        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON


                   STATE OF TENNESSEE v. KENDALL JOY

                  Appeal from the Criminal Court for Shelby County
                     No. 1300805    J. Robert Carter, Jr., Judge




               No. W2015-01765-CCA-R3-CD - Filed March 22, 2016
                        _____________________________

The Petitioner, Kendall Joy, appeals the trial court‟s denial of his petition for writ of
habeas corpus. The State has filed a motion requesting that this court affirm the trial
court‟s judgment pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.
Following our review, we grant the State‟s motion and affirm the judgment of the trial
court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
        Pursuant to Rule 20 of the Rules of the Court of Criminal Appeals

CAMILLE R. MCMULLEN, J., delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and ALAN E. GLENN, JJ., joined.

Kendall Joy, Pine Knot, Kentucky, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; and Brent C. Cherry, Senior
Counsel, for the Appellee, State of Tennessee.


                                        OPINION

       On February 21, 2013, the Petitioner was indicted on three counts of aggravated
assault and one count of reckless endangerment in case number 13-00805. His charges
were dismissed on May 31, 2013. On June 22, 2015, the Petitioner mailed a petition for
writ of habeas corpus from a federal detention facility. He challenged the judgments in
case number “13100941 and “1300805.” There is nothing in the appellate record
regarding “13100941.” On July 15, 2015, the trial court entered an order denying the
Petitioner‟s petition. The trial court found that the Petitioner was not detained as a result
of the indictment in state court and that as a federal prisoner, he is not entitled to habeas
corpus relief. On August 12, 2015, the Petitioner filed a request to reconsider, and the
trial court entered an order denying the request on August 20, 2015. On September 5,
2015, the Petitioner filed a pro se notice of appeal.

       We first note that the notice of appeal document was not timely filed. The
Petitioner‟s August 12, 2015 request to reconsider is not a specified motion that tolls the
timely filing of a notice of appeal. See Tenn. R. App. P. 4(c). A motion to reconsider is
not recognized by the Tennessee Rules of Criminal Procedure. State v. Turco, 108
S.W.3d 244, 245 n.2 (Tenn. 2003). Therefore, it does not toll the time for filing a notice
of appeal. State v. Lock, 839 S.W.2d 436, 440 (Tenn. Crim. App. 1992). Tennessee
Rules of Appellate Procedure 4(a), however, provides that the notice of appeal is not
jurisdictional and that the timely filing may be waived in the interest of justice. Due to
the Petitioner‟s status as an incarcerated pro se defendant and because the State did not
object to the untimely notice of appeal, we will waive the timely filing requirement in the
interest of justice.

        Regardless, the Petitioner is not entitled to relief. To be entitled to habeas corpus
relief, a petitioner “must be „imprisoned or restrained of liberty‟ by the challenged
convictions.” Benson v. State, 153 S.W.3d 27, 31 (Tenn. 2004) (quoting Tenn. Code
Ann. § 29-21-101). The Petitioner was never convicted of the charges in case number
13-00805. Therefore, he is not imprisoned or restrained of liberty by convictions in the
state court. Rather, he is a federal prisoner and is not entitled to state habeas reivew of
his federal detention. See Tenn. Code Ann. § 29-21-102. Accordingly, the trial court
properly denied the Petitioner‟s habeas corpus petition.

       When an opinion would have no precedential value, the Court of Criminal
Appeals may affirm the judgment or action of the trial court by memorandum opinion
when the judgment is rendered or the action is taken in a proceeding without a jury, such
judgment or action is not a determination of guilt, and the evidence does not preponderate
against the finding of the trial judge. See Tenn. Crim. App. R. 20. We conclude that this
case satisfies the criteria of Rule 20. The judgment of the trial court, therefore, is
affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.




                                                  _________________________________
                                                  CAMILLE R. MCMULLEN, JUDGE


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