         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs November 15, 2005

        JERRY FAULKNER a/k/a JOSEPH FAULKNER v. STATE OF
                           TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                          No. P-28323    James C. Beasley, Judge



                  No. W2004-02354-CCA-R3-HC - Filed December 12, 2005


On January 27, 2004, the Shelby County Criminal Court accepted the guilty pleas of Jerry Faulkner,
also known as Joseph Faulkner, the petitioner, on three counts of aggravated robbery and a single
count of aggravated rape. The effective 20-year sentence was imposed to run concurrently with
another state sentence and “all Federal convictions.” On April 13, 2004, the petitioner, who was
incarcerated in a federal facility in Memphis, filed a petition in the conviction court for a writ of
habeas corpus. Because the petitioner was in federal custody, the habeas corpus court dismissed the
petition, and the petitioner appealed. Following our review, we affirm the order of the habeas corpus
court.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which NORMA MCGEE OGLE
and J.C. MCLIN , JJ., joined.

Jerry Faulkner a/k/a Joseph Faulkner, Appellant, Pro Se.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
and William L. Gibbons, District Attorney General, for the Appellee, State of Tennessee.

                                              OPINION

                 This court’s opinion on direct appeal of the denial of post-conviction relief describes
the history of the petitioner’s case prior to the January 27, 2004 guilty pleas, see Joseph T. Faulkner
v. State, No. W1999-00223-CCA-R3-PC (Tenn. Crim. App., Jackson, Oct. 17, 2000):

                      On June 30, 1998, the appellant, Joseph T. Faulkner, also
               known as “Jerry Faulkner,” entered guilty pleas to one count of
               aggravated rape and three counts of aggravated robbery in the Shelby
               County Criminal Court. The negotiated plea agreement provided that
                the appellant would serve an effective twenty-five year sentence to be
                served concurrently with his federal sentence imposed pursuant to his
                guilty plea under federal indictment No. CR-97-20098-G. The
                judgment forms reflect that the appellant’s state sentences were “to
                be served in federal custody.” The appellant is currently serving a
                TDOC sentence at the Hardeman County Correctional Facility, a state
                facility. He has never been released to federal custody.

                        Relying upon the fact that he remains in state custody, the
                appellant filed a petition for post-conviction relief alleging that his
                guilty pleas were not knowingly and voluntarily entered. He argues,
                in effect, that his bargained for concurrent state and federal sentences
                have become consecutive by the federal government’s refusal to
                accept him into their custody. The post-conviction court denied the
                appellant relief, finding that the appellant “has presented no evidence
                to support [his] allegation” that “the State refused to release him to
                federal authorities or that federal authorities in fact requested the
                State to release him to their custody.” The court further found that
                “the State has no authority under the Supremacy Clause of the Federal
                Constitution to either require federal authorities to take possession of
                Petitioner or guarantee Petitioner’s sentence will be served in federal
                custody.”

Id., slip op. at 2 (footnotes omitted). Because, subsequently to the 1998 guilty pleas, “action by
federal authorities rendered the plea agreement incapable of enforcement,” id., slip op. at 4, this court
in the post-conviction appeal determined that the petitioner’s pleas were not made knowingly and
reversed the convictions, id., slip op. at 4-5. In crafting a remedy, this court adopted language from
Derrick E. Means v. State, No. 02C01-9707-CR-00248 (Tenn. Crim. App., Jackson, Aug. 13, 1998)
(per curiam):

                        Fashioning relief for the petitioner will take the combined
                good faith efforts of all involved. The parties are first encouraged to
                make every effort to fulfill the intent of the plea bargain. Specific
                performance may, however, be impossible to effectuate. Both
                defense counsel and the district attorney’s office, while taking steps
                to preserve the integrity of the state sentence, should contact federal
                authorities and determine whether the federal authorities would be
                willing to accept the petitioner for his federal sentence.

                        If specific performance is an impossibility, the parties should
                enter into new plea negotiations taking into account the intentions of
                the failed plea agreement. The agreement failed through no fault of
                the petitioner. In our view, plea negotiations and sentencing should


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                   take into account the time the petitioner has served in prison and in
                   the county jail. If these avenues do not provide a satisfactory
                   resolution, the petitioner may be allowed to withdraw his guilty pleas
                   altogether and face trial.

Joseph T. Faulkner, slip op. at 5.

              Apparently, following remand, the parties entered into a second plea agreement,
which provided for an effective sentence of 20 years to be served concurrently with another state
sentence and with the petitioner’s federal sentence. The agreement was approved on January 27,
2004.

                 The petition for habeas corpus relief now under review alleges, inter alia, that the
2004 sentences are illegal because of the concurrent alignment of the state sentences with a prior
state sentence. The petitioner claims that he was on parole when he committed the offenses resulting
in the convictions now being challenged.1 On appeal, he argues that Tennessee Code Annotated
section 40-20-111(b) required that the sentences as imposed in 1998 and again in 2004 must be
served consecutively to the sentence for which he was on parole and that the concurrent alignment
rendered the new sentences illegal and void. See Tenn. Code Ann. § 40-20-111(b) (2003) (“In any
case in which a defendant commits a felony while such defendant was released on bail in accordance
with the provisions of chapter 11, part 1 of this title, and the defendant is convicted of both such
offenses, the trial judge shall not have discretion as to whether the sentences shall run concurrently
or cumulatively, but shall order that such sentences be served cumulatively.”).

                                         I. Principles of Habeas Corpus

                The legal issues raised in a habeas corpus proceeding 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).

                 Tennessee Code Annotated section 29-21-101 provides that “[a]ny person
imprisoned or restrained of liberty, under any pretense whatsoever, . . . may prosecute a writ of
habeas corpus, to inquire into the cause of such imprisonment and restraint.” Tenn. Code Ann. § 29-
21-101 (2003). Habeas corpus relief in Tennessee, however, 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).




         1
             The petitioner alleges that he “was on parole for some cases [he] caught in 1998-199[9] (A Void Judgment)
is one [sic] facially invalid because the trial court lacked Jurisdiction . . . to render the judgment. The defendant is stating
that his Convictions is [sic] Void on the basis of the above fact[]s . . . .”

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                 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); Passarella v. State, 891
S.W.2d 619, 627 (Tenn. Crim. App. 1994). Because in this case the trial court apparently had
jurisdiction over the actus reus, the subject matter, and the person of the petitioner, the petitioner’s
jurisdictional issue is limited to the claim that the court was without authority to enter the judgment.
See Anglin, 575 S.W.2d at 287 (“‘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.”); see also Archer, 851
S.W.2d at 164; Passarella, 891 S.W.2d at 627.

                 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). For
an illegal-sentence claim to support a claim for habeas corpus relief, however, the illegality of the
sentence must be egregious to the point of voidness. Cox v. State, 53 S.W.3d 287, 292 (Tenn. Crim.
App. 2001). Our supreme court has stressed that a habeas corpus action is “the proper procedure
for collaterally challenging an illegal sentence.” Moody v. State, 160 S.W.3d 512, 515 (Tenn. 2005).

                   In McLaney v. Bell, 59 S.W.3d 90 (Tenn. 2001), the habeas corpus petitioner
complained that his concurrent alignment of a sentence for a pre-bail offense with sentences for
post-bail offenses was void. See id. at 92. Apparently, McLaney bargained for and obtained a global
plea agreement that embraced sentences for aggravated rape (the pre-bail offense) and for rape and
burglary (the post-bail offenses). See State v. Jackie W. McLaney, No. 74 (Tenn. Crim. App.,
Knoxville, Mar. 31, 1988). In McLaney, the supreme court said that “if the facts [were] as alleged,
the trial court imposed a sentence in direct contravention of the sentencing act, . . . [and] this would
create an illegal sentence.” McLaney, 59 S.W.3d at 93. The supreme court required the habeas
corpus court to determine whether “the record of the underlying proceedings clearly showed that the
latter rape and burglary offenses were committed while McLaney was on bail.” Id. at 94.
Furthermore, the McLaney court directed that should the habeas corpus court find that to be the case
– with the result that the sentences in the latter cases would be void – “on remand to the original
convicting trial court, a guilty plea may be withdrawn.” Id. at 95. The court reasoned that because
“McLaney entered his guilty plea in exchange for a concurrent sentence which was, in actuality,
illegal, . . . [he] is entitled to withdraw the plea.” Id. (citations omitted).

                          II. The Petitioner’s Claim to Habeas Corpus Relief

A. The Basis for a Claim of Sentence Illegality

                 The first step in analyzing McLaney’s application to the present case is to
acknowledge that the petitioner inaptly relies upon Tennessee Code Annotated section 40-20-111(b),
the Code section at play in McLaney, that mandates consecutive alignment of sentences when a
felony offense is committed while the offender is on bail for another offense. The petitioner’s claim


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is that he was on parole when he committed the crimes for which he was sentenced in 1998 and
again in 2004. As such, the mandatory terms of Code section 40-20-111(b) have no application to
the present case.

               That said, the terms of Tennessee Code Annotated section 40-28-123(a) do apply:

               Any prisoner who is convicted in this state of a felony, committed
               while on parole from a state prison, jail or workhouse, shall serve the
               remainder of the sentence under which the prisoner was paroled, or
               such part of that sentence, as the board may determine before the
               prisoner commences serving the sentence received for the felony
               committed while on parole.

Tenn. Code Ann. § 40-28-123(a) (2003). Our supreme court has said that this “statute is
mandatory[,] and when the prisoner does violate his parole he is required to serve the remainder of
this sentence.” Henderson v. State, 220 Tenn. 520, 523, 419 S.W.2d 176, 178 (1967). This court
has previously held that the principles of McLaney apply with equal force to a violation of Code
section 40-28-123(a) as they do a violation of section 40-20-111(b). See Robert A. Atkins v. James
M. Dukes, No. W2001-01311-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App., Jackson, Jan. 8, 2002)
(“We note that even though the defendant in McLaney was granted concurrent sentences for a felony
committed while on bail for another felony conviction, the result is the same under the statute
providing for conviction of a felony committed while on parole for a prior felony conviction,
[Tennessee Code Annotated section 40-28-123(a)].”).

B. The Petitioner’s Status As a Habeas Corpus Claimant

         We now address the issue of whether the petitioner is an eligible candidate for habeas corpus
relief, an issue implicated by (1) the requirement of Tennessee Code Annotated section 29-21-101
that the petitioner be imprisoned or otherwise in restraint of liberty, see Tenn. Code Ann. § 29-21-
101 (2003), and by (2) Tennessee Code Annotated section 29-21-102, which provides that

                       [p]ersons committed or detained by virtue of process issued
               by a court of the United States, or a judge thereof, in cases where
               such judges or courts have exclusive jurisdiction under the laws of the
               United States, or have acquired exclusive jurisdiction by the
               commencement of suits in such courts, are not entitled to the benefits
               of this writ,

id. § 29-21-102.




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                                     1. Restraint of Liberty

                The first question that comes to mind is whether the petitioner’s concurrent service
of a federal sentence with the challenged state sentences equates to a restraint of liberty for purposes
of habeas corpus relief. We conclude that it does.

                We are mindful that, to have standing to seek a writ of habeas corpus, the petitioner
must be imprisoned or restrained of liberty as a “direct consequence” of the challenged 2004 state
judgments. See Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004). By the terms of the judgments
in the present case, the petitioner is serving the resulting sentences while in federal custody by
serving a federal sentence. Thus, we must determine whether he is imprisoned or restrained of his
liberty as a direct consequence of the Tennessee sentences.

                 Tennessee courts have said, “The sole relief available under Tennessee’s habeas
corpus statute is discharge from custody.” Kenneth Kersey v. State, No. 01C01-9604-CR-00128,
slip op. at 3 (Tenn. Crim. App., Nashville, June 6, 1997); see Taylor v. Morgan, 909 S.W.2d 17, 20
(Tenn. Crim. App. 1995). In Ussery v. Avery, 222 Tenn. 50, 432 S.W.2d 656 (1968), the habeas
corpus petitioner received consecutive ten-year sentences for two armed robbery convictions, and
he challenged the first conviction, but not the second. Our supreme court rejected the habeas corpus
claim that challenged one conviction when the petitioner was also subject to lawful restraint by the
second conviction. The court stated that “[n]o provision is made for passing on the validity of a
judgment other than to release or detain” under the habeas corpus statute that is now Tennessee Code
Annotated section § 29-21-122. Although the court recognized that it would be unreasonable to
require a prisoner to serve a void judgment solely because it was followed by a consecutive sentence,
it saw no injustice in requiring a prisoner to serve the time that is conceded to be valid before
application may be made. Id. at 55-56, 432 S.W.2d at 658.

               The implications of Ussery aside, we believe that the discharge-from-custody
requirement is not applicable when a petitioner challenges a sentence that is being served
concurrently with an unchallenged sentence. “When two sentences run concurrently, it merely
means that, for each day in custody while serving both sentences, the inmate receives credit toward
each sentence. Concurrent sentences do not necessarily begin and end at the same time – they
simply run together during the time they overlap.” Brown v. Tenn. Dept. of Corr., 11 S.W.3d 911,
913 (Tenn. Ct. App. 1999). Essentially, the petitioner is serving his 2004 Tennessee sentences. We
conclude that the petitioner, therefore, is imprisoned as a direct result of his 2004 Tennessee
convictions and sentences and that because he is imprisoned, his liberty is obviously restrained.

                We acknowledge that Tennessee Code Annotated section 29-21-122(a) states that
“[i]f no sufficient legal cause of detention is shown, the plaintiff shall be discharged”; however,
subsection (b) states:

               The party detained shall be remanded to custody:



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                           (1) If it appears the party is detained by virtue of process
                   issued by a court or judge of the United States, in a case where such
                   court or judge has exclusive jurisdiction;

                          (2) Where the time during which such party may be legally
                   detained has not expired; or

                            (3) In every case in which the detention is authorized by law.

Tenn. Code Ann. § 29-21-122 (2000). Thus, although a discharge of the petitioner is warranted
when no sufficient legal cause of a detention is shown, the petitioner may nevertheless be remanded
to custody when continued custody is mandated by a different basis for detention. Such is the
petitioner’s case; he is imprisoned as a direct result of his 2004 Tennessee convictions.

                            2. Tennessee Code Annotated section 29-21-102

                The other potential impediment to the petitioner’s claim to a writ of habeas corpus
is the limitation set forth in Code section 29-21-102 that persons confined via process issued by
federal judges or courts when “such judges or courts have exclusive jurisdiction under the laws of
the United States . . . are not entitled to the benefits of this writ.” Tenn. Code Ann. § 29-21-102
(2000). In our view, this limitation upon access to a Tennessee writ of habeas corpus implicates the
primary result and benefit of the writ – the command to bring the body of the petitioner before the
court.2

                The common usage of the term “habeas corpus” implicates a writ of habeas corpus
ad subjiciendum, a “writ directed to the person detaining another, and commanding him to produce
the body of the prisoner . . . to do, submit to, and receive whatsoever the judge or court awaiting the
writ shall consider in that behalf.” Black’s Law Dictionary 865 (3d ed. 1933) (emphasis added).

         2
            In Hickman v. State, 153 S.W.3d 16 (Tenn. 2004), our supreme court expounded on the imprisonment-or-
restraint-of-liberty requirement. The court opined that a petitioner is not restrained of his liberty via an expired state
sentence merely because that state conviction resulted in the enhancement of a federal sentence. Id. at 23 (“[W ]e hold
that a person is not ‘restrained of liberty’ for purposes of the habeas corpus statute unless the challenged judgment itself
imposes a restraint upon the petitioner’s freedom of action or movement.”). In determining that Hickman’s expired state
sentence posed no restraint of liberty for habeas corpus purposes, the court avoided a determination whether Tennessee
Code Annotated section 29-21-102’s disqualification of federal petitioners per se required dismissal of Hickman’s
petition. See id. at 24 n.5 (“Because Hickman’s petition does not indicate his place of confinement and because this case
may be resolved on other grounds, we need not consider whether . . . section 29-21-102 precludes persons in federal
custody from seeking habeas corpus relief from Tennessee judgments.”).

                   In Xavier S. Todd v. State, No. W 2005-00681-CCA-R3-HC (Tenn. Crim. App., Jackson, Sept. 16,
2005), this court utilized Code section 29-21-102 to determine that Todd, a federal prisoner, was not entitled to seek
habeas corpus relief in state court; however, the court emphasized that the state sentence being challenged by the habeas
corpus petition had expired. Id., slip op. at 3. The court observed, “W hile this Court is of the opinion that an issue of
whether a prisoner in federal custody but whose state sentence has not yet expired may seek state habeas corpus relief,
such is not the circumstance in the case sub judice.” Id.

                                                            -7-
“The design of the writ is to secure the forthcoming of the plaintiff to have a fair trial of the legality
of his imprisonment.” Samuel B. Gilreath, Caruthers’ History of a Lawsuit § 564 (1937) (emphasis
added). Thus, although courts may commonly speak of habeas corpus relief being granted or denied
when referring to the officiating court’s adjudication of the legality of the petitioner’s restraint, the
literal purpose of the writ is to command the delivery of the petitioner’s person into the physical
presence of the officiating court as a predicate to adjudicating the legality of the restraint.

                In our view, Tennessee Code Annotated section 29-21-102 merely recognizes that,
as a function of federal sovereignty, a state court may not command an official action by a federal
officer. Tarble’s Case 13 Wall. 37, 411-12, 80 U.S. 397, 411-12 (1871) (rejecting claim that a state
writ of habeas corpus could direct the delivery or discharge of a prisoner “held by an officer of the
United States” and directing that a state court should proceed “no further when it appears . . . that
a prisoner is held by an officer of the United States under . . . the authority of the United States. . .
.”). Thus, in the present case, the petitioner may not seek a writ that, to be satisfied, requires a
federal functionary to submit to the dominion of a state court.

        .                                       III. Conclusion

              The result is that, even though the petitioner’s unexpired 2004 state sentences running
concurrently with a federal sentence may otherwise be subject to collateral attack, the petitioner does
not enjoy the benefit of the writ of state habeas corpus because a state court cannot command
compliancy by the petitioner’s federal jailer. For this reason, the judgment of the criminal court is
affirmed.


                                                         ___________________________________
                                                         JAMES CURWOOD WITT, JR., JUDGE




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