Gary Bernard Sanders v. Don Sundquist, Governor of State of Tennessee ( 1996 )

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.
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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.
AFFIRMED AND REMANDED
_______________________________________
HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION
CONCUR:
_____________________________________
SAMUEL L. LEWIS, JUDGE
_____________________________________
BEN H. CANTRELL, JUDGE
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