# FILED

Au gust 12, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE JULY 1996 SESS ION

JIMMY WAYNE WILSON ) ) C.C.A. NO. 03C01-9604-CC -00142 Appellant ) v. ) Sullivan Criminal ) STATE OF TENNESSEE ) Honorable Arden L. Hill ) Appellee ) Habeas Corpus

For Appellant : For Appellee: Jimmy Wayne Wilson, Pro Se Charles W. Burson P. O. Box 5000 Attorney Gen eral and Repor ter Mountain Cit

y, TN 37683 Elizabeth T. Ryan Assistant Att orney Gener al 450 James Roberts on Parkway Nashvil le, TN 37243-049 3 H. Greeley We lls, Jr. Distric t Attorney General Joseph Eugene Perrin Asst. Dist rict Attor ney General P.O. Box 526 Blountvil le, TN 37617-0526

OPINION FILE D_____________ AFFIRMED WILLIAM M. DENDER, SPEC IAL JUDGE OPINION2 This is an appeal as of right from the order of the Sul livan Co unty Cri minal Court, dated February 20, 1996, dism issing appellant's petition for a writ of habe as corpus, without appoi nting counsel and without a hearing. We find no merit in any of the is sues raised on appeal , and the trial court is affirmed.
The petition fo r habeas corpus alleged that appe llant is being "unlawfully restrained of hi s liberty " because the statu te under whi ch he was s entenced as an habitual cri minal is unconstitutional. T.C.A. § 40-20-1 12 is the statut e in questi on. A copy of the petition was never served on the Tenn essee Attorney General; however, the distric

t attorney general filed a response to t he petition and al leged that the petition should be dismi ssed because (1 ) it wa s not filed in "t he Court most convenient in point of distance to the pet itioner purs uant to T.C.A. § 29 -21-105, (2) the petitioner has not esta blish ed th at hi s con victio n is voi d, an d (3) t he is sues raise d in t he pe titio n have been rai sed a nd de cid ed i n pr evi ous p etit ions for p ost- conv ict ion rel ief.

FACTS
A jury convicted theappellant of rape i n the Sulliv an County C riminal Cour t, and on July 22, 1985, judgment was entered sentenc ing appellan t to life impri sonment as an habitual cr iminal. At th e time appellant was conv icted of rape, he had several previous convicti ons which included perj ury, burg lary and felo nious assault. Habitual criminal s tatus at that ti me required three prior felony conv ictions, of w hich two w ere to be from a designated class. See T.C.A. § 39-1-801 (1982 ). Perjury and burglary fell within t he class. At

the time the cur rent petition for habeas corpus was filed, a ppellant was inc arce rate d in t he No rthe ast Co rrect iona l Cent er in M oun tain City, C arte r Coun ty, Tennessee. Appe llant does not allege that his senten ce has expired. He alleges his convicti on for burglar

y on June 5, 1 979 and his conv iction for per jury on N ovember 17,3

1980cann ot beused to en hanc e hi s pun ish ment , asan ha bitu al c rim inal , to life imprisonment on hi s convic tion for rape on J uly 22, 1985. He allege s that T.C.A. § 40
- 20-112, as it existed prior to May 18, 1981 and at the time of his convictions for burglary and perjury , has been held to be unconstituti onal in Gaskin v. Collins , 661 S.W.2d 865; and that by reason thereof his convictions are void. He does not allege "it appears upon the face of the judg ment or the recor d of the proceeding s upon whic h the judgment is rendered" that th e convicting court in either the burglary case or the perjury
case was wi thout j urisd icti on or a uthori ty tosenten ce him.

ANALYSIS AND HOLDING
Habeas corpus relief is av ailable in Tennes see only w hen "it appears up on the face of the judgment or the record of the proceedings upon which the judgment is rendered" t hat a convic ting court

was w ithout juri sdiction or authority

to sentence a defendant, or that a defendant's sen tence of imprisonment or other restraint ha s expired

. Archer v . State , 851 S.W .2d 157, 164 (Tenn . 1993).
It is a well-established principle of law that the remedy of ha beas corpus is limited in s cope as wel l as reli ef. In criminal cases, the remedy is li mited to cases were the judgment i s void or the term of impri sonment has expi red. A trial cour

t is not req uired, as a matt er of law, t o grant the w rit and conduct an inquiry into the alle gations cont ained in the peti tion. If the petit ion fails to st ate a cognizab le claim, the suit may be s ummarily di smissed by the trial court. Passarella v . State , 891 S.W .2d 619, 626 (Tenn . Crim. App. 1994).
A judgment of a court of general jurisdiction is presumed to be valid. This presumption is

said to be conc lusive unl ess the judg ment is impeached by the record. If the court renderi ng a judgment has jurisd iction of the per son, the subject-matter , and has the author ity to make the challeng ed judgment, the judgment is v

oidable, not void; and the judg ment may not be co llaterall y attacked in a suit for hab eas corpus relief. Id. , at 627.
Appellant appealed his conviction for rape and habitua l criminal status, and this Court affirmed the tr ial court on November 14, 1986. Appellant l ater filed a peti tion for post-convi ction reli ef concerning t he 1985 rape conv iction resu lting in a life sentence as4

an habitual cr iminal and the 1980perjury convicti on; and this Cou rt affirmed the tri al court, except as it related to the eff ective assistance of counsel on ap peal, and the case was remanded t o the trial court for an appropr iate evident iary hear ing on that i ssue.
It is clear that the trial court had jurisdiction of th e person and the subject m atter; and that it ha d the auth ority t o ma ke th e cha llen ged ju dgme nt in each of t he bu rglary, perjury, felonious assault and rape cases. The judgments against app ellant are clearly voidable, not void.
Appellant insi sts that his petition for w rit of habeas cor pus should not be treated as a petition for

post-conv iction rel ief; however, he reli es upon the post- convicti on relief statutes to cl aim that he is en titled to appoi nted counsel. There is no indication that the trial cour t treated the peti tion as a petit ion for post-con viction relief; and if it had done so, the petiti on would pr operly have been immediately dismissed because the petitio n was n ot file d wi thin t hree years after May 11, 1987, t he date the Tenn essee S upreme Court de nied his applica tion f or permi ssion to appea l in the ra pe case . The tri al judge has discreti on under T.C.A. § 4 0-14-204 to appoi nt counsel, if nec essary, i n habeas corpus proceed ings; but th ere is no statutory or constitutiona l right to assistance of counsel in habeas

corpus proc eedings, or on appeal from the deni al of the wri t of habeas corpus. See House v. St ate , 911 S.W .2d 705 (Tenn. 199 5). The petition in this case adequately set forth the various grounds claime d for the writ of habeas corpus, and under the facts of thi s case, there was no reas on to appoint couns el. This iss ue has no merit.

It is not neces sary for thepurposes of this decision to consider the st atute appellant says has been held to be unconstituti onal; however, in order to clarify

the misu nder

stan dingwe wi ll a ddre ss t hisiss ue. A careful rea dingof Gaskin v. Collins , supra , clearly

shows that

the only par

t of the statute decl ared unconstitu tional was the5

part whic h retroactiv

ely disenfranchised conv icted felons w ho had never be en adjudged infamous. This part of the statute was codified in T.C .A. § 2-2-139( d) and § 2-19- 143(4), and it

was not codified as T.C.A. § 40-20-112.

In Gaskin v. Collins , supra , at 866, the TennesseeSupreme Court affirmed the trial cour t and said: By judgment

entered Marc h 16, 1983, the Chanc ellor held t hat "Section 8 of Chapter 345 of the Tenness ee Public Acts of 1981, as codified at T.C.A. § 2-2- 139(d) and § 2- 19-143(4), i s declared to be unconstituti onal in that i t violates Article I, § 5 of the Tennessee Constitution." The C hancellor found that the remaining s ections of Chapter 345 were not

affected because of the severability clause found in Sec

tion 9 of the Act.
Appellant clai ms that T.C.A. § 40- 2-112, as it ex isted prior to May 18, 1981, was declared uncons titutional, bu t that simply is not corr

ect.
Prior to 1972, T.C.A. § 40-2712 i ncluded the words "it shal l be part of the judgment of the cou rt that the defend ant be infamou s, and be disqualified to exercise the elective franchise." By Chapter 740, § 4 , Acts of Adjourn ed Session 1972, T.C .A. § 40-2712 was amended, and the above quoted words then read "i t shall be par t of the judgment of the cour

t that the defendant be i nfamous." Notice that the words

"and be disqualified to exercise the elective franchise" are left out of the act as amended in 1972. This chang e does not chang e the crimes l isted in any way. It simply

does not requi re th at pe rson s con victe d of the l iste d crim es lo se th e righ t to e xercis e the elec tive franchise. In 1981 the legis lature agai n amended this code s ection and incl uded the words "and b e immediately disquali fied from exerci sing the r ight of suffrage." At the time appell ant was conv icted of rape and hi s punishment enhanced under T.C.A. § 30-1-80 1, T.C.A. § 40-20- 112 clearly limited the pr

evious cr imes to be considered in determining habitual cri minal status to those listed prior to M ay 18, 1981; and burglar

y and perju ry w ere among those listed cri mes. Gaskin v. Collins , supra , has6

no bearing, one way or the other, on the habitua l criminal status of the petition er.
Appellant also filed a Motion For Recusal, claiming "that sullivan county district attorney office and criminal court of sulliv an county went outside of it j urisdicti on or authority and hand pick a bi as and prejudice judge Arden L. Hill, fr om Carter Cou nty Criminal Court, At Elizabethton, Tenn essee to come into sullivan county criminal court to hear petiti oner wri t of habeas corpus i n violati on of the united states constitution under the 14th Ame ndment to due proce ss clause." He also alleged "it is mandatory disqualification or rec usal when a party has fil ed a timely and sufficient motion, the judge accuse d of bias and preju dice shall proceed no further , ..." The last quotation is simply i s not the law ; and such statement requires no further comment.

The order of the tri al court dis missing thehabeas corpus pe tition was signed by Judge Hil l on February 12, 1996, and filed by

the clerk on February

20, 1996. The Motion For Recusal was filed on Febr uary 21, 1996. Notice of appeal was filed o n February 26, 1996.

The motion was fil ed too late. The cou rt had already ruled, and under

the facts of this case the r uling would have been t he same regar dless of whi ch judge cons idered the petition, or

if a hearing had been allowed, any ev idence that coul d have been presented under the pe tition. There is nothing in the record to indicat e that Judge Hill did anythingwrong in this case , or that there was any reason for him to recuse himsel f. We f ind the issue concerning the Motion For Recusal to betotally without mer it. We f urther note that

the same baseless

complaint has be en filed by appel lant against other

judges. Al so, intentional ly or not , appellant stat es in his br ief a wrong date for the date his Motion for Recusal was filed, and he m isquotes the trial court's order. If appell ant were a lawyer , sanctions ag ainst him would be consider ed.7 Appellant also alleged that Judge Hil l did not have jurisdic tion to hear hi s petition. Appellant does not

allege that

Judge Hil l is not a dul y elected j udge of the 1st Judi cial Distric t of the State of Tennessee, and in fact appellant states that Jud ge Hill is from the Carter C ounty Cri minal Court, which is part of that judi cial distr ict.
Criminal j udges may hav e the right

to interchang e with eac h other and w ith judges of all other courts of record in the state when causes exist making an interchange necessary or desirabl e, or mutually convenient by agreement

. T.C.A. § 17-2-20 5.

In all cases , the judge or chancellor holding cour t in the circuit or div ision of another, shall have the same po wer and jurisdiction as the judge or chancellor in whose plac e the judge or chancellor is acting . T.C.A. § 17-2- 205.
Clearly the issue conc erning the j urisdicti on of Judge Hil l to hear the case has no merit.
Since the judgments against the ap pellant clearly are not void, it is not necessary to consider ot her reasons w hy the petit ion cannot succ eed.

W e find no merit in any of the issues raised by the appellant, and the trial court is affirmed. The case is remanded to the tri al court for al l necessary proceedings

not inconsistent with thi s opinion.

________________________________ W illiam M. De nder, Sp ecial Jud ge

CONCUR:

__________________________________8

Joseph B. Jones , Presidi ng Judge

__________________________________ David G. Haye s, Judge