                                                                                           03/29/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 6, 2018

              MISTY ROBERTS v. TRINITY MINTER, WARDEN

                Appeal from the Circuit Court for Lauderdale County
                       No. 6993     Joe H. Walker, III, Judge
                     ___________________________________

                           No. W2017-01944-CCA-R3-HC
                       ___________________________________


In 1994, the Petitioner, Misty Roberts, pled guilty to four counts of aggravated rape and
one count of aggravated kidnapping, and she received an effective sentence of thirty-
three years. On August 23, 2017, the Petitioner filed a petition for the writ of habeas
corpus, alleging that she remained in custody despite the expiration of her sentences and
citing alleged errors in the calculation of her release eligibility and the award of pretrial
behavior credits. The trial court dismissed the petition, concluding that the sentences
were not expired. On appeal, we conclude that the trial court correctly determined that
the Petitioner’s sentences were not expired, and we accordingly affirm the trial court’s
denial of relief.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and J. ROSS DYER, JJ., joined.

Misty Roberts, Henning, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; and David H. Findley, Senior
Counsel, for the appellee, State of Tennessee.


                                        OPINION

                     FACTUAL AND PROCEDURAL HISTORY

      On October 3, 1994, the Petitioner pled guilty to four counts of aggravated rape
and one count of aggravated kidnapping. See Misty Laverne Roberts v. Donal Campbell,
Comm’r, No. 03C01-9803-CC-00124, 1999 WL 281084, at *1 (Tenn. Crim. App. Apr.
30, 1999). According to the judgment forms attached to her petition,1 the Petitioner was
sentenced to twenty-five years in prison for each aggravated rape conviction, all to be
served concurrently. She was sentenced to serve eight years for the aggravated
kidnapping conviction, and the aggravated kidnapping conviction was to be served
consecutively to the first count of aggravated rape, for an aggregate sentence of thirty-
three years. See id. (noting that the Petitioner’s aggregate sentence was thirty-three
years). The judgment forms indicate that each sentence had a thirty percent release
eligibility date.

       Approximately five years after the plea, the Petitioner sought to hold the
Tennessee Department of Correction (“TDOC”) in contempt for “incorrectly calculating
her sentence and failing to correct the error once notified of it.” Id. This petition was
dismissed on the basis that the trial court had no authority over the application of
sentencing credits. Id.

       On August 4, 2017, the Petitioner filed a petition for the writ of habeas corpus,
asserting that her sentences for aggravated rape in Counts 2-4 had expired and that she
was denied pretrial behavior credits to which she should have been entitled. She alleged
that a Tennessee Offender Management Information System (“TOMIS”) report from the
TDOC reflected that Count 1 had already expired but that Counts 2-4 incorrectly
reflected that they must be served at one hundred percent with no release eligibility. She
did not, however, attach any judgment forms, and the August 4, 2017, petition was
denied on this basis.

       The Petitioner then filed a second petition seeking habeas corpus relief on August
23, 2017. In her second petition, the Petitioner did not include information regarding the
aggravated kidnapping conviction which was part of the plea agreement, instead noting
that she was sentenced to serve an effective sentence of twenty-five years for four counts
of aggravated rape. The Petitioner again alleged that her sentences incorrectly reflected a

       1
           The petition does not include the judgment form for the aggravated kidnapping
conviction. The Petitioner has attached to her appellate brief the judgment for this offense, as
well as records from the Tennessee Department of Correction which are inconsistent with similar
records put before the trial court. On review, we will not consider these documents, which were
not contained in the record and were appended to the Petitioner’s brief. Tenn. R. App. P. 13(c)
(noting that this court “may consider those facts established by the evidence in the trial court and
set forth in the record and any additional facts that may be judicially noticed or are considered
pursuant to rule 14”); State v. Bobadilla, 181 S.W.3d 641, 643 (Tenn. 2005) (“What is in the
record sets the boundaries for what the appellate courts may review, and thus only evidence
contained therein can be considered.”); Michael Scott Farner v. State, No. E2014-02165-CCA-
R3-PC, 2015 WL 4710392, at *3 (Tenn. Crim. App. Aug. 7, 2015) (refusing to consider
affidavits attached to brief).
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release eligibility of one hundred percent, rather than thirty percent, and that she was not
awarded pretrial behavior credits. On September 12, 2017, the trial court entered an
order denying relief on the basis that failure to grant parole is not a cognizable ground for
habeas corpus relief and that any allegations regarding the improper calculation of
sentencing credits is likewise not properly addressed through the writ of habeas corpus.
The Petitioner filed a timely notice of appeal in this court, challenging only the allegedly
incorrect release eligibility calculation.

                                       ANALYSIS

        On appeal, the Petitioner cites to certain dates in the various TOMIS reports to
support the contention that the TDOC is incorrectly calculating the release eligibility for
some of her convictions at one hundred percent rather than thirty percent. She asserts
that her sentences have expired and that she should be released from custody. The State
responds that the petition was properly denied because it was merely a challenge to the
TDOC’s sentencing calculation. While arguing that the State has “mistakenly construed”
her argument, the Petitioner acknowledges that her “sole argument is that the [j]udgments
are not entered as written” and that the judgments and plea agreement “are not being
honored.”

       The writ of habeas corpus is guaranteed by article I, section 15 of the Tennessee
Constitution. Under statute,

              (a) Any person imprisoned or restrained of liberty, under any
       pretense whatsoever, except in cases specified in subsection (b) and in
       cases specified in § 29-21-102, may prosecute a writ of habeas corpus, to
       inquire into the cause of such imprisonment and restraint.

              (b) Persons restrained of their liberty pursuant to a guilty plea and
       negotiated sentence are not entitled to the benefits of this writ on any claim
       that:

              (1) The petitioner received concurrent sentencing where there was a
       statutory requirement for consecutive sentencing;

             (2) The petitioner’s sentence included a release eligibility percentage
       where the petitioner was not entitled to any early release; or

             (3) The petitioner’s sentence included a lower release eligibility
       percentage than the petitioner was entitled to under statutory requirements.

                                            -3-
T.C.A. § 29-21-101.

        While the statutory language “appears broad, in fact, ‘[h]abeas corpus under
Tennessee law has always been, and remains, a very narrow procedure.’” Edwards v.
State, 269 S.W.3d 915, 919 (Tenn. 2008) (quoting Archer v. State, 851 S.W.2d 157, 162
(Tenn. 1993)). Relief is only available when “‘it appears upon the face of the judgment
or the record of the proceedings upon which the judgment is rendered’ that a convicting
court was without jurisdiction or authority to sentence a defendant, or that a defendant’s
sentence of imprisonment or other restraint has expired.” Archer, 851 S.W.2d at 164
(quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37 (Tenn. 1868)). Habeas
corpus is not a mechanism to “‘correct errors of law or fact committed by a court in the
exercise of its jurisdiction.’” Davis v. State, 313 S.W.3d 751, 759 (Tenn. 2010) (quoting
State ex rel. Holbrook v. Bomar, 364 S.W.2d 887, 888 (1963)). The habeas corpus court
has the authority to dismiss the petition if the petition shows that the petitioner “would
not be entitled to any relief.” T.C.A. § 29-21-109. The granting or denial of a petition
for habeas corpus relief is a question of law reviewed de novo with no presumption of
correctness afforded to the trial court’s findings or conclusions. Edwards, 269 S.W.3d at
919.

        The Petitioner’s argument appears to be, in part, that her sentences have expired
because she has reached the release eligibility date. However, a sentence does not expire
merely because the release eligibility date has been reached. Davis, 313 S.W.3d at 758
(“[P]arole does not actually reduce the parolee’s sentence.”); Lawrence Allen Hodge v.
David Mills, Warden, No. W2004-01107-CCA-R3-HC, 2004 WL 2866970, at *1 (Tenn.
Crim. App. Dec. 13, 2004) (“Parole does not cause the sentence to expire or terminate,
but is merely a conditional release from confinement.”). On the contrary, it appears from
the face of the judgments and record that the Petitioner’s sentences have not yet expired.
The record indicates that the Petitioner pled guilty to the offenses in 1994 and received a
thirty-three-year sentence. Even if the sentence became effective in June 1993, as the
Petitioner asserts, her thirty-three-year sentence has not expired.

       The Petitioner likewise may not challenge the denial of parole or the calculation of
her release eligibility through the writ of habeas corpus. Hogan v. Mills, 168 S.W.3d
753, 757 n.1 (Tenn. 2005) (“Any challenge to the Board of Paroles’ calculation of [the
petitioner’s] effective sentence must be presented in an administrative proceeding, not a
habeas corpus action.”); Robert L. Ferrell v. State, No. 01CO1-9610-CR-00454, 1997
WL 578999, at *1 (Tenn. Crim. App. Sept. 19, 1997) (concluding that the petitioner’s
claim that his plea agreement was violated by the Board’s failure to consider him for
parole after service of thirty percent of his sentence was not cognizable in habeas corpus);
Flowers v. Traughber, 910 S.W.2d 468, 470 (Tenn. Crim. App. 1995) (noting that the
petitioner would not be entitled to habeas corpus relief from allegedly arbitrary and
                                           -4-
capricious denial of parole). The calculation of release eligibility by the TDOC is
governed by the Uniform Administrative Procedures Act, and is not properly the subject
of a habeas corpus action. Stewart v. Schofield, 368 S.W.3d 457, 459 (Tenn. 2012); see
Carroll v. Raney, 868 S.W.2d 721, 723 (Tenn. Crim. App. 1993). Moreover, we have
previously noted that TOMIS reports are not part of the record of the underlying
proceeding and as such cannot be used to demonstrate the basis of habeas corpus relief.
James G. Watson v. Howard Carlton, Warden, No. E2011-00288-CCA-R3-HC, 2011
WL 4790953, at *2-3 (Tenn. Crim. App. Oct. 11, 2011). We nevertheless note that the
TOMIS reports attached to the two petitions reflect that the “range percent” of the
offenses is thirty and that the “full expiration date” is June 28, 2026.

                                   CONCLUSION

       Because it appears from the face of the judgments that the Petitioner’s sentences
have not expired, the habeas corpus court did not err in summarily dismissing the
petition.




                                               _________________________________
                                                JOHN EVERETT WILLIAMS, JUDGE




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