                                                                                             10/12/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs July 18, 2018

                STATE OF TENNESSEE v. GREGORY EIDSON

                Appeal from the Circuit Court for Robertson County
              No. 74CC2-2016-CR-275 William R. Goodman, III, Judge
                     ___________________________________

                            No. M2017-01808-CCA-R3-CD
                        ___________________________________


The Defendant, Gregory Eidson, was convicted by a jury of driving under the influence
(“DUI”) and received a sentence of eleven months and twenty-nine days. On appeal, the
Defendant argues that (1) the trial court committed reversible error by failing to appoint a
court reporter; (2) he and his counsel were improperly excluded from the grand jury
proceedings; (3) counsel was ineffective at the preliminary hearing; (4) the trial court
erred in denying his motion to suppress statements made to an officer before being read
his Miranda warnings; (5) the trial court erred in admitting the results of his blood test;
(6) the trial court was biased, failed to correct prosecutorial misconduct, and denied the
Defendant his right to a speedy trial; and (7) the trial court erred in dismissing his petition
for writ of habeas corpus in a separate case. After a review of the record and applicable
law, we affirm the judgments of the trial court.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Gregory Eidson, Wartburg, Tennessee, Pro Se (on appeal); Benjamin K. Dean,
Springfield, Tennessee (at trial), for the appellant, Gregory Eidson.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
John W. Carney, District Attorney General; and Jason White, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                        OPINION

                     FACTUAL AND PROCEDURAL HISTORY

       The Defendant was indicted for DUI, DUI per se, driving without a seatbelt, and
driving without insurance. The charges of driving without a seatbelt and driving without
insurance were dismissed. Following a jury trial, the Defendant was found guilty of both
DUI and DUI per se, and the trial court merged the counts into one conviction.

        The Defendant did not hire a court reporter but filed a statement of the evidence in
the trial court. See Tenn. R. App. P. 24(c). The State objected, and the trial court filed an
approved statement of the evidence, see Tenn. R. App. P. 24(c), (e), which we summarize
below.

        Mr. Wesley McWilliams testified that on August 9, 2015, he and his friends were
driving on Highway 31W when they noticed a car that had crashed into a ditch. They got
out of their vehicle and approached the Defendant, who exited the driver’s side of the car.
The Defendant asked Mr. McWilliams to call for a tow truck but requested that he not
call the police. Mr. McWilliams believed “things did not seem right,” so he called law
enforcement. He did not observe the Defendant drinking any alcoholic beverages at the
scene, nor did he observe any alcoholic beverage containers at the scene.

      Tennessee State Trooper Jason Flatt testified that he responded to the scene of the
accident. He spoke first with Mr. McWilliams and his friends and then with the
Defendant. Trooper Flatt asked what happened, and the Defendant responded that he had
been driving when his female passenger got angry with him and grabbed the steering
wheel, causing the car to go into the ditch. Trooper Flatt smelled alcohol on the
Defendant and noticed “other signs of possible intoxication.” He asked the Defendant to
perform field sobriety tests and, based on the Defendant’s performance, concluded that
the Defendant was intoxicated. The Defendant told Trooper Flatt he had consumed a
twelve-pack of beer that day. Trooper Flatt arrested the Defendant for DUI, and the
Defendant consented to a blood test.

        Trooper Flatt testified that he did not observe the Defendant drinking alcohol at
the scene of the wreck, nor did he observe any alcoholic beverage containers at the scene.
He stated that the Defendant did not tell him that the Defendant had consumed alcohol
after he wrecked. He acknowledged that he did not see the Defendant driving the car
prior to the wreck, nor did he know how long the car was in the ditch prior to his arrival.




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       Special Agent April Hager, a forensic scientist with the Tennessee Bureau of
Investigation (“TBI”), testified that the Defendant’s blood collected after the wreck had a
blood alcohol concentration (“BAC”) of 0.171.

       The Defendant testified that he worked on the day of the accident and had
consumed “at most four regular size beers” throughout the day. He explained that he had
exaggerated when he told Trooper Flatt he had consumed twelve beers. He maintained
that he was driving the car that evening when his passenger grabbed the steering wheel
and caused the car to veer into the ditch. He said he was in such a state of shock from the
wreck that he “grabbed some ‘tall boys’ (beer) and drank them quickly.” He hid the
empty cans in the woods near the ditch. He believed that drinking these beers after the
wreck occurred caused his BAC to be above the legal limit.

       The statement of the evidence approved by the trial court stated that portions of a
video and audio recording from Trooper Flatt’s patrol car were introduced into evidence.
These portions show Mr. McWilliams and his friends indicating to Trooper Flatt that the
Defendant was the driver of the car in the ditch. Trooper Flatt approached the Defendant
and asked him to step out of the ditch and onto the shoulder of the road, and the
Defendant complied. Trooper Flatt asked the Defendant what happened, and the
Defendant explained that his passenger “yanked the wheel and jerked it toward the
ditch.” Trooper Flatt requested the Defendant’s license. After looking at the Defendant’s
license, Trooper Flatt asked him to sit on the edge of the shoulder of the road while
Trooper Flatt spoke to the passenger, who was still inside the car. Trooper Flatt returned
to the Defendant, and the Defendant again explained that the passenger “got mad and
grabbed the wheel.” Trooper Flatt asked the Defendant to “step up here with me for a
minute” and indicated for the Defendant to stand in front of the patrol car. The
Defendant complied. Trooper Flatt spoke with Mr. McWilliams and his friends and
returned to the Defendant. Trooper Flatt asked the Defendant how much alcohol he had
consumed, and the Defendant responded he had consumed a twelve-pack of beer.
Trooper Flatt asked how the passenger had become impaired, and the Defendant said he
did not know. The Defendant consented to performing field sobriety tests.1

      The jury convicted the Defendant of both DUI and DUI per se, and the trial court
merged the counts into one conviction. The Defendant was sentenced to eleven months
and twenty-nine days, suspended after ten days of incarceration. This sentence was to

       1
         The statement of the evidence indicated that the jury viewed the portion of the video
where the Defendant performed the field sobriety tests; however, our review shows that the time
segments listed as being shown to the jury in the statement of the evidence do not include the
Defendant’s performance of the tests.

                                             -3-
run consecutively to his sentences from a prior case. The Defendant filed pro se motions
for a judgment of acquittal and for a new trial. He also filed a pro se petition for writ of
habeas corpus regarding his sentences from a separate case. The trial court denied all of
the Defendant’s motions and dismissed the habeas corpus petition, and the Defendant
now timely appeals.

                                       ANALYSIS

        The Defendant argues that: (1) he is denied effective appellate review by the trial
court’s failure to appoint a court reporter; (2) he and his counsel were improperly
excluded from the grand jury proceedings, during which illegal evidence was presented;
(3) counsel at his preliminary hearing was ineffective due to a conflict of interest; (4) the
trial court erred in denying his motion to suppress statements made to an officer before
being advised of his rights; (5) the trial court erred in admitting the results of his blood
test when the blood sample was destroyed before he could have it independently tested
and in light of this court’s recent decision in State v. Rosemary L. Decosimo, No. E2017-
00696-CCA-R3-CD, 2018 WL 733218 (Tenn. Crim. App. Feb. 6, 2018), reversed by
2018 WL 4022338 (Tenn. Aug. 23, 2018); (6) the trial court was biased, allowed
prosecutorial misconduct, and denied the Defendant the right to a speedy trial; and (7) the
trial court improperly dismissed his petition for writ of habeas corpus in a separate case.

                         I. Failure to Appoint a Court Reporter

       The Defendant asserts he is denied effective appellate review due to the trial
court’s failure to have a court reporter present during the trial and post-trial proceedings.
The State responds that the Defendant failed to show he was indigent prior to trial, or
alternatively, that any deficiency was remedied by the trial court’s approval of the
statement of the evidence.

        Generally, a defendant tried for a misdemeanor offense is not automatically
provided with a court reporter at the State’s expense. See T.C.A. §§ 40-14-307(a)
(providing that a court reporter “shall attend every stage of each criminal case before the
court”); 40-14-301(3) (defining “criminal case” in pertinent part as “the trial of any
criminal offense which is punishable by confinement in the state penitentiary”).
Although the Defendant was tried for misdemeanor offenses, see Tennessee Code
Annotated sections 55-10-401 and 402(a)(1)(A), the record on appeal shows that the
Defendant was declared indigent and appointed counsel approximately nine months
before his trial. The Defendant maintains that because he was indigent, he was entitled to
a court reporter at trial and during the post-trial proceedings. See State v. Nail, 963
S.W.2d 761, 764 (Tenn. Crim. App. 1997) (stating that “a court reporter [is] not provided
at state expense for a misdemeanor unless a defendant [is] unable to afford one based
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upon indigency”). He further maintains that the due to the absence of a court reporter, a
complete verbatim transcript could not be prepared, and the reporter’s absence precludes
effective appellate review of his claims.

       As a matter of equal protection, indigent defendants must be afforded with “the
basic tools of an adequate defense or appeal, when such tools are available for a price to
other defendants.” State v. Gallagher, 738 S.W.2d 624, 625 (Tenn. 1987) (citing Britt v.
North Carolina, 404 U.S. 226, 227 (1971); State v. Elliott, 524 S.W.2d 473, 475 (Tenn.
1975)). The distinction between felony and misdemeanor cases “is not a valid
constitutional basis for denial of such tools.” Id. (citing Mayer v. City of Chicago, 404
U.S. 189, 195-96 (1971)). The State must provide an indigent defendant with a “‘record
of sufficient completeness’ to permit proper consideration of [his] claims.” Draper v.
Washington, 372 U.S. 487, 499 (1963) (quoting Coppedge v. United States, 369 U.S. 438,
446 (1962)). “A ‘record of sufficient completeness’ does not translate automatically into
a complete verbatim transcript.” Mayer, 404 U.S. at 194; see Gallagher, 738 S.W.2d at
625. Rather, “alternative methods of reporting trial proceedings are permissible if they
place before the appellate court an equivalent report of the events at trial from which the
appellant’s contentions arise.” Draper, 372 U.S. at 495; see Gallagher, 738 S.W.2d at
625.

        Tennessee Rule of Appellate Procedure 24(c) provides for the filing of a statement
of the evidence when a transcript of the evidence is unavailable. In such situations, “the
appellant shall prepare a statement of the evidence or proceedings from the best available
means, including the appellant’s recollection.” Tenn. R. App. P. 24(c). “The statement
should convey a fair, accurate and complete account of what transpired with respect to
those issues that are the bases of appeal.” Id. An appellee may object to the statement as
filed, and any differences regarding the accuracy of the statement shall be settled by the
trial court. Tenn. R. App. P. 24(c), (e). “Absent extraordinary circumstances, the
determination of the trial court is conclusive.” Tenn. R. App. P. 24(e).

        The Defendant filed a statement of the evidence, which included a few sentences
describing some of the trial testimony but primarily consisted of blanket assertions that
the trial court erred in various respects. The State objected and filed a separate statement.
The trial court subsequently approved its own statement, which was largely consistent
with that filed by the State. In light of the trial court’s compliance with the procedure
mandated by Rule 24, we conclude that the statement of the evidence approved by the
trial court constitutes “an equivalent report of the events at trial from which the
appellant’s contentions arise.” Mayer, 404 U.S. at 194. The Defendant had the
opportunity to provide a summary of the proceedings below but instead filed a document
containing legal arguments. Accordingly, the Defendant is not entitled to relief regarding
this issue.
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                               II. Grand Jury Proceedings

        The Defendant argues that his case was presented to a grand jury without the
Defendant or his counsel present “to prevent the State from presenting illegal evidence”
in violation of the Fifth, Sixth, and Fourteenth amendments to the United States
Constitution. The Defendant failed to cite to the record or any authority in his brief to
support his claim. 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.”). Moreover, the Defendant failed to raise this issue in either his
initial or amended motion for a new trial. See Tenn. R. App. P. 3(e) (providing that
issues not specifically stated in a motion for new trial are waived). Accordingly, this
issue is waived.

              III. Ineffective Assistance of Preliminary Hearing Counsel

        The Defendant argues that counsel at his preliminary hearing had a conflict of
interest, which he asserts constituted ineffective assistance of counsel. However, in his
brief, the Defendant does not identify any conflicts of interest that he maintains existed,
and the only reference the Defendant makes to the record is to a court order appointing a
different attorney, who was neither trial counsel nor the attorney the Defendant maintains
represented him at the preliminary hearing. No other citation to authority or reference to
the record is included. Therefore, this issue is waived. See Tenn. Ct. Crim. App. R.
10(b).

                                 IV. Motion to Suppress

       The Defendant argues that the trial court erred in denying his motion to suppress
statements made to Trooper Flatt because he was in custody when he made the statements
and had not been advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436
(1966). Under the Fifth Amendment to the United States Constitution and article I,
section 9 of the Tennessee Constitution, the accused may not be compelled to incriminate
himself. These protections are “concerned with the inherently coercive atmosphere that
accompanies interrogation (or its functional equivalent) by the police.” State v. Sanders,
452 S.W.3d 300, 311 (Tenn. 2014). When a defendant is subjected to custodial
interrogation, law enforcement must inform the defendant of his constitutional rights,
including that he has the right to remain silent, that his statement may be used against
him, that he has the right to the assistance of an attorney, and that he will be appointed an
attorney if he cannot afford one. Miranda, 384 U.S. at 478-79. The suspect must have
the opportunity to either assert these rights or to knowingly and intelligently waive them.
Id. at 479. “‘But unless and until such warnings and waiver are demonstrated by the
prosecution at trial,’ statements given during custodial interrogation are not admissible in
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the prosecution’s case-in-chief.” State v. Climer, 400 S.W.3d 537, 557 (Tenn. 2013)
(quoting Miranda, 384 U.S. at 479). Even statements that are voluntarily made will be
excluded if they are the result of custodial interrogation without adequate warmings.
State v. Payne, 149 S.W.3d 20, 32 (Tenn. 2004). “To constitute a ‘custodial
interrogation,’ (1) the subject must be ‘in custody’; (2) there must be an interrogation;
and (3) the interrogation must be conducted by a state agent.” State v. Smith, 933 S.W.2d
450, 453 (Tenn. 1996) (quoting Miranda, 384 U.S. at 444). “As the Miranda Court
emphasized, however, these warnings are not required in the absence of custodial
interrogation.” State v. Northern, 262 S.W.3d 741, 749 (Tenn. 2008).

        The Defendant filed a pretrial motion to suppress his statements made to Trooper
Flatt. The trial court filed a written order granting the Defendant’s motion with respect to
his statement that he had consumed twelve beers and denying the motion with respect to
his statement that he had been drinking alcohol all day. The statement of the evidence,
inconsistently with the written order, states that the trial court denied the motion, holding
that the Defendant was not in custody when Trooper Flatt approached the wreck and
inquired of the Defendant what happened. The statement likewise indicates that the
evidence regarding the twelve beers was put before the jury while the evidence regarding
drinking alcohol all day was not.

        The statement of evidence does not describe what testimony or evidence, if any,
was presented during the hearing on the motion to suppress. Neither does it indicate the
basis upon which the Defendant’s statement about consuming twelve beers was initially
suppressed and later admitted at trial. In his proposed statement of the evidence, the
Defendant never sought to include any testimony taken during the suppression hearing,
the trial court’s findings regarding suppression, or any explanation regarding the
admission of the evidence that had previously been suppressed. The appellant has the
duty to prepare a record which conveys “a fair, accurate and complete account of what
transpired with respect to those issues that are the bases of appeal.” Tenn. R. App. P.
24(b). In the absence of such a record, we presume that the trial court’s judgments were
correct. See State v. Richardson, 875 S.W.2d 671, 674 (Tenn. Crim. App. 1993). Here,
we are unable to review the trial court’s decisions regarding the suppression of the
evidence without knowing what evidence was introduced on the issue or the trial court’s
reasoning regarding suppression. State v. Bobadilla, 181 S.W.3d 641, 643 (Tenn. 2005)
(“What is in the record sets the boundaries for what the appellate courts may review, and
thus only evidence contained therein can be considered.”). Accordingly, the Defendant is
not entitled to relief regarding this issue. See generally State v. Ramey Michelle Long,
No. W2016-02471-CCA-R3-CD, 2018 WL 3203124, at *9 (Tenn. Crim. App. June 29,
2018) (citing cases for the proposition “that when a person is detained temporarily for a
traffic stop, even when the stop is to investigate a driver’s intoxication, the person is not
‘in custody’ for the purposes of Miranda”).
                                            -7-
                                       V. Blood Test

       The Defendant argues that he was denied his right to have an independent analysis
performed on his blood sample because the TBI destroyed it prior to his preliminary
hearing. He also asserts that the results of his blood test should have been suppressed
under this court’s opinion in State v. Rosemary L. Decosimo, 2018 WL 733218, at *1.

                            1. Destruction of Blood Evidence

        The Defendant asserts that the TBI’s destruction of his blood test kit prior to his
preliminary hearing denied him his right to have an independent analysis of the blood test
performed. The Defendant filed a pro se pretrial motion to suppress the results from his
blood test, which was denied by the trial court. In his motion, the Defendant merely
challenged the chain of custody of the blood sample, and he did not mention the
destruction of the sample. The Defendant contends that Special Agent Hager testified at
trial regarding the destruction of the blood sample. However, the trial court’s approved
statement of the evidence does not include such testimony and explicitly notes that the
Defendant failed to raise this issue in either a pretrial motion or at trial. Consequently,
this issue is waived on appeal. See Tenn. R. App. P. 36(a) (“Nothing in this rule shall be
construed as requiring relief be granted to a party responsible for an error or who failed to
take whatever action was reasonably available to prevent or nullify the harmful effect of
an error.”); Tenn. R. App. P. 24(b); State v. Bledsoe, 226 S.W.3d 349, 357 (Tenn. 2007).

                                   2. State v. Decosimo

      The Defendant argues that the results of his blood test should have been
suppressed in light of this court’s recent decision in Rosemary L. Decosimo, 2018 WL
733218, at *1, which held unconstitutional a statute that imposed a fee upon defendants
convicted of certain drug and alcohol offenses when TBI forensic scientists conducted
chemical tests to determine blood alcohol or drug content. However, the Tennessee
Supreme Court has since reversed this court’s holding. See State v. Decosimo, No.
E2017-00696-SC-R11-CD, __ S.W.3d __, 2018 WL 4022338, at *1 (Tenn. Aug. 23,
2018). Accordingly, the Defendant is not entitled to relief regarding this issue.

           VI. Bias, Prosecutorial Misconduct, and Right to a Speedy Trial

       The Defendant argues that the trial court “was biased,” improperly denied his right
to a speedy trial, and “allowed prosecutorial misconduct to go uncorrected.” Regarding
the assertion that the trial court was biased, the Defendant provides no citation to
authority, no reference to the record, and no explanation as to how the trial court was
biased. The Defendant also fails to identify any occurrence of prosecutorial misconduct
                                            -8-
in the record. These issues are accordingly waived. See Tenn. Ct. Crim. App. R. 10(b).
Moreover, the Defendant has waived his claims of a speedy trial violation due to his
failure to raise the issue in either his initial or amended motion for a new trial. See Tenn.
R. App. P. 3(e).

                        VII. Petition for Writ of Habeas Corpus

       The Defendant argues that the trial court erred in dismissing his petition for writ of
habeas corpus regarding his prior convictions for aggravated assault and attempted
second degree murder. In 2012, the Defendant pled guilty to aggravated assault and
attempted second degree murder in Sumner County. Gregory Eidson v. State, No.
M2015-01657-CCA-R3-HC, 2016 WL 4252360, at *1 (Tenn. Crim. App. Aug. 10,
2016), perm. app. denied (Tenn. Jan. 19, 2017). He received consecutive sentences of
three and eight years, respectively and was ordered to serve his sentences on Community
Corrections, which was revoked in 2014. Id.

       Following his trial for the DUI in this case, the Defendant filed a pro se petition
for writ of habeas corpus to the Robertson County Circuit Court. In his petition, the
Defendant alleged his convictions in Sumner County were void because “the trial court
did not have jurisdiction to sentence a ‘violent offender charged with a violent criminal
offense’ to Community Corrections.” The trial court denied the petition for lack of
jurisdiction.

        Article I, section 15 of the Tennessee Constitution provides that “the privilege of
the writ of Habeas Corpus shall not be suspended, unless when in case of rebellion or
invasion, the General Assembly shall declare the public safety requires it.” Habeas
corpus relief may be sought by “[a]ny person imprisoned or restrained of liberty … to
inquire into the cause of such imprisonment and restraint.” T.C.A. § 29-21-101(a). The
right to relief is available “only when ‘it appears upon the face of the judgment or the
record of the proceedings upon which the judgment is rendered’ that a convicting court
was without jurisdiction or authority to sentence a defendant, or that a defendant’s
sentence of imprisonment or other restraint has expired.” Summers v. State, 212 S.W.3d
251, 255 (Tenn. 2007) (quoting Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993)). We
review the grant or denial of habeas corpus relief de novo with no presumption of
correctness given to the findings and conclusions of the trial court. Id. at 255.

        While the statutory language “appears broad, in fact, ‘[h]abeas corpus under
Tennessee law has always been, and remains, a very narrow procedure.’” Edwards v.
State, 269 S.W.3d 915, 919 (Tenn. 2008) (quoting Archer, 851 S.W.2d at 162). A habeas
corpus petition is used to challenge void and not merely voidable judgments. Summers,
212 S.W.3d. at 255-56. “A void judgment is one in which the judgment is facially
                                            -9-
invalid because the court lacked jurisdiction or authority to render the judgment.” Taylor
v. State, 995 S.W.2d 78, 83 (Tenn. 1999); Dykes v. Compton, 978 S.W.2d 528, 529
(Tenn. 1998). A petitioner bears the burden of proving a void judgment or illegal
confinement by a preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000). The habeas corpus court has authority to dismiss a petition when the
petition shows the petitioner “would not be entitled to any relief.” T.C.A. § 29-21-109.
If the petition fails to establish that a judgment is void, the habeas corpus court is not
obligated to hold a hearing on the allegations. Hogan v. Mills, 168 S.W.3d 753, 755
(Tenn. 2005).

       Tennessee Code Annotated section 29-21-105 states that a petition for habeas
corpus relief “should be made to the court or judge most convenient in point of distance
to the applicant, unless a sufficient reason be given in the petition for not applying to
such court or judge.” Because the Defendant was incarcerated in Morgan County, he
should have filed his petition in Morgan County, rather than in the Robertson County
Circuit Court.

       Moreover, the Defendant failed to comply with the formal requirements in his
petition for writ of habeas corpus because he failed to attach his prior habeas corpus
petitions to his current petition seeking relief. See Gregory Eidson, 2016 WL 4252360,
at *1-2 (noting that the Defendant filed a petition on May 28, 2014, which was dismissed,
and another petition on July 2, 2015). A petition must state “[t]hat 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.” T.C.A. § 29-21-107(b)(4). A petition for relief may be denied by a habeas corpus
court where a petitioner fails to comply with the statutory procedural requirements.
Summers, 212 S.W.3d at 260; see Hickman v. State, 153 S.W.3d 16, 21 (Tenn. 2004)
(providing that the procedural requirements are mandatory and must be scrupulously
followed); Gary E. Aldridge v. State, No. M2005-01861-CCA-R3-HC, 2006 WL
1132073, at *2 (Tenn. Crim. App. Apr. 28, 2006) (noting that the failure to follow the
mandatory requirements of Tennessee Code Annotated section 29-21-107(b)(4) justifies
dismissal of habeas corpus petition). Accordingly, the Defendant is not entitled to relief.

                                     CONCLUSION

       Based on the foregoing, we affirm the judgments of the trial court.



                                  _____________________________________________
                                   JOHN EVERETT WILLIAMS, PRESIDING JUDGE
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