The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
MAY SESSION, 1997 FILED
July 30, 1997
Cecil W. Crowson
GARY S. MAYES, )
Appellate Court Clerk
) No. 01C01-9605-CR-00205
Appellant )
) DAVIDSON COUNTY
vs. )
) Hon. THOMAS H. SHRIVER, Judge
STATE OF TENNESSEE, )
) (Habeas Corpus)
Appellee )
For the Appellant: For the Appellee:
THOMAS H. MILLER CHARLES W. BURSON
P. O. Box 681662 Attorney General and Reporter
Franklin, TN 37068-1662
DARYL J. BRAND
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
VICTOR S. (TORRY) JOHNSON III
District Attorney General
JOHN ZIMMERMANN
Asst. District Attorney General
Washington Sq., Suite 500
222-2nd Ave. N.
Nashville, TN 37201-1649
OPINION FILED:
AFFIRMED PURSUANT TO RULE 20
David G. Hayes
Judge
OPINION
The appellant, Gary S. Mayes, appeals from the denial of his petition for
habeas corpus relief. Upon review, we conclude that affirmance of the lower
court's decision is proper pursuant to Rule 20, Tenn. Ct. Crim. App.
On September 16, 1993, the appellant pled guilty in the Loudon County
Criminal Court to one count of aggravated sexual battery. He is presently
confined at the Riverbend Maximum Security Institution in Nashville where he is
serving a ten year sentence for this conviction. On July 12, 1995, the appellant
filed a pro se petition for writ of habeas corpus relief in the Davidson County
Criminal Court. Subsequently, on October 10, 1995, upon appointment of
counsel, this petition was amended and recaptioned "Petition for writ of habeas
corpus/post conviction relief."
The appellant's petition set forth several allegations including, inter alia,
that Tenn. Code Ann. § 33-6-302 (1984)1 is unconstitutional; that the appellant
was denied admittance to the sex offender treatment program; that the appellant
was denied parole based upon his failure to complete the sex offender treatment
program; and that the appellant's trial counsel was ineffective. On November
22, 1995, the trial court dismissed the petition finding that the court lacked
jurisdiction over the appellant's claims in a habeas corpus setting; that the court
lacked jurisdiction over the appellant's post-conviction claims2; and that the
appellant's claim is based upon the Board of Parole's refusal to grant him parole
1
Tenn. Code Ann. § 33-6-302 provides:
Sex offenders constitute a species of mentally ill persons in the eyes of the
general assembly, and where this tendency is pronounced, they should have the
same care and custody as mentally ill persons generally, and such persons
should be given continu ed care and treatm ent so long as th eir rele ase would
constitute a threat to them or to the general public.
2
Under the Post-Conviction Procedure Act, a petitioner must file a written petition with the
clerk of the court where the conviction occurred. Tenn. C ode Ann . § 40-30-103 [repe aled 199 5].
The appellant's conviction occurred in Loudon County and not Davidson.
2
or to order his enrollment in a sex offender treatment program over which the
court had no jurisdiction.3 In the present appeal, however, the appellant's sole
issue is whether the mandated classification of a sex offender as a mentally ill
person, pursuant to Tenn. Code Ann. § 33-6-302, is a denial of both his state
and federal constitutional due process rights. Specifically, the appellant claims
that "[b]ut for this classification imposed under this unconstitutional statute, . . .
[the] appellant would have been paroled in 1995."
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.4 Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).
The appellant's only asserted ground for habeas relief is the constitutionality of
Tenn. Code Ann. § 33-6-302.5 The appellant's petition does not allege that the
Criminal Court for Loudon County lacked jurisdiction to convict or sentence the
appellant nor does it allege that the appellant's sentence has already expired. If
a habeas corpus petition fails to state a cognizable claim for relief, it may be
summarily dismissed. Passarella 891 S.W.2d at 627. Thus, the trial court
properly dismissed the petition. In accordance with Tenn. Ct. Crim. App. R. 20,
we affirm the trial court's dismissal.
3
Ac tion s by the Parole Board are reviewable by the com m on law writ of certiorari,
Thandiwe v. Traugher, 909 S.W .2d 802, 803 (T enn. App. 199 4), and m ust be filed in chanc ery
court. Tenn. Code Ann. § 27-9-102.
4
If the face of the record reveals that the court did not have personal and subject matter
jurisdiction, or the autho rity to make the cha llenged judgm ent, the judgm ent is void. Pass arella v.
State , 891 S.W .2d 619, 627 (T enn. Crim . App. 1994).
5
In a class action suit filed on behalf of all convicted sex offenders in the custody of the
Tennessee Department of Correction, the Sixth Circuit determined that Tenn. Code Ann. § 33-6-
302 was con stitutiona l on its face. Dean v. McW herter, 70 F .3d 43, 46 (6th C ir. 1995 ); see also
Dalton v. Tennessee Board of Paroles, No. 01-A-01-9601-CH00029 (Tenn. App. at Nashville, May
8, 1996).
3
____________________________________
DAVID G. HAYES, Judge
CONCUR:
_________________________________
PAUL G. SUMMERS, Judge
_________________________________
JERRY L. SMITH, Judge
4