State v. Joe Russell ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 1998 SESSION
FILED
)
JOE L. RUSSELL, ) February 17, 1998
) C.C.A. No. 02C01-9701-CR-00030
Appellant, ) Cecil Crowson, Jr.
) Shelby County Appellate C ourt Clerk
V. )
) Honorable John P. Colton, Jr., Judge
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee. )
)
FOR THE APPELLANT: FOR THE APPELLEE:
Joe L. Russell, Pro Se John Knox Walkup
TDOC #209487 Attorney General & Reporter
7575 Cockrill Bend Road
Nashville, TN 37209-1057 Kenneth W. Rucker
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-4351
William L. Gibbons
District Attorney General
Janet Shipman
Assistant District Attorney General
201 Poplar Avenue, Suite 301
Memphis, TN 38103
OPINION FILED: _______________________
AFFIRMED
PAUL G. SUMMERS,
Judge
OPINION
The appellant, Joe L. Russell, was convicted by a jury in August 1992 of
aggravated rape and was sentenced to fifteen years in the Tennessee
Department of Correction. In November 1996, the appellant filed a petition for
writ of habeas corpus in which he challenged the sufficiency of his aggravated
rape indictment. The trial court denied habeas corpus and alternatively, post-
conviction relief. The appellant now appeals this denial of relief.
The appellant’s sole issue on appeal is whether the trial court erred in
dismissing his petition for writ of habeas corpus. We affirm.
The appellant asserts that his petition for writ of habeas corpus was
inappropriately converted by the trial court to a petition for post-conviction relief,
which was subsequently denied because the post-conviction petition was time
barred. The appellant’s basis for his writ of habeas corpus is that his indictment
was fatally flawed for not alleging a mens rea, citing State v. Roger Dale Hill, Sr.,
No. 01C01-9508-CC-00267 (Tenn. Crim. App. at Nashville, filed June 20, 1996).
The state argues that the trial court properly denied the petition because it
“did not represent a cognizable claim for habeas relief or post-conviction relief”
and because the petition for post-conviction relief was time barred. The state
further asserts that the appellant’s indictment was not flawed, and thus, his
conviction is valid.
First, the trial court improperly converted the appellant’s writ of habeas
corpus to a petition for post-conviction relief. The Post-Conviction Act allows an
individual to challenge a conviction based upon constitutional grounds.
However, the appellant in this case challenges his indictment, and thus, a writ of
habeas corpus is the proper procedure for such a challenge. However, the
Tennessee Supreme Court, which had not rendered its decision in Hill at the
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time the parties filed their briefs in this matter, reversed the decision in Hill. See
State v. Hill, 954 S.W.2d 725 (Tenn. 1997) (holding that failure of indictment to
allege culpable mental state was not a fatal defect). Therefore, the appellant’s
contention that his indictment was flawed and his conviction invalid based on Hill
is erroneous. We affirm the trial court’s dismissal of the appellant’s petition.
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_______________________
PAUL G. SUMMERS, Judge
CONCUR:
____________________________
DAVID G. HAYES, Judge
____________________________
JOE G. RILEY, Judge
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