Gary S. Mayes v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: July 30, 1997
• Docket: 01C01-9605-CR-00205
• Status: Published

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