Leming v. State ( 1997 )

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
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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.
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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
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