# FILED

December 30, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON NOVEMBER SESSION, 1997

JOHN EDGAR JU STICE, JR., ) ) No. 02C01-9612-CC-00448 Appellant ) ) LAUDERDALE COUNTY vs. ) ) Hon. Joseph H. Walker, Judge JIMMY HARRISON, Warden, ) and STATE OF TENNESSEE, ) ) (Petition For Writ of Habeas Corpus) Appellee )

For the Appellant : For the Appellee : John Edgar Justice, Jr. , Pro Se Charles W. Burson C.C.C.F. Attorney General and Repor ter P. O. Box 1000 Henning, TN 38041 Deborah A. Tu llis Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493

OPINION FILED: AFFIRMED

David G. Hay

es Judge1 The cour t con solida ted th e app ellant ’s thre e pet itions since the d eterm inative issue in all three peti

tions was t he same.

2 This information was provi ded in an affidavit submit ted by t he Tennessee Department of Correc tion which was atta ched to the State’s “Motion to Dism iss.”

3 The fo ur conv ictions and dates of impos ition of sente nces a re as follow s: (1) attem pt to commit felony, December 15, 1977 - one to three years; (2) assault with i ntent to commit rape (enh anc ed by f ive yea rs fo r use of we apo n), O ctob er 11 , 197 8 - six to fifte en yea rs; (3 ) burg lary, first degree (concurrent with case #2, but consecutive to case #1), October 11, 1978 - an indeterminat

e sentence of ten to ten y ears; (4) esca pe, consecutive to cases #1, # 2, and #3, September 20, 1979 - t wo to three y

ears. 2 OPINION

The appellant, John Edgar Justice, Jr., appeals as of right the sum mary dismissal of his petition for writ of habeas corpus. The appel lant is currently s erving an effective ten to twenty-six year sentence at the Cold Creek Correctional facility in Lauderdale County. On September 19, 1996, the appellant filed three petitions for writ of habeas corpus, all eging that his sentences had expired. 1 The State filed a motion to dismiss allegi ng that the appellant’s senten ces do not expire until the year 2008. 2 The trial court granted the State’s motion and dismissed the app ellant’s petition finding “[the appell ant] has not made a colorable cl aim for habeas corpus relief.” On appeal, the appellant contends the trial court erred in finding his sentences had not expired.

After review, the judg ment of the trial court is affirmed.

ANAL YSIS

The app ellant ad mits tha t he recei ved four s entence s totalin g ten to twe ntysix years from conv

ictions in Blount County during the period of December 15, 1977 through September 20, 1979. 3 The appellant’s record of criminal convictions is complicated by the fact that, after his December 15, 1977 convi ction, he was released on bond pending appeal, during which time he c ommitted additional4 The federal sentence was imposed on June 1, 1979. 3 crimes. After his rearr

est and incarceration for thes e crimes, he escaped. While on escape status he committed a federal offense, which resulted in his conviction and federal sentence of twenty y ears. The federal sentence was ordered to run consecutive to his state sentences of ten to twenty-six years. 4

On the day following h is sentencing for escape, Sept ember 21, 1979, the appellant was transporte d to Brushy Mountain State Prison. The appellant contends that, on this date, because he w as in the “legal phys ical custody” of the Tennessee Department of Correction purs uant to a court ordered mittimus , his state sentences had “commenced to run.” On September 24, 1979, the appellant was t ransported from Brushy Mountain back to the Blount County jail t o await transfer to a federal correctional facility. On September 25, 1979, the appellant was placed in the custody of federal authorities . The appellant acknowledges that his federal sentence of twenty year s was ordered to be ser ved consecutive to his

state sentence of twenty-three y ears. He argues, how

ever, that he was informed by both the Warden at Brushy Mountain and the Blount C ounty District Attor

ney General that he would first serv e his state sentences and then be t ransferred to the federal prison system. After compl etion of his federal sentence, he w ould be returned to Tennessee to complete the two to three year sentence imposed for escape. In support of this position, he argues that he was told by the District Attorney General: “You’ll be released from sta te custod y to fede ral custo dy tomorro w, September 25, 1979, you’ll r emain in the legal constru ctive custody of the State of Tennessee while being housed in the legal phys ical custody of the federal prison s ystem under service of your 20 year federal sentence. I can not stop y our transfer from the Tennessee prison system to the federal prison system, but I w ill place a detainer with the federal authoriti es for you to serve cons ecutively [the escape sentence of 2-3 years] after compl etion of all your state sent ences [23 years] and your federal sentence [20 years].
On August 24, 1992, after expi ration of his federal sentence, the appellant was returned to the Tennessee Department of Correction. In sum, the appellant4

contends that the action of the Depar tment of Correction, in permitting his transfer to the federal prison system, i n effect “. . . allowed [him] t o serve his 26 year [Tennessee] sentence in Federal custody . . . .” Accor dingly, the appellant ar gues that, based upon his sentence calculations, his twenty-three year state sentence expired while he w

as in federal custody and his two to three year s

entence has expired since his re

turn to Tennessee Department of Corr ection in 1992.

The proof in the record before us is undisputed that the twenty year federal sentence was ordered to be s erved consecutive to the state sentence of ten to twenty-six y

ears. Thus, from this fact, simple mathematics tells us that the appellant’s sentence has not ex pired. Moreover, w

e reject the appellant’s ar gument that, during his federal i ncarceration, he was i n “legal constructiv e custody” of the State of Tennessee.

Writs of habeas corpus will issue on ly in the case of void j udgment or to free a prisoner held in custody after his term of imprisonment has ex pired. Tenn. Const. Art. 1 § 15; Tenn. Code Ann. § 29-21- 101 et seq (1990); See Potts v. State , 833 S.W.2d 60, 62 (Tenn. 1992); See also Archer v. State , 851 S.W.2d 157, 164 (Tenn. 1993); Passarella v. State , 891 S.W.2d 619, 62 7 (Tenn. Crim. App. 1994).

The judgment of the trial court is affirmed.

____________________________________ DAVID G. HAYES, Jud ge
CONCUR:

________________________________ GARY R. WADE , Judge

________________________________ JOE G. RILEY, Judge