         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs March 19, 2003

           CHRISTOPHER A. JOHNSON v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Hamilton County
                           No. 239056 Douglas A. Meyer, Judge



                                  No. E2002-01208-CCA-R3-PC
                                         May 16, 2003

In his pro se appeal, Petitioner, Christopher Johnson, seeks to reverse the trial court's dismissal of
his petition for a writ of habeas corpus. In the petition, he contends that his sentence for second
degree burglary has expired. We affirm the judgment of the trial court.

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

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN
EVERETT WILLIAMS, JJ., joined.

Christopher A. Johnson, Chattanooga, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; and
William H. Cox, III, District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

         Petitioner filed a petition for a writ of habeas corpus in the Hamilton County Criminal Court
alleging that his ten-year sentence for second degree burglary had expired. His calculations include
pretrial jail credits resulting from Petitioner’s custody from September 22, 1984 through November
15, 1988, sentence reduction credits, and actual time served. Petitioner attached a copy of the
judgment in case number 159478 which shows that he was convicted on May 12, 1987, and the trial
court sentenced him to ten years as a Range II persistent offender. In its judgment, the convicting
court determined that Petitioner was entitled to pretrial jail credits commencing with the date of his
custody on September 22, 1984. The judgment also ordered Petitioner's sentence to run
consecutively to case number 159477, but Petitioner did not attach a copy of the judgment for that
offense to his petition. On April 22, 2002, the trial court dismissed the petition for a writ of habeas
corpus without an evidentiary hearing and without including findings of fact.

       In his appeal, Petitioner argues that it is clear from the face of the judgment that his sentence
has expired. The State points out that Petitioner's calculations fail to take into account the fact that
the challenged sentence runs consecutively to Petitioner's prior sentence in case number 159477.
As a result, the State argues that Petitioner has failed to establish a commencement date for case
number 159478, and it does not appear from the face of the judgment that Petitioner’s sentence in
case number 159478 has expired.

        In his reply brief, Petitioner still does not attach the judgment in this first case, but argues that
the sentence in case number 159477 expired in May 1995. When Petitioner recalculates his ten-year
sentence based on a commencement date of 1995 instead of 1988, Petitioner argues that his second
sentence has still expired after applying the pretrial jail credits and sentence reduction credits to
which he claims he is entitled.

         We note initially that 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). “[W]here the allegations in a petition for writ of habeas
corpus do not demonstrate that the judgment is void, a trial court may correctly dismiss the petition
without a hearing.” McLaney, 59 S.W.3d at 93. The Petitioner has the burden of showing that his
or her sentence has expired by a preponderance of the evidence. Passarella v. State, 891 S.W.2d
619, 627 (Tenn. Crim. App. 1994), superceded by statute as stated in State v. Seven S. Newman, No.
02C01-9707-CC-00266, 1998 Tenn. Crim. App. LEXIS 282, at *2 n.2 (Tenn. Crim. App., Jackson,
Mar. 11, 1998). Because the determination of whether habeas corpus relief should be granted is a
question of law, our review is de novo with no presumption of correctness. Hart v. State, 21 S.W.3d
901, 903 (Tenn. 2000).

        We agree with the State that the face of the judgment submitted by Petitioner fails to
establish that his sentence has expired. Although Petitioner in his reply brief insists that his fifteen-
year sentence for the other offense is irrelevant, Petitioner is serving these sentences one at a time
in series. That is, under consecutive sentencing, Petitioner must serve the appropriate amount of
time on his fifteen-year sentence and then he will begin to serve his ten-year sentence, which is the
subject of his habeas corpus petition. Howell v. State, 569 S.W.2d 428, 431-32 (Tenn. 1978).

        Petitioner fails to mention in either his briefs or petition for a writ of habeas corpus that the
Tennessee Court of Appeals has already addressed the proper application of pretrial jail credits to
his sentences in Johnson v. Tennessee Department of Correction, Appeal No. 01-A-01-9602-CH-
00064, 1996 WL 442740 (Tenn. Ct. App., Nashville, August 7, 1996), perm. to appeal denied (Tenn.
1996). Borrowing from the facts recited by the court of appeals, Petitioner was first arrested for first
degree burglary, case number 159477, on September 21, 1984. Upon conviction, Petitioner was
sentenced to fifteen years for that offense. On May 12, 1987, Petitioner was convicted of second
degree burglary, case number 159478, and sentenced to ten years, the sentence Petitioner now
contends has expired. The two sentences were ordered to run consecutively for an effective sentence
of twenty-five years. Because Petitioner remained in the Hamilton County Jail throughout his two



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trials, he received 1,321 days of pretrial jail credits which the Department of Correction applied
toward his fifteen-year sentence. Id. at *1.

        In the case before the court of appeals, Petitioner sought to apply the same pretrial jail credits
for the time he was in custody to both his ten-year sentence and his fifteen-year sentence because
each trial court’s judgment essentially referenced the same credits. The court of appeals determined
that Petitioner had received all the benefits he was entitled to when the pretrial jail credits were
applied to his fifteen-year sentence. In so doing, the court noted that if it “were to accept
[Petitioner’s] ingenious argument, he would receive two days of penitentiary credit for each day
spent in the Hamilton County Jail,” an interpretation that would essentially reward those facing
multiple trials over those tried for only one conviction. Id.

         Petitioner now seeks a different conclusion in a different forum. However, this issue has
already been litigated and determined adversely to Petitioner. The pretrial jail credits applied to
Petitioner’s sentence in case number 159477 are not available to reduce Petitioner’s sentence in case
number 159478. Even assuming that Petitioner’s sentence in case number 159477 expired in 1995
as Petitioner states, Petitioner’s sentence in case number 159478 would not expire until 2005 without
considering any sentence reduction credits.

          Petitioner has failed to show that his sentence for second degree burglary has expired.

                                            CONCLUSION

          Accordingly, we affirm the trial court’s dismissal of Petitioner’s petition for a writ of habeas
corpus.


                                                          ____________________________________
                                                          THOMAS T. WOODALL, JUDGE




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