        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs November 18, 2014

     JEREMY SHANE GROOMS v. GERALD MCALISTER, WARDEN

                    Appeal from the Circuit Court for Cocke County
                             No. 5412    Rex Ogle, Judge




            No. E2014-01249-CCA-R3-HC-FILED-NOVEMBER 25, 2014


In 2009, the Petitioner, Jeremy Shane Grooms, pleaded guilty to theft of property valued over
$1,000 and aggravated burglary, and he was sentenced to eight years. One year of his
sentence was to be served in jail, with the remainder to be served on community corrections.
In December of 2009, a warrant was issued for the Petitioner’s arrest, alleging that he had
violated his community corrections sentence by driving under the influence (“DUI”) and by
attempting to break into and enter a vehicle. The warrant stated that the Petitioner had been
sentenced to twelve years of community corrections for his original convictions. In 2014,
the Petitioner filed a petition for habeas corpus relief, contending that his sentence had
expired. The trial court dismissed the Petitioner’s petition. On appeal, the Petitioner
contends that the trial court erred when it dismissed his petition because “it met the
qualifications for relief under the statute.” The State counters that the appeal is untimely and
further that the habeas corpus court properly dismissed the petition. After a thorough review
of the record, we affirm the habeas corpus court’s dismissal of the Petitioner’s petition for
habeas corpus relief.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and T IMOTHY L. E ASTER, JJ., joined.

Jeffery S. Green, Newport, Tennessee, for the appellant, Jeremy Shane Grooms.

Herbert H. Slatery, III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; James Dunn, District Attorney General; and W. Brownlow Marsh, Assistant District
Attorney, for the appellee, State of Tennessee.

                                          OPINION
                                           I. Facts

        The Petitioner’s judgment of conviction, attached to his petition for habeas corpus
relief, shows that he was convicted on May 28, 2009, for one count of theft of property
valued over $1,000 and one count of aggravated burglary. He was sentenced to concurrent
eight-year sentences, with one year to be served in jail and the remaining seven years to be
served on community corrections.

       On December 14, 2009, a violation of community corrections affidavit and warrant
were issued, alleging that the Petitioner had been arrested for DUI on November 20, 2009,
in Knox County. The affidavit also alleged that the Petitioner had attempted to break into
and enter a vehicle on June 3, 2009, in Henderson County, North Carolina, and that the
Petitioner had not paid court costs and restitution. The warrant stated that the Petitioner had
been sentenced to a term of twelve years for four convictions. Two of the four convictions
were the theft and burglary mentioned above, and the two other convictions were listed as
evading arrest and theft of property valued under $500. The record before us does not
include the judgments of conviction for either the evading arrest conviction or the theft of
property valued under $500 conviction.

        The record does not contain a transcript from any hearing on the violation of
community corrections warrant nor does it contain the disposition of any such hearing. It
does show, however, that on March 13, 2014, the Petitioner filed a petition for habeas corpus
relief. He alleged that he had pleaded guilty to theft of property valued over $1,000 and to
aggravated burglary in case number 0697 and was sentenced to serve “12 years; 1 year in the
Cocke County Jail prior to community corrections for the remaining 7 years.” In a footnote,
he states that he also pled guilty to two counts of theft of property valued under $500 and
evading arrest in case numbers 1013, 1423, and 1376.

        In the habeas corpus petition, the Petitioner alleged that he had been “continuously
incarcerated” since he had been arrested in Hendersonville, North Carolina on June 6, 2010.
He was incarcerated in North Carolina from June 6, 2010, until he was transferred to jail in
Tennessee on November 8, 2010. He stated that he had not been given jail credit for the time
he served in jail in North Carolina or the time he served in Tennessee between November 8,
2010, and September 2011. The Petitioner estimated the time for which he had not been
credited amounted to 308 days. He offered that, as a result of a clerical error, he had been
deprived of 463 days of jail credits that the trial court should have awarded him. We are
unable to discern from the record the discrepancy between the 308 days and the 463 days of
credit to which the Petitioner says he is entitled.

       The State responded to the petition for writ of habeas corpus by noting that a “clerical

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error” is not an “illegal sentence,” so did not entitle the Petitioner to habeas corpus relief.
The State further averred that the habeas corpus court was without jurisdiction to hear the
petition because the proper venue for the Petitioner to address his grievance was through the
Uniform Administrative Procedures Act.

        The habeas corpus court appointed counsel and set a hearing. The State filed a
“Further Response to the Petition For Writ of Habeas Corpus.” In it, the State offered more
case law to support its assertion that the habeas corpus court was without jurisdiction to hear
the petition. On April 21, 2014, the State moved to dismiss the Petitioner’s petition for
habeas corpus relief. The State noted that the Petitioner had failed to meet the qualifications
for relief under the habeas corpus statute. The State asserted that the Petitioner had failed
to attach copies of the judgments of conviction at issue, specifically the order revoking his
community corrections sentence. The State further asserted that the Petitioner had failed to
attach any part of the record to establish that he was entitled to pretrial jail credits and had
not offered any reason for failing to do so. The State asked the trial court to dismiss the
petition for habeas corpus relief based upon his failure to abide by all of the statutory
procedural requirements. On May 2, 2014, the habeas corpus court granted the State’s
motion and dismissed the Petitioner’s petition.

       The Petitioner filed a “motion for new trial.” In it, he noted that his petition included
two of the judgments of conviction against him, the warrant alleging a community
corrections violation, and the “eTomis print-out” that showed the days he was not credited
as pretrial jail credits. He asserted that the convicting court possessed the relevant records
and retained the authority to correct his illegal sentence at any time. On June 3, 2014, the
habeas corpus court denied the Petitioner’s “motion for new trial.”

       The Petitioner filed his notice of appeal on June 30, 2014.

                                         II. Analysis

       On appeal, the Petitioner contends that the habeas corpus court erred when it
dismissed his petition for habeas corpus relief, asserting that his petition met the
qualifications for relief pursuant to the habeas corpus statute. He asserts that he satisfied the
habeas requirements by attaching to his petition the two judgments sentencing him to
community corrections and the warrant requiring his arrest for his violation of community
corrections. The State first contends that the Petitioner’s appeal should be dismissed because
he did not timely file his notice of appeal. It notes that the judgment dismissing his petition
for habeas corpus relief was entered May 2, 2014, and that he did not file his appeal until
June 30, 2014. The State further contends that the habeas corpus court properly dismissed
the petition because the Petitioner failed to meet the statutory requirements by failing to

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attach the order revoking his community corrections sentence or any other document to
establish that he was in custody on the dates he listed.

        We first note that the Petitioner has failed to make any citation to the record in his
brief. Appellate briefs shall contain “the contentions of the appellant with respect to the
issues presented, . . . including the reasons why the contentions require appellate relief, with
citations to the authorities and appropriate references to the record . . . relied on; and . . . for
each issue, a concise statement of the applicable standard of review.” Tenn. R. App. P.
27(a)(7). In light of his failure to properly present this issue for our review, we conclude that
he has waived appellate review of the habeas corpus court’s dismissal of his petition for
habeas corpus relief. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by
argument, citation to authorities, or appropriate references to the record will be treated as
waived in this court.”); see also Berry v. State, 366 S.W.3d 160, 169 (Tenn. Crim. App.
2011).

        The Petitioner has further waived our review by failing to timely file his notice of
appeal. The habeas corpus court dismissed his petition on May 2, 2014. The Petitioner filed
a “motion for new trial,” a filing not contemplated by the habeas corpus statute. An appeal
as of right is initiated by the filing of a notice of appeal within thirty days of the entry of the
judgment being appealed. Tenn. R. App. P. 4(a). However, if a timely motion for: (1)
judgment of acquittal, (2) a new trial, (3) arrest of judgment, or (4) a suspended sentence is
filed, the thirty-day time period begins at the entry of the order determining such motion or
motions. Tenn. R. App. P. 4(c). No other motion, including one for rehearing, is allowed
to suspend the running of the appeal time from the entry of the judgment. State v. Bilbrey,
816 S.W.2d 71, 74 (Tenn. Crim. App. 1991).

       Tennessee Rule of Criminal Procedure 33 provides provides in pertinent part that:

               [a] motion for a new trial shall be in writing or, if made orally in open
       court, be reduced to writing, within thirty days of the date the order of sentence
       is entered. The court shall liberally grant motions to amend the motion for
       new trial until the day of the hearing on the motion for a new trial.

Tenn. R. Crim. P. 33(b). A motion for new trial is not a filing that is appropriate when
seeking reconsideration of a habeas corpus petition. This Court has noted that “there is no
provision in the Tennessee Rules of Criminal Procedure for a ‘petition to reconsider’ or a
‘petition to rehear’” of a habeas corpus petition. State v. Ryan, 756 S.W.2d 284, 285, n.2
(Tenn. Crim. App. 1988). In reviewing the Petitioner’s motion for new trial, the Court must
consider the substance of the motion in determining whether it is, in fact, one of the specified
post-trial motions which toll the commencement of the time period. See Tenn. Farmers Mut.

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Ins. Co. v. Farmer, 970 S.W.2d 453, 455 (Tenn. 1998). Our review of the motion shows that
it is clearly a motion for the trial court to reconsider its ruling on the habeas corpus petition.
As stated above, there is no rule allowing for a motion for reconsideration of a habeas corpus
denial. This filing, therefore, did not toll the thirty days that the Petitioner had to file his
notice of appeal of the habeas corpus court’s dismissal of his petition. We can, under some
circumstances, waive the filing of the notice of appeal document “in the interest of justice.”
Tenn. R. App. P. 4(a). We note that the Petitioner would not be entitled to relief even were
this Court to review his case on the merits. The interest of justice does not require waiver
in this case.

       Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas
corpus relief. See Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007). Although the right
is guaranteed in the Tennessee Constitution, the right is governed by statute. T.C.A. §§ 29-
21-101, -130 (2012). The determination of whether habeas corpus relief should be granted
is a question of law and is accordingly given de novo review with no presumption of
correctness given to the findings and conclusions of the court below. Smith v. Lewis, 202
S.W.3d 124, 127 (Tenn. 2006) (citation omitted); Hart v. State, 21 S.W.3d 901, 903 (Tenn.
2000). Although there is no statutory limit preventing a habeas corpus petition, the grounds
upon which relief can be granted are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn.
1999).

        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). In other words, the very narrow grounds upon which a habeas corpus petition
can be based are as follows: (1) a claim there was a void judgment which was facially invalid
because the convicting court was without jurisdiction or authority to sentence the defendant;
or (2) a claim the defendant’s sentence has expired. Stephenson v. Carlton, 28 S.W.3d 910,
911 (Tenn. 2000); Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). “An illegal sentence,
one whose imposition directly contravenes a statute, is considered void and may be set aside
at any time.” May v. Carlton, 245 S.W.3d 340, 344 (Tenn. 2008) (citing State v. Burkhart,
566 S.W.2d 871, 873 (Tenn. 1978)). In contrast, a voidable judgment or sentence is “one
which is facially valid and requires the introduction of proof beyond the face of the record
or judgment to establish its invalidity.” Taylor, 995 S.W.2d at 83 (citations omitted); see
State v. Ritchie, 20 S.W.3d 624, 633 (Tenn. 2000). The petitioner bears the burden of
showing, by a preponderance of the evidence, that the conviction is void or that the prison
term has expired. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

      Furthermore, the procedural requirements for habeas corpus relief are mandatory and
must be scrupulously followed. Summers v. State, 212 S.W.3d 251, 260 (Tenn. 2007);
Archer, 851 S.W.2d at 165. The formal requirements for a petition for a writ of habeas

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corpus are found at Tennessee Code Annotated section 29-21-107:

       (a) Application for the writ shall be made by petition, signed either by the party
       for whose benefit it is intended, or some person on the petitioner’s behalf, and
       verified by affidavit.

       (b) The petition shall state:

              (1) That the person in whose behalf the writ is sought, is
              illegally restrained of liberty, and the person by whom and place
              where restrained, mentioning the name of such person, if
              known, and, if unknown, describing the person with as much
              particularity as practicable;

              (2) The cause or pretense of such restraint according to the best
              information of the applicant, and if it be by virtue of any legal
              process, a copy thereof shall be annexed, or a satisfactory reason
              given for its absence;

              (3) That the legality of the restraint has not already been
              adjudged upon a prior proceeding of the same character, to the
              best of the applicant’s knowledge and belief; and

              (4) That it is first application for the writ, or, if a previous
              application has been made, a copy of the petition and
              proceedings thereon shall be produced, or satisfactory reasons
              be given for the failure so to do.

       A habeas court may dismiss a petition for habeas corpus relief that fails to comply
with these procedural requirements. Hickman v. State, 153 S.W.3d 16, 21 (Tenn. 2004);
James M. Grant v. State, No. M2006-01368-CCA-R3-HC, 2006 WL 2805208 (Tenn. Crim.
App., at Nashville, Oct. 2, 2006), no Tenn. R. App. P. 11 application filed.

       The Petitioner failed to include all the relevant judgments of conviction against him.
He included two judgments of conviction and alleged that he was incarcerated in North
Carolina from June 6, 2010, to November 7, 2010, pursuant to those judgments. He further
averred that he was incarcerated in Tennessee from November 8, 2010, through September
11, 2011, on those same judgments. While in North Carolina, however, he was arrested and
charged with DUI. It is unclear whether some or all of his incarceration in North Carolina
was in relation to that charge. The Defendant also pleaded guilty to at least three other

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offenses in Tennessee; the judgments of conviction are not in the record, and it is not clear
if any period of his incarceration was for those convictions. Without the community
corrections revocation or the other judgments, it is impossible for this Court to determine for
which conviction the Petitioner was serving time. Further, while the failure of a trial court
to credit a petitioner with mandated pretrial jail credit results in an illegal sentence, making
it a cognizable claim for habeas corpus relief, see Tucker v. Morrow, 335 S.W.3d 116, 123
(Tenn. Crim. App. 2009), documents supporting a claim for habeas corpus relief “must come
from the record of the underlying proceedings.” Id. at 124. TOMIS reports are generated
by the Tennessee Department of Correction “following an inmate’s transfer to prison” and
cannot “be considered a part of the record of the underlying proceedings;” therefore, “a
TOMIS report cannot be used to establish a claim for habeas corpus relief.” Id. “Any
disagreement regarding the information in TOMIS reports should be addressed via the
Uniform Administrative Procedures Act.” Id. Accordingly, we conclude that the interest of
justice does not require us to waive the Petitioner’s late filed notice of appeal. The Petitioner
is not entitled to relief.

                                       III. Conclusion

       After a thorough review of the record and the applicable law, we affirm the habeas
corpus court’s judgment.

                                                     _________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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