IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs December 21, 2010

PHILLIP McCORMICK v. STATE OF TENNESSEE

Appeal from the Knox County Criminal Court

No. 93445 Bobby R. McGee, Judge

No. E2010-00987-CCA-MR3-HC - Filed April 5, 2011

The Petitioner, Phillip McCormick, appeals pro se the Knox County Criminal Court’s

summary dismissal of his petition for habeas corpus relief from the remainder of his fortyyear sentence for a 1984 conviction. The Petitioner contends that (1) the trial court erred by

finding that the State did not relinquish jurisdiction when it surrendered him to federal

authorities to serve concurrent federal and state sentences for felonies he committed while

on parole, (2) the State violated his due process rights by failing to hold a parole revocation

hearing before transferring him, and (3) the trial court erred by dismissing his petition

without appointing counsel. We affirm the judgment of the trial court.

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

JOSEPH M.TIPTON,P.J., delivered the opinion of the Court, in which JAMESCURWOODWITT,

JR., and D. KELLY THOMAS, JR., JJ., joined.

Phillip McCormick, Coleman, Florida, pro se.

Robert E. Cooper,Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; and

Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee.

OPINION

The Petitioner was sentenced by a Tennessee state court in 1984 to forty years in

prison. In his brief, the Petitioner states that the underlying offense was bank robbery, but

the record does not contain the 1984 judgment. The Petitioner was released on parole in

1998. On August 5, 1998, he was convicted of bank robbery in the United States District

Court, Eastern District of Tennessee, for an offense that occurred on January 23, 1998. The

federal court sentenced him to 172 months’ incarceration. On August 19, 1998, he was

served with a state parole violation warrant for violation of his parole from the 1984 state
sentence. Also on August 19, 1998, he pled guilty in the Knox County Criminal Court to

aggravated robbery, a Class B felony, for an offense that occurred on January 21, 1998. He

was sentenced as a Range II, multiple offender to fourteen years’ incarceration, to be served

concurrently with the federal sentence and consecutively to the parole violation. The

Petitioner was remanded to the custody of the United States Marshals and incarcerated in a

federal facility.

The Petitioner filed a “Motion to Quash and/or Purge Warrant for Parole Violation

and/or Writ of Habeas Corpus” on January 5, 2010. In dismissing the motion, the trial court

stated:

The defendant is currently serving a Federal sentence for bank

robbery. The Parole Board currently has an active warrant for

the defendant due to the fact that he absconded while on parole

and committed the above mentioned bank robbery. Due to the

fact that he absconded and committed an offense, he is not

eligible to serve his state sentence concurrently with the federal

sentence, it must be served consecutively. Therefore, after a

thorough search of all records, the Court is of the opinion that

the defendant’s Motion should be DISMISSED.

The Petitioner filed a motion to reconsider with the trial court on May 6, 2010, in

which he requested, among other forms of relief, that the trial court judge recuse himself

because the judge previously represented the Petitioner. On the same date, the Petitioner

filed a motion to enlarge the time for filing a notice of appeal with this court and provided

attachments showing that he had not received the trial court’s March 11, 2010 order until

April 28, 2010. On May 25, 2010, this court granted the Petitioner’s motion and waived the

requirement for a notice of appeal. In the meantime, the trial court entered an order on May

12, 2010, recusing the trial court judge and reassigning the case to another criminal court

division. The Petitioner then filed a motion to stay his appeal with this court. This court

denied the motion on June 16, 2010, on the ground that a motion to reconsider was not a

pleading that could affect the tolling of a notice of appeal or maintain jurisdiction in the trial

court. See T.R.A.P. 4(c). This court has jurisdiction in the case. See id. at 4(a).

On appeal, the Petitioner contends that the trial court erred by finding that the State

did not relinquish jurisdiction when it surrendered him to federal authorities to serve

concurrent federal and state sentences for felonies the Petitioner committed while on parole.

The State contends that the Petitioner has filed an insufficient record for habeas corpus

review and that his claim is not cognizable for habeas corpus relief. We agree that the

Petitioner’s claim is not cognizable for habeas corpus relief.

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The determination of whether habeas corpus relief should be granted is a question of

law, which we review de novo on appeal. Hart v. State, 21 S.W.3d 901, 903 (Tenn. 2000).

Habeas corpus relief will be granted when the petitioner can show that a judgment is void,

not merely voidable. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). In Tennessee, habeas

corpus relief is available only when it appears on the face of the judgment or the record that

the trial court was without jurisdiction to convict or sentence the petitioner or that his

sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). The burden is on

the petitioner to establish that the judgment is void or that the sentence has expired. State ex

rel. Byrd v. Bomar, 381 S.W.2d 290, 291-92 (Tenn. 1964). The trial court may summarily

dismiss a petition for writ of habeas corpus relief when the petitioner does not state a

cognizable claim. Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004).

The Petitioner’s challenge is to the validity of the 1998 judgment, which he included

in the record. That judgment orders him to serve concurrent state and federal sentences

consecutively to his parole violation. The restraint on the Petitioner’s liberty at issue is the

resumption of his forty-year sentence as a result of his parole violation. He argues that the

State was statutorily required to have him complete his original forty-year sentence before

remanding him to federal custody to serve his concurrent federal and state sentences. The

statute on which the Petitioner relies states in pertinent part:

Any prisoner who is convicted in this state of a felony,

committed while on parole from a state prison, jail or

workhouse,shallserve the reminder of the sentence under which

the prisoner was paroled, or part of that sentence, as the board

may determine before the prisoner commences serving the

sentence received for the felony committed while on parole. If

any prisoner while on parole from a state prison, jail or

workhouse commits a crime under the laws of another state

government or country which, if committed within this state,

would be a felony, and is convicted of the crime, the director of

probation and parole shall arrange for the return of the prisoner

through the terms of the interstate compact. The board shall require

that the prisoner serve the portion remaining of the maximum term

of sentence or part of that sentence as the board may determine.

T.C.A. § 40-28-123(a) (2010). 

The Petitioner’s claim can be narrowed to whether the trial court’s judgment, which

correctly ordered consecutive sentences, is void because it did not specify the chronological

order of those sentences. The claim is not cognizable in a habeas corpus action because the

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manner of service of a sentence after parole revocation is to be determined by the Board of

Probation and Parole (“Board”). See id.; State v. Venable, 606 S.W.2d 298, 302 (Tenn.

Crim. App. 1980) (concluding that the trial court’s error in language on the judgment was

inadvertent and “not an attempt to usurp the parole board’s authority to determine how much

of the defendant’s prior sentence should be served before commencement of the instant

sentence”); Calvin Wilhite v. Tenn. Bd. of Parole, No. M2010-00857-COA-R3-CV,

Davidson County, slip op. at 6 (Tenn. Ct. App. Jan. 10, 2011) (holding that the “authority and

discretion” to decide whether the petitioner would serve his parole violation sentence after

he served concurrent state and federal sentences for felonies committed while on parole lay

“solely with the Board”). We conclude that the Petitioner has not alleged any facial error in

the trial court’s 1998 judgment that would render the judgment void. As to the discretionary

action of the Board, this court does not have jurisdiction to review such an action. See Long

v. Tenn. Bd. of Prob. & Parole, 143 S.W.3d 787, 793 (Tenn. Crim. App. 2004) (“Exclusive

jurisdiction for judicial review of an action of the Board of Probation and Parole lies with the

Chancery Court of Davidson County through a writ of certiorari.”).

The Petitioner also contends that the State violated his right to due process when it

transferred him from state to federal custody without first holding a parole revocation

hearing. The constitutional claim of a right to due process is not cognizable in a habeas

corpus proceeding. See Summers, 212 S.W.3d at 261 (contrasting post-conviction

proceedings, which “may challenge a conviction or sentence that is alleged to be void or

voidable because of the abridgement of constitutional rights,” to habeas corpus procedures,

which are for the narrow purpose of challenging a void judgment). We note also that setting

the date of a revocation hearing is another discretionary action of the Board and is outside

the jurisdiction of this court. See T.C.A. § 40-28-122(d) (2006); Long, 143 S.W.3d at 793.

The Petitioner is not entitled to relief.

Finally, the Petitioner contends that the trial court erred by dismissing his petition

without appointing counsel. Appointment of counsel for an indigent petitioner is only

necessary when the petition alleges facts that would justify relief. Hickman, 153 S.W.3d at

20. Because the Petitioner’s claims are not cognizable in a habeas corpus proceeding, we

conclude that the trial court did not err by summarily dismissing the petition without

appointing counsel.

In consideration of the foregoing and the record as a whole, the judgment of the trial

court is affirmed.

____________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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