Pete Wayne Duncan v. State of Tennessee Parole Board

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
PETE WAYNE DUNCAN v. STATE OF TENNESSEE PAROLE BOARD
Appeal from the Circuit Court for Lake County
No. 04-CR-8570 R. Lee Moore, Jr., Judge
No. W2004-01819-CCA-R3-HC - Filed October 25, 2004
This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by
opinion pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner is appealing
the trial court's denial of habeas corpus relief. A review of the record reveals that the Petitioner is
not entitled to habeas corpus relief. Accordingly, the State's motion is granted and the judgment of
the trial court is affirmed.
Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
ALAN E. GLENN , JJ., joined.
Pete Duncan, pro se.
Paul G. Summers, Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General, for
the appellee, State of Tennessee.
MEMORANDUM OPINION
From the Petitioner’s pro se habeas corpus petition, we are able to determine that, on
September 17, 2002, he was convicted of theft of property and aggravated burglary in the Shelby
County Criminal Court. For these offenses, Petitioner was sentenced as a persistent offender to
fifteen years in the Department of Correction. The convictions and sentences were the result of a
plea bargain and no direct appeal was taken from either the convictions or sentences. Petitioner is
currently confined at the Northwest Correctional Center in Lake County.
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On June 23, 2004, Petitioner filed a habeas corpus petition in the Circuit Court for Lake
County. As grounds for relief, Petitioner asserts that he is being unlawfully restrained of his liberty
by the State of Tennessee’s Parole and Probation Board. Specifically, he asserts that, as of February
26, 2004, he had received a “majority of votes favorable for parole,” with only two board members
declining to recommend Petitioner for parole. He contends that the board members failed to comply
with the provisions of section 40-28-105, Tennessee Code Annotated, thereby violating his rights
to procedural due process. He adds that, since the board did not decline his release from prison, he
is being illegally restrained.
The trial court reviewed the petition and, on July 7, 2004, denied the same, finding that the
Petitioner’s challenge to the actions of the Board of Probation and Parole was not cognizable in a
habeas corpus proceeding. Petitioner timely appealed the lower court’s decision.
A writ of habeas corpus may be granted only when the petitioner has established lack of
jurisdiction for the order of confinement or that he is otherwise entitled to immediate release
because of the expiration of his sentence. See Ussery v. Avery, 222 Tenn. 50, 432 S.W.2d 656
(1968); State ex rel. Wade v. Norvell, 1 Tenn.Crim.App. 447, 443 S.W.2d 839 (1969). The
procedural requirements for habeas corpus relief are mandatory and must be scrupulously
followed. Archer v. State, 851 S.W.2d 157, 165 (Tenn. 1993). The Petitioner has failed to attach
either the copies of the judgments of conviction or the indictment(s) to his petition. See Tenn.
Code Ann. § 29-21- 107(b)(2). An application for the issuance of habeas corpus may be
summarily dismissed for failure to attach the judgment forms. Id.; see also State ex rel. Wood v.
Johnson, 393 S.W.2d 135, 136 (Tenn. 1965).
Habeas corpus relief is available in this state only when it appears on the face of the
judgment or the record that the trial court was without jurisdiction to convict or sentence the
defendant or that the sentence of imprisonment has otherwise expired. Archer, 851 S.W.2d at
164; Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). The Petitioner in this case does not argue
that his sentence has expired nor does he argue that his judgment or sentence is void. Rather,
Petitioner challenges the actions of the Board of Probation and Parole. Actions by the Parole
Board are reviewable by the common law writ of certiorari, see Thandiwe v. Traugher, 909
S.W.2d 802, 803 (Tenn. App. 1994), and must be filed in chancery court. Tenn. Code Ann. § 27-
9-102. If a habeas corpus petition fails to state a cognizable claim for relief, it may be summarily
dismissed. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). Thus, the trial
court properly dismissed the petition.
Accordingly, it is ordered that the State’s motion is granted. The judgment of the trial
court is affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.
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JOHN EVERETT WILLIAMS, JUDGE
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