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Leggs v. Genovese

United States District Court, M.D. Tennessee, Nashville Division

December 20, 2017

MARIO A. LEGGS #302694, Petitioner,
v.
KEVIN GENOVESE, Respondent.

          MEMORANDUM OPINION

          WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE.

         The pro se Petitioner is a state inmate in South Central Correctional Facility in Clifton, Tennessee, serving several terms of incarceration arising from his 2001 conviction for eight felonies ranging from aggravated robbery to reckless endangerment. He alleges that the Tennessee Department of Correction (TDOC) has miscalculated his sentences and seeks a federal writ of habeas corpus pursuant to 28 U.S.C. § 2241. The Court will deny his petition for the reasons that follow.

         I.BACKGROUND AND PROCEDURAL HISTORY

         On November 29, 2001, Petitioner was convicted in Davidson County of eight felony counts of a multiple-count indictment in case 2001-A-273 and was sentenced as follows:

• Count 2 - robbery - 6 years
• Count 3 - reckless endangerment - 2 years
• Count 4 - aggravated robbery - 12 years
• Count 5 - evading arrest - 3 years
• Count 6 - reckless aggravated assault - 4 years
• Count 7 - reckless aggravated assault - 4 years
• Count 8 - reckless aggravated assault - 4 years
• Count 9 - reckless endangerment - 2 years

(Doc. No. 22-2 at 7-14.) He was also convicted and sentenced for several misdemeanors as part of the same case.[1] The special conditions on the judgments indicate that “counts 1, 2, 4, 6 and 12 are consecutive, the other counts are concurrent, ” and that the result is a “total sentence 22 years 11[months]/29 [days] @ 75% 11[months]/29 [days] @ 75%.” (Id. at 7, 9.) The Tennessee Court of Criminal Appeals reversed Petitioner's conviction on Count 12 for evading arrest, which eliminated one of the 11-month 29-day sentences, and left his total effective sentence at 22 years, 11 months and 29 days. State v. Leggs, No. M2002-01022-CCA-R3CD, 2003 WL 21189783, at *1, 11 (Tenn. Crim. App. May 21, 2003). Both parties have confined their presentations to the cumulative 22-year felony sentence (reached by adding the 6, 12 and 4 year sentences for Counts 2, 4 and 6 above, respectively, which were ordered to run consecutively), so the Court presumes the remaining misdemeanor sentence is not at issue in this case.

         Petitioner entered TDOC custody on December 6, 2001, and began serving his 6-year sentence for Count 2, along with all the shorter sentences ordered to run concurrently with it. (Doc. No. 22-2 at 2, 3.) He was released on parole on August 20, 2010, and returned to custody on July 31, 2012, for violating parole. (Id. at 2.) He was released again on April 4, 2013, and returned to custody on October 15, 2014, for another violation. (Id.) On January 8, 2015, Petitioner was convicted of a new count of attempted sale of a schedule I drug, and was sentenced to another 4 years in prison, to be served consecutive to his 2001 sentences. (Doc. No. 22-2 at 15.)

         The trial court had not awarded any pretrial jail credit toward Petitioner's sentence at the time it sentenced him in 2001, but on February 3, 2015, it retroactively awarded him pretrial jail credit for the period he spent in jail awaiting trial from November 17, 2000 to November 29, 2001. (Doc. No. 22-2 at 2, 16.) This change required the Tennessee Department of Correction (TDOC) to recalculate Petitioner's felony sentences and the way the prisoner sentence credits he had been accumulating in prison had been applied to them.

         Petitioner disagreed with the manner of that recalculation. After failed attempts to get relief from the TDOC, both informally and via petition for a declaratory order (see Doc. No. 2-1 at 2-21), Petitioner submitted a petition for declaratory judgment to the Davidson County Chancery Court. That court returned his petition unfiled on April 28, 2016, due ...


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