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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

KENDRICK KELLY v. DAVID G. MILLS, WARDEN

Direct Appeal from the Circuit Court for Lauderdale County

No. 5846 Joe H. Walker, Judge

No. W2004-01106-CCA-R3-HC - Filed October 8, 2004

The Petitioner, Kendrick Kelly, appeals the trial court's denial of his petition for habeas corpus

relief. The State has filed a motion requesting that this Court affirm the trial court's denial of

relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Because Petitioner has failed

to attach the applicable judgment of conviction to his petition, we grant the State's motion and

affirm the judgment of the lower court.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of

the Court of Criminal Appeals

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES AND

ALAN E. GLENN, JJ. joined.

Kendrick Kelly, pro se.

Paul G. Summers, Attorney General & Reporter; Michael Markham, Assistant Attorney General,

for the appellee, the State of Tennessee.

MEMORANDUM OPINION

On April 8, 2004, the Petitioner Kendrick Kelly filed a petition for habeas corpus/writ of

mandamus in the Circuit Court of Lauderdale County. In the pleading, Petitioner provided

information that he was being confined at West Tennessee State Penitentiary. He further asserted

that on October 27, 1995, he was sentenced to three years for the sale of unlawful controlled
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substances. For this conviction, he served forty-five days; the remainder to be served on

probation. On December 11, 2001, Petitioner was arrested on another drug offense and

absconding from justice. Petitioner eventually entered guilty pleas to these 2001 offenses and

received an eight year sentence for the drug sale and two years for absconding. While confined

by the Department of Correction, Petitioner was provided information indicating that he had an

effective sentence of thirteen years confinement; i.e., eight years for the drug offense, two years

for absconding, and three years for his 1995 probated offense. Petitioner asserts that he is being

illegally confined as his three year probated sentence had expired prior to the commencement of

the 2001 charges. Additionally, he alleges that he has been unconstitutionally denied a hearing as

to the alleged revocation. 

On April 15, 2004, the trial court denied relief for failure of the Petitioner to attach the

judgment or record of the proceedings upon which the judgment was rendered. Moreover, the

trial court determined that, from the allegations contained in the petition, the Petitioner’s

sentence had not expired. On April 22, 2004, Petitioner filed a motion to reconsider the trial

court’s denial. Attached to the motion was the judgment from the Petitioner’s 1995 conviction. 

The record before this Court fails to contain a ruling by the trial court as to this motion.

Habeas corpus relief is available in this state 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

defendant or that the sentence of 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). Unlike the postconviction petition, the purpose of the habeas corpus petition is to contest a void, not merely a

voidable, judgment. State ex rel. Newsome v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189

(1968). A petitioner cannot collaterally attack a facially valid conviction in a habeas corpus

proceeding. Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992); State ex rel. Holbrook v. Bomar,

211 Tenn. 243, 364 S.W.2d 887, 888 (1963).

The Petitioner has failed to establish that he is entitled to habeas corpus relief. 

Significantly, Petitioner has failed to include in support of his petition copies of the Tennessee

judgments he claims are void. Without question, the procedural provisions of the habeas corpus

statutes are mandatory and must be followed scrupulously.” Archer v. State, 851 S.W.2d at 165

(citing Bateman v. Smith, 183 Tenn. 541, 543, 194 S.W.2d 336, 337 (1946)). We agree with the

State that the attachment of a photocopy of the judgment form to his motion to reconsider fails to

cure the deficiency in the actual petition. In view of the Petitioner’s failure to comply with the

mandatory provisions of section 29-21-107, Tennessee Code Annotated, summary dismissal of

the petition was proper. State ex rel. Allen v. Johnson, 217 Tenn. 28, 394 S.W.2d 652, 653

(1965). 

Moreover, even assuming that the attachment of the judgment form to the motion to

reconsider perfected the procedural requirements of the petition, Petitioner has still failed to

establish grounds for which the writ will issue. First, Petitioner has failed to establish that his

sentence has expired. Second, Petitioner has failed to establish that his sentences are illegal. 
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Specifically, as to the Petitioner’s complaints, the petition and the judgment form attached to the

motion to reconsider fail to support the Petitioner’s contention that his 1995 probated sentence

was revoked in 2001, three years after it expired. However, from the documents attached to the

petition, it appears to this Court that the Petitioner challenges the sentencing calculations of the

Department of Correction. The question of whether the Department of Correction is properly

calculating his sentence cannot be raised in a habeas corpus proceeding. To challenge such

calculations, the Petitioner must proceed under the Uniform Administrative Procedures Act in

the Chancery Court for Davidson County, Tennessee.

The Petitioner has not established that he is entitled to habeas corpus relief. He has

alleged neither a facially invalid judgment nor an expired sentence. Accordingly, it is ordered 

that the State’s motion is granted. The judgment of the trial court is affirmed in accordance with

Rule 20, Rules of the Court of Criminal Appeals. 

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JOHN EVERETT WILLIAMS, JUDGE