         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs June 7, 2005

                MICHAEL W. SMITH v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                               No. 28160   Chris Craft, Judge



                   No. W2004-00689-CCA-R3-HC - Filed August 16, 2005


The Appellant, Michael W. Smith, proceeding pro se, appeals the Shelby County Criminal Court’s
summary dismissal of his petition for writ of habeas corpus. Smith was convicted of rape in Shelby
County and received an eight-year Department of Correction sentence, to be served consecutively
to a three-year Department of Correction sentence in a separate case. On appeal, Smith argues that
the trial court erred in dismissing the petition because his eight-year sentence has expired. After
review, we affirm the trial court’s dismissal of the petition on grounds that Smith has failed to
establish that his sentence has expired.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and THOMAS
T. WOODA LL, JJ., joined.

Michael Smith, Pro Se, Whiteville, Tennessee.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Michelle Parks, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION

                                       Factual Background

        According to the latest documents filed in this case, the Appellant is currently an inmate at
the Whiteville Correctional Facility in Hardeman County. On April 29, 2003, the Appellant pled
guilty, in Shelby County Criminal Court case number 96-08877, to one count of rape, which
occurred on July 6, 1995. The judgment form reflects that the Appellant received an eight-year
sentence, as a violent offender, in the Department of Correction. It further provides that the
Appellant was given jail credit for days served from August 10, 1995 - November 13, 1995 and from
September 7, 2001 - April 29, 2003, a total of 696 days. The form also indicates that the sentence
was to be served consecutively to the sentence in case number 96-08880.

        On February 19, 2004, the Appellant filed a pro se petition for writ of habeas corpus, alleging
that the eight-year sentence imposed on April 29, 2003, had expired based upon his service of 85%
of the sentence and his earned credits of 15 % allowed under Tennessee Code Annotated section 40-
35-501(i). On appeal, the Appellant asserts that his sentence has expired because the Department
of Correction has miscalculated his sentence credits. The trial court issued an order summarily
dismissing the petition on February 23, 2004, finding that the sentence has not expired. This appeal
followed.

                                                     Analysis

        On appeal, the Appellant argues that the trial court erred in denying his petition for writ of
habeas corpus because he was illegally detained beyond the expiration of his eight-year sentence,
which he asserts should have expired in September 2003 based upon days served and credits earned.
The grounds upon which a writ of habeas corpus may be issued are very narrow. McLaney v. Bell,
59 S.W.3d 90, 92 (Tenn. 2001). A writ of habeas corpus is available only when it appears from the
face of the judgment or record that either the convicting court was without jurisdiction to convict or
sentence the petitioner, or the petitioner’s sentence has expired. Archer v. State, 851 S.W.2d 157,
164 (Tenn. 1993). In other words, habeas corpus relief may only be sought when the judgment is
void, not merely voidable. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The burden is on the
petitioner to establish that the judgment is void or that the sentence has expired. State ex rel. Kuntz
v. Bomar, 381 S.W.2d 290, 291-92 (Tenn. 1964).

         At the outset, we observe that the Appellant’s petition is woefully inadequate with regard to
the statutory form and necessary facts which must be asserted in seeking habeas corpus relief. In this
case, the Appellant: (1) fails to name the restraining authority and place of confinement; (2) fails to
state whether the legality of the restraint has or has not been previously adjudicated; and (3) fails to
state whether or not previous applications have been made. See Tenn. Code Ann. § 29-21-107(b)(1),
(3), (4) (2003). In addition, the petition is not verified by affidavit, as required by Tennessee Code
Annotated section 29-21-107(a). Moreover, a petition for the writ of habeas corpus must state "[t]he
cause or pretense of such restraint according to the best information of the applicant, and if it be by
virtue of any legal process, a copy thereof shall be annexed, or a satisfactory reason given for its
absence." Id. at (b)(2). Thus, if a petitioner is contending that his judgment of conviction is void
on its face, he must either attach a copy of the judgment of conviction to his petition or provide a
reason for his failure to do so. In this case, the Appellant failed to attach copies of any judgments
of conviction and further failed to give a satisfactory reason for the noncompliance.1 Last, the
Appellant has filed his petition in the wrong court. Under Tennessee Code Annotated section 29-21-


         1
          Of critical importance in this case, the Appellant’s petition fails to mention that, in addition to the rape
conviction, the Appellant is under the legal restraint of No. 96-088 80 from Shelby County, that being a three-year
Departm ent of C orrection sentence , which is running consecutively to the eight-year sentence.

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105, a petition for habeas corpus relief "should be made to the court or judge most convenient in
point of distance to the applicant, unless a sufficient reason be given in the petition for not applying
to such court or judge." Tenn. Code Ann. § 29-21-105 (2003). The mere fact that witnesses or files
may be located in another county is an insufficient reason to permit deviation from the statutory
requirements. Wilson v. State, No. 03C01-9806-CR-00206 (Tenn. Crim. App., at Knoxville, June
24, 1999). The Appellant’s petition indicates he is an inmate at Northwest Correctional Facility in
Lake County; however, his brief indicates he is an inmate at Whiteville Correctional Facility in
Hardeman County. Regardless of which of the two facilities he is currently incarcerated in, Shelby
County was not the correct venue.2 Our supreme court has recently confirmed that the procedural
requirements are mandatory and must be followed scrupulously. Hickman v. State, 153 S.W.3d 16,
21 (Tenn. 2004). A habeas corpus court may properly choose to dismiss a petition for failing to
comply with the statutory procedural requirements; however, dismissal is not required. Id. n.3.

       The trial court chose to consider the petition on the merits despite the procedural defaults
concluding:

         petitioner entered a guilty plea on April 29, 2003, to Rape, eight years as a 100%
         violent offender, consecutive to a three year sentence in indictment 96-08880 as a
         Range I Standard Offender. He has jail credit from 8/10/95 to 11/13/95, 2/13/96 to
         2/16/96, and from 3/13/97 until present, less than 8 years. He complains that even
         though he has “served the required 85% of the sentence and earned the 15% credit
         reduction allowable pursuant to T.C.A. § 40-35-501(i),” he has not been released.
         Clearly his sentence has not expired.

                 . . . This petitioner’s convictions appear to be proper from the technical
         record, and have not expired. A challenge to the propriety of a release eligibility date
         or questions about parole or sentence credits have no bearing upon the validity of the
         convictions, and so cannot be treated as a Petition for Writ of Habeas Corpus.
         Questions such as this, because the Department of Correction is an agency of the
         state government, should be addressed through the Administrative Procedures Act.

        Our review of the trial court’s findings is hindered by the fact that the Appellant has failed
to provide a complete record for review, namely copies of all of his judgments of conviction
constituting legal restraint. This burden is upon the Appellant. Kuntz, 381 S.W.2d at 291-92. In
denying the petition, the trial court found that it was apparent from the face of the judgments of
conviction that the Appellant’s consecutive sentences of eight years and three years had not expired.
Because the Appellant has failed to make any reference to the three-year sentence in his petition, we
must presume, in the absence of evidence to the contrary, that the trial court’s finding that the


         2
          One peril of choosing to hear a case presented in the wrong venue is evidenced by the fact in this case that the
records of this court reflect that the Appellant appealed an escape conviction in H ardeman County resulting in a forty-
mon th sentenc e, which could implica te the issue o f his illegal restra int in this case. Michael W. Smith. v. James Dukes,
Warden, No. W 200 1-01 535 -CCA-R3-PC (T enn. C rim. App. at Jackson, Feb. 1, 200 2).

                                                            -3-
Appellant was serving an effective eleven-year sentence of incarceration is correct and that this
sentence has not expired. Accordingly, habeas corpus relief is not available.3

                                                CONCLUSION

       Based upon the foregoing, the Shelby County Criminal Court’s dismissal of the Appellant’s
habeas corpus petition is affirmed.



                                                                   ___________________________________
                                                                   DAVID G. HAYES, JUDGE




         3
            In the Ap pellant’s pro se reply brief, he asserts that during this appeal, the Department of Correction has made
adjustments in his sentence for the earned credits he contends he is entitled to, with the exception of six days. As the
trial court correctly found, the App ellant’s prope r avenue for relief with regard to the six da ys in dispute is through the
Administrative Procedures Act. State v. Henry, 946 S.W .2d 8 33, 8 34 (Tenn. Crim. Ap p. 19 97).

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