              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT NASHVILLE                   FILED
                                                                       July 11, 1997
JIMMY LEE HEARD,                              )
                                              )   C.C.A. NO. 01C01-9704-CR-00120
                                                                  Cecil W. Crowson
       Appellant,                             )
                                                                Appellate Court Clerk
                                              )   DAVIDSON COUNTY
VS.                                           )   (No. 87-S-1094 Below)
                                              )
STATE OF TENNESSEE,                           )   The Hon. J. Randall Wyatt, Jr.
                                              )
       Appellant.                             )   (Denial of Habeas Corpus Petition)



                                        ORDER



              This matter is before the Court upon the state’s motion requesting that the

judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of

Criminal Appeals Rules. The appellant opposes the motion. Finding that the trial court

properly held that the appellant failed to state a cognizable claim for habeas corpus relief,

we grant the state’s motion to affirm the judgment pursuant to Rule 20.



              It appears that in 1987, the appellant pled guilty to two counts of armed

robbery and was sentenced as a Range I, standard offender, to concurrent 30-year

sentences. At this time, the appellant’s probation on another sentence was revoked, and

the appellant was sentenced to serve 3 years on that conviction, which was to run

consecutively to his 30-year sentence.        In 1991, the appellant escaped from the

Department of Correction. Thereafter, in 1992, the appellant pled guilty to two new

charges, robbery and escape, and received a 6 year sentence for robbery and a 1 year

sentence for escape, both to run consecutively to the appellant’s existing sentences. The

appellant was to be eligible for parole on the newest convictions after serving 35% of his

sentence. According to the appellant, his release eligibility date was subsequently moved

from July 20, 1995, to May 11, 2023.



              On appeal, the appellant contends that he has a right to release eligibility and

that the removal of his release eligibility date constitutes cruel and unusual punishment.
              It is a well-established principle of law that the remedy of habeas corpus is

limited in its nature and its scope. Archer v. State, 851 S.W.2d 157, 161-162 (Tenn.1993);

Passarella v. State, 891 S.W.2d 619, 626 (Tenn. Crim. App.1994). In Tennessee, habeas

corpus relief is available only if "'it appears upon the face of the judgment or the record of

the proceedings upon which the judgment is rendered,' that a convicting court was without

jurisdiction or authority to sentence a defendant, or that a defendant's sentence of

imprisonment or other restraint has expired." Archer v. State, 851 S.W.2d 157, 164

(Tenn.1993) (citation omitted in original). The appellant has the burden of establishing

either a void judgment or an illegal confinement by a preponderance of the evidence.

Passarella, 891 S.W.2d at 627. If he successfully carries his burden, the appellant is

entitled to immediate release. Id.



              In denying relief, the trial court held:



       Based on the pleadings before the Court, the only plausible basis for
       petitioner’s claim here is the expiration of his sentence. However, based on
       the facts before the Court, it appears that the petitioner’s sentence will not
       expire until sometime around 2027 or beyond. Therefore, even if the TDOC
       has erred by eliminating petitioner’s Release Eligibility Date, petitioner cannot
       seek relief on that basis. Having failed to state a cognizable claim for relief,
       the petition, pursuant to T.C.A. § 29-21-109, should, in the Court’s discretion,
       be denied.



              The trial court also pointed out “that the appropriate vehicle for petitioner to

raise any concerns regarding his Release Eligibility Date is through the Administrative

Procedures Act.” This Court agrees. Accordingly, based on our review of the pleadings

and of the record, we conclude that the state’s motion for affirmance of the judgment under

Rule 20 should be granted.



              IT IS, THEREFORE, ORDERED that the judgment of the trial court is

affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules.



              ENTER, this the ____ day of June, 1997.




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                                _____________________________
                                JOHN H. PEAY, JUDGE


CONCUR:


_____________________________
DAVID H. WELLES, JUDGE


_____________________________
THOMAS T. WOODALL, JUDGE




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