           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                          Assigned on Briefs September 14, 2010

                  TOMMY F. POE v. TONY PARKER, WARDEN

                      Appeal from the Circuit Court for Lake County
                       No. 10-CR-9403     R. Lee Moore, Jr., Judge


                No. W2010-00679-CCA-R3-HC - Filed October 22, 2010


The pro se petitioner, Tommy F. Poe, appeals the Lake County Circuit Court’s summary
dismissal of his petition for writ of habeas corpus, arguing that the sentences he negotiated
in exchange for his guilty pleas to aggravated kidnapping are illegal because they were
ordered to be served at 35% release eligibility instead of the 100% required by law.
Following our review, we affirm the habeas court’s dismissal of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J.C. M CL IN and D. K ELLY
T HOMAS, J R., JJ., joined.

Tommy F. Poe, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Rachel E. Willis, Senior Counsel,
for the appellee, State of Tennessee.

                                           OPINION

                                             FACTS

      We have gleaned the following summary of the facts from the petition for writ of
habeas corpus, the judgment forms attached to the petition, and the parties’ briefs.1 On
February 20, 2003, the petitioner pled guilty to felony escape, two counts of aggravated
kidnapping, and two counts of theft over $1000 in exchange for concurrent sentences of
twelve years at 35% for the kidnapping convictions and twelve years at 45% for the theft


       1
          The kidnapping and theft judgments forms are included in the record, but the felony escape
judgment form is not.
convictions, with the kidnapping and theft sentences to be served consecutively to the
petitioner’s six-year sentence for felony escape.

        On January 11, 2010, the petitioner filed a petition for writ of habeas corpus in the
Lake County Circuit Court in which he alleged that his aggravated kidnapping sentences
were illegal because they were imposed in direct contravention of Tennessee Code Annotated
section 40-35-501(i), which mandates 100% release eligibility for the offense of aggravated
kidnapping. The State responded with a motion to dismiss on the basis that the 2009
amendment to the habeas corpus statute, which restricts the grounds available for habeas
corpus relief, bars the petitioner’s claim. On February 16, 2010, the habeas court entered an
order denying the petition on two grounds: first, that the petitioner had failed to attach the
necessary documents because he had not included the judgment form for his escape
conviction; and second, that the petitioner’s claim was specifically barred by the amendment
to the habeas corpus statute. The petitioner then filed a timely notice of appeal to this court.

                                          ANALYSIS

        Whether the petitioner is entitled to habeas corpus relief is a question of law.
Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007); Hart v. State, 21 S.W.3d 901, 903
(Tenn. 2000). As such, our review is de novo with no presumption of correctness given to
the trial court’s findings and conclusions. Id.

        The grounds upon which habeas corpus relief may be granted are narrow. Davis v.
State, 313 S.W.3d 751, 758-59 (Tenn. 2010) (citations omitted). It is well-established in
Tennessee that the remedy provided by a writ of habeas corpus is limited in scope and may
only be invoked where the judgment is void or the petitioner’s term of imprisonment has
expired. Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007); State v. Ritchie, 20 S.W.3d
624, 629 (Tenn. 2000); State v. Davenport, 980 S.W.2d 407, 409 (Tenn. Crim. App. 1998).
A void, as opposed to a voidable, judgment is “one that is facially invalid because the court
did not have the statutory authority to render such judgment.” Summers, 212 S.W.3d at 256
(citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)). A petitioner bears the
burden of establishing a void judgment or illegal confinement by a preponderance of the
evidence. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). Furthermore, when “a habeas
corpus petition fails to establish that a judgment is void, a trial court may dismiss the petition
without a hearing.” Summers, 212 S.W.3d at 260 (citing Hogan v. Mills, 168 S.W.3d 753,
755 (Tenn. 2005)).

        The amendment to the habeas corpus statute, which applies to all habeas corpus
petitions filed on or after June 11, 2009, further restricts the grounds for habeas corpus relief
as follows:

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              (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.

Tenn. Code Ann. § 29-21-101(b) (Supp. 2009).

       The petitioner first cites Burford v. State, 845 S.W.2d 204 (Tenn. 1992), to argue that
due process considerations should operate to prevent the above amendment from barring his
claim because he did not have “access to any updated law or material that [would have] put
[him] on notice” of the changes to the law. We respectfully disagree.

        In Burford, our supreme court concluded that “before a state may terminate a claim for
failure to comply with procedural requirements such as statutes of limitations, due process
requires that potential litigants be provided an opportunity for the presentation of claims at
a meaningful time and in a meaningful manner” and that “under the circumstances of a
particular case, application of the statute may not afford a reasonable opportunity to have the
claimed issue heard and decided.” Id. at 208. The petitioner’s claim that his prison law
library failed to keep its copies of the Tennessee Code current is not the type of circumstance
that implicates due process concerns. See Sample v. State, 82 S.W.3d 267, 273 (Tenn. 2002)
(concluding that statute of limitations should be tolled due to a late arising suppression of
exculpatory evidence claim); Williams v. State, 44 S.W.3d 464, 477 (Tenn. 2001)
(misrepresentation by attorney as to continuing representation, rather than mere attorney
negligence, possibly tolled the statute of limitations); Seals v. State, 23 S.W.3d 272, 278-79
(Tenn. 2000) (concluding that statute of limitations should be tolled during period of mental
incompetence of petitioner); Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995) (concluding
that due process required tolling because grounds for relief arose after the statute of
limitations normally would have run). We, conclude, therefore, that due process
considerations do not prevent the 2009 amendment to the habeas corpus statute from barring
the petitioner’s claim.




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        In a related vein, the petitioner argues that the amendment is unconstitutional as
applied to his case because he filed an original petition for writ of habeas corpus in the
McNairy County Circuit Court before the effective date of the amendment. The petitioner
alleges that although he sent the petition by certified mail, he was “never . . . able to get the
McNairy County Circuit Court Clerk’s Office to respond” and, therefore, was forced to re-file
the petition in the Lake County Circuit Court after the effective date of the amendment. There
is nothing in the record, however, to support the petitioner’s allegations. Accordingly, we
affirm the summary dismissal of the petition for writ of habeas corpus.

                                       CONCLUSION

      Based on the foregoing authorities and reasoning, we affirm the habeas corpus court’s
dismissal of the petition for writ of habeas corpus.


                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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