                     IN THE COURT OF APPEALS OF TENNESSEE
                                 AT NASHVILLE
                                  Assigned on Briefs April 28, 2000

                ROCKY LEE COKER v. TENNESSEE DEPARTMENT
                            OF CORRECTION

                        Appeal from the Chancery Court for Davidson County
                           No. 99-820-II   Carol L. McCoy, Chancellor



                        No. M1999-02268-COA-R3-CV - Filed August 7, 2001


An inmate in the custody of the Tennessee Department of Correction filed a petition for a declaratory
judgment, claiming that his sentence reduction credits had been improperly calculated and that his
“safety valve” release date had been wrongly cancelled. The trial court granted the state’s motion
for summary judgment and the petitioner appeals. We affirm.

             Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                                   Affirmed and Remanded

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S.,
and WILLIAM C. KOCH, JR., J., joined.

Rocky Lee Coker, pro se, Only, Tennessee.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Pamela S.
Lorch, Assistant Attorney General, for the appellee, Tennessee Department of Correction.

                                                    OPINION

        Petitioner, Rocky Lee Coker, was sentenced to death in 1985 for first degree murder. See
State v. Coker, 746 S.W.2d 167 (Tenn. 1987). He was incarcerated at Riverbend Maximum
Security Institute (“Riverbend”), where he was assigned to work as a law clerk. Sentence reduction
credits became available to Class X felons1 in 1985, but because the petitioner was under a death
sentence, he was ineligible to earn those credits.

       In 1996, upon petition for post conviction relief, a judge found Mr. Coker’s sentencing
hearing to be “fatally flawed,” and overturned the death sentence. See Coker v. State, No. 01C01-


       1
           First degree murder was a Class X felony. Tenn . Code Ann. § 39-2-2 02(c) [repealed].
9804-CC-00152, 1999 WL 228789 at *1 (Tenn. Crim. App. Apr. 21, 1999) (perm. app. denied Oct.
11, 1999). The petitioner was then sentenced to life in prison and was subsequently transferred from
Riverbend to Southeastern Tennessee State Regional Correctional Facility (STSRCF) to complete
his sentence. After his transfer, the petitioner became eligible to receive sentence reduction credits
upon signing a “written waiver waiving the right to serve the sentence under the law in effect at the
time the crime was committed.” Tenn. Code Ann. § 41-21-236(c)(3). The petitioner signed the
waiver in November 1999.2

        Mr. Coker commenced this action seeking a declaratory judgment that he was entitled to two
thousand forty-eight (2048) days of sentence reduction credits which he claims he would have earned
pursuant to Tenn. Code Ann. § 41-21-236 had he not been wrongly sentenced to death and housed
at Riverbend. He also claimed that he was entitled to a “safety valve” release date, pursuant to Tenn.
Code Ann. § 41-1-501 et seq. The respondent, Tennessee Department of Correction (“the
Department”), filed a Motion for Summary Judgment which the trial court granted. The petitioner
appeals.

                                             I. Summary Judgment

        In its order, the trial court found, “No material facts are in dispute in this case and under the
standard set out in Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), Respondent is entitled to judgment
. . .” A trial court’s grant of a motion for summary judgment presents a question of law that we
review de novo without a presumption of correctness. Finister v. Humbolt Gen. Hosp., Inc., 970
S.W.2d 435, 437 (Tenn. 1998); Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). We must
determine whether there is no genuine and material fact at issue, thereby entitling the Department,
to judgment as a matter of law.

       The questions a court must consider in determining whether to grant or deny a motion for
summary judgment are (1) whether a factual dispute exists; (2) whether that fact is material; and (3)
whether that fact creates a genuine issue for trial. Byrd v. Hall, 847 S.W.2d at 214. “A disputed fact
is material it if must be decided in order to resolve the substantive claim or defense at which the
motion is directed.” Id. at 215.

       Once the moving party documents its assertion that there is no genuine issue of material fact,
the burden then shifts to the nonmoving party to show the existence of such issue, requiring


         2
          In his petition, Mr. Coker asserted that the Commissioner of Correction “disseminated a formal Memorandum
to the Warden of each adult facility thereby requiring that all inmate sentence waivers be back dated to be effective
March 1, 1986.” The memorandum w as attached to the brief as “Exhibit A.” W e have read the memorandum, and find
no language requiring the backdating of the petitioner’s waiver. The memorandum referred to a six mo nth perio d in
1995, during wh ich the Departm ent planned to re view waive rs, and in some circumstances to allow backdating.
Backdating was not mandatory under any circumstance, and the memorandum specifically stated, “After October 1,
1995, no waiv er chang es will be m ade with out the ap proval o f the Com missione r.” The p etitioner’s sentence was
changed to life imprisonm ent in 1996, m ore than a year a fter the Departm ent reviewed th e waivers.

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submission to the trier of fact. Id. at 215. The nonmoving party cannot simply rely on its pleadings,
but rather must set forth, by affidavit or discovery materials, specific facts showing a genuine issue
of material fact for trial. Id. The evidence offered by the nonmoving party must be taken as true.
Id. Finally, summary judgment shall be denied if there is “any doubt whether or not a genuine issue
exists.” Id. at 211. Thus, a summary judgment should be granted only when the undisputed facts
reasonably support one conclusion - that the moving party is entitled to a judgment as a matter of
law. McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

                                       II. The Sentence Reduction Credits

       As quoted by the trial court herein, the Court of Criminal Appeals explained the purpose of
sentence reduction credits as follows:

         It is common knowledge that the institutions operated by the Tennessee Department
         of Correction have been and are filled to capacity. The number of prisoners who may
         be housed in these institutions is controlled by the United States District Court for
         the Middle District of Tennessee. Grubbs v. Bradley, 552 F. Supp. 1052 (M.D.
         Tenn.1982). The Legislature created the sentence reduction credits for prisoners
         confined to a Department of Correction institution so that inmates could be released
         at an earlier date to make room for others who had been convicted of a felony and
         sentenced to the Department of Correction. This legislation was enacted during the
         First Extraordinary Session of 1985, which was called to address prison
         overcrowding.

Dezurn v. Mathney, No. 88-225-III, 1989 WL 14155 at *3 (Tenn. Crim. App. Feb. 24, 1989) (perm.
app. denied June 5, 1989).

        One provision of the statute prohibits a maximum security prisoner from earning sentence
reduction credits. Tenn. Code Ann. § 41-21-236(a)(7) (“such sentence credits shall not be earned
or credited to any inmates classified as maximum security”). The petitioner contends that a factual
dispute exists regarding whether he was classified as a “maximum security” inmate “within the
intent of the provisions” of that statute.3 He further contends that he is entitled to sentence reduction
credits under the Equal Protection Clause “because other inmates properly sentenced to Life at the
same time Petitioner was improperly sentenced to death, were and are allowed to receive their
credits.” The trial court held that “Since Petitioner, like all death row inmates, was a maximum
security prisoner, he was ineligible to earn sentence reduction credits for the law clerk duties he
performed while on death row.” The court found no violation of the Equal Protection Clause,
holding that “the statute bears a rational relationship to a legitimate state interest.”



         3
          In his respon se to the mo tion for sum mary ju dgme nt, the petition er claime d factual d isputes existe d as to
whether a prisone r’s custody assessme nt points, ac cess to othe r inmates and freew orld perso nnel, and work at a prison
job showed that he was not a “m aximum security inmate” as con templated by Tenn. Cod e Ann. § 41-21-23 6(a)(7).

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         This court has previously addressed whether a prisoner whose death sentence is overturned
is entitled to retroactive sentence reduction credits in Laney v. Campbell, No. 01A01-9703-CH-
00142, 1997 WL 401829 (Tenn. Ct. App. July 18, 1997) (perm. app. denied Nov. 24, 1997). In that
case, we determined that an inmate was “not entitled to received sentence reduction credits for
activities or conduct taking place when the prisoner was ineligible to earn credits.” Laney v.
Campbell, 1997 WL 401829 at *1. The petitioner in that case, like the petitioner herein, had been
sentenced to death for first degree murder but subsequently had his sentence reduced to life in prison.
Id. Upon resentencing and transfer to another correctional facility, Mr. Laney became eligible to
earn sentence reduction credits after he signed the necessary waiver. Like the petitioner herein, Mr.
Laney sought sentence reduction credits he claimed he would have earned had he not been on death
row. Id. We stated:

       Prisoners do not have a constitutional right to shorten their sentences by earning
       sentence reduction credits. These credits are creatures of statute, and, therefore, the
       right to receive or accrue them rests on the rules and criteria contained in the statutes
       authorizing them.

       Prisoners who committed crimes prior to December 11, 1985 are not entitled to earn
       sentence reduction credits for participating in programs when they are statutorily
       ineligible to accrue credits. When Mr. Laney signed the PSRC waiver in 1986,
       Tenn.Code Ann. § 41-21-236(a)(7) provided that maximum security prisoners could
       not earn prisoner sentence reduction credits. Since Mr. Laney, like all other death
       row inmates, was a maximum security prisoner, he was ineligible to earn sentence
       reduction credits for the educational programs he participated in while on death row.

                                                 ***

        When Mr. Laney murdered the grocer in Kingsport, persons convicted of Class-X
        crimes were not entitled to earn prisoner sentence credits. Even after that restriction
        was eased, persons classified as maximum security were still ineligible to earn
        sentence reduction credits. Thus, Mr. Laney did not become eligible to earn sentence
        reduction credits until November 15, 1994 when his death sentence was replaced by
        life imprisonment. He has been earning sentence credits ever since November 1994,
        and the Department's refusal to award him additional credits retroactively for
        activities when he was ineligible to earn credits has not unconstitutionally lengthened
        his sentence.

Id. (citations omitted).

        We agree with the trial court that the petitioner herein was a “maximum security” inmate and
therefore not entitled to earn sentence reduction credits while he was at Riverbend under a death
sentence. Likewise, regarding the Equal Protection claim, we agree with the trial court, that “the
legislature could reasonably have decided that prison overcrowding could be remedied by extending

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to the bulk of the prisoner population an opportunity to accumulate sentence reduction credits, while
finding it unnecessary/inadvisable to afford to maximum security prisoners the same opportunity.
Thus, the statute bears a rational relationship to a legitimate state interest.”

                                      III. The “Safety Valve”

        The petitioner contends that the trial court erred by entering a judgment as a matter of law
regarding his “safety valve release date.” He attached an “Inmate Information Request” form to his
petition as “Exhibit B.” Under “Reason for Request,” the petitioner stated, “Please advise me of my
Safety Valve Release Eligibility date pursuant to T.C.A. § 41-1-504?” Under “Staff Response,” the
answer stated, “You no longer have a safety valve release date. [Your] date was cancelled by the
Governor.” Implied, then, in the information request, and in the staff response, are the assumptions
that petitioner once had the possibility of an early release because of an overcrowding situation, and
that he no longer has that possibility available to him. The petitioner argues that he is entitled to a
“safety valve parole release eligibility date,” and that the Governor’s “unconstitutional cancellation
of his . . . safety valve date operated as an ex post facto enhancement of [his] punishment and a
denial of due process . . .” We disagree.

        The so-called “safety valve” was also enacted in 1985 in response to prison overcrowding.
See Tenn. Code Ann. §§ 41-1-501 et seq. Pursuant to that legislation, upon certification by the
Commissioner of Correction that the prison population has reached 95% of its capacity, or may reach
that level in the near future, the Governor may declare that a state of overcrowding emergency exists.
Tenn. Code Ann. § 41-1-503. The Governor has the power to reduce sentences of certain inmates
upon the declaration of an overcrowding emergency, in order to reduce the prison population. Tenn.
Code Ann. § 41-1-504. The Governor also has the discretion to declare certain “inmates or types
of inmates” ineligible for release under this legislation. Tenn. Code Ann. § 41-1-504(b). Once the
overcrowding emergency has been rectified, “the release eligibility dates of the inmates remaining
within the department of correction shall revert automatically to the dates in existence prior to their
reductions . . .” Tenn. Code Ann. § 41-1-505.

        In Kaylor v. Bradley, 912 S.W.2d 728 (Tenn. Ct. App. 1995), this court rejected the same
arguments regarding ex post facto laws and due process made in this case. That petitioner, as the
petitioner herein, alleged that the statutes at issue did not allow the Governor to impose new or
different restrictions on eligibility for early release after declaring an overcrowding emergency and
that he was not afforded due process at the time additional restrictions were placed on eligibility for
the early release program. Kaylor, 912 S.W.2d at 730. In that case, as in this one, the crime for
which the prisoner was incarcerated was committed prior to the enactment of Tenn. Code Ann. § 41-
1-501 et seq. in 1985. Because the enactment of the early release program granted the prisoner the
possibility of an earlier release from custody than was available at the time the crime was committed,
we found no violation of the ex post facto clause in either the state or federal constitution, and held
that “his right to be considered for early release can be no greater than the rights conferred in the
statutes establishing the program.” Id. at 734. We further observed:


                                                 -5-
       The early release program does not establish an unconditional right to early parole.
       It creates, at most, a temporary, conditional opportunity to be considered for early
       release. The program is available only to inmates who have not been excluded by the
       governor, and it lasts only as long as the overcrowding emergency exists. Once the
       system's population returns to ninety percent or less than its designated capacity, the
       remaining inmates are no longer eligible to be considered for early release and their
       "release eligibility dates ... shall revert automatically to the dates in existence prior
       to their reductions pursuant to ... [the declaration of an overcrowding emergency]."

                                                 ***

       Mr. Kaylor asserts that the statutes do not permit the governor to impose new or
       different restrictions on the eligibility for early release after declaring an
       overcrowding emergency. We do not read Tenn.Code Ann. § 41-1-504(b) so
       narrowly. The statute empowers the governor to impose any restrictions on
       eligibility for early release that he or she may wish to impose, and it specifically
       states that

               [t]here shall be no limits on the number or types of such restrictions
               the governor may impose on early release eligibility as long as a
               sufficient number of inmates are eligible for consideration to reduce
               the in-house population of appropriate state correctional facilities to
               ninety percent (90%) of the relevant designated capacity.

Id. at 734-35 (citations omitted).

        Regarding the petitioner’s argument that he was not afforded due process at the time the
Governor decided not to allow inmates convicted of homicide to become eligible for early release,
this court stated:

       The Due Process Clauses of the state and federal constitutions protect only genuine
       claims involving pre-existing entitlements. They do not protect unilateral
       expectations or abstract needs or desires. Thus, Mr. Kaylor's petition states a due
       process claim only if he acquired a vested right to an early release or a vested right
       to be considered for early release. State law provides him with neither.

       Inmates eligible for early release consideration do not have a statutory right to be
       paroled early. The parole board retains the right to decide which inmates should be
       paroled and may decline to release an inmate if it cannot conclude with reasonable
       probability that the inmate, if released, will live and remain at liberty without
       violating the law and that the inmate's release is consistent with society's welfare.
       Likewise, eligible inmates do not have a vested right to be considered for early
       release because the governor retains the power to alter the eligibility criteria at any

                                                 -6-
       time and because the opportunity to be considered for early release lapses once the
       overcrowding emergency abates.

Id. at 735 (citations omitted).

        We agree with the trial court that the Department is entitled to a judgment as a matter of law,
and affirm the grant of summary judgment on this issue.

                                           IV. Conclusion

         We affirm the trial court’s grant of summary judgment to the Department of Correction. This
case is remanded for such further proceedings as may be necessary. Costs are taxed to the appellant,
Rocky Lee Coker, for which execution may issue if necessary.




                                                       ___________________________________
                                                       PATRICIA J. COTTRELL, JUDGE




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