The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1998 SESSION
March 25, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
CECIL RAY COLLINS, * C.C.A. # 03C01-9704-CR-00148
Appellant, * JOHNSON COUNTY
VS. * Hon. Lynn W. Brown, Judge
STATE OF TENNESSEE, * (Petition for Writ of Habeas Corpus)
Appellee. *
For Appellant: For Appellee:
Cecil Ray Collins, pro se John Knox Walkup
NECC #209223 Attorney General and Reporter
P.O. Box 5000
Mountain City, TN 37683 Marvin E. Clements, Jr.
Assistant Attorney General
Cordell Hull Building, Second Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
On July 8, 1992, the petitioner, Cecil Ray Collins, entered a plea
agreement to second degree murder and received a Range II rather than a Range I
sentence. On December 4, 1996, the petitioner filed for a writ of habeas corpus in
the Criminal Court of Johnson County. He alleged that his guilty plea was neither
knowingly nor voluntarily made and, among other things, that his counsel was
ineffective. The trial court dismissed the petition without an evidentiary hearing. In
this appeal of right, the petitioner concedes the validity of his guilty plea but argues
that his Range II sentence is illegal in violation of Tenn. Code Ann. § 40-35-
106(b)(5), that his counsel was ineffective, and that the trial court erred by
dismissing his petition without the appointment of counsel for an evidentiary hearing.
We affirm the judgment.
After a review of the petition, the trial court entered an order of
dismissal on the following grounds:
As grounds[,] the petitioner alleges that he was unaware
of the significant consequences of ... his guilty plea and
that his attorney ... was ineffective. All of these grounds
must be presented in a petition for post-conviction relief
in the Criminal Court for Knox County. However, the
three (3) year statute of limitations for post-conviction
relief [barred any petition after] July, 1995.
Relief by habeas corpus is available ... only when it
appears on the face of the judgment or record that the
trial court was without jurisdiction to convict or sentence
the petitioner, or that the sentence of imprisonment has
otherwise expired. The relief requested by the petitioner
in this cause is not available by habeas corpus.
Habeas corpus relief is limited to instances where the petitioner
establishes by a preponderance of the evidence that the judgment is void on its face
or that the term of imprisonment has expired. State ex rel. Hall v. Meadows, 389
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S.W.2d 256, 259 (Tenn. 1965). If a petition fails to state a cognizable claim, the
petition may be dismissed summarily. Passarella v. State, 891 S.W.2d 619, 627
(Tenn. Crim. App. 1994).
If a petitioner attempts to set aside a conviction because of the
abridgment of a constitutional right, the statutory post-conviction procedure is the
single means of relief. Luttrell v. State, 644 S.W.2d 408 (Tenn. Crim. App. 1982).
In this instance, classification of the petition as one for post-conviction relief, as is
authorized by statute, see Tenn. Code Ann. § 40-30-108 (repealed 1995), would
have resulted in a time-barred dismissal. See Tenn. Code Ann. § 40-30-102
(repealed 1995); Archer v. State, 851 S.W.2d 157 (Tenn. 1993). The failure to
advise the defendant fully of rights waived by the entry of a guilty plea renders the
judgment voidable rather than void. See Passarella, 891 S.W.2d at 627-28. While
there is a three-year statute of limitations upon actions for post-conviction relief,
Tenn. Code Ann. § 40-30-102 (repealed 1995),1 habeas corpus has no statutory
period of limitations. A petitioner may not, however, file a habeas corpus action as
a means of circumventing the statute of limitations contained in the Post-Conviction
Procedure Act. See Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). Habeas
corpus relief is available in this state only when it appears on the face of the
judgment or the record that the trial court was without jurisdiction to convict or
sentence the defendant or that the sentence of imprisonment has otherwise expired.
Archer, 851 S.W.2d at 164.
While the petitioner concedes in this appeal that the guilty plea was
knowingly and voluntarily entered, the trial court, in our view, properly rejected the
1
The m ost rece nt Post-C onviction P rocedu re Act pro vides for a one-year statute of lim itations.
Tenn. Code A nn. § 40-30-202 (Supp. 199 6).
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claim. This action seeks to set aside the conviction based in part upon the failure of
counsel to adequately represent the petitioner. We view that as an attack upon a
voidable rather than a void judgment. See Passarella, 891 S.W.2d at 627-28. The
writ of habeas corpus is available only upon an expiration of the sentence or a
showing of deficiency on the face of the judgment. Neither has been shown here.
In Hicks v. State, 945 S.W.2d 706 (Tenn. 1997), our supreme court
ruled that a Range II sentence imposed under a plea bargain, even though the
defendant would otherwise qualify as only a Range I offender, was valid so long as
the plea was knowingly and voluntarily made. Thus, the petitioner would not be
entitled to relief on the merits of the claim whether made through a habeas corpus
or post-conviction petition.
________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
William M. Barker, Judge
_____________________________
Curwood Witt, Judge
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