The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER SESSION, 1998 December 1, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
TERRY NICHOLS, ) C.C.A. NO. 03C01-9803-CR-00106
)
Appe llant, )
)
) JOHNSON COUNTY
VS. )
) HON. LYNN W. BROWN
HOW ARD C ARLT ON, ) JUDGE
WARDEN, )
)
Appellee. ) (Habeas Corpus)
ON APPEAL FROM THE JUDGMENT OF THE
CRIMINAL COURT OF JOHNSON COUN TY
FOR THE APPELLANT: FOR THE APPELLEE:
TERRY NICHOLS JOHN KNOX WALKUP
Pro Se Attorney General and Reporter
N.E.C.C.
P.O. Box 5000 MICH AEL J . FAHE Y, II
Mountain City, TN 37683 Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243
DAVID CROCKETT
District Attorney General
Route 19, Box 99
Johnson City, TN 37601
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
OPINION
The Defenda nt, Te rry Nich ols, ap peals the trial c ourt’s d ismiss al of his
petition for habeas corpus relief. Defendant filed his petition with the Criminal
Court for Johnson County on December 1, 1997, and he filed an amended
petition on January 1, 1998. The petition alleges prim arily ineffective assistance
of counsel at his trial for aggra vated rape in 1980 . The tr ial cou rt dism issed his
petition on Jan uary 18, 1 998 for fa ilure to state a claim upon which relief can be
granted. We agree that the petition must be d ismissed, an d we therefore affirm
the dec ision of the trial court.
As the State asserts, the remedy of habeas corpus in Tennessee is limited
in nature and in s cope. Ou r supreme court has explained, “[a]s late as 1963, we
recognized that habeas corpus proceedings were collateral attacks upon a
court’s judgment and that such challenges ‘cannot prevail unless such judgment
is void.’” Archer v. State, 851 S.W.2d 157, 161-62 (Tenn. 1993) (quoting State
ex. rel Holbrook v. Bomar, 364 S.W.2d 887, 888 (Tenn. 1963)). Claims of
ineffective assistance of counsel, such as those alleged in Defendant’s petition,
may render a judgment voidable, not void; and as such are improper grounds for
a petition for habeas corpus relief. See Passa rella v. State , 891 S.W.2d 619, 627
(Tenn . Crim. A pp. 199 4).
In Archer, the court again quoted Holbrook to define precisely which cases,
if meritorious, render the conviction void as oppos ed to void able. Archer, 851
S.W .2d at 162 . The co urt stated,
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“Upon a collateral attack on a judgment of a court of general
jurisdiction . . . , such judgmen t is presum ed to be in all respec ts
regular and valid, unless the record affirmatively shows that the
court rende ring the judgm ent lac ked ju risdiction of the subject matter
or of the pe rson . . . .”
Id. (quoting Holbrook, 364 S.W .2d at 889 ). “Habeas corpu s relief is availab le in
Tennessee only whe n [it appea rs] that a convicting court was without jurisdiction
or authority to sentence a defendant, or that a defendant’s sentence of
imprisonment or other restraint has expired.” Id. at 164. We do not have such
a case before us. Defendant does not raise any claims that can be construed as
challenges to jurisdiction over either his case or his person, and he does not
claim to have satisfied his sentence.
Although a petition for habeas corpus may be treated as a petition for post-
conviction relief unde r appro priate c ircum stanc es, we need not do so in this case
because (1) the appropriate court for a post-conviction petition is the court in
which the conviction occurred, Tenn. Code Ann. § 40-30-204(a); (2) Defendant
has previously filed a post-conviction petition in the Criminal Court for Shelby
County, see id. § 40-3 0-202 (c) (con temp lating th e filing o f only one such petition);
and (3) the limitations period for filing a post-conviction petition in this case has
now expired.1
1
It appears from Defendant’s petition that this Court affirmed his conviction on
December 11, 1980. Defendant filed no application for permission to appeal to the Supreme
Court of Tennessee. Because the statute of limitations required Defendant to file any post-
conviction petition within three years of enactment of Tennessee Code Annotated § 40-30-102,
which occurred on July 1, 1986, his time has expired. See Abston v. State, 749 S.W.2d 487,
488 (Tenn. Crim. App. 1988).
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Based upon a thorough reading of the record, the briefs of both parties,
and the law governing the issues presented for review, we affirm the trial c ourt’s
dismiss al of Defe ndant’s p etition for ha beas c orpus re lief.
____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
GARY R. WADE, PRESIDING JUDGE
___________________________________
THOMAS T. WOODALL, JUDGE
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