FILED

July 29, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

TERRY W. HOLTSCLAW, * C.C.A. # 03C01-9904-CR-00143

Appellant, * WASHINGTON COUNTY

VS. * Hon. Lynn W. Brown, Judge

STATE OF TENNESSEE, * (Habeas corpus)

Appellee. *

For Appellant: For Appellee:

Terry W. Holtzclaw, pro se Paul G. Summers

NECC Annex Attorney General & Reporter

P.O. Box 5000

Mountain City, TN 37683 Michael J. Fahey, II

Assistant Attorney General

Criminal Justice Division

425 Fifth Avenue North

Nashville, TN 37243

OPINION FILED: ____________________

AFFIRMED--RULE 20

GARY R. WADE, PRESIDING JUDGE
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OPINION

The petitioner has appealed the trial court's summary dismissal of his

petition for writ of habeas corpus. The state has filed a motion for affirmance

pursuant to Rule 20 of the Tennessee Court of Criminal Appeals. Rule 20 allows for

summary affirmance when "an opinion would have no precedential value" and "no

error of law requiring a reversal .. is apparent on the record." Id. The state notes

that the judgment in this case is not a determination of guilt, no material facts are in

dispute, there is no error of law requiring reversal, and the evidence does not

preponderate against the finding of the trial judge.

In May of 1996, the petitioner pleaded guilty to aggravated sexual

battery and the trial court imposed a nine-year sentence. On December 18, 1998,

the petitioner filed a petition for writ of habeas corpus. He alleged ineffective

assistance of counsel in that trial counsel misinformed him that he would serve only

thirty percent of his sentence when, in actuality, he maintains he will serve at least

eighty-five percent. See Tenn. Code Ann. § 40-35-501(i) (no release eligibility for

aggravated sexual battery committed on or after July 1, 1995). He contends that his

plea was coerced because he was allowed only three minutes to consider the plea

offer and that he was threatened with a twenty-five year sentence if he chose not to

accept the offer. The petitioner asserts that the trial court erroneously accepted his

guilty plea which was not supported by sufficient evidence.

The trial court summarily denied the petition for writ of habeas corpus,

as follows:

The petitioner alleges that the State and court contrived

to "punish" defendant under their own agenda. Petitioner

further alleges that he was denied effective assistance of

counsel. 

 The grounds alleged can be raised in the trial court, on

direct appeal, or by post-conviction writ. None of the
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allegations made by the petitioner are grounds for

habeas corpus relief.

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

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 post-conviction petition, the purpose of a habeas

corpus petition is to contest void and not merely voidable judgments. See State ex

rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968). "If the court

rendering a judgment has jurisdiction of the person, the subject-matter, and has the

authority to make the challenged judgment, the judgment is voidable, not void ...."

Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). 

In this case, the petitioner's sentence has not expired and the trial

court did not lack jurisdiction. The petitioner pleaded guilty in 1996. If he began

serving the sentence immediately after he was sentenced, his nine-year sentence

would not expire until the year 2004. Moreover, the other claims asserted by the

petitioner, including ineffective assistance of counsel and the involuntary nature of

his guilty plea, if true, would render his sentence voidable rather than void. The

evidence does not preponderate against the trial court's determination that the
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petitioner's sentences have not expired and that the petitioner has failed to

demonstrate that the trial court was without jurisdiction. 

We decline to rule on any issue regarding parole eligibility. 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. Because the

Department of Correction is an agency of the state government, questions such as

these should be addressed through the Administrative Procedures Act. Tenn. Code

Ann. §§ 4-5-101 to -324. Thereafter, any judicial review must be initiated 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 pursuant to Rule 20.

________________________________

Gary R. Wade, Presiding Judge 

CONCUR:

_____________________________

Joseph M. Tipton, Judge

_____________________________

Norma McGee Ogle, Judge