IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

July 18, 2018 Session

STEVEN ANDERSON v. RUSSELL WASHBURN, WARDEN

Appeal from the Circuit Court for Trousdale County

No. 2018-CV-4687 John D. Wootten, Jr., Judge

No. M2018-00661-CCA-R3-HC

The petitioner, Steven Anderson, appeals from the denial of his petition for writ of habeas 

corpus, which petition challenged his 1994 convictions of aggravated robbery, especially 

aggravated robbery, and second degree murder. Because the petitioner has stated 

entitlement to habeas corpus relief in the form of the application of pretrial jail credit, we 

reverse and vacate the order of the habeas corpus court summarily dismissing the 

petition. The cause is remanded to the habeas corpus court so that that court may transfer 

the case to the trial court for the entry of an amended judgment reflecting the appropriate 

award of pretrial jail credit.

Tenn. R. App. P. 3; Judgment of the Circuit Court Reversed and Vacated; 

Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT H.

MONTGOMERY, JR., J., concurred in results only. JOHN EVERETT WILLIAMS, P.J., filed a 

separate dissenting opinion. 

Steven Anderson, Hartsville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; and David H. Findley, Assistant 

Attorney General, for the appellee, State of Tennessee.

OPINION

The petitioner, Steven Anderson, appeals the Trousdale County Circuit 

Court’s denial of his petition for writ of habeas corpus. In 1994, the petitioner pleaded 

guilty to one count of aggravated robbery, one count of especially aggravated robbery, 

and one count of second degree murder. The trial court imposed an effective sentence of 

50 years’ incarceration.

02/05/2019
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In this present petition for habeas corpus relief, the petitioner challenges the 

validity of his judgment, asserting that the trial court failed to award him 13 days credit 

for a certain period of pretrial detention. The habeas corpus court denied the petition on 

the ground that “these allegations lack merit and have been previously determined.” This 

timely appeal followed.

In this appeal, the petitioner again claims entitlement to habeas corpus 

relief on grounds that the trial court failed to award him pretrial jail credit as mandated by 

Code section 40-23-101. The State asserts that summary dismissal was proper both 

because the petitioner’s claim has been previously determined and because a claim 

regarding the failure to award pretrial jail credit is not a cognizable claim for habeas 

corpus relief.

I. Prior Rulings of This Court

The petitioner has filed at least three prior, unsuccessful petitions for 

habeas corpus relief. His first petition did not raise the issue of pretrial jail credit. See 

Steven L. Anderson v. Glen Turner, Warden, No. W2004-00622-CCA-R3-HC, slip op. at 

3 (Tenn. Crim. App., Jackson, Feb. 18, 2005) (Memorandum Opinion) (Anderson I).

In his second petition, the petitioner raised the issue of pretrial jail credit, 

but this court affirmed the denial of the petition, concluding that the petitioner’s “claim 

that the trial court improperly calculated the pre-trial jail credits to reflect his time spent 

in the juvenile court detention center, even if proven, would render the judgments 

voidable rather than void, and is, therefore, not a claim that is cognizable in a habeas 

corpus proceeding” and that “[t]o the extent . . . that Petitioner was denied a portion of his 

pre-trial jail credit by mistake of calculation or by oversight, the proper avenue for relief 

regarding the application of pretrial jail credit is through the Uniform Administrative 

Procedures Act.” Steven Lamont Anderson v. State, No. W2006-00866-CCA-R3-HC, 

slip op. at 4 (Tenn. Crim. App., Jackson, Mar. 2, 2009) (Anderson II). Both of these 

determinations were undercut by the filing of the opinion in Tucker v. Morrow, 335 

S.W.3d 116 (Tenn. Crim. App. 2009), criticized by State v. Brown, 479 S.W.3d 200, 212

(Tenn. 2015), a binding published case, on December 1, 2009. Additionally, this court 

had recognized, even prior to the filing of Tucker, that only the trial court had the power 

to award pretrial jail credit and that the Department of Correction “is powerless to change 

what the trial court awarded or failed to award.” State v. Greg Smith, No. E2003-01092-

CCA-R3-CD, slip op. at 1 (Tenn. Crim. App., Knoxville, Feb. 18, 2004) (Tipton, J., 

concurring); see also, e.g., Stubbs v. State, 393 S.W.2d 150, 154 (Tenn. 1965)

(emphasizing that the statute mandates that the trial court award pretrial jail credit at the 

time of sentencing); Trigg v. State, 523 S.W.2d 375, 375 (Tenn. Crim. App. 1975) 

(same). Moreover, both this court and our supreme court have repeatedly held that the 
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Department of Correction “does not have the authority to ‘correct’ what it perceives to be 

errors, clerical or otherwise, in judgment orders.” See Cantrell v. Easterling, 346 S.W.3d 

445, 457 (Tenn. 2011); see also State v. Burkhart, 566 S.W.2d 871, 873 (Tenn. 1978)

(“The Department of Correction may not alter the judgment of a court, even if that 

judgment is illegal.”); Mark Grimes v. Tony Parker, Warden, No. W2007-00169-CCAR3-HC (Tenn. Crim. App., Jackson, Jan. 14, 2008). The supreme court recently 

reiterated that the duty to award pretrial jail credit resides in the trial court alone. State v. 

Brown, 479 S.W.3d at 212. Thus, contrary to the ruling in Anderson II, any attempt to 

correct the failure to award pretrial jail credit via administrative procedures would have 

been futile.

In affirming the denial of the petitioner’s third habeas corpus petition, this 

court held that the issue of pretrial jail credit had been “previously determined adversely 

to” the petitioner, and refused to address the issue at all. Steven Anderson v. State, No. 

W2013-00975-CCA-R3-HC, slip op. at 3 (Tenn. Crim. App., Jackson, Mar. 31, 2014) 

(Memorandum Opinion) (Anderson III). The court cited to Anderson II and also to 

Anderson I which did not address a pretrial jail credit issue. Anderson III was filed on 

March 31, 2014, after the filing of the opinion in Tucker but before the filing of the 

opinion in Brown on December 2, 2015. Thus, to the extent that in Anderson III we 

applied the substantive holding in Anderson II, that application ran afoul of the binding, 

published opinion in Tucker.

The habeas court concluded, and the State contends on appeal, that these 

prior rulings bar the claim raised by the petitioner in the instant petition because those 

claims were previously considered and rejected by this court. Although couched in terms 

of “previous determination,” the concept at issue is actually that of issue preclusion or 

collateral estoppel.1

“In criminal prosecutions, as in civil litigation, the issue-preclusion 

principle means that ‘when an issue of ultimate fact has once been determined by a valid 

and final judgment, that issue cannot again be litigated between the same parties in any 

future lawsuit.’” Bravo-Fernandez v. United States, 137 S. Ct. 352, 356 (2016) (quoting 

Ashe v. Swenson, 397 U.S. 436, 443 (1970)); see also Massengill v. Scott, 738 S.W.2d 

629, 631 (Tenn. 1987) (“Collateral estoppel operates to bar a second suit between the 

same parties and their privies on a different cause of action only as to issues which were 

actually litigated and determined in the former suit.”). In criminal cases, issue preclusion

has typically been viewed as a “component of the Double Jeopardy Clause” that “bars 

relitigation of an issue of fact or law raised and necessarily resolved by a prior 

 

1

The phrase “previously determined” is most commonly used in the context of a petition for postconviction relief. See T.C.A. § 40-30-106(h).
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judgment.” Bravo-Fernandez, 137 S. Ct. at 356, 358 (citing RESTATEMENT (SECOND) OF 

JUDGMENTS §§ 17, 27, at 148, 250 (AM. LAW INST. 1980); 18 C. Wright, A. Miller, & E. 

Cooper, Federal Practice and Procedure § 4416, at 386 (2d ed. 2002)); see also Ashe, 

397 U.S. at 443.

We note that although no court has resolved the question whether the 

petitioner is entitled to the 13 days’ jail credit as he claims, the ruling in Anderson II

arguably resolved the question whether the petitioner was entitled to seek his jail credit

via a petition for writ of habeas corpus. The determination of the availability of habeas 

corpus relief is a question of law, and the Supreme Court has instructed that questions of 

law are subject to the bar of collateral estoppel. Bravo-Fernandez, 137 S. Ct. at 358. 

That being said, many courts have concluded that the collateral estoppel doctrine is 

subject to what is, essentially, a manifest injustice exception. See, e.g., State v. McBride, 

848 So. 2d 287, 291-92 (Fla. 2003); see also, e.g., Comm'r v. Sunnen, 333 U.S. 591, 599 

(1948). Indeed, as our court of appeals has recognized, “the doctrine of former 

adjudication is not to be ‘rigidly applied,’ but should be ‘qualified or rejected when their 

application would contravene an overriding public policy or result in manifest injustice.’”

In re Bridgestone/Firestone, 286 S.W.3d 898, 905 (Tenn. Ct. App. 2008) (Firestone I) 

(quoting Marlene Indus. Corp. v. N.L.R.B., 712 F.2d 1011, 1017 (6th Cir. 1983)). 

Additionally, “even where the core requirements of issue preclusion are met, an 

exception to the general rule may apply when a ‘change in [the] applicable legal context’

intervenes.” Bobby v. Bies, 556 U.S. 825, 834 (2009) (alteration in original) (quoting 

RESTATEMENT (SECOND) OF JUDGMENTS § 28 (AM. LAW. INST. 1980)); see also Montana 

v. United States, 440 U.S. 147, 157 (1979) (stating that collateral estoppel will not bar a 

relitigation of issues when there have been “significant changes in controlling facts or 

legal principles” since the prior ruling). As our court of appeals has recognized, 

collateral estoppel does not bar “relitigation of the issue in a subsequent action between 

the parties” when “[t]he issue is one of law and . . . a new determination is warranted in 

order to take account of an intervening change in the applicable legal context or 

otherwise to avoid inequitable administration of the laws.” In re Bridgestone/Firestone, 

495 S.W.3d 257, 270 (Tenn. Ct. App. 2015) (Firestone II) (quoting RESTATEMENT 

(SECOND) OF JUDGMENTS § 28 (AM. LAW. INST. 1982)).

As indicated, the rulings issued in Anderson II and relied on in Anderson III

were contrary to the applicable law at the time. Thus, to rely on these previous 

determinations to operate as a procedural bar where no court of competent jurisdiction 

has actually considered the merit of the petitioner’s underlying claim for 13 days’ pretrial 

jail credit could result in a manifest injustice to the pro se petitioner. In addition, our 

supreme court’s opinion in Brown has muddied the waters with regard to the question 

whether a claim that the trial court failed to award pretrial jail credit is cognizable in a 

habeas corpus proceeding, resulting in “an intervening change in the applicable legal 
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context.” Id.; Firestone I, 286 S.W.3d at 905-06 (“Courts in Tennessee and elsewhere 

have stated repeatedly that former adjudication should not be applied if ‘controlling facts 

or legal principles have changed significantly. . . .’” (quoting Detroit Police Officers 

Ass’n v. Young, 824 F.2d 512, 515 (6th Cir. 1987))). For these reasons, we choose not to 

yield to our previous rulings in Anderson II and Anderson III but to consider these issues 

anew. We begin our analysis with the determination whether the trial court’s failure to 

award pretrial jail credit is a cognizable claim for habeas corpus relief.

II. Pretrial Jail Credit as Grounds for Habeas Corpus Relief

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

question of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. 

State, 21 S.W.3d 901, 903 (Tenn. 2000)). Our review of the habeas corpus court’s 

decision is, therefore, “de novo with no presumption of correctness afforded to the 

[habeas corpus] court.” Faulkner, 226 S.W.3d at 361 (citing Killingsworth v. Ted Russell 

Ford, Inc., 205 S.W.3d 406, 408 (Tenn. 2006)).

The writ of habeas corpus is constitutionally guaranteed, see U.S. Const. 

art. 1, § 9, cl. 2; Tenn. Const. art. I, § 15, but has been regulated by statute for more than 

a century, see Ussery v. Avery, 432 S.W.2d 656, 657 (Tenn. 1968). Tennessee Code 

Annotated section 29-21-101 provides that “[a]ny person imprisoned or restrained of 

liberty, under any pretense whatsoever, except in [specified] cases . . . , may prosecute a 

writ of habeas corpus, to inquire into the cause of such imprisonment and restraint.” 

T.C.A. § 29-21-101. Despite the broad wording of the statute, a writ of habeas corpus 

may be granted only when the petitioner has established a 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, 432 S.W.2d at 658; State v. Galloway, 45 Tenn. 

(5 Cold.) 326 (1868). The purpose of the habeas corpus petition is to contest a void, not 

merely a voidable, judgment. State ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189 

(Tenn. 1968). A void conviction is one which strikes at the jurisdictional integrity of the 

trial court. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); see State ex rel. Anglin v. 

Mitchell, 575 S.W.2d 284, 287 (Tenn. 1979); Passarella v. State, 891 S.W.2d 619, 627 

(Tenn. Crim. App. 1994).

Relevant to this case, the Code states that “[t]he trial court shall . . . 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 in . . . juvenile court 

detention . . . pending arraignment and trial.” T.C.A. § 40-23-101(c).

The statute is designed to address the disparity that exists between those 

who can afford to make bond prior to trial and those who cannot. State v. Watkins, 972 
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S.W.2d 703, 705 (Tenn. Crim. App. 1998) (“The purpose of the pretrial jail credit statute 

is to treat those unable to make bail in much the same manner as those that are.”); State v. 

Abernathy, 649 S.W.2d 285, 286 (Tenn. Crim. App. 1983) (“The purpose of the statute 

was to provide jail time credit prior and subsequently to conviction for indigents unable 

to make bond.”). “The legislature in its wisdom recognized an injustice between the 

person of means who could make bond and the person who could not and had to languish 

in jail.” Abernathy, 649 S.W.2d at 286; see also Trigg, 523 S.W.2d at 376 (“[The statute] 

obviously was passed to prevent invidious discrimination between persons of means and 

those of none.”); State v. Teresa Herman, No. M2006-01384-CCA-R3-CD, slip op. at 2 

(Tenn. Crim. App., Nashville, Nov. 5, 2007) (Smith, J., dissenting) (stating that the 

purpose of the pretrial jail credit statute is to ensure that those who lack the ability to 

make bond “are not punished more severely than those” who can afford to do so); see 

also, e.g., Eddie Copeland v. James A. Bowlen, Warden, No. E1999-01753-CCA-R3-CD, 

slip op. at 5 (Tenn. Crim. App., Knoxville, Sept. 11, 2000) (“Pre-trial credits address 

discrepancy between a person of means, who can make bond while awaiting trial, and an 

indigent, who is unable, for economic reasons, to regain at least temporary freedom and 

thus is guaranteed credits for this time in jail.”). Essentially, then, when the trial court 

fails to properly award pretrial jail credit, the result is that the poor defendant receives a 

more severe punishment than his more affluent counterpart solely because of his poverty. 

Cf. State v. Michael Wilson, Sean Kevin Wilson, and Kenneth Quilter, Jr., No. 01C01-

9602-CC-00073, 1997 WL 438175, at *13 (Tenn. Crim. App., Nashville, July 31, 1997)

(observing that by “express[ing] his intention to confine Quilter for a year . . . while at the 

same time disallowing credit for 307 days already served,” “the trial court effectively 

established a confinement period of approximately twenty-two months as a part of a split 

confinement plan”).

Our supreme court has observed that the language of the statute “leaves no 

room for discretion, and when the word ‘shall’ is used in constitutions or statutes it is 

ordinarily construed as being mandatory and not discretionary.” Stubbs, 393 S.W.2d at 

154; see also Brown, 479 S.W.3d at 212 (stating that the “statute requires trial courts to 

award pretrial jail credits”). By its mandatory language, the statute provides a detainee 

with “an absolute right to credit” for “the time spent in jail or prison” that “‘arises out of’ 

the offense for which the sentence against which the credit is claimed.” Trigg, 523 

S.W.2d at 375-76.

In Tucker, this court determined that a claim that the trial court failed to 

award pretrial jail credit was a cognizable claim for habeas corpus relief because “[t]he 

failure of the trial court to credit the petitioner with the credits mandated under Code 

section 40-23-101(c) contravenes the requirements of that statute and results, therefore, in 

an illegal sentence, an historically cognizable claim for habeas corpus relief.” Tucker, 

335 S.W.3d at 123. Following this ruling, in 2013, Tennessee Rule of Criminal 
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Procedure 36.1 was adopted “with its express purpose ‘to provide a mechanism for the 

defendant or the State to seek to correct an illegal sentence.’” Brown, 479 S.W.3d at 208-

209 (quoting Tenn. R. Crim. P. 36.1, Advisory Comm’n Comment). Following the 

adoption of Rule 36.1, our supreme court determined that “the definition of ‘illegal 

sentence’ in Rule 36.1 is coextensive with, and actually mirrors, the definition this Court 

has applied to the term for purposes of habeas corpus proceedings.” State v. Wooden, 

478 S.W.3d 585, 587 (Tenn. 2015).

In Brown, the supreme court addressed the question whether an illegal 

sentence could be challenged under Rule 36.1 after the sentence had expired. The court, 

observing that Rule 36.1 differs from habeas corpus in respect to who may bring the 

motion and the venue in which the petition must be filed but that “[d]espite these 

differences, Rule 36.1 is identical to habeas corpus in other respects,” held that Rule 36.1 

could not be used to challenge an illegal but expired sentence. Brown, 479 S.W.3d at 

209. Despite noting that this conclusion was “dispositive of Mr. Brown’s Rule 36.1 

motion,” the court also addressed “two other issues in order to provide guidance to 

litigants, lawyers, and judges, and to afford Mr. Brown the relief on the law and the facts 

to which he is entitled.” Id. at 212. One of those two issues was the question whether the 

failure to award pretrial jail credit was a cognizable claim for relief in a Rule 36.1 

proceeding.

The supreme court agreed “that a statute requires trial courts to award 

pretrial jail credits,” but it nevertheless concluded that this court erred by holding in 

Tucker “that a trial court’s erroneous failure to comply with this statute renders the 

sentence illegal.” Id. The court reasoned that “[a]lthough pretrial jail credits allow a 

defendant to receive credit against his sentence for time already served, awarding or not 

awarding pretrial jail credits does not alter the sentence in any way, although it may 

affect the length of time a defendant is incarcerated.” Id. The court concluded that “a 

trial court’s failure to award pretrial jail credits does not render the sentence illegal and is 

insufficient, therefore, to establish a colorable claim for relief under Rule 36.1.” Id. at 

213 (emphasis added).

Although the issue in Brown dealt specifically with a Rule 36.1 motion, this 

court has said, albeit often in dicta, that the reasoning in Brown applies likewise to a 

petition for writ of habeas corpus. See, e.g., Christopher Alan Walls v. Grady Perry, 

Warden, No. W2017-00296-CCA-R3-HC, slip op. at 5 (Tenn. Crim. App., Jackson, Jan. 

17, 2018) (citing Anzar McFarland v. State, No. E2017-00212-CCA-R3-HC, slip op at 3 

(Tenn. Crim. App., Knoxville, Aug. 28, 2017)); see also, e.g., Juan A. Hill v. Randy Lee, 

Warden, No. E2018-00749-CCA-R3-HC, slip op. at 3 (Tenn. Crim. App., Knoxville, July 

18, 2018); Brandon Washington v. State, No. W2016-01965-CCA-R3-HC, slip op. at 4 

(Tenn. Crim. App., Jackson, Jan. 10, 2018); Adrian Delk v. Grady Perry, Warden, No. 
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W2016-01394-CCA-R3-HC, slip op. at 4 (Tenn. Crim. App., Jackson, Nov. 30, 2017); 

David Reed v. State, No. W2015-01441-CCA-R3-HC, slip op. at 6 (Tenn. Crim. App., 

Jackson, July 22, 2016); Cory O’Brien Johnson, alias Deshun Marshay Gibbs v. State, 

No. W2016-00087-CCA-R3-HC, slip op. at 4 (Tenn. Crim. App., Jackson, May 3, 2016),

perm. app. denied (Tenn. Dec. 15, 2016); Mario Hawkins v. Michael Parris, Warden, No. 

W2015-00775-CCA-R3-HC, slip op. at 3 (Tenn. Crim. App., Jackson, Jan. 12, 2016); cf.

Kenneth Thompson Anderson v. State, No. M2014-01812-CCA-R3-HC, slip op. at 6

(Tenn. Crim. App., Nashville, Feb. 5, 2016) (applying Brown to conclude that habeas 

corpus relief is unavailable when a petitioner was denied post-judgment jail credit). But 

cf. Carl Jones, Jr. v. Doug Cook, No. E2015-01371-CCA-R3-HC, slip op. at 3 (Tenn. 

Crim. App., Knoxville, May 4, 2016) (holding that a trial court’s failure to award credit 

for time served on community corrections renders the sentence illegal and “is a 

cognizable claim in a habeas corpus proceeding”).

At this juncture, it should be pointed out, although somewhat belatedly, that 

Brown does not compel a conclusion that habeas corpus does not embrace the failure to 

award pretrial jail credit. First, as indicated above, the core holding of Brown is that Rule 

36.1 is not available when “the alleged illegal sentence has expired.” Brown, 479 S.W.3d 

at 211. Thus, the court’s conclusion that the failure to award pretrial jail credit does not 

render the sentence illegal is dicta, although the court expressed its hope that its 

conclusion in this regard would “provide guidance to litigants, lawyers, and judges.” Id.

at 212.

Second, even if the conclusion that pretrial jail credit does not import a 

sentencing issue were not dicta, nothing in Brown compels a conclusion that pretrial jail 

credit is not cognizable in habeas corpus. Brown does not alter existing caselaw that 

viewed the award of pretrial jail credit as a statutorily-imposed, mandatory duty of the 

trial court, a legal predicate which traditionally lies within the general ambit of habeas 

corpus. See, e.g., State v. Samuel L. Giddens, No. M2014-01505-CCA-R3-CD, slip op. at 

11 (Tenn. Crim. App., Nashville, Feb. 20, 2015); Michael W. Belcher v. Daniel Sexton, 

Warden, No. E2013-01325-CCA-R3-HC, slip op. at 4 (Tenn. Crim. App., Knoxville, 

Mar. 6, 2014); Ashad Ra Muhammed Ali v. State, No. W2012-02194-CCA-R3-HC, slip 

op. at 4 (Tenn. Crim. App., Jackson, July 16, 2013). Rather, Brown puts pretrial jail 

credit beyond the pale of Rule 36.1 because it is deemed not to be a sentencing issue. 

The court said that the mandatory award of pretrial jail credit – or more importantly, the 

denial of same – “does not alter the sentence in any way.” Id. Accordingly, the court 

said, “a trial court’s failure to award pretrial jail credits does not render the sentence

illegal and is insufficient, therefore, to establish a colorable claim for relief under Rule 

36.1.” Id. at 213.
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Importantly, nothing in Brown says that an erroneous denial of pretrial jail 

credit would not be cognizable in habeas corpus. To be sure, Brown says that “Rule 36.1 

is identical to habeas corpus” in non-procedural aspects; however, it does not say that 

habeas corpus equates in scope to Rule 36.1. Brown essentially says that the two 

methods for relief are identical only when a sentencing irregularity is the issue. By 

putting pretrial jail credit issues beyond the rubric of sentencing, however, these issues 

lurk outside Brown’s equation between Rule 36.1 and habeas corpus. Rule 36.1 by 

definition addresses only illegal sentences. The writ of habeas corpus is not so limited, 

and, instead, embraces any issue in which the claimed error renders the judgment illegal 

and void. See, e.g., Edwards v. State, 269 S.W.3d 915, 920 (Tenn. 2008) (“The 

determinative issue, then, in every habeas corpus proceeding is whether the challenged 

judgment is void.”) (emphasis added). A judgment is broader than a sentence. See 

Cantrell, 346 S.W.3d at 456 (“[A] judgment in a criminal case includes both a conviction 

and a sentence. This Court has previously recognized that the adjudication of guilt—that 

is, the conviction—and the sentence are distinct and severable components of the 

judgment.”). Thus, although Brown excludes pretrial jail credit cases from the caselaw 

governing illegal sentence claims, it does not foreclose the issue from the play of the 

broader habeas corpus rules.

Although the majority of cases discussing the availability of habeas corpus 

relief have, in recent years, focused on varying forms of illegal sentence claims, issues 

other than the imposition of an illegal sentence may invalidate a judgment and result in 

habeas corpus relief.2

A void judgment is one which shows upon the face of the 

record a want of jurisdiction in the court assuming to render 

the judgment, which want of jurisdiction may be either of the 

person, or of the subject-matter generally, or of the particular 

question attempted to be decided or the relief assumed to be 

given.

New York Cas. Co. v. Lawson, 24 S.W.2d 881, 883 (Tenn. 1930) (emphasis added) 

(citing Chickamauga Trust Co. v. Lonas, 201 S.W. 777 (Tenn. 1918)); Vanvabry v. 

Staton, 12 S.W. 786 (Tenn. 1890); Holmes v. Eason, 76 Tenn. (8 Lea) 755 (1882); Finley 

v. Gaut, 67 Tenn. (8 Baxt.) 149 (1874)). “When the judgment is void, the remedy under 

it is by habeas corpus.” Lynch v. State ex rel. Killebrew, 166 S.W.2d 397, 398 (Tenn. 

1942). An absence of territorial “jurisdiction is cognizable in a habeas corpus 

 

2

Indeed, it was not until 2005 that our supreme court “clarif[ied] that the proper procedure for 

challenging an illegal sentence at the trial level is through a petition for writ of habeas corpus.” Moody v. 

State, 160 S.W.3d 512, 516 (Tenn. 2005).
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proceeding, and . . . if the court of conviction was actually without territorial jurisdiction, 

then the . . . conviction is void.” State v. Ritchie, 20 S.W.3d 624, 631 (Tenn. 2000). 

“[T]he validity of an indictment and the efficacy of the resulting conviction may be 

addressed in a petition for habeas corpus when the indictment is so defective as to 

deprive the court of jurisdiction.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). 

Conviction of an offense not charged in the indictment is a cognizable claim for habeas 

corpus relief when the defendant did not consent to an amendment of the indictment. See 

Demonbreun v. Bell, 226 S.W.3d 321, 324 (Tenn. 2007). In Hickman v. State, the court 

agreed that a conviction record that affirmatively showed the defendant was denied 

counsel would support habeas corpus relief. See Hickman v. State, 153 S.W.3d 16, 25 

(Tenn. 2004).

Because this court has previously treated the failure to award pretrial jail 

credit as an illegal sentence claim, the question whether a pretrial jail credit deficiency 

amounts to a deprivation of the trial court’s jurisdiction has yet to be determined. The 

notion that a trial court’s violation of a clear statutory mandate deprives the court of 

jurisdiction to enter a judgment has emanated largely from “sentencing” cases. So, 

although it is clear that the award of pretrial jail credit is a mandatory duty that lies solely 

within the purview of the trial court and that habeas corpus is not limited to an attack on 

an illegal sentence, it remains unclear whether a violation of the statute mandating the 

award of pretrial jail credit would implicate the general rule of habeas corpus that a lack 

of jurisdiction invalidates a judgment.

As our supreme court has observed, “When an illegality exists within the 

judgment itself, some procedural recourse should be available.” May v. Carlton, 245 

S.W.3d 340, 348 (Tenn. 2008). In Brown, our supreme court suggested that, as was the 

case in Stubbs, a claim regarding deprivation of pretrial jail credit could be raised on 

direct appeal. See Brown, 479 S.W.3d at 213. We point out, however, that Brown’s

conclusion that the award of pretrial jail credit was not a sentencing issue likely shields 

the issue from appellate review for guilty-pleading defendants. Tennessee Rule of 

Appellate Procedure 3(b) provides an appeal as of right for guilty-pleading defendants 

only when (1) “the defendant entered into a plea agreement but explicitly reserved the 

right to appeal a certified question of law dispositive of the case pursuant to and in 

compliance with the requirements of Rule 37(b)(2)(A) or (D) of the Tennessee Rules of 

Criminal Procedure,” (2) “the defendant seeks review of the sentence and there was no 

plea agreement concerning the sentence,” or (3) “the issues presented for review were not 

waived as a matter of law by the plea of guilty or nolo contendere and if such issues are 

apparent from the record of the proceedings already had.” Tenn. R. App. P. 3(b); see 

also Cantrell, 346 S.W.3d at 449 (stating that the category of “‘appealable errors,’

consists of those errors for which the Sentencing Act specifically provides a right of 

direct appeal”); State v. Yoreck, 133 S.W.3d 606, 610 (Tenn. 2004) (“A defendant who 
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has pleaded guilty may only present certain issues on direct appeal because he has a 

limited ‘appeal as of right’ to the Court of Criminal Appeals.”); see also Tenn. R. Crim. 

P. 37(b)3. Thus, the petitioner in the present case had no direct appeal avenue to 

challenge the denial of pretrial jail credit. A petitioner might proceed via Tennessee Rule 

of Criminal Procedure 36 if he could show from the face of the record that the trial court 

had awarded the pretrial jail credit but that the judgment document failed to properly 

reflect the trial court’s order. See Christopher Alan Walls, slip op. at 6-7.4 The issue 

 

3 Rule 37(b) provides:

The defendant or the state may appeal any order or judgment in a 

criminal proceeding when the law provides for such appeal. The 

defendant may appeal from any judgment of conviction:

. . . .

(2) on a plea of guilty or nolo contendere, if:

(A) the defendant entered into a plea agreement under Rule 11(c) but 

explicitly reserved–with the consent of the state and of the court–the 

right to appeal a certified question of law that is dispositive of the case . . 

. .

. . . .

(B) the defendant seeks review of the sentence and there was no plea 

agreement under Rule 11(c); or

(C) the errors complained of were not waived as a matter of law by the 

guilty or nolo contendere plea, or otherwise waived, and if such errors 

are apparent from the record of the earlier proceedings; or

(D) if there is no plea agreement pursuant to Rule 37(b)(2)(A), the 

defendant—with the consent of the court—explicitly reserved the right to 

appeal a certified question of law that is dispositive of the case, and the 

requirements of Rule 37(b)(2)(A)(i)-(ii) are otherwise met[.]

Tenn. R. Crim. P. 37(b)

4 Christopher Alan Walls cites State v. Anthony L. Moore for the proposition that “[w]hen a 

defendant no longer has a direct appeal from the conviction, the appropriate procedure for a defendant to 

address the failure to award pretrial jail credit is a Tennessee Rule of Criminal Procedure 36 motion.” 

Christopher Alan Walls, slip op. at 7 (citing Tenn. R. Crim. P. 36; State v. Anthony L. Moore, No. 

W2016-02601-CCA-R3-CD, slip op. at 2-3 (Tenn. Crim. App., Jackson, Sept. 13, 2017)). Nothing in 

Anthony L. Moore suggests, however, that Rule 36 is the exclusive method for addressing the failure to 

award pretrial jail credit. At issue in Anthony L. Moore was Moore’s claim, made initially via a Rule 36 
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could not be presented in a petition for post-conviction relief because it does not 

implicate the petitioner’s constitutional rights. T.C.A. § 40-30-103 (“Relief under this 

part shall be granted when the conviction or sentence is void or voidable because of the 

abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution 

of the United States.”). In such a situation, as in the case now before us, habeas corpus 

appears to be the only avenue for seeking relief from the departure from a clear statutory 

mandate. Cf. May, 245 S.W.3d at 348 (“Here, the judgment of conviction included an 

illegality. Under similar circumstances, we have held that habeas corpus is the proper 

procedure for challenging an illegality in the judgment document.”).

These observations, however, relate only to the “lack of jurisdiction” rubric 

of habeas corpus. As noted above, habeas corpus relief is also available when the 

sentence under which a petitioner is held has expired. A flat rule that habeas corpus 

could never be used to address a denial of pretrial jail credit would defeat a petition filed 

by an incarcerated petitioner whose sentence would have expired had the pretrial jail 

credit been properly awarded.

For these reasons, we conclude that a properly-filed petition for writ of 

habeas corpus remains a viable avenue for relief on a claim that the trial court failed to 

award pretrial jail credit as mandated by Code section 40-23-101 so long as the petitioner 

makes the required showing from the face of the record.

III. The Petitioner’s Showing of Entitlement to Relief

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. See T.C.A. § 40-23-

101(c).

In the present case, the record reflects that the petitioner was ordered 

detained in the Court’s Detention Center of the Juvenile Court of Memphis and Shelby 

County on December 10, 1992 on the charge of first degree murder. On December 23, 

1992, the petitioner was transferred to the Shelby County Sheriff’s Office to be

prosecuted as an adult on the charges of first degree murder, especially aggravated 

robbery, and aggravated robbery. The petitioner entered into a plea agreement and

 

motion, that the judgments for both of his convictions should have reflected the award of pretrial jail 

credit. Anthony L. Moore, slip op. at 2. Moore’s claim failed because his sentences were consecutively 

aligned. Id., slip op. at 3.
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pleaded guilty to aggravated robbery, especially aggravated robbery, and second degree 

murder and received an effective sentence of 50 years’ incarceration. On the face of the 

petitioner’s judgment forms, the trial court awarded 394 days of pretrial jail credit for the 

dates of December 23, 1992 to January, 20, 1994. There is no indication on the judgment 

forms that the petitioner was credited for the 13 days he was detained in the Juvenile 

Court Detention Center from December 10, 1992, to December 22, 1992.5

The record shows, therefore, that the petitioner has demonstrated his claim 

to relief for 13 days’ pretrial jail credit, a claim cognizable in this habeas corpus 

proceeding. See T.C.A. § 40-23-101(c) (providing that “[t]he trial court shall . . . render 

the judgment so as to allow the defendant credit on the sentence for any period of time 

for which the defendant was committed and held in the city jail or juvenile court 

detention prior to waiver of juvenile court jurisdiction . . . pending arraignment and 

trial”).

IV. Conclusion

We reverse and vacate the order of the habeas corpus court. We remand the 

case to that court so that that court can transfer the case to the trial court for the entry of 

amended judgments to reflect pretrial jail credit for the time between December 10 and 

December 23, 1992.

_________________________________ 

JAMES CURWOOD WITT, JR., JUDGE

 

5 Unlike the petitioner in Christopher Alan Walls, the petitioner here has not attached a transcript 

of any proceeding indicating that the trial court ordered that he be awarded pretrial jail credit for the time 

he spent in juvenile detention but that the judgments failed to reflect this order. See Christopher Alan 

Walls, slip op. at 4 (“[T]his is not a case where the trial court simply failed to award pretrial jail credit; 

rather it is a case where the trial court ordered pretrial jail credit but the credit does not appear in the 

judgments.”).