                    IN THE SUPREME COURT OF TENNESSEE
                                AT JACKSON
                                  November 15, 2006 Session

       JOSEPH FAULKNER, A/K/A JERRY FAULKNER v. STATE OF
                          TENNESSEE

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



                    No. W2004-02354-SC-R11-HC - Filed on April 27, 2007


In this case, we granted permission to appeal to determine whether a prisoner serving concurrent
state and federal sentences in a federal correctional institution may attack his state convictions
pursuant to a petition for writ of habeas corpus filed in this state. We hold that the petitioner, who
is incarcerated in a federal correctional institution serving concurrent state and federal sentences, is
not barred from challenging his state convictions by a state writ of habeas corpus. Because the
petitioner has failed to attach the requisite documentation in support of his claim that his sentences
are illegal, however, we affirm the summary dismissal of the petition but do so on different grounds
than either the trial court or the Court of Criminal Appeals.

         Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Affirmed

GARY R. WADE, J., delivered the opinion of the court, in which WILLIAM M. BARKER, C.J., and
JANICE M. HOLDER and CORNELIA A. CLARK, JJ., and D. MICHAEL SWINEY , SP . J., joined.

Ronald D. Krelstein, Germantown, Tennessee, for the appellant, Joseph Faulkner, a/k/a Jerry
Faulkner.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General, and Rachel
E. Willis, Assistant Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                Factual and Procedural Background
       In June of 1998, the petitioner, Joseph Faulkner, entered into a plea agreement with the State.
He pleaded guilty to three counts of aggravated robbery and one count of aggravated rape in
exchange for an effective sentence of twenty-five years. The trial court ordered that the entire
sentence be served in federal custody, concurrently with the petitioner’s sentence on federal
convictions. See Faulkner v. State, No. W1999-00223-CCA-R3-PC, 2000 Tenn. Crim. App. LEXIS
822, at * 2-3 (Tenn. Crim. App. Oct. 17, 2000). When the federal government refused to allow the
petitioner to serve the state sentences in federal custody, the petitioner filed a petition for post-
conviction relief asserting that his guilty pleas were neither knowingly nor voluntarily entered. The
trial court denied relief but the Court of Criminal Appeals reversed, ruling that the guilty pleas were
involuntary because they were entered with the belief that the federal government would honor the
terms of the sentence. Id. at * 10-11.

        The case was remanded, and in January of 2004, the petitioner again entered guilty pleas to
three counts of aggravated robbery and one count of aggravated rape. Pursuant to a new plea
agreement, the petitioner received concurrent sentences of ten years for each aggravated robbery
conviction and twenty years for the aggravated rape conviction. Once again, the trial court ordered
that the sentences be served concurrently with the petitioner’s federal sentences and that the
sentences be served in federal custody. Afterward, the petitioner was incarcerated in a federal
correctional facility in Memphis.

        In April of 2004, the petitioner filed this petition for writ of habeas corpus, alleging that his
twenty-year sentence is illegal. The petitioner contends that because he was on parole when he
committed the offenses, the governing statute requires consecutive rather than concurrent sentences
and, therefore, the sentence imposed is contrary to law. Because the record does not include any
documentation of the petitioner’s parole status, however, his claim is not entirely clear. The trial
court dismissed the petition without the appointment of counsel and without an evidentiary hearing,
concluding that because the petitioner was incarcerated in a federal institution, it lacked jurisdiction
to address the claim.

        The Court of Criminal Appeals affirmed the ruling of the trial court, holding that “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.” We granted permission to appeal to
determine whether a prisoner incarcerated in a federal correctional institution serving concurrent
state and federal sentences may properly petition for habeas corpus relief in the courts of this state.

                                            Analysis
        The determination of whether habeas corpus relief should be granted is a question of law.
Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000). Therefore, our standard of review is de novo with
no presumption of correctness afforded to the trial or intermediate appellate court. Killingsworth
v. Ted Russell Ford, Inc., 205 S.W.3d 406, 408 (Tenn. 2006).

         Revered by British historian Thomas Babington Macaulay as “the most stringent curb . . .
ever . . . imposed on tyranny,” the writ of habeas corpus had its origins in the common law courts
of medieval England. Archer v. State, 851 S.W.2d 157, 159 (Tenn. 1993). Its essential purpose is
to subject a restraint on liberty to judicial scrutiny. Peyton v. Rowe, 391 U.S. 54, 58 (1968). The
United States Constitution guarantees that “[t]he Privilege of the Writ of Habeas Corpus shall not
be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S.



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Const. art. 1, § 9, cl. 2. The Judiciary Act of 1789 authorized the writ for any violation of federal
statutes, treaties, or constitutional safeguards. Archer, 851 S.W.2d at 159.

        Often known as the Great Writ, habeas corpus is also guaranteed by Article 1, section 15 of
the Tennessee Constitution, which is almost identical to its federal counterpart: “the privilege of the
writ of Habeas Corpus shall not be suspended, unless when in case of rebellion or invasion, the
General Assembly shall declare the public safety requires it.” Tenn. Const. art. I, § 15; see also
Benson v. State, 153 S.W.3d 27, 31 (Tenn. 2004). Although the writ of habeas corpus is
constitutionally guaranteed, it has been regulated by statute for well over one hundred years. See
Ussery v. Avery, 432 S.W.2d 656, 657 (Tenn. 1968).

         The statutory grounds for habeas corpus relief appear to be broad: “Any person imprisoned
or restrained of liberty, under any pretense whatsoever, except in cases specified in § 29-21-102, may
prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment and restraint.”
Tenn. Code Ann. § 29-21-101 (2000). Nevertheless, the courts of this state have long held that the
writ of habeas corpus may be granted only when the petitioner has established a lack of jurisdiction
for the order of confinement or is otherwise entitled to immediate release because of the expiration
of his sentence. See Ussery, 432 S.W.2d at 658; State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37
(1868). Unlike the federal writ of habeas corpus, relief is available in this state only when it appears
on the face of the judgment or the record that the trial court was without jurisdiction to convict or
sentence the petitioner or that the sentence of imprisonment has otherwise expired. Archer, 851
S.W.2d at 164; see also Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). Unlike a post-conviction
petition, which might afford a means of relief for constitutional violations such as the deprivation
of the effective assistance of counsel, the purpose of the state habeas corpus petition is to contest a
void, not merely a voidable, judgment. State ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189
(Tenn. 1968).

                           Availability of the State Writ of Habeas Corpus
        In this case, both the trial court and the Court of Criminal Appeals ruled that the petitioner
is prohibited from seeking relief in Tennessee by petition for writ of habeas corpus because of his
incarceration in a federal correctional facility. The State asserts that Tennessee Code Annotated
section 29-21-102 should be read to support those rulings and argues that the statute prohibits a
petitioner who is serving a state sentence in federal custody from pursuing the state writ of habeas
corpus. We disagree.

        The most basic principle of statutory construction is “‘to ascertain and give effect to the
legislative intent without unduly restricting or expanding a statute’s coverage beyond its intended
scope.’” Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002) (quoting Owens
v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). “Legislative intent is determined ‘from the natural and
ordinary meaning of the statutory language within the context of the entire statute without any forced
or subtle construction that would extend or limit the statute’s meaning.’” Osborn v. Marr, 127
S.W.3d 737, 740 (Tenn. 2004) (quoting State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000)).
“When the statutory language is clear and unambiguous, we apply the plain language in its normal


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and accepted use.” Boarman v. Jaynes, 109 S.W.3d 286, 291 (Tenn. 2003) (citing State v. Nelson,
23 S.W.3d 270, 271 (Tenn. 2000)).

       Tennessee Code Annotated section 29-21-102 provides as follows:

               Persons 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.

Tenn. Code Ann. § 29-21-102 (2000). The State argues that because the petitioner is “detained by
virtue of process issued by a court of the United States,” the terms of the statute prohibit a petition
for writ of habeas corpus in Tennessee. This contention, however, overlooks the fact that the
petitioner is also detained by process issued by this state. Moreover, the phrase “committed or
detained by virtue of process issued by a court of the United States” is modified by the phrase “in
cases where such judges or courts have exclusive jurisdiction under the laws of the United States.”
The United States District Court does not have exclusive jurisdiction over the petitioner’s state
convictions. In consequence, it is our view that Tennessee Code Annotated section 29-21-102 does
not prohibit the petitioner from seeking habeas corpus relief. Indeed, the interpretation advanced by
the State would render meaningless the term “exclusive” in section 29-21-102.

        The State also submits that the petitioner is prohibited from seeking state habeas corpus relief
by issues of supremacy, preemption, and comity. While the facts of this case may not appear to be
particularly unique, few jurisdictions have considered this issue. There are a number of cases,
beginning in the pre-Civil War era, which hold that the state writ of habeas corpus is not available
to those restrained as a result of federal process. See, e.g., Ableman v. Booth, 62 U.S. (21 How.) 506
(1859). However, the question of whether an individual restrained of his liberty as a result of both
state and federal process may seek the writ in state court to challenge only his state convictions is
one of first impression. The Court of Criminal Appeals relied upon two cases from the nineteenth
century, Ableman, and In re Tarble, 80 U.S. (13 Wall.) 397 (1872), for the proposition that a state
court may not inquire into the reasons for the detention of a federal prisoner. Each of these cases is,
however, distinguishable.

        In Ableman, the Supreme Court of Wisconsin twice issued a writ of habeas corpus
demanding the release of Ableman, who was in federal custody on federal charges of aiding and
abetting a fugitive slave. The United States Supreme Court ruled that the state court lacked the
power to order the release of a federal prisoner, even when the custody violated the federal
constitution. Ableman, 62 U.S. (21 How.) at 523-24. Citing the nature of the dual sovereignties,
the Court held that when a “prisoner is within the dominion and jurisdiction of” the federal
government, “neither the writ of habeas corpus, nor any other process issued under State authority,
can pass over the line of division between the two sovereignties.” Id. at 523. This is true so long



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as the prisoner is “within the dominion and exclusive jurisdiction of the United States.” Id.
(emphasis added).

        Later, in Tarble’s Case, the Court followed the ruling in Ableman and reversed the judgment
of the Wisconsin Supreme Court granting habeas corpus relief on grounds that Tarble, a minor, had
enlisted in the United States Army without his father’s consent. Again citing the nature of dual
sovereignty, our highest court ruled that the Wisconsin courts were without authority to grant habeas
corpus relief to Tarble. In re Tarble, 80 U.S. (13 Wall.) at 407-08. The Court reiterated that “[s]uch
being the distinct and independent character of the two governments, within their respective spheres
of action, it follows that neither can intrude with its judicial process into the domain of the other.”
Id. at 407.

        Both Ableman and Tarble involved the use of the state writ of habeas corpus to free an
individual restrained of his liberty under the exclusive authority of the federal government. The
petitioner in this case, however, is in custody under the authority of both the state and federal
governments. He is serving both state and federal sentences at the same time. While we agree that
the petitioner cannot challenge either the validity of his federal convictions or his imprisonment on
those crimes through the state writ of habeas corpus, it is our view that he may use the writ to inquire
into his state convictions, regardless of the place of his incarceration.

        This case does not involve issues of supremacy, preemption, or comity. The petitioner is not
asking this state to assert control over a federal action. He seeks only to challenge the propriety of
his imprisonment by virtue of the state sentences. The petitioner does not desire to compel federal
action through the use of the writ. In this instance, the federal jailer who has custody of the
petitioner serves a dual role of custodian for the state and the federal governments. By permitting
the petitioner to serve both sentences in federal confinement, the federal authorities consented to this
arrangement. See United States Dep’t of Justice, Bureau of Prisons, Designation of State Institution
for Service of Federal Sentence, Program Statement 5160.05(9) (Jan. 16, 2003), available at
http://www.bop.gov//policy/progstat/5160_005.pdf (last visited Apr. 17, 2007) (stating that “[t]he
Bureau will not, under ordinary circumstances . . . accept transfer of the inmate into federal custody
for concurrent service”). One author provides an explanation:

       [T]here are two ways in which the federal sentence may be made concurrent with the
       state sentence. First, the [Bureau of Prisons (“BOP”)] may designate the state prison
       as the place of confinement for the federal term of imprisonment. Second, the BOP
       may accept a state prisoner into federal custody when state officials offer to transfer
       a prisoner who has not fulfilled the state term of imprisonment. However, the BOP’s
       authority to make the designation or to accept the prisoner is discretionary.

Erin E. Goffette, Note, Sovereignty in Sentencing: Concurrent and Consecutive Sentencing of a
Defendant Subject to Simultaneous State and Federal Jurisdiction, 37 Val. U. L. Rev. 1035, 1057-58
(2003) (footnotes omitted).



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        The writ of habeas corpus was deemed of such great import that the founding fathers
envisioned a suspension of the procedure only under the most extreme circumstances. See Tenn.
Const. art. 1, § 15; see also U.S. Const. art. 1, § 9, cl. 2. “The great writ . . . has been for centuries
esteemed the best and only sufficient defense of personal freedom.” Ex parte Yerger, 75 U.S. (8
Wall.) 85, 95 (1869). Its issuance “was firmly guarantied by the famous Habeas Corpus Act of May
27, 1679,” in England, “brought to America by the colonists, and claimed as among the immemorial
rights descended to them from their ancestors.” Id. Because of the historic significance of the
remedy, the Supreme Court has cautioned that “decisions concerning the availability of habeas relief
warrant restraint.” Withrow v. Williams, 507 U.S. 680, 700 (1993) (O’Connor, J., concurring in part
and dissenting in part). Our highest court has specifically observed as follows:

                 We do well to bear in mind the extraordinary prestige of the Great Writ,
        habeas corpus ad subjiciendum, in Anglo-American jurisprudence: “the most
        celebrated writ in the English law.” It is “a writ antecedent to statute, and throwing
        its root deep into the genius of our common law. . . . It is perhaps the most important
        writ known to the constitutional law of England, affording as it does a swift and
        imperative remedy in all cases of illegal restraint or confinement. It is of immemorial
        antiquity, an instance of its use occurring in the thirty-third year of Edward I.”

Fay v. Noia, 372 U.S. 391, 399-400 (1963), overruled on other grounds as stated in Keeney v.
Tamayo-Reyes, 504 U.S. 1 (1992) (citations and footnote omitted). Well over two hundred years
after Congress first provided for habeas corpus relief “the Great Writ continues today to hold a
venerable and vibrant role in our jurisprudence. . . . Essentially, it remains the bulwark of our
personal liberties, far stronger than it was in the day when Edward Bushell used it to obtain his
freedom from the Crown.” Max Rosenn, The Great Writ -- A Reflection of Societal Change, 44
Ohio St. L.J. 337, 365 (1983).

        It is our view, therefore, that a prisoner serving a state sentence in federal custody should not
be divested of his constitutional entitlement to test the propriety of his state convictions. “[I]t is a
maxim of law that there is no right without a remedy,” procedural or otherwise. Memphis St. Ry.
Co. v. Rapid Transit Co., 179 S.W. 635, 639 (Tenn. 1915). That the petitioner is not entitled to
release from custody even if his petition is successful is not relevant to our analysis. Should the
petitioner be entitled to relief from his state convictions, he remains a federal prisoner. His remedy
would be limited to the removal of any restraint on his liberty by virtue of his offenses in Tennessee.
Tennessee Code Annotated section 29-21-122 provides that upon the grant of habeas corpus relief,
the petitioner “shall be remanded to custody . . . [i]f 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.” Thus, under the terms of this statute, the petitioner would remain in custody
on his federal convictions.

                                     The Petitioner’s Claim
       Because the petition was dismissed for a lack of jurisdiction, the trial court did not consider
the merits of the claim. As indicated, the petitioner asserts that his sentence is illegal because the


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trial court ordered him to serve the convictions in this case concurrently to a sentence for which he
was on parole when he committed the offenses. If true, the claim would render the judgments void
even though the petitioner would not be entitled to release and might ultimately be subjected to an
even greater sentence than his twenty-year term. The governing statute provides, in pertinent part,
as follows:

               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 . . . before the prisoner commences
        serving the sentence received for the felony committed while on parole. . . .

Tenn. Code Ann. § 40-28-123(a) (2006);1 see also Tenn. R. Crim. P.32(c)(3)(A); Henderson v. State
ex rel. Lance, 419 S.W.2d 176, 177 (Tenn. 1967) overruled on other grounds as stated in Summers
v. State, 212 S.W.3d 251, 258 n.6 (Tenn. 2007).

       Recently, however, in Summers v. State, this Court held that “[i]n the case of an illegal
sentence claim based on facts not apparent from the face of the judgment, an adequate record for
summary review must include pertinent documents to support those factual assertions.” Summers,
212 S.W.3d at 261. We ruled that “[w]hen such documents from the record of the underlying
proceedings are not attached to the habeas corpus petition, a trial court may properly choose to
dismiss the petition without the appointment of counsel and without a hearing.” Id.

        Here, the petitioner has failed to attach any documentation to support his claim that he was
on parole when he committed the offenses that resulted in the convictions at issue. While he asserts
that there is “circumstantial evidence” suggesting that his sentence is illegal, the record in its current
form does not support that contention. Under these circumstances, summary dismissal of the petition
was appropriate.

                                              Conclusion
         A prisoner serving concurrent state and federal sentences in a federal correctional institution
may challenge his state convictions through the use of the state writ of habeas corpus. The trial
court, therefore, erred by summarily dismissing the petition for writ of habeas corpus for a lack of
jurisdiction on that ground. Because the petitioner failed to include documentation to support his
illegal sentence claim, however, summary dismissal of the petition was appropriate. Accordingly,
the judgment of the Court of Criminal Appeals, which affirmed the summary dismissal of the
petition, is affirmed under our holding in Summers.

      It appearing that the defendant is indigent, the costs of the appeal are taxed to the State of
Tennessee.



        1
            Because there have been no substantive amendments to the statute since the commission of the crimes, the
statute is cited in its current form.

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___________________________________
GARY R. WADE, JUSTICE




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