Elzey v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER 1997 SESSION
December 18, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
DAVID ELZEY, * C.C.A. # 03C01-9703-CR-00097
Appellant, * JOHNSON COUNTY
VS. * Hon. Lynn Brown, Judge
STATE OF TENNESSEE, * (Habeas Corpus)
Appellee. *
For Appellant: For Appellee:
David Elzey, Pro Se John Knox Walkup
NECC # 10095 Attorney General and Reporter
P.O. Box 5000
Mountain City, TN 37683 Peter M. Coughlan
Assistant Attorney General
425 Fifth Avenue North
Second Floor, Cordell Hull Building
Nashville, TN 37243-0493
David E. Crockett
District Attorney General
Route 19, Box 99
Johnson City, TN 37601
OPINION FILED:_____________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The petitioner, David Elzey, filed a petition for habeas corpus relief
which was denied by the trial court. In this appeal of right, the petitioner complains
that an extension of his release eligibility date by twenty percent pursuant to the
policy 502.02 of the Department of Correction constituted cruel and unusual
punishment contrary to the state and federal constitutions, a violation of the ex post
facto clause of the state and federal constitutions, and an unauthorized exercise of
administrative authority.
We affirm the judgment of the trial court.
The petitioner has alleged that he was convicted on August 1, 1988, of
six separate crimes occurring in Hardin County and on September 1, 1988, of one
crime in Tipton County. He concedes that on June 4, 1990, while lawfully
incarcerated, he escaped from the Turney Center prison facility in Only, Tennessee,
and was apprehended the next day. Because of the escape, the Department of
Correction increased his release eligibility date under his original sentences by
twenty percent.
In this state, a writ of habeas corpus may be granted only when a
petitioner has established lack of jurisdiction for the order of confinement or that he
is otherwise entitled to immediate release because of the expiration of his sentence.
See Ussery v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell,
443 S.W.2d 839 (Tenn. Crim. App. 1969). A "person imprisoned or restrained of his
liberty, under any pretense whatsoever, ... may prosecute a writ of habeas corpus,
to inquire into the cause of such imprisonment...." Tenn. Code Ann. § 29-21-101.
The writ of habeas corpus, however, is available only when it appears on the face of
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the judgment or the record that the trial court was without jurisdiction to convict or
sentence the defendant or that the sentence or imprisonment has otherwise expired.
Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60,
62 (Tenn. 1992).
A challenge to the propriety of a release eligibility date or questions
about parole or sentence credits have no bearing upon the validity of the
convictions. Questions such as this, because the Department of Correction is an
agency of the state government, should be addressed through the Administrative
Procedures Act. Tenn. Code Ann. §§ 4-5-101 to -324. Thereafter, any judicial
review must first be in the chancery court. Brigham v. Lack, 755 S.W.2d 469, 471
(Tenn. Crim. App. 1988); Tenn. Code Ann. § 4-5-323.
Accordingly, the judgment dismissing the writ of habeas corpus is
affirmed.
________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
David H. Welles, Judge
_____________________________
Jerry L. Smith, Judge
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