        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs August 14, 2012

              FLETCHER GORDON v. STATE OF TENNESSEE

              Direct Appeal from the Circuit Court for Hickman County
                       No. 11CV33      Timothy Easter, Judge




              No. M2011-02356-CCA-R3-HC- Filed September 12, 2012


The Petitioner, Fletcher Gordon, pled guilty to second degree murder. The trial court
sentenced him to twenty-three years in the Tennessee Department of Correction, and it
awarded him no jail credit. The Petitioner filed a petition for writ of habeas corpus, alleging
that the trial court failed to award him pretrial jail credit. He asserted that he was
incarcerated pending arraignment and trial from December 20, 2004, to August 24, 2006.
The State filed a motion to dismiss the Petitioner’s motion based upon the Petitioner’s failure
to provide documentation supporting his claim. The trial court granted the State’s motion
to dismiss the Petitioner’s petition for writ of habeas corpus. On appeal, the Petitioner
contends that the trial court improperly dismissed his petition. After a thorough review of
the record and applicable authorities, we affirm the habeas corpus court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which J ERRY L. S MITH and
C AMILLE R. M CM ULLEN, JJ., joined.

Fletcher Gordon, Only, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney
General; and Kim Helper, District Attorney General, for the appellant, State of Tennessee.


                                          OPINION

                              I. Facts and Procedural History

       This is the second petition for habeas corpus relief filed by the Petitioner. In the first,
we summarized the underlying facts of the case as follows:

             The record before us reveals that on June 10, 2005, the Davidson
       County Grand Jury returned a multi-count indictment charging the [P]etitioner
       with first degree premeditated murder, felony murder, and especially
       aggravated robbery. The indictment alleged that all of the offenses were
       committed on December 20, 2004.

               On August 21, 2006, the [P]etitioner pled guilty to second degree
       murder as a lesser-included offense of first degree murder, in exchange for a
       standard Range I sentence of twenty-three years, one hundred percent of which
       was to be served in confinement. Additionally, the plea agreement provided
       that the remaining charges were to be dismissed.

               Subsequently, on November 3, 2008, the [P]etitioner filed a petition for
       a writ of habeas corpus, alleging that his sentence was imposed under the 2005
       amendments to the 1989 Sentencing Reform Act. The [P]etitioner contended
       that the trial court violated his constitutional rights by sentencing him under
       the 2005 amendments for an offense he committed in 2004, before the
       inception of the amendments. He said that he did not “properly waive his ex
       post facto rights”; therefore, his sentence is illegal and void.

               Without appointing counsel or conducting an evidentiary hearing, the
       habeas corpus court dismissed the petition, finding that the judgment was
       facially valid. Additionally, the court noted that the petitioner’s sentence was
       imposed by agreement; therefore, there was no sentencing hearing and the
       petitioner’s ex post facto rights were not violated. On appeal, the petitioner
       contests this ruling.

Fletcher Gordon a.k.a. Gordon Fletcher v. State, No. M2009-00344-CCA-R3-HC, 2010 WL
596440, at *1 (Tenn. Crim. App., at Nashville, Feb. 19, 2010), no Tenn. R. App. P. 11
application filed.

        When the Petitioner appealed his first habeas corpus petition to this Court, we noted
that the Petitioner’s sentence was the result of a plea agreement and that, accordingly, there
was nothing in the record to prove that the trial court impermissibly sentenced the Petitioner
under the 2005 amendments to the Sentencing Act. We held that the Petitioner’s
twenty-three-year sentence fell within his sentencing range and, therefore, the Petitioner’s
sentence was facially valid. As a result, we, affirmed the habeas corpus court’s dismissal of
his petition.

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        The Petitioner then filed this, his second habeas corpus petition, alleging that the
habeas corpus court failed to properly award him mandatory jail credits. The Petitioner
attached a copy of his judgment to his petition. The State filed a motion to dismiss the
habeas corpus petition, in which it contended that, to be entitled to habeas corpus relief on
these grounds, a petitioner must prove (1) that he was incarcerated “pending arraignment and
trial” on the offense or offenses that led to the challenged convictions or “subsequent to” the
challenged conviction or convictions and (2) that the trial court failed to award credit for the
incarceration on the challenged judgment. Further, the State alleged that a petitioner must
make those two showings with “pertinent documents form the record of the underlying
proceedings.” The State asserted that the Petitioner attached a copy of the judgment of
conviction, which indicated that the Petitioner pled guilty to second degree murder and
received a sentence of twenty-three years. The judgment also indicated that no jail credit was
awarded. The State noted that the Petitioner’s claim must fail because the Petitioner did not
attach anything to substantiate his claim that he was incarcerated pending arraignment
between December 20, 2004, and August 24, 2006.

        The habeas corpus court reviewed the Petitioner’s petition and the State’s motion to
dismiss, after which it summarily dismissed the Petitioner’s petition. It is from this judgment
that the Petitioner now appeals.

                                         II. Analysis

       On appeal, the Petitioner contends that the habeas corpus court erred when it
dismissed his petition for habeas corpus relief. He asserts that his judgment, which shows
that he was not awarded any jail credit, is sufficient documentation to support his claim.

        Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas
corpus relief. See Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007). Although the right
is guaranteed in the Tennessee Constitution, the right is governed by statute. T.C.A. § 29-21-
101 et. seq. (2006). The determination of whether habeas corpus relief should be granted is
a question of law and is accordingly given de novo review. Smith v. Lewis, 202 S.W.3d 124,
127 (Tenn. 2006); Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000). Although there is no
statutory time limit preventing a habeas corpus petition, the grounds upon which relief can
be granted are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). It is the
burden of the petitioner to demonstrate by a preponderance of the evidence that “the sentence
is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).
Moreover, it is permissible for a court to summarily dismiss a petition for habeas corpus
relief, without the appointment of counsel and without an evidentiary hearing, if the
petitioner does not state a cognizable claim. See Hickman v. State, 153 S.W.3d 16, 20 (Tenn.
2004).

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        Tennessee Code Annotated section 40-23-101(c) provides that the trial court “shall,
at the time the sentence is imposed . . . 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 . . . pending arraignment and trial.” Due to this statutory mandate for
the trial court to credit a defendant with pretrial jail time, the failure to do so creates an
illegal sentence which is a cognizable claim for habeas corpus relief. Tucker v. Morrow, 335
S.W.3d 116, 123 (Tenn. Crim. App. 2009).

       In Tucker, this Court stated:

       [T]o mount a sustainable habeas corpus challenge regarding the award of
       pretrial jail credits a petitioner must establish that the trial court failed to award
       him the pretrial jail credits he earned under Code section 40-23-101(c). To
       establish the substance of his claim and bring the claim within the ambit of
       habeas corpus review, the petitioner must show (1) that he was incarcerated
       “pending arraignment and trial” on the offense or offenses that led to the
       challenged convictions or “subsequent to” the challenged conviction or
       convictions and (2) that the trial court failed to award credit for the
       incarceration on the challenged judgment. Any other claim of error in the
       award of pretrial jail credits would render the judgment voidable rather than
       void and would not be a cognizable claim for habeas corpus relief. See
       Edwards v. State, 269 S.W.3d 915, 924 (Tenn. 2008) (observing that “habeas
       corpus relief is not available to remedy non-jurisdictional errors, i.e., factual
       or legal errors a court makes in the exercise of its jurisdiction”).

               To satisfy the procedural requirements for habeas corpus relief and to
       avert a summary dismissal, the petitioner must make the enumerated showings
       “with pertinent documents from the record of the underlying proceedings.”
       Summers [v. State], 212 S.W.3d [251], 262 [(Tenn. 2007)]. Thus, a petitioner
       who claims entitlement to habeas corpus relief from a sentence rendered illegal
       by the trial court’s failure to award mandatory pretrial jail credits must exhibit
       to his petition sufficient documentation from the record to establish that he is
       indeed entitled to pretrial jail credit under Code section 40-23-101 as indicated
       above and that the trial court erroneously failed to award it. Summers clearly
       requires that documents supporting a claim for habeas corpus relief must come
       from the record of the underlying proceedings. Summers, 212 S.W.3d at 262.
       Because TOMIS reports are generated by the Department of Correction
       following an inmate’s transfer to prison, they would not be considered a part
       of the record of the underlying proceedings. In consequence, a TOMIS report
       cannot be used to establish a claim for habeas corpus relief. Any disagreement

                                                -4-
       regarding the information in TOMIS reports should be addressed via the
       Uniform Administrative Procedures Act.

Id. at 123-24.

        In the case under submission, we agree with the habeas corpus court that the
Petitioner’s attachment of only his judgment in support of his contention is insufficient
documentation that he is entitled to relief. While the judgment does reflect that the Petitioner
was awarded no jail credits, it in no way indicates to what, if any, jail credits the Petitioner
was entitled. The Petitioner has not, therefore, proven that he is entitled to habeas corpus
relief.

                                       III. Conclusion

       In accordance with the aforementioned reasoning and authorities, we conclude that
the habeas corpus court properly summarily dismissed the Petitioner’s petition for habeas
corpus relief. The trial court’s judgment is, therefore, affirmed.




                                                    _________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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