### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs D

ecember 13,

2000 LUTHER ROBERT BROWN, III v. STATE O F TENNESSEE Appeal from the Criminal Court for Sullivan County No. C43,385 R. Jerry Beck, Judge

No. E1999-02290-CCA-R3-CD February 23, 2001
The petitioner, L

uther Robert Bro

wn, III , appeals from the Sulliv an County Criminal Court’s summary dismissal of his petition for the writ of habeas corpus . Brown seeks relief from a “parole hold” that Tennessee officials have caused to be placed upon him within the Virg

inia prison sy

stem. According to the allegations of his petition, the pa

role hold has resu

lted in the Virgin

ia prison system denying him inmate

privileges to which he would otherwise be entitled. Additionally, he complains that he has not been g

ranted a Tennes s ee parole hearing even though he has served his Tennessee sentence past the release eligibility date. B ecause we agr ee with the lower court that these complaints

are not cognizable in a habeas corpus proceeding, we affirm the lower court’s dismissal of the petition.

Tenn. R. App. P. 3; Ju dgment of the Crim

inal Court Affirme

d.
J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in which D AVID G. H AYES and N ORMA M C G EE O GLE , JJ., joined. Mary Kat herin e Harv ey, for t he App ellan t, Luth er Rob ert Br own, III.
Paul G. Summers, Attorney General & Reporter; Clinton J. Morgan, Counsel for the State; H. Greeley Wells, District Attorney General; Terry L . Jordan, AssistantDistrict Attorney General, for the Appellee, State of Tennessee.
OPINION

In this case, the habeas corpus petitioner seeks relief from a “parole h

old” placed upon h

im byt he State of Tennessee while he is serving a sentence in the Commonwealth of V irginia. H e alleges that the parole hold is a result of his convi

ction of a crime in

Tennessee, for

which he is se rving a shorter, conc

urrent sentence

to his Virginia se

ntence. He compl

ains that Tennesse

e’ s parole has resulted in his loss of privileges within theVirginia prison system, such as opportunities1 It is somewhat ambiguous whether the petition actual ly seeks relief i

n the form of

a parole hearing. Bec ause we do not reach the merits of such a claim, it is unn ecessary for u s to determin e whether tha t form of relief wa s actually requestedbelow. For purposes of our ana lysis, we therefore as sume, without actually deciding, t

hat the clai

m was properly raised.

2 The petitioner

alleges that Tenne ssee pla ced the par

ole hold on

him on D ecembe r 23, 199 4. The d efendant’s crime was

committe

d in August

1994, but t

he resul ting pr osecuti on was not r

esolved un

til Ju ly 1999. -2- to earn income, sentence

credits and early release. He also alleg es that he has never received a parole hearing, even tho ugh he has reached his release eligibility date. 1 The lower court s ummarily dismissed the petition, finding that the petitioner had not raised a cognizable claim for habeas corpus relief. On appeal, the petitioner challenges the dismissal of his claim without a hearing. Be

cause we agree w ith the lower cour t that the petitione

r has not raised a

cognizable clai

m, we affirm its judgment.
On July

26, 1999, the petitione

r received a te

n-year se ntence in the Sulliv

an County Criminal Court for the crime of theft. The court ordered that the sentence be ser ved concur

rently withthe sentence the petitioner was then serving in the Com

monwealth of Virg

inia. According

to the allegations of

the petition, the Vi

rginia sentenc

e is in excess of 34 years, and the petitioner is not eligible for “mandatory parole” until November 13, 2014.

On November 8, 1999,

the petitioner fil

e d the instant action, alleging that he was being deprived of

certain privileg

es by Virg

inia authorities be

cause Tennessee had p

laced a parole ho ldon him, which opera tes as a detainer

against him in the

Virginia prison s

ystem. 2 H e sough t removal of the parole

hold. He reasone

d that he will exhaust

service of his

Tennessee sentence more than eight years prior to completion of his Virginia se ntence, and ther

efore, the paro

le hold is “moot.” He also claimed that his release eligibility date for the Tennessee sentence has come and gonewithout a parole hearing, and he will not receive a Tennessee parole hear ing in the future while “completing the Virg

inia [s ]enten ces as now standing.” For these reasons, he sought an order directing Tennessee authorities to remove the parole hold which was restra ining him from prison privi leges in Virginia. Notably, the petitioner never alleged that he wa s being held on a

voi d judgment or that he was being held past the expiration of his term of imprisonment. The trial court dismisse d the petit ion witho ut a hearing.

In this appeal, the pe

titioner raises tw

o concerns. He complains that the trial court dismissed his petition without a hearing when he had alleged a cognizable

claim of deprivation of constitutional rights. He also complains that he has received neither a Tennessee parole hear ing nor a hearing extending his release eligibility date, contra ry to Code section 30-35-501.
We reach th

e merits of n either claim, however, as these claims are not the proper subjectsfor habeas corpus relief. Habeas corpus relief is very limited because it is

only availa

ble when "'it appears upon the face of the judgment or the rec ord of the proceedings upon which the judgment is rendered' that a convicting court was without jurisdiction or authority to sentenc e a defendant,

or that a defendant's sentence of imprisonment or oth er restraint has expire d." Archer v.3 The petitioner’s pr imary claim is no t the denial of p rison privilege s itself, but rather the im posit ion of t he

parole hold. In

deed, the actual denial of privil eges is an acti on of the Virginia prison syst em and therefore beyond the jurisdi ction of the Ten nessee jud iciary. In any event, the denial of pri son privileg es is not a proper

subject for issuance of the wri t of habeas corpus . Hall v. Heer , 217 T enn. 392 , 398 S.W .2d 71 (T enn. 196 6); see also Warren , 740 S.W.2d at 428 (Tennessee

prisoner who clai med that Ohi

o detaine r deprived him of prison privi leges i n Tennessee did not

state a cognizable claim for habeas corpus relief). -3- State , 851 S.W.2 d 157, 164 ( Tenn. 1993 ) (quoting State v. Galloway , 45 Tenn. (5 Cold.) 326, 336-37 (Tenn. 1868)). The sole remedy afforded a suc

cessful habeas corpus petitioner is release from h

is confinement. State v. Warren , 740 S.W.2d 427, 428 (Tenn. Crim. App. 1986).

In determining whe

ther the petitione

r’s claim that the parole hold should be lifted is a proper subject for habeas corpus relief, we find i tdeterminative tha

t this claim does not enc

ompass an allegation that thehold somehow renders the petitioner’s sentence expired or void. 3 Moreover, the relief sought – removal of the parole hold – is not a form of relief that we are empo

wered to grant in a habeas corpus proceeding. Presumably, the lodging of the par ole hold i s an action of t he Department

of Correction, a

state agen cy. Any redress for the Department’s action would therefor e come through the Uniform Administrative Procedures Act. Brigham v. Lack , 755 S.W.2d 469, 471 (Tenn. Crim. App. 1988); see Tenn. Code Ann. §§ 4 -5-101 to -325 (Un

if orm Admin istrative Procedures Act).

Insofar as the complaint that the petitioner has not been granted a

parole hearing

is concerned, the proper procedure to review actions of the Board of Paroles is not in a habeas corpus proceeding, but by petition for a common law writ of certiorari

. See, e.g., Thandiwe v. Traughber , 909 S.W.2d 802, 803 (Tenn. Ct. App. 1994); Brigham , 755 S.W.2d at 471. Additionally, the remedy sought – the grant of a parole hearing – is not one which this court is empowered

to grant in a

habeas corpus proceeding. See Warren , 740 S.W.2d at 428.

It is well-settled law that a ha beas corpus petition that does n ot state a cogniza

ble claim m ay be dismissed without the necessity of holding a he aring or appointing counsel for th e petitioner. See P assare lla v. State , 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). Because the petitioner did not state a cognizable claim in his petition, the lower court did not err

in dismissing the petiti on without conductin g a hearing.

Fin all y, we have not over

looked the possibili

ty that the lower court had t

he authority to consider the habeas corpus petition as a petition for post-conviction relief. See Tenn. Code Ann. § 40-30-205(c) (1997). However, the claims alleged, if taken as true, do not render the petitioner’s conviction or sentence void or voidable because of constitutionaldeprivation. See Tenn. Code Ann. § 40-35-203 (1997). As thecourt of appeals has noted, prisoners donot have a constitutional right to serve their senten ces i n a particular facility where they would be able to participate in a work release program or to earn sentence credits. France v. Bradley , 922 S.W.2d 118, 119 (T enn. Ct. App. 1995) (ci tin g decisions of the United States Supreme Court). It follows, then, that prisoner “privileges”

are just that -- privileges, not constitutional rights. Further, a prisoner has no constitutional right to condition al release prior to expiration of his sentence. Greenholtz v. Inmates-4-

of the Neb. Penal and Correctional Complex , 442 U.S. 1, 7, 99 S. Ct. 2100, 2104 (1979); Daniels v. Traughber , 984 S.W.2d 918, 924 (Tenn. Ct. Ap p. 1998); see Tenn. Code Ann. § 40-35-503(b) (1997) (release on par

ole is a privilege, not a right). There being no constitutional con

cern present, there could likewise be no constitutional deprivation r endering the petitioner’s conviction or sentence void o r voida

ble. Additionally, post-conviction relief is not proper because, as noted above, the avenues of redress for the alleged wrongs the petitioner claims he has suffered are

via other forms of legal action.

For all of these reasons, the judgment of the lower court is affirmed.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE