# FILED April 20, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE FEBRUARY 1999 SESSION

SAMMY J. MILLER, ) ) C.C.A. No. 03C01-9807-CR-00262 Appellant, ) ) Johnson County v. ) ) Honorable Lynn W . Brown, Judge STATE OF TENNESSEE, ) ) (Habeas Corpus) Appellee. )

FOR THE APPE LLANT: FOR THE APPELLEE: Sammy J. Miller #85359, pro se John Knox Walkup Northeast Correction C omplex Attorney General & Repor ter P. O. Box 5000 425 Fifth Avenue North Mountain City, TN 37683 Nashville, TN 37243-0493 R. Stephen Jobe Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493

OPINION FILED: ____________________________

________ AFFIRMED L. T. LAFFERTY, SENIOR JU DGE1 On May 1, 1997, the petitioner filed a petition for habe as c orpus relief in the Hamilton County Criminal Court, while an inmate at the Northeast Correction Complex in Mountain City, Tennessee. The trial court dismissed the petiti on pursuant to Tenn. Code Ann. § 29-21-105, “[t]he application should be made to the Court or Judge most convenient in point of distance to the applicant unless a sufficient r eason be given in the petition for not applying to such court or judge.” This C ourt a ffirmed the trial court’s dis missal of the petition. Sammy J. Mill er v. State, No. 03C01-9710- CR-0044 4 (Tenn. Crim. App., Knoxville, May

6, 1998). -2-



### O P I N I O N
The appellant, Sammy J. Miller, herein re f erred as “the petitioner,” appeals the Johnson County Criminal Court’s dismissal of his pro se petitio n for habe

as corp us reli ef. After a jury trial in Hamilton County in December, 1977, the petitioner was found g uilty of murder first degree and sentenced to death. On direct appeal, the petiti oner’s conviction formurder first degree w as affi rmed, but the Supreme Court modified th e sentence of death to reflect a sentence of life impri sonment. Miller v. State, 584 S.W.2d 758 (Ten n . 1979).

The petitioner filed a petition for post-conviction relief, alleging certain ju r y instructions

given at his trial violated his constitutional rights. The trial court denied rel ief an d thi s Court affirmed that dismissal. Sammy J. Mill er v. State, Hamilton County, No. 1100 (Tenn. Crim. App., Knoxv ille, May 17, 1989), per. app. denied (Tenn. 1989).

The instant habeas corpus petiti on was filed May 20,1998. 1 In seeking relief vi a the petition, the petitioner

contends: (1) he suffered from inef fective assistance of counsel; (2) he is innocent of

the crime; (3) he was tr ied and convicted under an unc onstitutional and repealed law or statute; and (4) it is unclear what law was in effect at the time the petitioner allegedlycommitted his crime. The trial cou rt dismissed the petition i n that the relief sought is not available by habeas corpus.

After a review of t he entire record, b riefs of the parti es, and a ppropria te law, we affirm the trial court’s dismissal.

I.-3- GROUNDS FOR HA

BEAS CORPUS R ELIEF It is well recognized in Tennessee that habeas corpus reli ef is only availabl e when a conviction is void because the convicting court was without jurisdiction or a utho rity to sentence a defendant, or th at a defendant’s sentence has expired, and the pe titioner is being illegally restrained. Archer v. State, 851 S.W.2 d 157, 164 (Tenn. 1993); see also Passarellav. State, 891 S.W.2d 619, 626 (Te nn. Crim. App. 1994). A void judgment is one which shows “upon the f ace of the jud gment or the reco rd of the proce edings upon which the judgment is rendered” that the convicting cour

t was without

j urisdiction. Archer, 851 S.W.2d at 161; Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992).

In the case at bar, the petitioner presents tw o central arguments. Fi rst, the petitioner

contends he received ineffective assi stance ofcounsel at trial. Second, the petitioner

contends that he was convi cted pursuant to an unconstituti onal or repealed statute. II.

CLAIM OF IN EFFECTIVE ASSIS TANCE OF CO UNSEL Aclaim of ineffective assistanc e of counsel is not applicable t o petitions for habeas corpus reli ef. Such a claim, if sustainable, would only make the petitioner’s conviction voidable, not void. Our post-con viction process, set out in Tenn. Code Ann. § 40-30- 201, et se q. (§ 40-30-101, et seq. repealed), provides for challenges to convictions that are alleged to be vo id or voidable because of the abri dgment of constitutional rig hts. A petitioner

cannot collaterally attack a facially val id conviction i n a habe as corpus proceeding. Potts, 833 S.W.2d at 62; State ex rel. Holbrook v. Bomar, 211 Tenn. 243, 247, 364 S.W.2d 887, 889 (Tenn. 1 963). Consideration of such claim w as ripe for determination in the petitioner’s claim for post-conviction relief in 1989. We find the trial court was correct in holding this claim w as not a g round for

habeas r

elief, and the petition could not be treated as a petiti on for post-conviction r elief, as it is time barred
.
III. UNCONSTITUTIONAL STATUTE-4- In this complaint, the petitioner c ontends t hat the indictment in his cause should have containe d the law, rule, statute, or regul ation in effect when the alleg ed offense was committed. Also, the petitioner contends (a) the Tennessee legislature repeale d all statutes (murder first degree) for a period of two weeks, and during such hiatus the alleged crim e of murder was committed and (b) there was no law i n place at the time t he jury verdictwas returned. The state argues the su b stance of this claim has been previously determined on direct appeal. Miller v. State, 584 S.W.2d 758, 76 2 (Tenn. 1979).

We believe the petitioner is confused when he

claims there was no mur der statute in effect at the time of the alleged of fense, April 7 , 1976. However, there ar ose a controversyover the constitutional ity of the death penalty under the murder statutes, Tenn. Code Ann. § 39-2405 and § 39-2406. In Miller, the Supreme Court found, after a review of t he record, the defendant was convicted upon legally sufficient evidence in a f airan d error-freetrial, and affirmed the co nvic tion without hesitation.The controversy ov er the application of the death penalty did not hav e t he effect of invalidating the provisions in definin g murder f i rst degree or the conv ictions obtained thereunder. It is clear from the analysis applied by

the Supreme

Court in its

opinion that the statutes under which the petitioner

was convicted for murder first degre e and eve ntually sentenced were constituti onal. There is no merit to this claim
.
The trial court’s order of dismissal is affirmed.

_______ _______________________ _________

_ L. T. LAFFERTY, SENIOR JU DGE-5-

CONCUR:

___________________________________ JERRY L. SMITH, JUDGE

___________________________________ THOMAS T. WOODALL, JUDGE