         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs April 5, 2005

                   RANDY L. MAY v. KEVIN MYERS, WARDEN

                       Appeal from the Circuit Court for Wayne County
                            No. 13464     Robert L. Jones, Judge



                    No. M2004-01957-CCA-R3-HC - Filed August 10, 2005


The petitioner, Randy L. May, sought a writ of habeas corpus from the Wayne County Circuit Court,
claiming that his 1981 life sentence had been rendered void by the Board of Probation and Parole’s
order that not only denied parole but also mandated, according to the petitioner, that he serve the
balance of his sentence. The circuit court granted the state’s motion to dismiss the petition without
a hearing, and the petitioner appealed. We affirm the dismissal of the petition.

                Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which DAVID H. WELLES and
J.C. MCLIN , JJ., joined.

Randy L. May, Appellant, Pro Se.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General; T.
Michel Bottoms, District Attorney General; and Helena Walton Yarbrough, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                             OPINION

                 The petition alleges that in 1981 the Hamblen County Circuit Court sentenced the
petitioner to a life sentence that, according to the applicable law at the time, was subject to parole.
The petitioner apparently appeared before the Board of Probation and Parole on February 6, 2002.
The petition alleges that on March 4, 2003, the Board denied parole and “ordered the Petitioner to
‘Serve Balance of Sentence.’” However, the copy of the “Notice of Board Action” attached to the
petition merely sets forth a checked box beside the printed statement, “Decline Balance of Sentence.”
The state moved to dismiss the petition on the basis that the claim for relief was not cognizable in
an action for a writ of habeas corpus, and the petitioner filed a timely notice of appeal.

              The legal issues raised on denying a habeas corpus petition are questions of law, and
our review of questions of law is de novo. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000)
(“[W]hether to grant the petition [for habeas corpus relief] is a question of law that we review de
novo.”); State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (question of law reviewed on appeal de
novo).

                Habeas corpus relief is available only when the aggrieved party’s conviction is void
or the sentence has expired. See Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). The petitioner
in the present case makes no allegation that his sentence has expired; he claims that the Board of
Probation and Parole’s pretermission of further parole consideration renders his sentencing judgment
void.

                 A void conviction is one which strikes at the jurisdictional integrity of the trial court.
 Id.; see State ex rel. Anglin v. Mitchell, 575 S.W.2d 284, 287 (Tenn. 1979) (“‘Jurisdiction’ in the
sense here used, is not limited to jurisdiction of the person or of the subject matter but also includes
lawful authority of the court to render the particular order or judgment whereby the petitioner has
been imprisoned.”); Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

               The invalidity of the sentence itself, as well as the broader invalidity of the
conviction, results in a void judgment and is a sufficient basis for habeas corpus relief. See
Stephenson v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (a void sentence, as well as a void
conviction, may result in a void judgment and be the subject of a habeas corpus proceeding).

                A summary dismissal of a petition for habeas corpus relief is authorized when “the
plaintiff would not be entitled to any relief.” Tenn. Code Ann. § 29-21-109 (2000). Although
counsel should be appointed when issues presented in the petition could be the basis of habeas
corpus relief if supporting facts were properly developed and proven, see McLaney v. Bell, 59
S.W.3d 90, 94-95 (Tenn. 2001), the court may summarily dismiss the petition without the
appointment of counsel when it sets forth no facts supporting the issuance of the writ, Randall
Carver v. State, No. M2002-02891-CCA-R3-CO, slip op. at 4 (Tenn. Crim. App., Nashville, May
16, 2003) (summary dismissal of habeas corpus petition and failure to appoint counsel affirmed
when the record “is sufficient to show that the petitioner’s claims do not entitle him to relief”;
distinguishing McLaney ).

                 “Parole is a privilege and not a right.” James R. Miller v. State, No. 03C01-9608-
CR-00288, slip op. at 5 n.2 (Tenn. Crim. App., Knoxville, Oct. 10, 1997). Moreover, “[r]elease
eligibility for a felon establishes only eligibility for release and is not an absolute right.” Id. A
prisoner’s attainment of release eligibility does not equate to his serving his sentence and provides
no entitlement to immediate release. Carl Ed Leming v. State, No. 03C01-9603-CC-00119, slip op.
at 3 (Tenn. Crim. App., Knoxville, Apr. 22, 1997). Additionally, “parole board decisions are
reviewable only by a petition for writ of certiorari which must be filed within sixty days.” James
R. Miller, slip op. at 5 n.2.

              To support his claim that the parole board’s decision effectively annulled his
sentencing judgment, the petitioner relies primarily upon Baldwin v. Tennessee Board of Paroles,


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125 S.W.3d 429 (Tenn. Ct. App. 2003). In Baldwin, the Court of Appeals overturned a parole board
decision to defer further parole hearings for Baldwin for a period of 20 years. The court said,

                [T]he Board’s decision constitutes an arbitrary withdrawal of the
                power to parole from future Board members, and . . . a twenty-year
                deferral would undermine the very provisions of the parole statutes
                that empower the Board to grant parole. In addition, the essential
                effect of the Board’s action is to change Mr. Baldwin’s sentence to
                life without parole, contrary to what the Legislature intended. We
                think Mr. Baldwin has stated a cause of action which entitles him to
                the writ of certiorari. Therefore, we reverse the chancellor’s order
                dismissing his claim that the Board acted arbitrarily in deferring the
                next consideration of parole for him for twenty years.

Id. at 434.

                The legal fallacy in the petitioner’s claim is that he sought the issuance of a writ of
habeas corpus and not that of certiorari. The petitioner in Baldwin sought a direct review of the
parole board’s action via a petition for a writ of certiorari, the prescribed and exclusive manner for
challenging such actions. See Tenn. Code Ann. § 40-28-115 (2003); James R. Miller, slip op. at 5
n.2. Conversely, the present petitioner’s collateral challenge via habeas corpus is not sustainable.
His sentence has not expired, and he alleges no jurisdictional infirmity in his conviction judgments
that would afford a basis for habeas corpus relief. Thus, even if the parole board’s action may be
fairly characterized as requiring him to serve the balance of his sentence without further parole
consideration, and even if such action may be deemed arbitrary per Baldwin, the claim is not
cognizable in the manner presented.

                Finally, we note that in his reply brief, the petitioner claimed that the parole board’s
action effectively rendered his guilty plea involuntary and unknowing. This claim, however, is also
not cognizable in a habeas corpus proceeding. Judgments resulting from involuntary or unknowing
guilty pleas are merely voidable and are subject to attack via a petition for post-conviction relief, not
one for habeas corpus relief. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).

                Therefore, the judgment of the circuit court is affirmed.




                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




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