# FILED
December 18, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE OCTOBER 1997 SESSION

DAVID ELZEY, * C.C.A. # 03C01-9703-CR- 00097 Appellant, * JOHNSON COUNTY VS. * Hon. Lynn Brown, Jud ge STATE OF TENNESSEE, * (Habeas Corpus)

Appellee. *

For Appellant : For Appellee : David Elzey, Pr

o Se John Knox Walkup NECC # 10095 Attorney General and Reporter P.O. Box 5000 Mountain City, TN 37683 Peter M. Coughlan Assistant Attorney Gener al 425 Fifth Avenue North Second Floor, Co rdell 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, JUDGE2 OPINION The petitioner, David Elz ey, filed a petition for habeas c orpus relief which was denied by

the trial court. In thi s appeal of right, the petiti oner complains that an extension of his rele ase eligibility date by twenty perc ent pursuant to the policy 502.02 of the Department of C orrection constituted cr uel and unusual punishment contrary to the state and federal constitu tions, a violation of the ex post facto clause of the state and federal constitutions, and an unauthoriz ed exercise of adminis trative au thority.

We affirm the judgment of the trial court.
The petitioner has alleged tha t he was convicted on August 1, 1988, of six separate crimes oc

curring in Hardin C

ounty 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 Tur ney Center prison facili ty in Only, Tennessee, and was apprehended the next day. Because of the escape, the Department of Correction increased hi s release eligibili ty date under his orig inal sentences by twenty percent.

In this state, a writ

of habeas corpus may be grante d only when a petitioner has established l ack of jurisdiction for the or der of confinement or that he is otherwise entitl ed to immediate release because of the ex piration 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 (Te nn. 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, how ever, is availabl e only when it appears on the face of3 the judgment or the record that the trial court wa s without jurisdic

tion to convict or sentence the defendant or that the sentence or imprisonment has otherw ise 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 propri ety of a release eligib ility date or quest ions about parole or sentence credi ts have no bearing upon the validity of the convictions. Questions such as this, because the Dep artment of Correction is an agency of the state governmen t, should be addre ssed thro ugh the Ad ministra tive 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. Wel les, Judge

_____________________________ Jerry L. Smith, Judge