            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                          JULY SESSION, 1998                FILED
                                                        September 15, 1998

                                                       Cecil W. Crowson
JULIUS S. WATLER,                   )
                                                     Appellate Court Clerk
                                    )   No. 01C01-9707-CR-00238
      Appellant                     )
                                    )   DAVIDSON COUNTY
vs.                                 )
                                    )   Hon. Thomas H. Shriver, Judge
STATE OF TENNESSEE,                 )
                                    )   (Writ of Habeas Corpus)
      Appellee                      )



For the Appellant:                      For the Appellee:

Julius S. Watler, Pro Se                John Knox Walkup
Special Needs Facility                  Attorney General and Reporter
7575 Cockrill Bend Industrial Rd.
Nashville, TN 37209-1057                Elizabeth B. Marney
                                        Assistant Attorney General
                                        Criminal Justice Division
                                        450 James Robertson Parkway
                                        Nashville, TN 37243-0493




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                OPINION



        The appellant, Julius S. Watler, appeals the Davidson County Criminal

Court’s summary dismissal of his application for writ of habeas corpus. Upon

review, we conclude that affirmance of the lower court’s decision is proper.



        The appellant’s application alleges that, pursuant to a plea agreement, on

September 14, 1989, he entered guilty pleas to five counts of an indictment charging

the appellant with sixty counts of sexual battery and rape. The terms of his plea

agreement provided that the appellant would serve twenty-five years at thirty percent

in the Department of Correction. He is currently incarcerated at the Cockrill Bend

Road Special Needs Facility in Nashville.



        On April 18, 1997, the appellant filed a pro se application for writ of habeas

corpus relief alleging that he is being illegally restrained in violation of his plea

agreement.1 Specifically, he avers that he understood his plea agreement and

resulting sentence to mean that he would be released after seven and one-half

years incarceration. Thus, he argues that his guilty plea was not entered knowingly,

or, in the alternative, that a plea agreement is a binding contract and when those

terms are violated the sentence is void under the due process clause of the

Fourteenth Amendment. The trial court summarily dismissed the application as

failing to state a ground for which habeas corpus relief can be granted.



        In Tennessee, habeas corpus relief is only available when a conviction is void

because the convicting court was without jurisdiction or authority to sentence a

defendant, or that a defendant’s sentence has expired and he is being illegally



        1
          In his application, the appellant also challenged the sufficiency of the indictment, alleging
that the indictment failed to set forth the requisite mens rea neces sary for the crime s charg ed.
However, the appellant has failed to raise this issue on appeal and has failed to include the
indictment in the record. Accordingly, this court will not address such claim. Tenn. R. App. P.
27(a)(4), (6), (7); 27(g).

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restrained. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). We agree with the

trial court’s finding that the appellant’s application fails to state a ground for habeas

corpus relief.



        First, it is well established that the voluntariness of a guilty plea may not be

challenged through an application for writ of habeas corpus, as such judgments are

merely voidable and not void. See Archer, 851 S.W.2d at 164. Moreover, previous

panels of this court have found that the failure to grant a prisoner parole upon

reaching his release eligibility date does not create a cognizable ground for habeas

corpus relief.2 See, e.g., Miller v. State, No. 03C01-9608-CR-00288 (Tenn. Crim.

App. at Knoxville, Oct. 10, 1997); Leming v. State, No. 03C01-9603-CC-00119

(Tenn. Crim. App. at Knoxville, Apr. 22, 1997). Parole is a privilege, which is

discretionary upon review of the Board of Pardons and Parole, and not an absolute

right. Tenn. Code Ann. § 40-28-117(a)(1997); Tenn. Code Ann. § 40-35-

503(b)(1997); Doyle v. Hampton, 340 S.W.2d 891, 893 (1960). The fact that parole

results in an inmate being released from confinement does not result in terminating

the original sentence imposed by the sentencing court. Bush v. State, No. 01C01-

9605-CR-00204 (Tenn. Crim. App. at Nashville, Jul. 23, 1997) (citing Howell v.

State, 569 S.W .2d 428, 433 (Tenn. 1978)). Thus, parole eligibility does not cause a

sentence to expire or terminate, but is merely a conditional release from

confinement. See Doyle v. Hampton, 340 S.W.2d at 893.



        An application for the issuance of a writ of habeas corpus may be summarily

dismissed by a trial court if the application fails to indicate that the petitioner’s

conviction is void. See Tenn. Code Ann. §§ 29-21-101; -109 (1980). If the writ is


        2
          Habeas corpus relief is not available to challenge the denial of prison privileges and
related internal matters of our correctional institutions that have no bearing on the validity of the
restraining conviction , the resulting senten ce, or the e xpiration o f the sen tence. Leming, No.
03C01-9603-CC-00119 (citing See, e.g., State v. Warren , 740 S.W.2d 427, 428 (Tenn. Crim. App.
1986)). If the appellant is disgruntled by the Board’s denial of parole, the appropriate method of
challeng ing such an action is by the com mon law writ of ce rtiorari, Thandiwe v. Traugher, 909
S.W .2d 802, 8 03 (Te nn. App . 1994), perm. to appeal denied, (Te nn. 1 995 ), and mu st be filed in
chancery court. Tenn. Cod e Ann. § 27-9-102 (1980 ).

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refused based on the failure of the petition to raise a cognizable claim for relief, any

need for a hearing is obviously pretermitted because there is no justiciable issue

before the court. See State ex rel. Byrd v. Bomar, 214 Tenn. 476, 381 S.W.2d 280

(1963). See generally Tenn. Code Ann. §§ 29-21-101 to -130 (1980 and

Supp.1996). The voluntariness of a guilty plea is not a cognizable claim for habeas

corpus relief nor is the failure of the Board of Paroles to grant parole upon a

prisoner’s reaching his release eligibility date a breach of any plea agreement.

Accordingly, the trial court’s summary dismissal of the appellant’s application for

habeas corpus relief was proper.



       The judgment of the trial court is affirmed.




                                   ____________________________________
                                   DAVID G. HAYES, Judge


CONCUR:



_____________________________________
PAUL G. SUMMERS, Judge



_____________________________________
JERRY L. SMITH, Judge




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