        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs May 15, 2012

           ALBERTO EDDIE DELEON v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Hamilton County
                        No. 281742     Don W. Poole, Judge


                No. E2011-02645-CCA-R3-HC - Filed October 16, 2012


On appeal, the petitioner, Alberto Eddie Deleon, contests the Hamilton County Criminal
Court’s denial of his petition for a writ of habeas corpus, asserting that he was incarcerated
for an excessive time span prior to instigation of extradition proceedings. Upon review, we
affirm the judgment of the habeas corpus court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON ,
P.J., and T HOMAS T. W OODALL, J., joined.

Ardena J. Garth and Richard Kenneth Mabee (on appeal), and Erinn Rene O’Leary (at trial),
Chattanooga, Tennessee, for the appellant, Alberto Eddie Deleon.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; William H. Cox, III, District Attorney General; and Cameron Williams,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       The record before us reveals that on April 5, 2011, a warrant was issued against the
petitioner in Gordon County, Georgia, charging him with aggravated assault. Thereafter, on
April 10, 2011, the petitioner was arrested in Chattanooga by the Tennessee Highway Patrol
(THP) for leaving the scene of an accident, and he was taken to the Hamilton County Jail.
The THP officer also issued the petitioner a citation, which provided that the petitioner “was
involved in a hit and run” and that he “was wanted in connection with a stabbing and
carjacking in [Georgia].” On May 26, 2011, the charge of leaving the scene of an accident
was dismissed. However, the petitioner remained incarcerated pursuant to a fugitive warrant
that was issued the same day; the fugitive warrant noted that “Georgia will extradite.” 1

       Subsequently, on September 15, 2011, the Tennessee Department of Correction
received a requisition letter from the Governor of Georgia asking for the petitioner’s
extradition based upon the April 5, 2011 aggravated assault arrest warrant. On September
29, 2011, the Governor of Tennessee issued a governor’s warrant allowing the extradition
of the petitioner to Georgia. The fugitive warrant was dismissed on October 10, 2011;
however, the petitioner remained in custody pursuant to the governor’s warrant.

        On October 18, 2011, the petitioner filed a petition for habeas corpus relief, which
was amended on October 31, 2011. The petitioner alleged that the State of Tennessee failed
to properly follow the procedures outlined in the Uniform Criminal Extradition Act. The
petitioner’s complaint centered on the length of his detention on the fugitive warrant prior
to the issuance of the governor’s warrant. Specifically, citing title 18, section 3182 of the
United States Code, the petitioner maintained that Georgia, as the demanding state, had thirty
days from the issuance of the fugitive warrant to secure a governor’s warrant from
Tennessee, the asylum state. The petitioner acknowledged that because of the difficulty of
complying with the thirty-day time frame, title 18, section 3188 of the United States Code
provides for the possibility of recommittment of the prisoner for up to sixty days. The
petitioner maintained that because the governor’s warrant was not sought and signed within
“the 90-day limit,” the petitioner was “illegally detained on this matter for an extended period
of time.”

       At the hearing on the petition, the petitioner again maintained that he was entitled to
discharge and release because the governor’s warrant was not obtained within ninety days
of the issuance of the fugitive warrant. In response, the State argued that the thirty-day
period in title 18, section 3182 of the United States Code began to run from the date the
governor’s warrant was issued. The habeas corpus court found that “the scope of judicial
review of a governor’s grant of extradition is limited[,] and the timeliness of a rendition
warrant does not affect its validity.” The court held that the petitioner had failed to state a
claim upon which habeas corpus relief could be granted and denied the petition. The
petitioner timely filed a notice of appeal.

                                              II. Analysis

        Initially, we note that the determination of whether to grant habeas corpus relief is a


        1
          In his petition, the petitioner states that he “repeatedly refused to waive extradition under” the
fugitive warrant.

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question of law. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). As such, we will
review the trial court’s findings de novo without a presumption of correctness. Id. Moreover,
it is the petitioner’s burden to demonstrate, by a preponderance of the evidence, “that the
sentence is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000).

        Article I, section 15 of the Tennessee Constitution guarantees an accused the right to
seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). However,
“[s]uch relief is available only when it appears from the face of the judgment or the record
of the proceedings that a trial court was without jurisdiction to sentence a defendant or that
a defendant’s sentence of imprisonment or other restraint has expired.” Wyatt, 24 S.W.3d
at 322; see also Tenn. Code Ann. § 29-21-101.

                                 A. Procedural Compliance

        The State argues that the petitioner failed to comply with the procedures mandated by
Tennessee Code Annotated section 29-21-107 for filing a habeas corpus petition. Therefore,
the petition should be dismissed. Generally, “the procedural provisions of the habeas corpus
statutes are mandatory and must be followed scrupulously.” Archer v. State, 851 S.W.2d
157, 165 (Tenn. 1993).

       Despite the petitioner’s failure to comply with the mandatory requirements for a
habeas corpus petition, the habeas corpus court did not dismiss the petition for procedural
noncompliance; instead, the habeas corpus court addressed the petition on the merits. “A
habeas corpus court may properly choose to dismiss a petition for failing to comply with the
statutory procedural requirements; however, dismissal is not required. The habeas corpus
court may . . . choose to adjudicate the petition on its merits.” Hickman v. State, 153 S.W.3d
16, 21 (Tenn. 2004) (footnote omitted) (citing Tenn. Code Ann. § 29-21-109). Therefore,
this court will address the merits of the petitioner’s complaints.

                         B. Constitutionality of Extradition Statute

       The petitioner contends that Tennessee Code Annotated section 40-9-105, a part of
Tennessee’s Uniform Criminal Extradition Act, is unconstitutional for vagueness.
Specifically, the petitioner questions the constitutionality of the statute because it fails to
provide a time limit for instituting extradition procedures. The statute in question provides:

              If, from the examination before the judge or magistrate, it
              appears that the person held is the person charged with having
              committed the crime alleged and that the person probably

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              committed the crime, and, except in cases arising under §
              40-9-113, that the person has fled from justice, the judge or
              magistrate must commit the person to jail by a warrant reciting
              the accusation for a time specified in the warrant as will enable
              the arrest of the accused to be made under a warrant of the
              governor on a requisition of the executive authority of the state
              having jurisdiction of the offense, unless the accused gives bail
              as provided in § 40-9-106, or until the accused is legally
              discharged.

Tenn. Code Ann. § 40-9-105; cf. 18 U.S.C. § 3182 (providing that a prisoner may be
discharged from custody in the asylum state if an agent of the demanding state does not
appear to claim the prisoner within thirty days of the prisoner’s arrest). However, the
petitioner did not raise this issue in his petition or at the hearing. We will not address issues
raised for the first time on appeal. State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim.
App. 1996); State v. Turner, 919 S.W.2d 346, 356-57 (Tenn. Crim. App. 1995).

                                        C. Extradition

        The petitioner argues that he should have been discharged by this state, the asylum
state, because he was not granted bail while awaiting extradition and because he was not
extradited within thirty days of his arrest.

       The Extradition Clause of the United States Constitution provides:

                      A person charged in any state with treason, felony, or
              other crime, who shall flee from justice, and be found in another
              state, shall on demand of the executive authority of the state
              from which he fled, be delivered up, to be removed to the state
              having jurisdiction of the crime.

U.S. Const. art. IV, § 2, cl. 2; see also State ex rel. Wiley v. Waggoner, 508 S.W.2d 535, 536
(Tenn. 1973). “The Extradition Clause has been implemented by a federal statute, 18 U.S.C.
§ 3182, and by the Uniform Criminal Extradition Act.” Johns v. Bowlen, 942 S.W.2d 544,
547 (Tenn. Crim. App. 1996). Where adopted, the Uniform Criminal Extradition Act, along
with federal law, governs state extradition proceedings. Id. Tennessee has adopted the Act,
and it is codified in Tennessee Code Annotated sections 40-9-101 to -130. See id.

       Title 18, section 3182 of the United States Code provides:



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                      Whenever the executive authority of any State or
              Territory demands any person as a fugitive from justice, of the
              executive authority of any State, District, or Territory to which
              such person has fled, and produces a copy of an indictment
              found or an affidavit made before a magistrate of any State or
              Territory, charging the person demanded with having committed
              treason, felony, or other crime, certified as authentic by the
              governor or chief magistrate of the State or Territory from
              whence the person so charged has fled, the executive authority
              of the State, District, or Territory to which such person has fled
              shall cause him to be arrested and secured, and notify the
              executive authority making such demand, or the agent of such
              authority appointed to receive the fugitive, and shall cause the
              fugitive to be delivered to such agent when he shall appear. If
              no such agent appears within thirty days from the time of the
              arrest, the prisoner may be discharged.

(Emphasis added). This court has recognized that “[e]ven though no such [timing] provision
exists in the Tennessee statutes, we are bound by federal law regarding interstate
extradition.” Yates v. Gilless, 841 S.W.2d 332, 335 (Tenn. Crim. App. 1992).

       The purpose of extradition “ is to allow the demanding state to retrieve violators of its
laws who are found in the asylum state.” State v. Paskowski, 647 S.W.2d 238, 240 (Tenn.
Crim. App. 1983). To this end, courts have liberally construed extradition statutes, such as
title 18, section 3182 of the United States Code. Id. This court has recognized that “the
purpose of 18 U.S.C. § 3182[] is to prevent indefinite incarceration of a prisoner in an
asylum state.” Id.; see also Yates, 841 S.W.2d at 336. Regardless, “the ‘arrest’ referred to
in the federal statute is one that arises pursuant to the governor’s warrant.” Yates, 841
S.W.2d at 335. In the instant case, the governor’s warrant was issued on September 29,
2011. On October 18, 2011, before extradition could be carried out, the petitioner filed for
habeas corpus relief, thereby tolling the thirty-day period for delivering the petitioner to the
demanding state. Id. at 336; see also Paskowski, 647 S.W.2d at 240. Accordingly, the
petitioner is not entitled to relief under title 18, section 3182 of the United States Code. Id.
at 336.

      Turning to the petitioner’s claim that he was denied bail, we note that Tennessee Code
Annotated section 40-9-106 provides:

                    Unless the offense with which the prisoner is charged is
              shown to be an offense punishable by death or life imprisonment

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               under the laws of the state in which it was committed, the judge
               or magistrate must admit the person arrested to bail by bond or
               undertaking, with sufficient sureties, and in any sum that the
               judge or magistrate deems proper, for the person’s appearance
               before the judge or magistrate at a time specified in the bond or
               undertaking, and for the person’s surrender, to be arrested upon
               the warrant of the governor of this state.

Cf. de la Beckwith v. Evatt, 819 S.W.2d 453, 456 (Tenn. Crim. App. 1991) (“Our statutes
authorize bail after the accused’s arrest on the fugitive warrant, but not after the issuance of
the governor’s warrant.”). Although the petitioner claimed in his “Addendum to Motion for
Writ of Habeas Corpus” that he was not granted bail, the petitioner did not argue this issue
before the habeas corpus court. Nevertheless, after the issuance of a governor’s warrant
habeas corpus review is generally limited to:

               (a) whether the extradition documents on their face are in order;

               (b) whether the petitioner has been charged with a crime in the
               demanding state;

               (c) whether the petitioner is the person named in the request for
               extradition; and

               (d) whether the petitioner is a fugitive.

Michigan v. Doran, 439 U.S. 282, 288 (1978); see also State ex rel. Sneed v. Long, 871
S.W.2d 148, 150-51 (Tenn. 1994). We conclude that the petition did not allege any of these
four factors. Therefore, the petitioner was not entitled to habeas corpus relief on this issue.

                                        III. Conclusion

        In sum, we conclude that the petitioner’s challenge to the constitutionality of the
extradition statute was waived by the petitioner’s failure to raise it in the lower court. Further,
we conclude that the petitioner is not entitled to relief based upon the State’s failure to grant
bail or the length of time transpiring between the issuance of the governor’s warrant and
delivery of the petitioner to the demanding state. Therefore, we affirm the judgment of the
habeas corpus court.

                                                      _________________________________
                                                      NORMA McGEE OGLE, JUDGE

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