         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs August 7, 2007

                     PAUL T. DAVIS v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                          No. 2001-A-483    Monte Watkins, Judge



                   No. M2006-01831-CCA-R3-HC - Filed December 3, 2007


The Petitioner, Paul Tobias Davis, appeals the summary dismissal of his petition for habeas corpus
relief. In his petition, the Petitioner asserted that his sentence is illegal because he was denied
pretrial jail credits. The habeas corpus court summarily dismissed the petition because the petition
did not state a sufficient reason for not being filed in the county nearest to the Petitioner. On appeal,
the Petitioner raises two issues: (1) whether a motion filed in the habeas corpus court to alter or
amend the judgment pursuant to Rule 59.04 of the Tennessee Rules of Civil Procedure can operate
to limit the jurisdiction of this Court; and (2) whether the fact that the convicting court possesses
relevant records relating to a petitioner’s sentence and retains the authority to correct an illegal
sentence at anytime is a sufficient reason under Tennessee Code Annotated section 29-21-105 to file
a habeas corpus petition in the convicting court rather than the court closest in point of distance to
a petitioner. Following our review, we hold that motions filed pursuant to Rule 59 of the Tennessee
Rules of Civil Procedure do not effect the jurisdiction of this Court in actions for habeas corpus
relief and that the Petitioner presented a sufficient reason for filing his petition in the Davidson
County Criminal Court. Accordingly, we reverse the judgment of the habeas corpus court and
remand for the appointment of counsel and further proceedings consistent with this opinion.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which, D. KELLY THOMAS, JR., J., joined.
JAMES CURWOOD WITT, JR., J., filed a dissenting and concurring opinion.

Paul T. Davis, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                                       OPINION

                                Factual and Procedural History
        A grand jury indicted the Petitioner for two counts of child rape. He entered into a plea
agreement with the State and pled guilty to two counts of aggravated sexual battery. On April 17,
2002, the Davidson County Criminal Court entered judgment on his guilty pleas and sentenced him
to ten years for each offense, ordering that the sentences be served concurrently at 100%. In
exchange for this sentence, the Petitioner agreed to waive his pretrial jail credits.1

        On May 22, 2006, the Petitioner filed a petition for habeas corpus relief in the convicting
court—the Davidson County Criminal Court. At that time, the Petitioner was incarcerated in the
Hardeman County Correctional Facility, located in Whiteville. In the petition, the Petitioner made
the following statement as to why he filed it there:

                 Jurisdiction for this cause of action is conferred upon this Honorable Court
         by the following:

                   1.       Tenn. Code Ann. §§ 29-21-101 et seq.

                 The [P]etitioner hereby contends that the Criminal Court of Davidson County,
         Tennessee is most convenient to this petition, and the [trial judge] is the judge that
         sentence [sic] the [P]etitioner and due to the illegal sentence imposed, the trial judge
         “may correct an illegal, as opposed to [a merely] erroneous[,] sentence at any time[,]
         even if it has become final.”

(quoting State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978)).


        The petition averred that he was entitled to habeas corpus relief because the sentence imposed
by the trial court was illegal, void, “and in direct contravention of an express statute.” Specifically,
he relied upon State v. Richard Daniel Filauro, No. M2002-02186-CCA-R3-CD, 2004 WL 840084
(Tenn. Crim. App., Nashville, Apr. 16, 2004), to argue that the trial court did not have the authority
to allow the waiver of his pretrial jail credits or to sentence him without granting them.

         To support his argument, the Petitioner attached copies of his two judgments of conviction
for aggravated sexual battery. The first judgment form states that “the [Petitioner] agrees to forfeit
pretrial jail credit,” and the second judgment indicates that the Petitioner has no pretrial jail credit.


         1
           After the judgment became final, the Petitioner filed a pro se “Petition for Pretrial Jail Credit And/or Petition
for Writ of Certiorari” challenging the calculation of his sentencing credits during his incarceration in the county jail
from July 8, 2001, until April 17, 2002. See Paul Tobias Davis v. State, No. M 2004-02378-CCA-R3-CO, 2005 WL
468301, at *1 (Tenn. Crim. App., Nashville, Feb. 24, 2005). The trial court dismissed the petition, and this Court
affirmed pursuant to Rule 20 of the Rules of the Court of Criminal Appeals, concluding that the trial court did not have
jurisdiction over the matter and that the proper avenue by which to address sentence reduction credits was through the
Administrative Procedures Act. See id. at *2 (citing Tenn. Code Ann. § 4-5-101, et. seq.).

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         Without holding an evidentiary hearing or appointing counsel to represent the Petitioner, the
habeas corpus court entered an order on July 20, 2006, dismissing his petition because it was not
filed in the county nearest to him:

                 The [P]etitioner is an inmate in the Tennessee Department of Correction[] in
         [the] Hardeman County Corrections Facility in Whiteville, Tennessee and has filed
         [his] petition in [the] Davidson County Criminal Court in Nashville, Tennessee.
                 This Court closely reviewed the petition, court file, in light of the applicable
         Tennessee law. The Court finds that the [P]etitioner has failed to [indicate] a reason
         for not filing in the nearest county and as a result, his petition shall be respectfully
         denied.

See Tenn. Code Ann. § 29-21-105 (stating that applications 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”).

         Following the habeas corpus court’s ruling, the Petitioner filed a motion to alter and amend
the judgment pursuant to Rule 59 of the Tennessee Rules of Civil Procedure in the habeas corpus
court.2 See Tenn. R. Civ. P. 59.04. In the Rule 59 motion, the Petitioner stated that “a motion to
alter and amend the order is the appropriate remedy to allow the [habeas corpus court] to correct
errors and reconsider the proof and applicable law, resulting from the court overlooking or failing
to consider matters established in the record.” See Tenn. R. Civ. P. 59.01(4) (stating that a motion
to alter or amend the judgment is one of four motions contemplated by the rules of civil procedure
“for extending the time for taking steps in the regular appellate process”). Referencing Tennessee
Code Annotated section 29-21-105, the Petitioner again stated that the Davidson County Criminal
Court could properly rule on the merits of his petition:

                 The Petitioner alleges because the Criminal Court for Davidson County,
         Division I, can correct an illegal sentence at any time and is in possession of the
         records pertaining to the sentence [sic]. This [c]ourt has [the] convenience of having
         the records present providing a sufficient reason for this court to exercise jurisdiction
         despite the terms of [Tennessee Code Annotated section] 29-21-105, “which states
         that the habeas corpus application should be made to the court or judge most
         convenient [i]n point of distance to the applicant.”

In support of this contention, the Petitioner quoted State v. Noah J. Love, No. E2000-00254-CCA-
R3-CD, 2001 WL 523373, at *2 (Tenn. Crim. App., Knoxville, May 16, 2001) (stating that a panel
of this Court had previously ruled that when a petitioner seeks relief from an illegal sentence by way
of habeas corpus, he may do so in the convicting court rather than the court closest to him “because
the former can correct an illegal sentence at any time and is in possession of the records pertaining



         2
          Although the Petitioner’s Rule 59 motion does not contain an official “file stamp” date, a responding letter
from the court states that the motion was filed on August 14, 2006.

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to the sentence”) (citing State v. Donald Ree Jones, No. M2000-00381-CCA-R3-CD, 2000 WL
1520012, at *2 (Tenn. Crim. App., Nashville, Oct. 13, 2000)).

        The Petitioner then essentially resubmitted his argument that the trial court did not have the
authority to allow him to waive his pretrial jail credits because doing so was in direct contravention
of an express statute, Tennessee Code Annotated section 40-23-101(c). This provision states that
trial courts are to render judgments of conviction so that defendants are afforded credit for time
served in jail prior to trial:

               The trial court shall, at the time the sentence is imposed and the defendant is
       committed to jail, the workhouse or the state penitentiary for imprisonment, render
       the judgment of the court so as to allow the defendant credit on the sentence for any
       period of time for which the defendant was committed and held in the city jail or
       juvenile court detention prior to waiver of juvenile court jurisdiction, or county jail
       or workhouse, pending arraignment and trial. The defendant shall also receive credit
       on the sentence for the time served in the jail, workhouse or penitentiary subsequent
       to any conviction arising out of the original offense for which the defendant was
       tried.

Tenn. Code Ann. § 40-23-101(c). In support of this argument, the Petitioner again cited State v.
Richard Daniel Filauro. See Filauro, 2004 WL 8400084, at *4–5 (holding that the defendant’s
sentence was illegal because the trial court allowed the waiver of pretrial jail credits in direct
contravention of an express statutory provision—Tennessee Code Annotated section 40-23-101(c)).


        The habeas corpus court did not issue a formal ruling on the Rule 59 motion; however, on
August 23, 2006, a responding letter from the court’s law clerk to the Petitioner made it evident that
the court’s previous order summarily dismissing the petition for failure to file in the correct county
was its final ruling. The Petitioner filed a notice of appeal on August 25, 2006.

                                              Analysis
        I.      Effect of the Petitioner’s motion to alter and amend
        On appeal, the Petitioner first argues that this Court lacks jurisdiction to hear this case
because he “filed an appropriate post-trial motion” in the habeas corpus court. Specifically, he
contends that this Court does not have jurisdiction because the habeas corpus court has not ruled on
his motion to alter or amend the judgment filed pursuant to Rule 59 of the Tennessee Rules of Civil
Procedure and that, under Rule 4 of the Tennessee Rules of Appellate Procedure, the habeas corpus
court maintains jurisdiction over the case until it rules on his Rule 59 motion. See Tenn. R. App.
P. 4(b)(4). The State does not address this argument in its appellate brief. However, we conclude
that a motion filed pursuant to Rule 59 of the Tennessee Rules of Civil Procedure does not limit the
jurisdiction of this Court in appeals from the denial of habeas corpus relief.

        The Petitioner is correct that habeas corpus actions constitute a collateral attack on a
petitioner’s judgment of conviction and are therefore essentially civil in nature; however, the
Tennessee Rules of Civil Procedure apply only to the extent that they are consistent with the statutes

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governing habeas corpus actions, Tennessee Code Annotated section 29-21-101, et. seq. See Joseph
Miles v. State, No. M2006-02088-CCA-R3-HC, 2007 WL 1828879, at *5 (Tenn. Crim. App.,
Nashville, June 26, 2007); John J. Villaneuva v. State, No. 03C01-9611-CR-00425, 1997 WL
607499, at *1 n.5 (Tenn. Crim. App., Knoxville, Oct. 3, 1997). One of those statutes provides that
“[a]ny party, either relator or defendant, in any habeas corpus case shall have the right of appeal to
the proper appellate court from any judgment or decree rendered against such party by an inferior
court”; however, this provision does “not apply to parties held in custody in criminal cases.” Tenn.
Code Ann. § 29-21-127. Although the habeas corpus statutes do not specifically provide criminal
defendants who are being held in custody the right of appeal, the right is provided by Tennessee Rule
of Appellate Procedure 3(b). See Tenn. R. App. P. 3(b). Appellate Rule 3(b) is subtitled as
“Availability of Appeal as of Right by Defendant in Criminal Actions,” and it provides for the right
of criminal defendants to appeal in specified situations, including from “a final judgment in a . . .
habeas corpus . . . proceeding.” Id. This rule indicates therefore that, for the purposes of appeal,
habeas corpus cases involving incarcerated criminal defendants are “criminal actions.” See id. Our
supreme court’s opinion in Tragle v. Burdette, 438 S.W.2d 736 (Tenn. 1969), supports this view.
In Tragle, the court stated that habeas corpus actions that “involve detention for the commission of
a crime” are “essentially criminal,” and therefore, appeals in such cases should be made to the court
of criminal appeals. Id. at 737. In viewing this appeal as a criminal action, we note that the
Tennessee Rules of Criminal Procedure do not contemplate a motion to alter and amend the
judgment, and therefore such a motion will not operate to limit the jurisdiction of this Court. See
Tenn. R. App. P. 4(c).

         Having concluded that the Petitioner’s motion to alter and amend filed in the habeas corpus
court does not affect this Court’s ability to entertain this appeal, we turn our attention to whether his
notice of appeal was timely filed. The notice of appeal was filed on August 25, 2006, thirty-six days
after the habeas corpus court’s order of dismissal. Even though this notice was filed more than thirty
days after entry of the judgment and could therefore be considered as untimely,3 we will waive the
thirty-day requirement in this case in the interest of justice and reach the merits of the Petitioner’s
contentions regarding the proper county of filing under Tennessee Code Annotated section 29-21-
105. See Tenn. R. App. P. 4(a). We do so in part because prior to our holding in this case regarding
the Petitioner’s Rule 59 motion, it was unclear whether his filing of that motion pursuant to the rules
of civil procedure would extend the time normally afforded to file a notice of appeal.
         II.    Proper county of filing under Tennessee Code Annotated section 29-21-105
         Tennessee Code Annotated section 29-21-105 “requires one filing a petition for writ of
habeas corpus to do so with a court or judge nearest him, which would generally mean within the
county, unless sufficient reason be given in the petition for not doing so.” Leach v. Avery, 387
S.W.2d 346, 347 (Tenn. 1964). In other words, if a habeas corpus petition is filed in a court other
than the one nearest the petitioner and does not state any reason why it was not filed in the nearest
court, it may be dismissed for failure to comply with this section. See, e.g., Joseph G. Williams, Jr.
v. State, No. E2006-00230-CCA-R3-PC, 2006 WL 3410693, at *3 (Tenn. Crim. App., Knoxville,


         3
           The notice is dated August 21, 2006, but the record does not reflect the date it was delivered to the appropriate
individual at the correctional facility where the Petitioner is incarcerated. See Tenn. R. Crim. P. 49(d); Tenn. R. App.
P. 20(g).

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Nov. 27, 2006). However, if a petition does state a reason explaining why it was filed in a court
other than the one nearest the petitioner, the petition may be dismissed pursuant to this section only
if the stated reason is insufficient. See Tenn. Code Ann. § 29-21-105; Ricky Harris v. Robert
Conley, Warden, No. 02C01-9309-CC-00227, 1994 WL 510501, at *2 (Tenn. Crim. App., Jackson,
Sept. 21, 1994) (Tipton, J., concurring); see also Goforth v. State, 144 S.W.2d 739, 739–40 (Tenn.
1940) (concluding that it was a sufficient reason under the statute to file in a county other than the
county where the parties resided because there was no qualified judge to hear the petition in that
county); Moses Coury v. Bruce Westbrooks, Warden, No. M2003-01800-CCA-R3-PC, 2004 WL
2346151, at *3 (Tenn. Crim. App., Nashville, July 20, 2004) (concluding that “filing in the county
which is more economical for counsel is not a ‘sufficient reason’ under section 29-21-105 for filing
a petition for habeas corpus relief in the court of conviction instead of the court most convenient to
the petitioner”).

        The Petitioner in the present case did state a reason for filing his petition in Davidson
County, where he was convicted, rather than in Hardeman county, where he is incarcerated. He
asserted that because the Davidson County Criminal Court possesses the relevant records regarding
his allegedly illegal sentence and retains the authority to correct his sentence at anytime, it is an
appropriate court in which to file his habeas corpus action. In support of this argument on appeal,
the Petitioner again relies on State v. Noah J. Love, No. E2000-00254-CCA-R3-CD, 2001 WL
523373 (Tenn. Crim. App., Knoxville, May 16, 2001).

       The Petitioner is correct that in Love, it was noted that in Jones, this Court held that when
a habeas corpus petitioner alleges his sentence is illegal, the convicting court may be a proper venue
under the terms of Tennessee Code Annotated section 29-21-105. Love, 2001 WL 523373, at *2.
Specifically, in Jones, this Court stated that:

                Procedurally, the defendant seeking habeas corpus relief should apply to the
        court most convenient in distance unless a sufficient reason exists to apply elsewhere.
        Tenn. Code Ann. § 29-21-105. We note that the convicting court possesses all of
        the records relevant to a defendant’s sentence. Also, the issue relates to a void
        sentence, which the convicting court can correct at any time, not a void conviction
        in terms of the verdict of guilt. We believe these circumstances provide a sufficient
        reason for a defendant striving to correct an illegal sentence to file his habeas corpus
        petition in the convicting court.

Jones, 2000 WL 1520012, at *2.

         However, other opinions and orders issued by this Court have concluded that the possession
of relevant sentencing records and the authority to correct an illegal sentence was not a sufficient
reason to file in the convicting court rather than the closest court. See, e.g., James M. Grant v. State,
No. M2006-01368-CCA-R3-HC, 2006 WL 2805208, at *2–3 (Tenn. Crim. App., Nashville, Oct. 2,
2006) (memorandum opinion). In Grant, the habeas corpus petitioner argued that a sufficient reason
for filing in the convicting court, rather than the court closest in point of distance, was that “the
convicting court can correct an illegal sentence at any time and is in possession of records pertaining
to the sentence,” and this Court ruled that it had “repeatedly held that this is not a sufficient reason

                                                  -6-
for filing in a court other than one where the petitioner is located.” Id. at *3 (citing Larry L.
Halliburton v. State, No. W2001-00755-CCA-R3-CO, 2002 WL 1558611, at *2 (Tenn. Crim. App.,
Jackson, Jan. 30, 2002), perm. to app. denied, (Tenn. July 1, 2002); Jimmy Wayne Wilson v. State,
No. 03C01-9806-CR-00206, 1999 WL 420495, at *2 (Tenn. Crim. App., Knoxville, June 24, 1999),
perm. to app. denied, (Tenn. Nov. 22, 1999); Charles Bryant v. State, No. 03C01-9803-CR-00115,
1999 WL 274849, at *1 (Tenn. Crim. App., Knoxville, May 4, 1999)); see also Marvin Anthony
Matthews v. State, No. W2003-00106-CCA-R3-CO, 2003 WL 23100812, at *1 (Tenn. Crim. App.,
Jackson, Dec. 31, 2003) (memorandum opinion). However, all of these opinions also concluded that
the petition in question was fatally deficient in other ways as well.

         This Court’s unpublished opinions are split on this issue. After due consideration, we hold
that when a habeas corpus petitioner asserts that his sentence is illegal, the fact that the convicting
court possesses relevant records and retains the authority to correct an illegal sentence at anytime
is a sufficient reason under Tennessee Code Annotated section 29-21-105 for the petitioner to file
in the convicting court rather than the court closest in point of distance. See Jones, 2000 WL
1520012, at *2; see also Burkhart, 566 S.W.2d at 873. We note that convicting courts will retain the
ability to summarily dismiss petitions when the petition fails to state a cognizable claim for relief,
see Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994); Coury, 2004 WL 2346151,
at *3 (citing Tenn. Code Ann. § 29-21-109), but if it is apparent on the face of the judgment or from
the record of the proceedings that the sentence the court previously imposed is illegal (i.e., in direct
contravention of an express statutory provision), the convicting court can correct the sentence.

                                               Conclusion
        Based on the foregoing authorities and reasoning, we conclude that the Petitioner’s motion
to alter and amend filed pursuant to the Tennessee Rules of Civil Procedure does not affect the
jurisdiction of this Court in this appeal and that the Petitioner did provide a sufficient reason for
filing his petition in the convicting court rather in the court closest in point of distance. As such, we
reverse the habeas corpus court’s order of summary dismissal and remand for the appointment of
counsel and further proceedings consistent with this opinion.


                                                        ______________________________
                                                        DAVID H. WELLES, JUDGE




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