of habeas corpus alleging that the judgments

entered against him are void because the indictment failed to allege the mens rea of

the offenses charged. On October 14, 1996, finding that “allegations concerning the

sufficiency of the indictments are not subject to habeas corpus relief,” the trial court

dismissed the appellant’s petition. The appellant now appeals the trial court’s

dismissal.

After a review of the record, we affirm the decision of the trial court.

The trial court dismissed the appellant’s petition for failure to state a ground

for which habeas relief was available. The appellant asserts, relying exclusively

upon federal habeas corpus law, that the “defective” indictment against him

effectively denied the trial court the jurisdiction to enter a judgment against him,

thereby, rendering his convictions void. We reject this argument by the appellant. 

In Tennessee, habeas corpus relief is only available when a conviction is void

because the convicting court was without jurisdiction or authority to sentence a

defendant, or that a defendant's sentence has expired and he is being illegally

restrained. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). It is wellestablished that allegations concerning the sufficiency of the indictment are not the

proper subject of state habeas corpus relief. See Haggard v. State, 475 S.W.2d
3

186, 187 (Tenn. Crim. App. 1971); Brown v. State, 445 S.W.2d 669, 674 (Tenn.

Crim. App. 1969); Barber v. State, No. 01C01-9408-CR-00281 (Tenn. Crim. App. at

Nashville, Feb. 23, 1995). Clearly, the appellant is attempting to expand the scope

of habeas corpus in Tennessee to that which applies in the federal courts. See 28

U.S.C.S. § 2241 et seq. However, we are not obligated to incorporate federal

habeas limits and laws into our state procedure. Turks v. State, No. 02C01-9502-

CR-00035 (Tenn. Crim. App. at Jackson, Jan. 3, 1997). This argument is without

merit. 

Moreover, we find the substance of the appellant’s claim to be without merit. 

The appellant, in his application for writ of habeas corpus, alleges that the

judgments entered against him for the offenses of rape of a child, aggravated rape,

and aggravated sexual battery are void because the indictment fails to allege the

mens rea of the offenses charged. In order for an indictment to satisfy both

constitutional and statutory guidelines, it must contain the material elements of the

offense and must sufficiently apprise the accused of the offense he is called upon to

defend. State v. Tate, 912 S.W.2d 785, 789 (Tenn. Crim. App. 1995); see also

Tenn. Code Ann. §40-13-202 (1990); State v. Perkinson, 867 S.W.2d 1, 5 (Tenn.

Crim. App. 1992). No requisite mental state is included in the definition of these

offenses. See Tenn. Code Ann. § 39-13-522 (1994 Supp.); Tenn. Code Ann. § 39-

13-502 (1994 Supp.); Tenn. Code Ann. § 39-13-504 (1994 Supp.). When the

legislature fails to define a specific mental state in the definition of an offense,

permitting proof of either intent, knowledge, or recklessness, Tenn. Code Ann. § 39-

11-301(c)(1991), an allegation of criminal conduct will provide the accused

constitutionally adequate notice of the facts constituting the offense. Moreover,

since under these circumstances, the accused's mental state is not a material

element of the offense and need not be included in the indictment, the appellant’s

challenge is not jurisdictional in nature, i.e., a defect that renders the indictment

void. State v. Dison, No. 03C01-9602-CC-00051 (Tenn. Crim. App. at Knoxville,
4

Jan. 31, 1997) (citations omitted). Other panels of this court have upheld the validity

of indictments under similar challenges. See, e.g., Slagle v. State, No. 03C01-

9704-CR-00145 (Tenn. Crim. App. at Knoxville, June 25, 1997); State v. Vann, No.

03C01-9602-CC-00066 (Tenn. Crim. App. at Knoxville, June 10, 1997); State v.

James, No. 01C01-9601-CR-00016 (Tenn. Crim. App. at Nashville, Mar. 27, 1997);

State v. Burrell, No. 03C01-9404-CR-00157 (Tenn. Crim. App. at Knoxville, Feb. 11,

1997). 

Contrary to the appellant's assertions, the allegations in the indictment

sufficiently apprise the accused of the offenses of rape of a child, aggravated rape,

and aggravated sexual battery. Consequently, we find the indictment valid.

The trial court's dismissal of the appellant's petition for writ of habeas corpus is

affirmed.

____________________________________

DAVID G. HAYES, Judge

CONCUR:
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___________________________________

JOHN H. PEAY, Judge

___________________________________

PAUL G. SUMMERS, Judge