        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs August 21, 2001

       TOMMY WAYNE SIMPSON v. STATE OF TENNESSEE, ET AL.

                Direct Appeal from the Criminal Court for Morgan County
                           No. 8568    E. Eugene Eblen, Judge



                                No. E2000-02993-CCA-R3-CD
                                      December 4, 2001

Defendant appeals from the dismissal of his petition for writ of habeas corpus. We conclude that
the State of Tennessee never surrendered jurisdiction over defendant and that defendant’s sentence
did not expire. We accordingly affirm the judgment from the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
JAMES CURWOOD WITT, JR., JJ., joined.

Joe H. Walker, District Public Defender, and Walter B. Johnson, II, Assistant Public Defender, for
the defendant, Tommy Wayne Simpson.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General; J. Scott
McCluen, District Attorney General; and Daryl Roger Delp, Assistant District Attorney General, for
the appellee, State of Tennessee.


                                           OPINION

       The defendant, Tommy Wayne Simpson, appeals from the denial of a writ of habeas corpus.
In his appeal, defendant insists that a writ of habeas corpus is justified because the State of
Tennessee is without jurisdiction over him. We disagree.

                                              Facts

       Defendant Tommy Wayne Simpson is an inmate confined at Brushy Mountain Correctional
Complex in Wartburg, Tennessee. On May 27, 1970, defendant was convicted of petit larceny in
Lauderdale County and received a sentence of one year. While serving that sentence, defendant
escaped and fled to Kentucky where he committed an armed robbery and malicious shooting. He
was convicted of those crimes and began serving a twelve-year sentence in Kentucky state prison.
Defendant escaped after two months and returned to Tennessee where he committed and was
convicted for armed robbery and first-degree murder. He received sentences of 15 years and 20 years
and one day, respectively. Defendant was ordered to serve all of his Tennessee sentences
consecutively for an effective sentence of 36 years.

        In 1975, defendant again escaped from Tennessee and fled to Kentucky. While in Kentucky,
defendant committed two bank robberies. After the second, he was shot and apprehended by
Kentucky authorities. He was eventually transported to a hospital in Knoxville, Tennessee. In
Tennessee, the Kentucky authorities turned the defendant over to federal authorities, although
Knoxville City Police and Knox County Sheriff’s Deputies guarded him. Upon his release from the
hospital, defendant was returned to Kentucky, tried, and convicted of two bank robberies in federal
court, and received an effective fifty-year sentence.

        While serving his federal sentence in Terre Haute, Indiana, defendant filed for a fast and
speedy trial relative to the detainer for criminal charges in Davidson County, Tennessee, regarding
his 1975 escape in Tennessee. The State failed to respond to the request within the required 180
days, and the charges were ultimately dismissed. In 1989, defendant was paroled from the federal
prison in North Dakota, where he was being held as a federal boarder, and returned to Kentucky to
serve the balance of his twelve-year sentence on the Kentucky state charges. While in Kentucky, the
Tennessee District Attorney General for the 20th Judicial District in Davidson County sent a letter
to the Kentucky State Reformatory releasing any hold placed on defendant regarding charges in
Davidson County. Defendant testified that the only charge pending against him in Davidson County
was for an escape from incarceration, and the letter was not in reference to any other charges against
him from other counties in Tennessee. In 1993, the defendant was paroled in Kentucky and
extradited back to Tennessee to complete his thirty-six year sentence for armed robbery and first
degree murder. On June 22, 1993, the extradition to the State of Tennessee was dismissed by the
Lyon County District Court. Defendant was returned to the Kentucky Department of Corrections
and served his sentence, which expired on May 14, 1997. Finally, on July 15, 1997, defendant was
returned to the State of Tennessee on a fugitive warrant.

         In 1999, defendant filed a petition for writ of habeas corpus in the Criminal Court for Morgan
County alleging that the State of Tennessee waived jurisdiction over him when they released him
to federal authorities in 1975 without requiring him to finish his thirty-six year sentence. At the
habeas corpus hearing, defendant argued that although his sentence had not expired “calendar wise,”
the trial court could find that defendant’s sentence had expired because Tennessee had released him
to federal authorities without a detainer.

       The State argued that the defendant received an effective sentence of thirty-six years
beginning on May 27, 1970; thus, his sentence would not expire until the year 2006. The State also
argued that defendant was never returned to state custody after his escape in 1975; rather, that he was
apprehended by Kentucky authorities and taken to a hospital in Knoxville, Tennessee where he was
turned over to federal authorities by the Kentucky authorities.



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        The trial court concluded that there was no basis to issue a writ of habeas corpus because the
sentences did not expire and the judgments were not void. The trial court found that the State did
not waive its jurisdiction over defendant. The trial court also found that defendant failed to prove
that he was returned to the custody of the Tennessee Department of Correction. His petition was
dismissed.

                                              Analysis

       Defendant asserts in his appeal that the State of Tennessee effectively waived jurisdiction
over him by releasing him to federal authorities without a detainer, thus requiring him to finish his
state sentence. He argues that because the State of Tennessee is without jurisdiction over him,
habeas corpus relief is warranted. We disagree.

         A habeas corpus petition may be used only (1) to contest void judgments which are facially
invalid because the convicting court was without jurisdiction or authority to sentence a defendant
or (2) to prove that a defendant’s sentence has expired. State v. Ritchie, 20 S.W.2d 624, 630 (Tenn.
2000); Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). The appellant has the burden of
establishing either a void judgment or an illegal confinement by a preponderance of the evidence.
Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). If he successfully carries the
burden, the appellant is entitled to immediate release. Id. Defendant does not contest the fact that
his sentence has not expired. Therefore, we address only the contention that the State is without
jurisdiction over him.

       In support of his original petition, defendant cited State v. Grosch, 152 S.W.2d 239 (Tenn.
1941), for the proposition that a state waives jurisdiction over a prisoner by releasing the prisoner
to another state’s jurisdiction for prosecution or service of a sentence. In Johns v. Bowlen, No.
03C01-9503-CR-00106, 1996 WL 310023 (Tenn. Crim. App., filed June 11, 1996, at Knoxville),
a panel of this Court stated the following:
        In Grosch, the Tennessee Supreme Court held that when a fugitive from justice faces
        criminal charges in the asylum state, the asylum state may dispose of those charges
        before honoring the extradition request of the demanding state. Id. at 243. The court
        further held that the asylum state may nevertheless choose to immediately honor the
        requisition and surrender the fugitive to the demanding state. Id. at 244. This
        decision rests with the governor of the asylum state. Id. See Yates v. Gilless, 841
        S.W.2d 332, 335 (Tenn. Crim. App. 1992) (if criminal charges are pending in
        Tennessee, it is solely within the governor's discretion to opt to deliver a fugitive to
        a demanding state immediately or to delay delivery until after the Tennessee charges
        are resolved). Finally, the court in Grosch observed, "such surrender will operate as
        a waiver of jurisdiction of the asylum state." 152 S.W.2d at 244 [quoting People v.
        Klinger, 319 Ill. 275, 149 N.E. 799, 42 A.L.R. 581]; State v. Bomar, 366 S.W.2d
        750, 751 (Tenn.1963).
Johns, 1996 WL 310023, at * 2.

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       We conclude that the aforementioned statement in Grosch is not controlling and that
defendant’s reliance on Grosch is misplaced. See also Johns, 1996 WL 310023, at *2. The
Extradition Clause of the United States Constitution sets forth the duty of states to extradite fugitives
from justice:
        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. The Extradition Clause has been implemented by a federal statute, 18
U.S.C. § 3182, and by the Uniform Criminal Extradition Act. Coungeris v. Sheahan, 11 F.3d 726,
728 (7th Cir. 1993) (citing Michigan v. Doran, 439 U.S. 282, 287-89, 99 S. Ct. 530, 534-36 (1978)).
The Uniform Criminal Extradition Act, where adopted, governs state extradition proceedings, in
conjunction with overriding federal law. Id.; see also Martin v. Sams, 600 F. Supp. 71, 72 (E.D.
Tenn. 1984). Tennessee has adopted the uniform act, Tennessee Code Annotated section 40-9-101
to -130, which specifically provides:
        Nothing in this chapter shall be deemed to constitute a waiver by this state of its
        right, power or privilege to try such demanded person for crime committed within
        this state, or of its right, power or privilege to regain custody of such person by
        extradition proceedings or otherwise for the purpose of trial, sentence or punishment
        for any crime committed within this state, nor shall any proceedings had under this
        chapter which result in, or fail to result in, extradition be deemed a waiver by this
        state of any of its rights, privileges or jurisdiction in any way whatsoever.
Tenn. Code Ann. § 40-9-130(a) (emphasis added). Moreover, Tennessee Code Annotated section
40-9-130(b) provides that, even when there are criminal proceedings pending against a fugitive in
Tennessee, the governor may extradite the fugitive "before the conclusion of such proceedings or
his term of sentence in this state" without waiving the jurisdiction of Tennessee in any way. See
Carter v. State, 600 S.W.2d 750, 752-53 (Tenn. Crim. App. 1980), perm. to appeal denied (Tenn.
1980); see also In re Extradition of Dixon, 487 So. 2d 1195, 1197 (Fla. Dist. Ct. App. 1986) (under
the Uniform Criminal Extradition Act, surrender of the fugitive to the demanding state does not
amount to a waiver of Florida's right to exercise jurisdiction over him in the future). In other words,
under the Extradition Act, the governor of this state never waives jurisdiction over the accused by
entering into any extradition proceeding.

        Lastly, we note a line of cases holding that the mere surrender of a prisoner to another
jurisdiction does not imply a pardon, waiver, or commutation of sentence. See Strobel v. Egeler, 547
F.2d 339 (6th Cir. 1977); Gaches v. Third Judicial District, 416 F. Supp. 767 (W.D. Okla. 1976); In
re Patterson, 411 P.2d 897 (Cal.1966); Armpriester v. Grimes, 111 S.E.2d 34 (Ga. 1959); Bartlett
v. Lowry, 182 S.E. 850 (Ga. 1935); Riddall v. Cupp, 508 P.2d 457 (Or. Ct. App. 1973); Bishop v.
Cupp, 490 P.2d 524 (Or. Ct. App. 1971); Carter, 600 S.W.2d at 753. These cases reveal that a
waiver or pardon will not be implied unless there is affirmative evidence in the record demonstrating


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such. Nothing in the record before this Court reflects an intentional waiver or abandonment of
interest in defendant by the State of Tennessee.

        Defendant points to a line of cases from our Sixth Circuit Court of Appeals and asserts that
they stand for the proposition that when a state voluntarily relinquishes custody of a person while
that person is serving a sentence, the state cannot reacquire the person to complete the sentence. See
Helm v. Jago, 588 F.2d 1180 (6th Cir. 1979); Himes v. Ohio Adult Parole Auth., 448 F.2d 410 (6th
Cir. 1971). We do not read the cases this way. In fact, the court in Helm specifically concluded that
Ohio state law was dispositive of the issue in that case as it stated that “the release of an accused by
one sovereignty to another, so that the receiving sovereignty may enforce its criminal laws against
him, does not constitute a waiver of jurisdiction over the accused.” Id. at 1181. Relying on the
Tennessee cases cited above, we conclude that the law in Tennessee is not favorable to defendant
and that there was no waiver of jurisdiction over defendant when federal authorities took custody
of him in 1975. Furthermore, we conclude that the letter from the Davidson County District
Attorney General in 1989 was only in regard to defendant’s escape from Davidson County and did
not effect an affirmative waiver of the state’s jurisdiction over defendant regarding the other charges
for which defendant is incarcerated.

                                          CONCLUSION

         We conclude the State of Tennessee was neither without jurisdiction over defendant, nor that
it ever surrendered jurisdiction. Accordingly, we affirm the trial court’s denial of the writ of habeas
corpus.




                                                           _________________________________
                                                            JOHN EVERETT WILLIAMS, JUDGE




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