Jerry Faulkner a/k/a Joseph Faulkner v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 15, 2005

JERRY FAULKNER a/k/a JOSEPH FAULKNER v. STATE OF

TENNESSEE

Appeal from the Criminal Court for Shelby County

No. P-28323 James C. Beasley, Judge

No. W2004-02354-CCA-R3-HC - Filed December 12, 2005

On January 27, 2004, the Shelby County Criminal Court accepted the guilty pleas of Jerry Faulkner,

also known as Joseph Faulkner, the petitioner, on three counts of aggravated robbery and a single

count of aggravated rape. The effective 20-year sentence was imposed to run concurrently with

another state sentence and “all Federal convictions.” On April 13, 2004, the petitioner, who was

incarcerated in a federal facility in Memphis, filed a petition in the conviction court for a writ of

habeas corpus. Because the petitioner was in federal custody, the habeas corpus court dismissed the

petition, and the petitioner appealed. Following our review, we affirm the order of the habeas corpus

court.

Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which NORMA MCGEE OGLE

and J.C. MCLIN , JJ., joined.

Jerry Faulkner a/k/a Joseph Faulkner, Appellant, Pro Se.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;

and William L. Gibbons, District Attorney General, for the Appellee, State of Tennessee.

OPINION

This court’s opinion on direct appeal of the denial of post-conviction relief describes

the history of the petitioner’s case prior to the January 27, 2004 guilty pleas, see Joseph T. Faulkner

v. State, No. W1999-00223-CCA-R3-PC (Tenn. Crim. App., Jackson, Oct. 17, 2000):

On June 30, 1998, the appellant, Joseph T. Faulkner, also

known as “Jerry Faulkner,” entered guilty pleas to one count of

aggravated rape and three counts of aggravated robbery in the Shelby

County Criminal Court. The negotiated plea agreement provided that

the appellant would serve an effective twenty-five year sentence to be

served concurrently with his federal sentence imposed pursuant to his

guilty plea under federal indictment No. CR-97-20098-G. The

judgment forms reflect that the appellant’s state sentences were “to

be served in federal custody.” The appellant is currently serving a

TDOC sentence at the Hardeman County Correctional Facility, a state

facility. He has never been released to federal custody.

Relying upon the fact that he remains in state custody, the

appellant filed a petition for post-conviction relief alleging that his

guilty pleas were not knowingly and voluntarily entered. He argues,

in effect, that his bargained for concurrent state and federal sentences

have become consecutive by the federal government’s refusal to

accept him into their custody. The post-conviction court denied the

appellant relief, finding that the appellant “has presented no evidence

to support [his] allegation” that “the State refused to release him to

federal authorities or that federal authorities in fact requested the

State to release him to their custody.” The court further found that

“the State has no authority under the Supremacy Clause of the Federal

Constitution to either require federal authorities to take possession of

Petitioner or guarantee Petitioner’s sentence will be served in federal

custody.”

Id., slip op. at 2 (footnotes omitted). Because, subsequently to the 1998 guilty pleas, “action by

federal authorities rendered the plea agreement incapable of enforcement,” id., slip op. at 4, this court

in the post-conviction appeal determined that the petitioner’s pleas were not made knowingly and

reversed the convictions, id., slip op. at 4-5. In crafting a remedy, this court adopted language from

Derrick E. Means v. State, No. 02C01-9707-CR-00248 (Tenn. Crim. App., Jackson, Aug. 13, 1998)

(per curiam):

Fashioning relief for the petitioner will take the combined

good faith efforts of all involved. The parties are first encouraged to

make every effort to fulfill the intent of the plea bargain. Specific

performance may, however, be impossible to effectuate. Both

defense counsel and the district attorney’s office, while taking steps

to preserve the integrity of the state sentence, should contact federal

authorities and determine whether the federal authorities would be

willing to accept the petitioner for his federal sentence.

If specific performance is an impossibility, the parties should

enter into new plea negotiations taking into account the intentions of

the failed plea agreement. The agreement failed through no fault of

the petitioner. In our view, plea negotiations and sentencing should

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take into account the time the petitioner has served in prison and in

the county jail. If these avenues do not provide a satisfactory

resolution, the petitioner may be allowed to withdraw his guilty pleas

altogether and face trial.

Joseph T. Faulkner, slip op. at 5.

Apparently, following remand, the parties entered into a second plea agreement,

which provided for an effective sentence of 20 years to be served concurrently with another state

sentence and with the petitioner’s federal sentence. The agreement was approved on January 27,

2004.

The petition for habeas corpus relief now under review alleges, inter alia, that the

2004 sentences are illegal because of the concurrent alignment of the state sentences with a prior

state sentence. The petitioner claims that he was on parole when he committed the offenses resulting

in the convictions now being challenged.1 On appeal, he argues that Tennessee Code Annotated

section 40-20-111(b) required that the sentences as imposed in 1998 and again in 2004 must be

served consecutively to the sentence for which he was on parole and that the concurrent alignment

rendered the new sentences illegal and void. See Tenn. Code Ann. § 40-20-111(b) (2003) (“In any

case in which a defendant commits a felony while such defendant was released on bail in accordance

with the provisions of chapter 11, part 1 of this title, and the defendant is convicted of both such

offenses, the trial judge shall not have discretion as to whether the sentences shall run concurrently

or cumulatively, but shall order that such sentences be served cumulatively.”).

I. Principles of Habeas Corpus

The legal issues raised in a habeas corpus proceeding are questions of law, and our

review of questions of law is de novo. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000) (“[W]hether

to grant the petition [for habeas corpus relief] is a question of law that we review de novo.”); State

v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (question of law reviewed on appeal de novo).

Tennessee Code Annotated section 29-21-101 provides that “[a]ny person

imprisoned or restrained of liberty, under any pretense whatsoever, . . . may prosecute a writ of

habeas corpus, to inquire into the cause of such imprisonment and restraint.” Tenn. Code Ann. § 29-

21-101 (2003). Habeas corpus relief in Tennessee, however, is available only when the aggrieved

party’s conviction is void or the sentence has expired. See Archer v. State, 851 S.W.2d 157, 164

(Tenn. 1993).

1

The petitioner alleges that he “was on parole for some cases [he] caught in 1998-199[9] (A Void Judgment)

is one [sic] facially invalid because the trial court lacked Jurisdiction . . . to render the judgment. The defendant is stating

that his Convictions is [sic] Void on the basis of the above fact[]s . . . .”

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A void conviction is one which strikes at the jurisdictional integrity of the trial court.

Id.; see State ex rel. Anglin v. Mitchell, 575 S.W.2d 284, 287 (Tenn. 1979); Passarella v. State, 891

S.W.2d 619, 627 (Tenn. Crim. App. 1994). Because in this case the trial court apparently had

jurisdiction over the actus reus, the subject matter, and the person of the petitioner, the petitioner’s

jurisdictional issue is limited to the claim that the court was without authority to enter the judgment.

See Anglin, 575 S.W.2d at 287 (“‘Jurisdiction’ in the sense here used, is not limited to jurisdiction

of the person or of the subject matter but also includes lawful authority of the court to render the

particular order or judgment whereby the petitioner has been imprisoned.”); see also Archer, 851

S.W.2d at 164; Passarella, 891 S.W.2d at 627.

The invalidity of the sentence itself, as well as the broader invalidity of the

conviction, results in a void judgment and is a sufficient basis for habeas corpus relief. See

Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (a void sentence, as well as a void

conviction, may result in a void judgment and be the subject of a habeas corpus proceeding). For

an illegal-sentence claim to support a claim for habeas corpus relief, however, the illegality of the

sentence must be egregious to the point of voidness. Cox v. State, 53 S.W.3d 287, 292 (Tenn. Crim.

App. 2001). Our supreme court has stressed that a habeas corpus action is “the proper procedure

for collaterally challenging an illegal sentence.” Moody v. State, 160 S.W.3d 512, 515 (Tenn. 2005).

In McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001), the habeas corpus petitioner

complained that his concurrent alignment of a sentence for a pre-bail offense with sentences for

post-bail offenses was void. See id. at 92. Apparently, McLaney bargained for and obtained a global

plea agreement that embraced sentences for aggravated rape (the pre-bail offense) and for rape and

burglary (the post-bail offenses). See State v. Jackie W. McLaney, No. 74 (Tenn. Crim. App.,

Knoxville, Mar. 31, 1988). In McLaney, the supreme court said that “if the facts [were] as alleged,

the trial court imposed a sentence in direct contravention of the sentencing act, . . . [and] this would

create an illegal sentence.” McLaney, 59 S.W.3d at 93. The supreme court required the habeas

corpus court to determine whether “the record of the underlying proceedings clearly showed that the

latter rape and burglary offenses were committed while McLaney was on bail.” Id. at 94.

Furthermore, the McLaney court directed that should the habeas corpus court find that to be the case

– with the result that the sentences in the latter cases would be void – “on remand to the original

convicting trial court, a guilty plea may be withdrawn.” Id. at 95. The court reasoned that because

“McLaney entered his guilty plea in exchange for a concurrent sentence which was, in actuality,

illegal, . . . [he] is entitled to withdraw the plea.” Id. (citations omitted).

II. The Petitioner’s Claim to Habeas Corpus Relief

A. The Basis for a Claim of Sentence Illegality

The first step in analyzing McLaney’s application to the present case is to

acknowledge that the petitioner inaptly relies upon Tennessee Code Annotated section 40-20-111(b),

the Code section at play in McLaney, that mandates consecutive alignment of sentences when a

felony offense is committed while the offender is on bail for another offense. The petitioner’s claim

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is that he was on parole when he committed the crimes for which he was sentenced in 1998 and

again in 2004. As such, the mandatory terms of Code section 40-20-111(b) have no application to

the present case.

That said, the terms of Tennessee Code Annotated section 40-28-123(a) do apply:

Any prisoner who is convicted in this state of a felony, committed

while on parole from a state prison, jail or workhouse, shall serve the

remainder of the sentence under which the prisoner was paroled, or

such part of that sentence, as the board may determine before the

prisoner commences serving the sentence received for the felony

committed while on parole.

Tenn. Code Ann. § 40-28-123(a) (2003). Our supreme court has said that this “statute is

mandatory[,] and when the prisoner does violate his parole he is required to serve the remainder of

this sentence.” Henderson v. State, 220 Tenn. 520, 523, 419 S.W.2d 176, 178 (1967). This court

has previously held that the principles of McLaney apply with equal force to a violation of Code

section 40-28-123(a) as they do a violation of section 40-20-111(b). See Robert A. Atkins v. James

M. Dukes, No. W2001-01311-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App., Jackson, Jan. 8, 2002)

(“We note that even though the defendant in McLaney was granted concurrent sentences for a felony

committed while on bail for another felony conviction, the result is the same under the statute

providing for conviction of a felony committed while on parole for a prior felony conviction,

[Tennessee Code Annotated section 40-28-123(a)].”).

B. The Petitioner’s Status As a Habeas Corpus Claimant

We now address the issue of whether the petitioner is an eligible candidate for habeas corpus

relief, an issue implicated by (1) the requirement of Tennessee Code Annotated section 29-21-101

that the petitioner be imprisoned or otherwise in restraint of liberty, see Tenn. Code Ann. § 29-21-

101 (2003), and by (2) Tennessee Code Annotated section 29-21-102, which provides that

[p]ersons committed or detained by virtue of process issued

by a court of the United States, or a judge thereof, in cases where

such judges or courts have exclusive jurisdiction under the laws of the

United States, or have acquired exclusive jurisdiction by the

commencement of suits in such courts, are not entitled to the benefits

of this writ,

id. § 29-21-102.

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1. Restraint of Liberty

The first question that comes to mind is whether the petitioner’s concurrent service

of a federal sentence with the challenged state sentences equates to a restraint of liberty for purposes

of habeas corpus relief. We conclude that it does.

We are mindful that, to have standing to seek a writ of habeas corpus, the petitioner

must be imprisoned or restrained of liberty as a “direct consequence” of the challenged 2004 state

judgments. See Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004). By the terms of the judgments

in the present case, the petitioner is serving the resulting sentences while in federal custody by

serving a federal sentence. Thus, we must determine whether he is imprisoned or restrained of his

liberty as a direct consequence of the Tennessee sentences.

Tennessee courts have said, “The sole relief available under Tennessee’s habeas

corpus statute is discharge from custody.” Kenneth Kersey v. State, No. 01C01-9604-CR-00128,

slip op. at 3 (Tenn. Crim. App., Nashville, June 6, 1997); see Taylor v. Morgan, 909 S.W.2d 17, 20

(Tenn. Crim. App. 1995). In Ussery v. Avery, 222 Tenn. 50, 432 S.W.2d 656 (1968), the habeas

corpus petitioner received consecutive ten-year sentences for two armed robbery convictions, and

he challenged the first conviction, but not the second. Our supreme court rejected the habeas corpus

claim that challenged one conviction when the petitioner was also subject to lawful restraint by the

second conviction. The court stated that “[n]o provision is made for passing on the validity of a

judgment other than to release or detain” under the habeas corpus statute that is now Tennessee Code

Annotated section § 29-21-122. Although the court recognized that it would be unreasonable to

require a prisoner to serve a void judgment solely because it was followed by a consecutive sentence,

it saw no injustice in requiring a prisoner to serve the time that is conceded to be valid before

application may be made. Id. at 55-56, 432 S.W.2d at 658.

The implications of Ussery aside, we believe that the discharge-from-custody

requirement is not applicable when a petitioner challenges a sentence that is being served

concurrently with an unchallenged sentence. “When two sentences run concurrently, it merely

means that, for each day in custody while serving both sentences, the inmate receives credit toward

each sentence. Concurrent sentences do not necessarily begin and end at the same time – they

simply run together during the time they overlap.” Brown v. Tenn. Dept. of Corr., 11 S.W.3d 911,

913 (Tenn. Ct. App. 1999). Essentially, the petitioner is serving his 2004 Tennessee sentences. We

conclude that the petitioner, therefore, is imprisoned as a direct result of his 2004 Tennessee

convictions and sentences and that because he is imprisoned, his liberty is obviously restrained.

We acknowledge that Tennessee Code Annotated section 29-21-122(a) states that

“[i]f no sufficient legal cause of detention is shown, the plaintiff shall be discharged”; however,

subsection (b) states:

The party detained shall be remanded to custody:

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(1) If it appears the party is detained by virtue of process

issued by a court or judge of the United States, in a case where such

court or judge has exclusive jurisdiction;

(2) Where the time during which such party may be legally

detained has not expired; or

(3) In every case in which the detention is authorized by law.

Tenn. Code Ann. § 29-21-122 (2000). Thus, although a discharge of the petitioner is warranted

when no sufficient legal cause of a detention is shown, the petitioner may nevertheless be remanded

to custody when continued custody is mandated by a different basis for detention. Such is the

petitioner’s case; he is imprisoned as a direct result of his 2004 Tennessee convictions.

2. Tennessee Code Annotated section 29-21-102

The other potential impediment to the petitioner’s claim to a writ of habeas corpus

is the limitation set forth in Code section 29-21-102 that persons confined via process issued by

federal judges or courts when “such judges or courts have exclusive jurisdiction under the laws of

the United States . . . are not entitled to the benefits of this writ.” Tenn. Code Ann. § 29-21-102

(2000). In our view, this limitation upon access to a Tennessee writ of habeas corpus implicates the

primary result and benefit of the writ – the command to bring the body of the petitioner before the

court.2

The common usage of the term “habeas corpus” implicates a writ of habeas corpus

ad subjiciendum, a “writ directed to the person detaining another, and commanding him to produce

the body of the prisoner . . . to do, submit to, and receive whatsoever the judge or court awaiting the

writ shall consider in that behalf.” Black’s Law Dictionary 865 (3d ed. 1933) (emphasis added).

2

In Hickman v. State, 153 S.W.3d 16 (Tenn. 2004), our supreme court expounded on the imprisonment-or-

restraint-of-liberty requirement. The court opined that a petitioner is not restrained of his liberty via an expired state

sentence merely because that state conviction resulted in the enhancement of a federal sentence. Id. at 23 (“[W ]e hold

that a person is not ‘restrained of liberty’ for purposes of the habeas corpus statute unless the challenged judgment itself

imposes a restraint upon the petitioner’s freedom of action or movement.”). In determining that Hickman’s expired state

sentence posed no restraint of liberty for habeas corpus purposes, the court avoided a determination whether Tennessee

Code Annotated section 29-21-102’s disqualification of federal petitioners per se required dismissal of Hickman’s

petition. See id. at 24 n.5 (“Because Hickman’s petition does not indicate his place of confinement and because this case

may be resolved on other grounds, we need not consider whether . . . section 29-21-102 precludes persons in federal

custody from seeking habeas corpus relief from Tennessee judgments.”).

In Xavier S. Todd v. State, No. W 2005-00681-CCA-R3-HC (Tenn. Crim. App., Jackson, Sept. 16,

2005), this court utilized Code section 29-21-102 to determine that Todd, a federal prisoner, was not entitled to seek

habeas corpus relief in state court; however, the court emphasized that the state sentence being challenged by the habeas

corpus petition had expired. Id., slip op. at 3. The court observed, “W hile this Court is of the opinion that an issue of

whether a prisoner in federal custody but whose state sentence has not yet expired may seek state habeas corpus relief,

such is not the circumstance in the case sub judice.” Id.

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“The design of the writ is to secure the forthcoming of the plaintiff to have a fair trial of the legality

of his imprisonment.” Samuel B. Gilreath, Caruthers’ History of a Lawsuit § 564 (1937) (emphasis

added). Thus, although courts may commonly speak of habeas corpus relief being granted or denied

when referring to the officiating court’s adjudication of the legality of the petitioner’s restraint, the

literal purpose of the writ is to command the delivery of the petitioner’s person into the physical

presence of the officiating court as a predicate to adjudicating the legality of the restraint.

In our view, Tennessee Code Annotated section 29-21-102 merely recognizes that,

as a function of federal sovereignty, a state court may not command an official action by a federal

officer. Tarble’s Case 13 Wall. 37, 411-12, 80 U.S. 397, 411-12 (1871) (rejecting claim that a state

writ of habeas corpus could direct the delivery or discharge of a prisoner “held by an officer of the

United States” and directing that a state court should proceed “no further when it appears . . . that

a prisoner is held by an officer of the United States under . . . the authority of the United States. . .

.”). Thus, in the present case, the petitioner may not seek a writ that, to be satisfied, requires a

federal functionary to submit to the dominion of a state court.

. III. Conclusion

The result is that, even though the petitioner’s unexpired 2004 state sentences running

concurrently with a federal sentence may otherwise be subject to collateral attack, the petitioner does

not enjoy the benefit of the writ of state habeas corpus because a state court cannot command

compliancy by the petitioner’s federal jailer. For this reason, the judgment of the criminal court is

affirmed.

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JAMES CURWOOD WITT, JR., JUDGE

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