Leming v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 22, 1997
• Docket: 03C01-9603-CC-00119
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY 1997 SESSION FILED April 22, 1997

Cecil Crowson, Jr. CARL ED LEMING, ) Appellate C ourt Clerk ) Appellant, ) No. 03C01-9603-CC-00119 ) ) Bledsoe County v. ) ) Honorable Thomas W. Graham, Judge ) STATE OF TENNESSEE, ) (Habeas Corpus) JAMES A. BOWLEN, Warden, ) ) Appellees. )

For the Appellant: For the Appellee:

Carl Ed Leming, Pro Se John Knox Walkup STSRCF Rt. 4, Box 600 Attorney General of Tennessee Pikeville, TN 37367 and Elizabeth T. Ryan Assistant Attorney General of Tennessee 450 James Robertson Parkway Nashville, TN 37243-0493

James Michael Taylor District Attorney General and James W. Pope, III Assistant District Attorney General 265 Third Avenue, Suite 300 Dayton, TN 37321

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton Judge OPINION

The petitioner, Carl Ed Leming, appeals as of right from the dismissal of

his petition for habeas corpus relief by the Bledsoe County Circuit Court for failure to

state grounds justifying the issuance of a writ of habeas corpus. The petitioner is in the

custody of the Department of Correction serving an effective sentence of forty-three

years for his 1983 convictions of two counts of aggravated rape and one count of grand

larceny. The convictions were based upon the petitioner entering guilty pleas. The

petitioner was sentenced on December 13, 1983, as a Range I, standard offender to

concurrent sentences of forty years for each aggravated rape conviction to be served

consecutively to a three-year sentence for the grand larceny conviction. On appeal, the

petitioner essentially contends that the trial court erred by dismissing his petition for

habeas corpus relief without appointing counsel or conducting an evidentiary hearing

because he has served the minimum term required for release eligibility.

In his pro se petition, the petitioner asserts that he is being illegally

restrained of his liberty because the judgment orders for his convictions state that he

would be eligible for release status upon serving thirty percent of his sentences. He

claims that he entered the guilty pleas based upon his understanding that he would be

released after the service of thirty percent of his sentences. He contends that he

should be released because he has fully complied with the criteria of his plea

agreement.

Although the plea agreement is not included in the record, we conclude

that the petitioner is not entitled to habeas corpus relief. Challenges regarding the

involuntariness of a guilty plea do not provide a basis for habeas corpus relief because

2 the judgment is merely voidable. Habeas corpus relief from a criminal case

incarceration is only available in Tennessee when a petitioner’s conviction is void or

the sentence has expired. See Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).

Moreover, parole is a privilege and not a right. T.C.A. § 40-28-117(a); T.C.A. § 40-35-

503(b). The authority to grant parole is vested exclusively in the board of pardons and

parole, and the granting of parole is a discretionary matter. Doyle v. Hampton, 207

Tenn. 399, 340 S.W.2d 891, 893 (1960). A prisoner does not have an absolute right to

be released on parole when he has served the minimum term for his conviction. State

ex rel. Wade v. Norvell, 1 Tenn. Crim. App. 447, 443 S.W.2d 839, 840-41 (1969).

Habeas corpus relief is not available to challenge the denial of prison

privileges and related internal matters of our correctional institutions that have no

bearing on the validity of the restraining conviction, the resulting sentence, or the

expiration of the sentence. See, e.g., State v. Warren, 740 S.W.2d 427, 428 (Tenn.

Crim. App. 1986). The appropriate method to challenge the Department of Correction’s

failure to calculate sentencing credits and parole dates is the Administrative Procedures

Act. See T.C.A. §§ 4-5-101--325 (1991 and Supp. 1996); Brigham v. Lack, 755 S.W.2d

469, 471 (Tenn. Crim. App. 1988). When it is clear from the petition that the petitioner

is not entitled to relief, the trial court is not required to conduct an evidentiary hearing or

appoint counsel to represent the petitioner. See Passarella v. State, 891 S.W.2d 619,

627 (Tenn. Crim. App. 1994).

In this case, the petitioner claims that he has served his sentences and is

entitled to immediate release because he has served the requisite percentage of time

for release eligibility. However, release eligibility does not amount to an entitlement to

immediate release.

3 Therefore, we agree with the trial court that the petition for habeas corpus

relief fails to state a claim for which either a writ should issue or relief be granted. We

affirm the judgment of the trial court.

_______________________________ Joseph M. Tipton, Judge

CONCUR:

_________________________ Jerry L. Smith, Judge

_________________________ Thomas T. W oodall, Judge