Gary Bernard Sanders v. Don Sundquist, Governor of State of Tennessee

• Court: Court of Appeals of Tennessee
• Decided: November 8, 1996
• Docket: 01A01-9608-CH-00363
• Status: Published

Opinion

GARY BERNARD SANDERS, ) ) Petitioner/Appellant, ) ) Davidson Chancery ) No. 95-3497-III VS. ) ) Appeal No. ) 01-A-01-9608-CH-00363 DON SUNQUIST, GOVERNOR OF ) STATE OF TENNESSEE, ET AL, )

Defendants/Appellees. ) ) FILED November 8, 1996 IN THE COURT OF APPEALS OF TENNESSEE Cecil W. Crowson MIDDLE SECTION AT NASHVILLE Appellate Court Clerk

APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY AT NASHVILLE, TENNESSEE

HONORABLE ROBERT S. BRANDT, CHANCELLOR

PATRICIA C. KUSSMANN #15506 Assistant Attorney General 404 James Robertson Parkway Suite 2000, Parkway Towers Nashville, TN 37243-0488 ATTORNEY FOR DEFENDANTS/APPELLEES

GARY BERNARD SANDERS #76973 Cold Creek Correctional Facility P.O. Box 1000 Henning, TN 38041-1000 PRO SE/PLAINTIFF/APPELLANT

AFFIRMED AND REMANDED

HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

CONCUR: SAMUEL L. LEWIS, JUDGE BEN H. CANTRELL, JUDGE GARY BERNARD SANDERS, ) ) Petitioner/Appellant, ) ) Davidson Chancery ) No. 95-3497-III VS. ) ) Appeal No. ) 01-A-01-9608-CH-00363 DON SUNQUIST, GOVERNOR OF ) STATE OF TENNESSEE, ET AL, ) ) Defendants/Appellees. )

OPINION

The captioned plaintiff, an inmate of the Department of Correction, filed this suit

against the Governor, Commissioner of Correction and Commissioner of Correction, seeking

a declaration of his rights to release from incarceration. The defendants filed a motion to

dismiss supported by affidavit of an official of the Department of Correction. The motion

was therefore a motion for summary judgment. T.R.C.P. Rule 12.02.

The Trial Court sustained the motion and dismissed the suit. Plaintiff has appealed and presented the following issues:

I. Whether the appellant asserted cognizable constitutional claims to survive a motion to dismiss under Rule 12.02(6), of the Tennessee Rules of Civil Procedure.

II. Whether Williams Tennessee Code Annotated Sections 10771 and 11771, are applicable to the appellant’s felony-murder conviction and sentence as mandated by the Court in Collins vs. State, 550 S.W.2d 643 (Tenn. 1977).

III. Whether the denial of sentence reduction credits pursuant to Tennessee Code Annotated Sections 41-332, 41-334 and 41- 358, violate the appellant’s due process rights.

IV. Whether the retroactive application of the Governor’s Executive Directive pursuant to Tennessee Code Annotated Section 41-1-504, violate due process and the ex post facto prohibition.

-2- T.C.A. § 4-5-224 reads in part as follows:

Declaratory judgment. - (a) The legal validity or applicability of a statute, rule or order of an agency to specified circumstances may be determined in a suit for a declaratory judgment in the chancery court of Davidson County, unless otherwise specifically provided by statute, if the court finds that the statute, rule or order, or its threatened application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges of the complainant. The agency shall be made a party to the suit.

(b) A declaratory judgment shall not be rendered concerning the validity or applicability of a statute, rule or order unless the complainant has petitioned the agency for a declaratory order and the agency has refused to issue a declaratory order.

The complaint does not allege compliance with this statute. Therefore, the complaint

fails to state a claim for which relief can be granted. This disposes of the first issue and

renders unnecessary any discussion of other issues presented by plaintiff.

The judgment of the Trial Court dismissing this suit is affirmed. Costs of this appeal

are assessed against the plaintiff. The cause is remanded to the Trial Court for any necessary

further proceedings.

_______________________________________ HENRY F. TODD PRESIDING JUDGE, MIDDLE SECTION

CONCUR:

_____________________________________ SAMUEL L. LEWIS, JUDGE

_____________________________________ BEN H. CANTRELL, JUDGE

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