        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs June 26, 2013

          MICHAEL GIBBS, JR. v. STATE OF TENNESSEE, ET AL.

                   Appeal from the Circuit Court for Morgan County
                      No. 12-CR-152     E. Eugene Eblen, Judge


                  No. E2012-02690-CCA-R3-HC - Filed July 29, 2013


Petitioner, Michael Gibbs, Jr., filed a petition for writ of habeas corpus in the Morgan County
Circuit Court, claiming that his sentence was expired and that he was being illegally
restrained. The State filed a motion to dismiss on the grounds that petitioner failed to comply
with the statutory requirements governing petitions for writ of habeas corpus. The habeas
corpus court granted the State’s motion and summarily dismissed the petition. Following our
review, we affirm the judgment of the habeas corpus court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS
and R OBERT W. W EDEMEYER, JJ., joined.

Michael Gibbs, Jr., Wartburg, Tennessee, Pro Se.

Robert E. Cooper, Attorney General and Reporter; John H. Bledsoe, Senior Counsel, for the
appellee, State of Tennessee.

                                         OPINION

                              I. Facts and Procedural History

       In October 2002, Petitioner entered guilty pleas in two separate cases (#241437 and
#241598) to two counts of theft, one count of burglary, and one count of burglary of an
automobile. He received an effective four-year suspended sentence. The sentences were
revoked for a probation violation on June 16, 2003. Petitioner was ordered to serve eleven
months and twenty-nine days, and he was again placed on probation. The record reflects that
petitioner failed to appear in court on July 6, 2004, and his probation was revoked yet again
on September 27, 2004. On January 1, 2005, he entered guilty pleas in case #251944 to
being an habitual motor vehicle offender and failure to appear. He received a sentence of six
years to be served at sixty percent release eligibility. The judgment forms for the two
convictions in #251944 reflected that Count 1 (habitual motor vehicle offender) was to be
served concurrently with Count 4 (failure to appear) but was silent as to concurrent or
consecutive alignment with the sentences imposed for violating the terms of his probation
in the previous cases.

        Petitioner filed the instant petition for writ of habeas corpus on November 1, 2012.
He alleges that despite the trial court’s notation on the judgment form for # 251944 that his
six-year sentence was to be served concurrently, the Tennessee Department of Correction
(“TDOC”) erred and computed his “full expiration date” by applying consecutive sentence
alignment. He also claims that TDOC failed to apply behavioral credits or program credits 1
to his sentence calculation and that it failed to apply jail credit from January 1, 2005, through
December 16, 2006 (for # 251944), to his sentences for #241437 and #241598. He further
argues that the “full expiration date” for his sentence has been changed several times without
cause. Finally, petitioner asserts that by his calculation, he served twenty-four months in
TDOC from January 2005 through December 2006; he served from March 2009 through
March 2011, another twenty-four months; and he was on parole from March 2011 through
August 2012, resulting in five years and five months of service. That time, plus the credits
that he claims he was denied, would render his six-year sentence expired.

       The petition was filed without supporting documentation; therefore, the State moved
for a summary dismissal, which the trial court granted on November 29, 2012. However,
during the time between the State’s filing and the trial court’s order, petitioner filed two
motions to amend his petition and supplemented them with exhibits.

                                              II. Analysis

                                       A. Standard of Review

        “The grounds upon which habeas corpus relief will be granted are narrow.” Hickman
v. State, 153 S.W.3d 16, 20 (Tenn. 2004) (citing Dixon v. Holland, 70 S.W.3d 33, 36 (Tenn.
2002)). Habeas corpus relief is available to a petitioner only in the limited circumstances
when the judgment is void on its face or the petitioner’s sentence has expired. Hart v. State,
21 S.W.3d 901, 903 (Tenn. 2000). “A void judgment is one in which the judgment is facially
invalid because the court did not have the statutory authority to render such judgment.” Id.
(quoting Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)). Conversely, a voidable


        1
          We note that “claims ‘relative to the calculation of sentencing credits and parole dates’ must be
reviewed pursuant to the Uniform Administrative Procedures Act rather than via a petition for writ of habeas
corpus.” Tucker v. Morrow, 335 S.W.3d, 116, 122 (Tenn. Crim. App. 2009) (quoting Tenn. Code Ann.§ 41-
21-236(a)(2)(C) (2006)).

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conviction or sentence appears facially valid and requires the introduction of proof beyond
the face of the record or judgment to determine its deficiency. Taylor v. State, 995 S.W.2d
78, 83 (Tenn. 1999) (citing Dykes, 978 S.W.2d at 529). The proper method for attacking a
voidable judgment is by a petition for post-conviction relief, not habeas corpus. Id. (citing
State v. McClintock, 732 S.W.2d 268, 272 (Tenn. 1987)). The court’s decision with respect
to a petition for a writ of habeas corpus is a question of law that we review de novo without
a presumption of correctness. Hart, 21 S.W.3d at 903.

       In habeas corpus proceedings, a petitioner must establish a void judgment or illegal
confinement by a preponderance of the evidence. Passarella v. State, 891 S.W.2d 619, 627
(Tenn. Crim. App. 1994). “The petitioner bears the burden of providing an adequate record
for summary review of the habeas corpus petition.” Summers v. State, 212 S.W.3d 251, 261
(Tenn. 2007). A habeas corpus court may summarily dismiss a habeas corpus petition,
without the appointment of counsel and without an evidentiary hearing, if the face of the
record or judgment fails to indicate that the convictions or sentences are void. Tenn. Code
Ann. § 29-21-109 (2000); Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005).

      For a petition for a writ of habeas corpus to issue, Tennessee Code Annotated section
29-21-107 requires compliance with the following:

       (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


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              (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.

The procedural mandates for habeas corpus petitions are mandatory and must be
scrupulously met. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). A habeas corpus
petition may be denied for failure to strictly comply with the requirements of the statute.
Hickman, 153 S.W.3d at 21.

                                   B. Summary Dismissal

        We first address whether summary dismissal of the petition was proper. In the instant
case, we note that petitioner’s first filing did not include a copy of the legal process or
judgment form under which he is being restrained, as required by Tennessee Code Annotated
section 29-21-107. Nor did it state whether this was his first or subsequent petition for
habeas corpus relief. For these reasons, the habeas corpus court did not err in summarily
dismissing the first petition for writ of habeas corpus because petitioner failed to comply with
the statutory mandates.

       The habeas corpus court did not issue an order disposing of petitioner’s amended
petition. This court is without original jurisdiction to consider the amendment and rule on
its merits. See Tenn. Code Ann. §§ 29-21-103 (2000) (conferring original habeas corpus
jurisdiction on circuit, criminal, or chancery courts). Because there is no ruling on the
subsequent petition, this court lacks jurisdiction to consider it on appeal. For these reasons,
we affirm the judgment of the habeas corpus court summarily dismissing petitioner’s original
petition.

                                       CONCLUSION

       Based upon our review of the record, the briefs of the parties, and the applicable law,
we affirm the summary dismissal of the petition for writ of habeas corpus.


                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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