         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE

                   ARNOLD CARTER v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Monroe County
                             No. 03-149 R. Steven Bebb, Judge


                                   No. E2003-02887-CCA-R3-PC
                                          March 16, 2004

The petitioner, Arnold Carter, appeals the trial court's dismissal of his petition for writ of habeas
corpus. The State has filed a motion requesting that this Court dismiss the appeal or, in the
alternative, affirm the trial court's denial of relief pursuant to Rule 20, Rules of the Court of Criminal
Appeals. The petitioner has not established a valid claim for habeas corpus relief. Accordingly, the
State's motion is granted and the judgment of the trial court is affirmed.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
               Pursuant to Rule 20, Rules of the Court of Criminal Appeals

GARY R. WADE, P. J., delivered the opinion of the court, in which JOSEPH M. TIPTON and NORMA
MCGEE OGLE, JJ., joined.

Arnold Carter, Pikeville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
James W. Pope, III, Assistant District Attorney General for the appellee, State of Tennessee.

                                    MEMORANDUM OPINION

       This court set forth the procedural history of the petitioner’s case in a previous opinion
affirming the denial of post-conviction relief :

               In January 1972, the appellant was convicted of robbery in the state of
        Kentucky and received a life sentence. While serving this sentence, he was indicted
        for murder and robbery in Monroe County, Tennessee. Thereafter, the Governor of
        Tennessee and the Governor of Kentucky entered into an executive agreement, the
        pertinent part of which is as follows:

                NOW THEREFORE, pursuant to the criminal extradition laws of
                Tennessee and Kentucky, respectively,
               IT IS MUTUALLY AGREED, that in consideration of the return of
               said fugitives to the State of Tennessee, as aforesaid before the
               conclusion of their terms of imprisonment in the Kentucky State
               Penitentiary, Lyon County, Eddyville, Kentucky, that the said
               fugitives will be returned to said prison at the expense of the State of
               Tennessee as soon as the aforesaid prosecution in the State of
               Tennessee is terminated.

               The appellant was convicted in Tennessee of murder in the first degree and
       received a sentence of death. However, instead of being returned to the state of
       Kentucky immediately after his trial in Tennessee, the appellant was taken to the
       Tennessee State Penitentiary where he remained for a period of forty-one days.
       Tennessee officials then apparently discovered their error and an executive order was
       issued returning the appellant to Kentucky.

....

              The appellant's trial was completed on May 10, 1972, at which time judgment
       was imposed. He was transferred to the penitentiary the next day and was returned
       to Kentucky on June 21, 1972.

Carter v. State, 600 S.W. 2d 750, 751-52 (Tenn.Crim.App. 1980)(footnotes omitted). The Governor
subsequently commuted the petitioner’s death sentence and he was resentenced to ninety-nine years
imprisonment.

       On August 13, 2003, the petitioner filed a petition for writ of habeas corpus alleging that his
sentence expired and the State of Tennessee lost jurisdiction over him on June 21, 1972, when
Tennessee Governor Winfield Dunn “released” him to Kentucky “by executive order of time
cut/time served” after his trial court proceedings in Monroe County had concluded. The petitioner
reasons that after June 21, 1972, no valid judgment, including the August 9, 1972, commutation,
could have been entered against him. The petitioner concludes that he was “effectively kidnapped”
from Kentucky in 1982 when he was apparently returned to Tennessee to begin serving his ninety-
nine year Monroe County sentence.

        On October 27, 2003, the trial court dismissed the petition, finding that the petitioner had not
established either an expired sentence or a void judgment. The record reflects that the petitioner
filed notice of appeal on December 1, 2003. The state asserts that the appeal should be dismissed
as untimely filed or, in the alternative, the trial court’s judgment summarily affirmed. In response
to the motion to dismiss, the petitioner has submitted a purported copy of a portion of the prison log
book which reflects that the petitioner submitted a document which he alleges was his notice of
appeal to prison authorities for mailing to the trial court clerk on November 25, 2003, at 8:40 a.m.
The court concludes that although the uncertified, unsworn document does not conclusively establish
that notice of appeal was timely filed, the requirement should be waived pursuant to Rule 4(b),


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 T.R.A.P., in view of the petitioner’s pro se status and the fact that the notice was at most six days
 late and at best, timely submitted to prison authorities for mailing. See Tenn. S. Ct. R. 28, § 2(G)
 (providing that papers filed by a pro se petitioner incarcerated in a correctional facility are considered
 timely filed "if the papers were delivered to the appropriate individual at the correctional facility
 within the time fixed for filing").

        Addressing the merits of the petitioner's appeal, in this state, “[a]ny person imprisoned or
restrained of his liberty, under any pretense whatsoever, except [those held under federal authority],
may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment and restraint.”
Church v. State, 987 S.W. 2d 855, 857 (Tenn.Crim.App. 1998); Tenn. Code Ann. §29-21-101. The
purpose of a habeas corpus petition is to contest void and not merely voidable judgments. Archer v.
State, 851 S.W. 2d 157, 163 (Tenn. 1993) (citing State ex rel. Newsom v. Henderson, 221 Tenn. 24,
424 S.W. 2d 186, 189 (1968)). Habeas corpus relief is available only when it appears on the face of
the judgment or the record that the trial court was without jurisdiction to convict or sentence the
defendant or that his sentence has expired. Archer v. State, 851 S.W. 2d at 164. A petition seeking
issuance of a writ of habeas corpus may be summarily dismissed by a trial court if it fails to indicate
that the petitioner's conviction is void. Tenn. Code Ann. §29-21-109.

       The petitioner avers that he has been unable to locate a June 21, 1972, executive order by
which his initial sentence of death was “commuted” as “time cut/time served,” thus leaving the
Governor of Tennessee without authority to commute his death sentence to ninety-nine years in
August 1972. The burden is on the petitioner to establish that the judgment is void or that the
sentence has expired. State ex rel. Kuntz v. Bomar, 214 Tenn. 500, 504, 381 S.W. 2d 290, 291-92
(1964). The petitioner has not established that he is entitled to habeas corpus relief. The state
suggests that it would have been “ludicrous” for the governors to agree at the outset that the petitioner
would be extradited from Kentucky to Tennessee for prosecution, and to also agree that Tennessee
would then lose jurisdiction over the petitioner following his conviction and return to Kentucky. This
court concludes that there is nothing to support the petitioner’s assertions. Moreover, this court
affirmed the petitioner’s conviction and his ninety-nine year, commuted sentence on direct appeal.
See Carter v. State, No. 23, Monroe County (Tenn.Crim.App. at Knoxville, May 9, 1973), app. denied
(Tenn. 1973). We thus conclude that the trial court properly dismissed the habeas corpus petition.

       Accordingly, the state’s motion is granted. The judgment of the trial court is affirmed in
accordance with Rule 20, Rules of the Court of Criminal Appeals.



                                                         ___________________________________
                                                         GARY R. WADE, PRESIDING JUDGE




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