         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                      Assigned on Briefs at Knoxville July 23, 2013

          WILLIAM HENRY PRESTON V. JEWEL STEEL, WARDEN

                  Appeal from the Criminal Court for Davidson County
                          No. 89-W-137    Steve Dozier, Judge


                No. M2013-00276-CCA-R3-HC - Filed September 9, 2013


William Henry Preston (“the Petitioner”), proceeding pro se, filed a petition for a writ of
habeas corpus. Pursuant to a plea agreement and his pleas of guilty to six counts of
aggravated rape, the Petitioner received a total effective sentence of forty years as a Range
I standard offender. In his petition, he alleges that his sentences are illegal because the trial
court and his counsel failed to advise him that he would be subject to community supervision
for life as a result of his convictions. In addition, the Petitioner asserts that his total effective
sentence of forty years has expired due to the accumulation of sentence reduction credits.
The habeas corpus court dismissed his petition. The Petitioner now appeals. Upon our
thorough review of the record and applicable law, we affirm the judgment of the habeas
corpus court.

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

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and N ORMA M CG EE O GLE, JJ., joined.

William Henry Preston, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Sophia S. Lee, Assistant Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                            Factual and Procedural Background

       In June 1989, the Petitioner pleaded guilty in Davidson County Criminal Court to six
counts of aggravated rape. Pursuant to a plea agreement, the Petitioner was sentenced as a
Range I standard offender to six concurrent sentences of forty years, resulting in a total
effective sentence of forty years. From 1996 to 1999, the Petitioner filed three petitions for
writs of habeas corpus, and in each case this Court affirmed the habeas corpus court’s
dismissal of those petitions. See William Henry Preston v. Fred Raney, No. 02C01-9807-
CC-00228, 1999 WL 20788, at *1 (Tenn. Crim. App. Jan. 20, 1999) (affirming the dismissal
of a habeas corpus petition claiming that the underlying judgments were void because the
indictment failed to allege the appropriate culpable mental state), perm. app. denied (Tenn.
July 19, 1999); William Henry Preston v. State, No. 02C01-9610-CC-00338, 1997 WL
74520, at *1 (Tenn. Crim. App. Feb. 24, 1997) (affirming the dismissal of a habeas corpus
petition claiming that the judgments were void because the indictment failed to allege the
mens rea for the offense charged); William Henry Preston v. Bill Compton, No. 02C01-
9602-CC-00043, 1996 WL 432346, at *1 (Tenn. Crim. App. Aug. 2, 1996) (affirming the
dismissal of a habeas corpus petition claiming that Petitioner was “falsely arrested and
detained without first being indicted or the subject of an arrest warrant”), perm. app. denied
(Tenn. Oct. 19, 1998).

       In the instant case, the Petitioner, pro se, filed his fourth petition seeking habeas
corpus relief alleging that: (1) his sentences are illegal because neither the trial court nor his
counsel informed him of the alleged statutory requirement of lifetime community supervision
pursuant to Tennessee Code Annotated section 39-13-524; (2) he was denied effective
assistance of counsel; and (3) his total effective sentence of forty years has expired due to the
accumulation of sentence reduction credits. The habeas corpus court found that the lifetime
community supervision requirement did not apply to the Petitioner’s convictions. Therefore,
the court concluded that there was no basis for habeas relief and dismissed the petition. The
Petitioner appealed.

                                     Standard of Review

       “Whether to grant relief upon review of the denial of a petition for a writ of habeas
corpus is a question of law.” Cantrell v. Easterling, 346 S.W.3d 445, 448 (Tenn. 2011)
(citing Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000)). Thus, our Court’s standard of
review is de novo, with no presumption of correctness. Id.; Faulkner v. State, 226 S.W.3d
358, 361 (Tenn. 2007) (citing Killingsworth v. Ted Russell Ford, Inc., 205 S.W.3d 406, 408
(Tenn. 2006)).

                                            Analysis

          A convicted criminal’s right to pursue habeas corpus relief is guaranteed by both the
United States and Tennessee Constitutions. See U.S. Const. art. 1, § 9, cl. 2; Tenn. Const.
art. I, § 15. Statutory law, however, has governed this right in Tennessee for over a century.


                                               -2-
See Ussery v. Avery, 432 S.W.2d 656, 657 (Tenn. 1968); see also Tenn. Code Ann. § 29-21-
101 (2012).

        In Tennessee, the “grounds upon which habeas corpus relief will be granted are very
narrow.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). “[T]he purpose of a habeas
corpus petition is to contest void and not merely voidable judgments.” Potts v. State, 833
S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189
(Tenn. 1968)). A judgment is void if it is “facially invalid because the court lacked
jurisdiction or authority to render the judgment or because the defendant’s sentence has
expired.” Taylor, 995 S.W.2d at 83 (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn.
1998); Archer v. State, 851 S.W.2d 157, 161-64 (Tenn. 1993)). On the other hand, a
judgment is merely voidable if it is “facially valid and requires proof beyond the face of the
record or judgment to establish its invalidity.” Summers v. State, 212 S.W.3d 251, 256
(Tenn. 2007) (citing Dykes, 978 S.W.2d at 529). A petitioner must prove that a judgment
is void or that his sentence has expired by a preponderance of the evidence. Wyatt v. State,
24 S.W.3d 319, 322 (Tenn. 2000).

         The Petitioner asserts that the six judgments of conviction entered on his pleas of
guilty are void because neither the trial court nor his trial counsel advised him that he would
be subject to community supervision for life. See Tenn. Code Ann. § 39-13-524 (Supp.
2012). However, this statute was originally enacted in 1996. See Tenn. Pub. Acts ch. 972
§ 1. As noted by the habeas corpus court, Tennessee Code Annotated section 39-13-524(a)
provides that persons committing the crime of aggravated rape on or after July 1, 1996,
“shall receive a sentence of community supervision for life.” Tenn. Code Ann. § 39-13-
524(a) (Supp. 2012). The Petitioner committed his crimes prior to this date. Accordingly,
he is not subject to the requirements of community supervision for life. Therefore, the
Petitioner is not entitled to habeas corpus relief on this basis.1



        1
           The petitioner also alleges in his brief on appeal that he “has been subjected to ex post facto
violations by the action of [Tennessee Department of Correction] Counselor III. Mr. Adolph Rhoades . . .
ordering [the Petitioner] to participate in signing the papers for registration under the ‘Supervision for Life’
punishment.” There is no proof in the record as to these allegations, and such an action by a Tennessee
Department of Correction employee, if true, would not render the judgment void, and thus does not present
a cognizable claim for habeas corpus relief. However, we do note that the lifetime community supervision
requirement of section 39-13-524(a) does not apply to the Petitioner’s 1989 convictions, and he cannot be
compelled to register under that statute. We note that the appropriate avenue for challenging the application
of the lifetime community supervision requirement to the Petitioner as an ex post facto violation is through
a declaratory order under Tennessee Code Annotated section 4-5-223 of the Uniform Administrative
Procedures Act. See Tenn. Code Ann. § 4-5-223 (2011); see also Gilbreth v. Christine Bradley, 01-A01-
9402-CH-00083, 1994 WL 514163, at *2 (Tenn. Ct. App. Sept. 21, 1994).


                                                      -3-
        The Petitioner also asserts that his trial counsel’s failure to advise him of the
community supervision for life requirement amounted to ineffective assistance of counsel.
However, it is well settled that ineffective assistance of counsel is not a cognizable claim for
habeas corpus relief. See Lowe v. Fortner, E2011-00048-CCA-R3-HC, 2012 WL 1080274,
at *3 (Tenn. Crim. App. Mar. 30, 2012) (citing Passarella v. State, 891 S.W.2d 619, 627
(Tenn. Crim. App. 1994)). That is, “[w]hen a prisoner contends that he was denied the
constitutional right to the effective assistance of counsel, the judgment is voidable, not void.”
Passarella, 891 S.W.2d at 627. Moreover, for the reasons above, this requirement did not
apply to the Petitioner. Thus, his trial counsel could not be ineffective for failing to advise
the Petitioner of a requirement that did not exist. Therefore, the trial court properly
dismissed the Petitioner’s claims for habeas corpus relief on these bases.

         The Petitioner further claims that his sentence has expired due to the accumulation
of sentence reduction credits. Tennessee Code Annotated section 41-21-236 governs
sentence reduction credits and provides that inmates who “exhibit good institutional behavior
. . . may be awarded time credits toward the sentence imposed varying between one (1) day
and sixteen (16) days for each month served.” Tenn. Code Ann. § 41-21-236 (Supp. 2012)
(emphasis added). The Tennessee Department of Correction, not the trial court, “has the
authority and responsibility to determine sentence expiration dates and release eligibility
dates of its prisoners regardless of where they are housed.” Yates v. Parker, 371 S.W.3d 152,
155 (Tenn. Crim. App. 2012) (citing Shorts v. Bartholomew, 278 S.W.3d 268, 279 (Tenn.
2009)). And, “claims for post-judgment jail credit are not cognizable habeas corpus claims.”
Yates, 371 S.W.3d at 156; see also Tucker v. Morrow, 335 S.W.3d 116, 122 (Tenn. Crim.
App. 2009) (because the application of sentence reduction credits lies “solely within the
discretion of the warden of the institution where the inmate is incarcerated, claims regarding
the miscalculation or misapplication of sentence reduction credits are not cognizable in a
habeas corpus petition”). Therefore, because nothing in the record suggests that the
Petitioner’s sentence has expired due to sentence reduction credits, and because the
calculation of such credits is not a cognizable claim for habeas relief, the Petitioner is not
entitled to habeas corpus relief on this basis.

          In his brief on appeal, the Petitioner also claims that his sentence was illegal because
the trial court “was without authority to impose a sentence of forty years to be served at a rate
of two days sentence reduction credits for each one day of service.” This argument was
raised for the first time on appeal and is therefore waived. See State v. Turner, 919 S.W.2d
346, 356-57 (Tenn. Crim. App. 1995) (“A party may not raise an issue for the first time in
the appellate court.”); Timmy Charles McDaniel v. David Sexton, E2012-01443-CCA-
R3HC, 2013 WL 1190813, at *7 (Tenn. Crim. App. Mar. 25, 2013) (concluding that the
petitioner waives an issue on appeal by failing to raise it in his petition for habeas corpus
relief). Nonetheless, we note that the two judgment orders in the appellate record are facially


                                               -4-
legal and reflect nothing about sentence reduction credits. Indeed, the Tennessee Department
of Correction, not the trial court, governs sentence reduction credits. Because “there is no
statutory right to sentence reduction credits,” the misapplication or miscalculation of such
credits does not render the original judgment void. Morrow, 335 S.W.3d at 122.

        We also note that the only judgments contained in the record are two amended
judgments, and the record contains no copies of the original six judgments entered. Our
supreme court has held that “[t]he petitioner bears the burden of providing an adequate
record for summary review of the habeas corpus petitions.” Summers v. State, 212 S.W.3d
151, 261 (Tenn. 2007). And, “[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.” Id. Therefore, a habeas corpus
court may summarily dismiss a petition when a petitioner fails to attach the necessary
documentation to support the illegality of his sentence. Morrow, 335 S.W.3d at 120.
        .
                                            Conclusion

       For all of the foregoing reasons, we affirm the judgment of the habeas corpus court
dismissing the Petitioner’s claim for relief.




                                                  _______ _ _ _ _ _ ________________ _ _
                                                  JEFFREY S. BIVINS, JUDGE




                                            -5-
