Randy L. May v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 5, 2005

RANDY L. MAY v. KEVIN MYERS, WARDEN

Appeal from the Circuit Court for Wayne County

No. 13464 Robert L. Jones, Judge

No. M2004-01957-CCA-R3-HC - Filed August 10, 2005

The petitioner, Randy L. May, sought a writ of habeas corpus from the Wayne County Circuit Court,

claiming that his 1981 life sentence had been rendered void by the Board of Probation and Parole’s

order that not only denied parole but also mandated, according to the petitioner, that he serve the

balance of his sentence. The circuit court granted the state’s motion to dismiss the petition without

a hearing, and the petitioner appealed. We affirm the dismissal of the petition.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which DAVID H. WELLES and

J.C. MCLIN , JJ., joined.

Randy L. May, Appellant, Pro Se.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; T.

Michel Bottoms, District Attorney General; and Helena Walton Yarbrough, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

The petition alleges that in 1981 the Hamblen County Circuit Court sentenced the

petitioner to a life sentence that, according to the applicable law at the time, was subject to parole.

The petitioner apparently appeared before the Board of Probation and Parole on February 6, 2002.

The petition alleges that on March 4, 2003, the Board denied parole and “ordered the Petitioner to

‘Serve Balance of Sentence.’” However, the copy of the “Notice of Board Action” attached to the

petition merely sets forth a checked box beside the printed statement, “Decline Balance of Sentence.”

The state moved to dismiss the petition on the basis that the claim for relief was not cognizable in

an action for a writ of habeas corpus, and the petitioner filed a timely notice of appeal.

The legal issues raised on denying a habeas corpus petition 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).

Habeas corpus relief 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). The petitioner

in the present case makes no allegation that his sentence has expired; he claims that the Board of

Probation and Parole’s pretermission of further parole consideration renders his sentencing judgment

void.

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) (“‘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.”); Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

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).

A summary dismissal of a petition for habeas corpus relief is authorized when “the

plaintiff would not be entitled to any relief.” Tenn. Code Ann. § 29-21-109 (2000). Although

counsel should be appointed when issues presented in the petition could be the basis of habeas

corpus relief if supporting facts were properly developed and proven, see McLaney v. Bell, 59

S.W.3d 90, 94-95 (Tenn. 2001), the court may summarily dismiss the petition without the

appointment of counsel when it sets forth no facts supporting the issuance of the writ, Randall

Carver v. State, No. M2002-02891-CCA-R3-CO, slip op. at 4 (Tenn. Crim. App., Nashville, May

16, 2003) (summary dismissal of habeas corpus petition and failure to appoint counsel affirmed

when the record “is sufficient to show that the petitioner’s claims do not entitle him to relief”;

distinguishing McLaney ).

“Parole is a privilege and not a right.” James R. Miller v. State, No. 03C01-9608-

CR-00288, slip op. at 5 n.2 (Tenn. Crim. App., Knoxville, Oct. 10, 1997). Moreover, “[r]elease

eligibility for a felon establishes only eligibility for release and is not an absolute right.” Id. A

prisoner’s attainment of release eligibility does not equate to his serving his sentence and provides

no entitlement to immediate release. Carl Ed Leming v. State, No. 03C01-9603-CC-00119, slip op.

at 3 (Tenn. Crim. App., Knoxville, Apr. 22, 1997). Additionally, “parole board decisions are

reviewable only by a petition for writ of certiorari which must be filed within sixty days.” James

R. Miller, slip op. at 5 n.2.

To support his claim that the parole board’s decision effectively annulled his

sentencing judgment, the petitioner relies primarily upon Baldwin v. Tennessee Board of Paroles,

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125 S.W.3d 429 (Tenn. Ct. App. 2003). In Baldwin, the Court of Appeals overturned a parole board

decision to defer further parole hearings for Baldwin for a period of 20 years. The court said,

[T]he Board’s decision constitutes an arbitrary withdrawal of the

power to parole from future Board members, and . . . a twenty-year

deferral would undermine the very provisions of the parole statutes

that empower the Board to grant parole. In addition, the essential

effect of the Board’s action is to change Mr. Baldwin’s sentence to

life without parole, contrary to what the Legislature intended. We

think Mr. Baldwin has stated a cause of action which entitles him to

the writ of certiorari. Therefore, we reverse the chancellor’s order

dismissing his claim that the Board acted arbitrarily in deferring the

next consideration of parole for him for twenty years.

Id. at 434.

The legal fallacy in the petitioner’s claim is that he sought the issuance of a writ of

habeas corpus and not that of certiorari. The petitioner in Baldwin sought a direct review of the

parole board’s action via a petition for a writ of certiorari, the prescribed and exclusive manner for

challenging such actions. See Tenn. Code Ann. § 40-28-115 (2003); James R. Miller, slip op. at 5

n.2. Conversely, the present petitioner’s collateral challenge via habeas corpus is not sustainable.

His sentence has not expired, and he alleges no jurisdictional infirmity in his conviction judgments

that would afford a basis for habeas corpus relief. Thus, even if the parole board’s action may be

fairly characterized as requiring him to serve the balance of his sentence without further parole

consideration, and even if such action may be deemed arbitrary per Baldwin, the claim is not

cognizable in the manner presented.

Finally, we note that in his reply brief, the petitioner claimed that the parole board’s

action effectively rendered his guilty plea involuntary and unknowing. This claim, however, is also

not cognizable in a habeas corpus proceeding. Judgments resulting from involuntary or unknowing

guilty pleas are merely voidable and are subject to attack via a petition for post-conviction relief, not

one for habeas corpus relief. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).

Therefore, the judgment of the circuit court is affirmed.

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JAMES CURWOOD WITT, JR., JUDGE

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