IN THE CHANCERY COURT FOR DAVIDSON COUNTY, TENNESSEE

TWENTIETH JUDICIAL DISTRICT

PART __ AT NASHVILLE
JACOB DAVIS,
Petitioner,
vs.
TENNESSEE DEPARTMENT
OF CORRECTION and HERBERT
SLATERY, Tennessee Attorney General
Defendants.

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Complaint for Declaratory Judgment

INTRODUCTION
1. This Complaint raises several constitutional and statutory challenges to Tenn. Code Ann.
40-35-501, under which Petitioner Jacob Daviss parole eligibility is determined. Mr.
Davis asserts that, with sentencing credits, he should be eligible for parole consideration
after serving 25 years on his life sentence. As currently interpreted by the Tennessee
Department of Corrections (the TDOC), Mr. Davis can only be considered for parole
after serving 51 years, which does not meaningfully differ from a life without parole
sentence. However, the TDOCs interpretation must fail because the only minimum
sentence set out in the governing statute provides for a 25 year minimum sentence.
Moreover, to read the statute as the TDOC does would result in a litany of issues, not
least of which is that, given the decreased life expectancy of persons confined to prison, a
51 year sentence is the functional equivalent of a life without parole sentence. If there is
a permissible statutory sentence of life without parole, then logic would dictate that the

other species of a life sentence contemplates parole. The legislature could not have
intended two functionally identical life sentences for the same crime both effectively
precluding parole as the jury would not have selected a life sentence if it had intended
to impose a life without parole sentence. Further, if read to require a 51 year minimum
sentence the statute would be void for vagueness, it would be invalid under both the
Tennessee and U.S. Constitutions, would violate Tennessee statute and would render Mr.
Davidsons conviction improper. Because Mr. Davis was not sentenced to life without
the possibility of parole, the only remaining lawful sentence for his murder conviction is
life with eligibility for parole consideration after he serves a minimum of 25 years in
prison.
2. On January 14, 2015, Mr. Davis filed an Inmate Request with the TDOC, requesting that
the TDOC recalculate his sentence and parole eligibility date under Tenn. Code Ann.
40-35-501. Inmate Request, Dated January 14, 2015. On January 23, 2015, 1 the
Record Office responded, Effective 7-1-95, violent offenses committed on or after 7-195 (your offense date is 5-19-98) and receive a life sentence must serve 60 years before
parole eligible, with credits sentence can reduce no less than 51 years. Your current RED
[Release Eligibility Date] is 3-28-2050. Record Office Response, Dated January 23,
2015.
3. On May 4, 2015, Mr. Davis filed a Petition for a Declaratory Order with the TDOC
pursuant to Tenn. Code Ann. 4-5-223. Petition for Declaratory Order, dated May 4,
2015. This petition was denied on May 18, 2015 on the basis that [t]he Department is
required to obey the judgment orders as they are received from the court of jurisdiction
and we have. TDOC Petition Denial, dated May 18, 2015. Having exhausted his
1

While the response is dated January 23, 2015, Mr. Davis did not receive the response until March 2015.

administrative remedies, Mr. Davis now brings this suit for declaratory judgment
pursuant to Tenn. Code Ann. 4-5-225 and 29-14-102 to contest the legal validity or
applicability of a statute, rule or order of the TDOC. Mr. Davis is a person who is
directly affected by certain statutes, rules and orders given that he is under the
jurisdiction of the TDOC having been imprisoned for 17 years, pursuant to Tenn. Code
Ann. 39-13-204(a) and Tenn. Code Ann. 40-35-501.
4. In 1989, the Tennessee General Assembly enacted Tenn. Code Ann. 40-35-501
regarding the calculation of parole eligibility and requiring that those serving life
sentences serve 60% of 60 years prior to consideration for parole, less sentence credits.
As amended on July 1, 1993, 40-35-501(h)(1) provides that [r]elease eligibility for
each defendant receiving a sentence of imprisonment for life for first degree murder shall
occur after service of sixty percent (60%) of sixty (60) years less sentence credits earned
and retained by the defendant, but in no event shall a defendant sentenced to
imprisonment for life be eligible for parole until the defendant has served a minimum of
twenty-five (25) full calendar years of the sentence . . . . Under 40-35-501(h)(1), a
defendant would be eligible for parole after serving 36 years, 60% of 60 years, with a
possible reduction such that the defendant would serve a minimum of 25 years based on
the accumulation of sentencing credits.
5. On July 1, 1995. the Tennessee General Assembly enacted Tenn. Code Ann. 40-35501(i)(1) regarding the calculation for parole eligibility of a series of offenses enumerated
in subdivision Tenn. Code Ann. 40-35-501(i)(2) of the statute, including [m]urder in
the first degree. The statute provides that [t]he person shall serve one hundred percent

(100%) of the sentence imposed by the court less sentence credits earned and retained,
with a maximum allowable reduction of 15% for sentencing credits earned.
6. On July 29, 1999, Mr. Davis was found guilty of first degree murder, reckless
endangerment with a deadly weapon, and carrying or possessing a weapon on school
property with the intent to go armed. The crimes for which he was convicted occurred on
May 19, 1998, six months after Mr. Daviss eighteenth birthday. He was sentenced to
life with the possibility of parole pursuant to Tenn. Code Ann. 39-13-204(a) and Tenn.
Code Ann. 40-35-501.
7. Because the only mandatory minimum term of years for a life sentence in the statute
governing parole eligibility is 25 years, Mr. Davis requests that this Court declare his
rights, status, and other legal relations regarding the calculation of his sentence so that he
may be eligible for parole after serving the 25-year sentence provided for by 40-35501(h) (assuming the requisite good time credits have been earned and retained). Should
the Court attempt to give effect to both sub-sections (h) and (i) of the statute, it should do
so to provide that parole eligibility is available to those serving life sentences after 31.5
years (or 85% of a 36 year sentence).
8. Further, the petition asserts that if Tenn. Code Ann. 40-35-501 is not interpreted in the
manner set forth above, it must be found void for vagueness.
9. Further, as interpreted by the TDOC, Tenn. Code Ann. 40-35-501(i)(1) violates Article
II of the Tennessee Constitution.
10. Further, Tenn. Code Ann. 40-35-501 violates Mr. Daviss constitutionally protected
liberty interest in his parole eligibility.

11. Further, Tenn. Code Ann. 40-35-501 violates the proportionality requirement of the
Eighth Amendment of the U.S. Constitution.
12. Further, the magnitude of costs associated with implementing the TDOCs interpretation
of Tenn. Code Ann. 40-35-501 are beyond the scope of those considered by the General
Assembly, such that the bill fails to conform with the fiscal note requirements under 32-107.
13. Finally, if the requirement to serve a minimum of 51 years were the correct interpretation
of Tenn. Code Ann. 40-35-501, Mr. Daviss conviction would be improper based on the
trial courts failure to instruct the jury that a life sentence carries with it a minimum 51
year period of incarceration.
14. Given the limited scope of this proceeding, Mr. Davis only challenges the date when he
will be eligible for parole.
PARTIES
15. Petitioner, Jacob Davis, is an individual of the full age of majority, is domiciled in
Tennessee and resides in Turney Center Industrial Complex located in Only, Tennessee.
He was found guilty of first degree murder, reckless endangerment with a deadly
weapon, and carrying or possessing a weapon on school property with the intent to go
armed on July 29, 1999 in the Circuit Court for Lincoln County, Tennessee in case
number S9800087. Mr. Davis has been sentenced to life with the possibility of parole
pursuant to Tenn. Code Ann. 39-13-204(a) and Tenn. Code Ann. 40-35-501 as well
as one year each for the reckless endangerment and carrying a weapon on school property
convictions, to run concurrently with his life sentence.
16. Mr. Davis has petitioned the TDOC for a declaratory order, which was denied, and thus
Mr. Davis has exhausted his administrative remedies. This suit for declaratory relief
5

pursuant to Tenn. Code Ann. 29-14-102 and the Uniform Administrative Procedures
Act, 4-5-2252 was filed within the requisite deadline following the TDOCs denial of
Mr. Daviss petition for declaratory judgment. Mr. Davis was arrested on May 19, 1998
and has been in custody ever since.3 Mr. Davis has been and continues to live under the
supervision of the TDOC, thus he is under the jurisdiction of the TDOC. Tenn. Code
Ann. 4-6-102. Defendant TDOC is sued, pursuant to 4-5-225, as the relevant agency
enforcing Mr. Daviss sentence, which denied Mr. Daviss request for a declaratory
order. Defendant, Herbert Slatery III, is sued in his official capacity as Attorney General
of the State of Tennessee. The Attorney General is a proper party for a declaratory
judgment action. See Peters v. OBrien, 278 S.W. 660 (Tenn. 1925). Furthermore, the
Attorney General is a mandatory party. See Waters v. Farr, 291 S.W.3d 873, 880 n.8
(Tenn. 2009).

Tenn. Code Ann. 29-14-102 provided in its entirety states:

(a) Courts of record within their respective jurisdictions have the power to declare rights, status, and other
legal relations whether or not further relief is or could be claimed.
(b) No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree
is prayed for.
(c) The declaration may be either affirmative or negative in form and effect; and such declaration shall
have the force and effect of a final judgment or decree.
Tenn. Code Ann. 4-5-225 provided in its entirety states:
(a) The legal validity or applicability of a statute, rule or order of an agency to specified circumstances may
be determined in a suit for a declaratory judgment in the chancery court of Davidson County, unless
otherwise specifically provided by statute, if the court finds that the statute, rule or order, or its threatened
application, interferes with or impairs, or threatens to interfere with or impair, the legal rights or privileges
of the complainant. The agency shall be made a party to the suit.
(b) A declaratory judgment shall not be rendered concerning the validity or applicability of a statute, rule
or order unless the complainant has petitioned the agency for a declaratory order and the agency has
refused to issue a declaratory order.
(c) In passing on the legal validity of a rule or order, the court shall declare the rule or order invalid only if
it finds that it violates constitutional provisions, exceeds the statutory authority of the agency, was adopted
without compliance with the rulemaking procedures provided for in this chapter or otherwise violates state
or federal law.
3
Mr. Davis was held in Lincoln County Jail following his arrest for a year and a half until the time of his conviction.
Following his conviction in July 1999, Mr. Davis entered a TDOC prison and has continued to be in the custody of
the TDOC since then.

JURISDICTION
17. This Court has jurisdiction to enter a Declaratory Order. Tenn. Code Ann. 4-5-225
provides that [t]he legal validity or applicability of a statute, rule or order of an agency
to specified circumstances may be determined in a suit for a declaratory judgment in the
chancery court of Davidson County, unless otherwise specifically provided by statute, if
the court finds that the statute, rule or order, or its threatened application, interferes with
or impairs, or threatens to interfere with or impair, the legal rights or privileges of the
complainant. A declaratory judgment may be rendered concerning the validity or
applicability of a statute, rule or order because the complainant here has petitioned the
agency for a declaratory order and the agency has refused to issue a declaratory order.
Tenn. Code Ann. 4-5-225 (b).
STANDING
18. Mr. Davis has standing to bring this declaratory judgment action because he faces a
distinct and palpable injury, caused by the adverse party which can be redressed by a
favorable decision of the court. Metro. Air Research Testing Auth., Inc. v. Metro. Govt
of Nashville and Davidson County, 842 S.W.2d 611, 615 (Tenn. Ct. App. 1992) (internal
citations omitted). Mr. Davis has a fundamental interest in having the validity and
applicability of 40-35-501 and his rights and privileges thereunder adjudicated.
19. Mr. Davis was sentenced to life imprisonment with the possibility of parole under 4035-501. As interpreted by the TDOC, Mr. Davis must serve a minimum of 51 years
before he is eligible for parole. However the only mandatory minimum provided by the
statute is 25 years. Under the TDOCs interpretation, Mr. Davis faces a clear and
grievous risk of serving an additional 26 years beyond what the law requires or can
constitutionally impose. Furthermore, interpretation of the statute to require that a
7

defendant serve a minimum of 51 years renders the possibility of parole meaningless,

contrary to the legislative intent to provide two distinct life sentences and in violation of
Mr. Daviss constitutional rights. Additionally this misinterpretation of the law poses a
great burden and expense to the state. Because Mr. Davis is subject to the sentence as
calculated by the TDOC, the denial of his opportunity for parole for an additional 26
years is a distinct and palpable injury caused by the TDOC. Having exhausted his
administrative remedies, the Court is Mr. Daviss only remaining means of redress. Thus
Mr. Davis has a vested interest in this Courts review of the constitutionality and legal
validity of 40-35-501 and his rights thereunder.
RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS
20. The Fourteenth Amendment to the Constitution of the United States provides in part that
No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws. U.S. Const. amend. XIV, 1.
21. The Eighth Amendment to the Constitution of the United States provides that
[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted. U.S. Const. amend. VIII. The Eighth Amendment
requires that a sentence be proportional to the offense. Weems v. United States, 217 U.S.
349 (1910); Miller v. Alabama, 132 S. Ct. 2455 (2012).
22. Article II, Section 3 of the Tennessee Constitution vests the states legislative power
solely in the General Assembly. In general, legislative power is the authority to make,
order, and repeal law. State v. King, 973 S.W.2d 586, 588 (Tenn 1998). Specifically,
the General Assembly may not delegate to an executive branch agency the exercise of the
8

legislatures discretion as to what the law shall be, because this is a purely legislative
function. See Dept of Pub. Welfare v. Natl Help U Assn, 270 S.W.2d 337, 339
(Tenn. 1954); State v. Edwards, 572 S.W.2d 917, 919 (Tenn. 1978)
23. Article II, Section 17 of the Tennessee Constitution provides in relevant part that [a]ll
acts which repeal, revive or amend former laws, shall recite in their caption, or otherwise,
the title or substance of the law repealed revived or amended. Statutes that fail to meet
the requirements of Article II, Section 17 will be struck down as invalid. State v. Hailey,
505 S.W.2d 712, 713 (Tenn. 1974).
24. Tenn. Code Ann. 3-2-107 provides in relevant part that:
(a)(1) Fiscal notes shall be provided for all general bills or resolutions increasing or
decreasing state or local revenues, making sum-sufficient appropriations, or increasing or
decreasing existing appropriations or the fiscal liability of the state or of the local
governments of the state. Not more than ten (10) days following the introduction of any
such bill or resolution, the fiscal review committee shall furnish to the chief clerk of the
house or houses of introduction a statement of analysis of the fiscal effect of such bill or
resolution and shall prepare and distribute copies of the statement to members of the
general assembly. Within ten (10) days following receipt of a request from a member of
the general assembly for a fiscal note on any proposed bill or resolution requiring a fiscal
note, the fiscal review committee shall prepare a fiscal note statement to accompany such
proposal at the time of introduction. Within twenty-four (24) hours following a request by
the sponsor of an amendment to any pending measure on which a fiscal note is required
by this section, the fiscal review committee shall prepare for the sponsor a fiscal note
showing what effect the amendment would have on the estimates made in the fiscal note

which applies to the bill or resolution. In regard to any bill or resolution affecting local
government, the office of the comptroller of the treasury is directed to provide to the
fiscal review committee, upon request, the information necessary to determine the fiscal
effect of such bill or resolution.
(a)(2)(A) The fiscal note shall, if possible, include an estimate in dollars of the
anticipated change in revenue, expenditures, or fiscal liability under the provisions of the
bill or resolution. It shall also include a statement as to the immediate effect and, if
determinable or reasonably foreseeable, the long-range effect of the measure. If, after
careful investigation, it is determined that no dollar estimate is possible, the note shall
contain a statement to that effect, setting forth the reasons why no dollar estimate can be
given. The fiscal note statement shall include an explanation of the basis or reasoning on
which the estimate is founded, including any assumptions involved.
(a)(2)(B)(i) The fiscal note shall also include a statement as to the immediate effect and,
if determinable or reasonably foreseeable, the long-range effect on commerce and jobs in
this state. Such impact to commerce statement shall also include, if possible, an estimate
in dollars of the anticipated change in costs or savings to commerce under the bill or
resolution.
25. Tenn. Code Ann. 39-13-204 provides in relevant part:
(a) Upon a trial for first degree murder, should the jury find the defendant guilty of first
degree murder, it shall not fix punishment as part of the verdict, but the jury shall fix the
punishment in a separate sentencing hearing to determine whether the defendant shall be
sentenced to death, to imprisonment for life without possibility of parole, or to
imprisonment for life.

10

(e)(2) The trial judge shall provide the jury three (3) separate verdict forms, as specified
by subdivisions (f)(1), (f)(2), and (g)(2)(B). The jury shall be instructed that a defendant
who receives a sentence of imprisonment for life shall not be eligible for parole
consideration until the defendant has served at least twenty-five (25) full calendar years
of the sentence. The jury shall also be instructed that a defendant who receives a sentence
of imprisonment for life without possibility of parole shall never be eligible for release on
parole.
26. Tenn. Code Ann. 40-35-501(h)(1), as amended on July 1, 1993 provides in relevant part
that [r]elease eligibility for each defendant receiving a sentence of imprisonment for life
for first degree murder shall occur after service of sixty percent (60%) of sixty (60) years
less sentence credits earned and retained by the defendant, but in no event shall a
defendant sentenced to imprisonment for life be eligible for parole until the defendant has
served a minimum of twenty-five (25) full calendar years of the sentence . . . .
27. Tenn. Code Ann. 40-35-501(i)(1), as amended on July 1, 1995, provides in relevant
part that [t]here shall be no release eligibility for a person committing an offense, on or
after July 1, 1995, that is enumerated in subdivision (i)(2). The person shall serve one
hundred percent (100%) of the sentence imposed by the court less sentence credits earned
and retained. However, no sentence reduction credits authorized by 40-21-236 or any
other provision of the law, shall operate to reduce the sentence imposed by the court by
more than fifteen percent (15%). Tenn. Code Ann. 40-35-501(i)(1).
28. Where an act intended to amend or supersede an existing law is found to be
constitutionally infirm, the former valid law remains in full force and effect, while the
unconstitutional amendment may be deleted. Franklin County v. Nashville, C. & St. L.

11

Ry., 80 Tenn. 521, 531 (Tenn. 1883); State v. Driver, 598 S.W. 2d 774, 776 (Tenn.
1980); State v. Dixon, 530 S.W. 2d 73, 74-75 (Tenn. 1975).
FACTS
29. In 1993, the Tennessee General Assembly amended Tenn. Code Ann. 40-35-501 by
adding sub-section (h).4 This amendment was made along with amendments to several
other statutes relating to life sentences. Under the statute, those who are sentenced to life
shall be eligible for parole after having served 36 years, which term may be reduced to a
mandatory minimum of 25 years, based on sentencing credits.
30. In 1995, the Tennessee legislature drafted Public Chapter 492 (House Bill 1762, Senate
Bill 1747) which was introduced to the General Assembly and passed as Tenn. Code
Ann. 40-35-501(i). The statute provides in relevant part that persons subject to the
statute shall serve one hundred percent (100%) of the sentence imposed by the court,
with a maximum allowable reduction of 15% for sentencing credits earned.
31. The TDOC has interpreted 40-35-501, the statute governing parole eligibility as
requiring that Mr. Davis serve 51 years before being eligible for parole consideration. As
a result, the TDOC has calculated Mr. Daviss parole eligibility date to be March 3, 2050.
At his earliest possible parole date, Mr. Davis will be 70 years old.
32. The federal government estimates that, on average, prisoners sentenced to life will not
live longer than 40 years in prison and thus uses 470 months as the numeric value for life
imprisonment in its calculations. U.S. Sentencing Commission, Preliminary Quarterly
Data Report, A-8 (through June 30, 2014) at,
http://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencingstatistics/quarterly-sentencing-updates/USSC-2014-3rd-Quarterly-Report.pdf).
4

At the time, the current subsection (h) was subsection (g).

12

33. The U.S. Census Bureau estimates that white males born in Tennessee between 1979 and
1981 have an average life expectancy of 69.9 years. Monique Oossee, Variations in State
Mortality from 1960 to 1990, U.S. Census Bureau, app. A-3, at 61 (May 2003),
http://www.census.gov/population/www/documentation/twps0049/twps0049.html.

study conducted by Vanderbilts Dr. Evelyn J. Patterson found that for every year an
individual spent in prison, their life expectancy decreased by 2 years.

Evelyn J.

Patterson, PhD., The Dose-Response of Time Served in Prison on Mortality: New York
State,

1989-2003,

Am.

J.

Pub.

Health,

March

2013,

103(3):

523-528,

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3673515/.
34. When Mr. Davis was sentenced to life with the possibility of parole, he was an 18-year
old senior in high school, completing his Eagle Scout training, and honor student on his
way to study computer science with a scholarship to the Mississippi State University.
35. At the time of his crime, Mr. Davis was a highly emotional young man suffering from a
depressive disorder. He was involved in a love triangle and found out that his girlfriend,
Tonya Bishop, was romantically involved with the victim, Nick Creson, both also high
school seniors. At trial, the defense presented evidence that Mr. Davis suffered from
auditory hallucinations severe depression and expressed thoughts of suicide.
36. After his arrest and trial, Jacob arrived at South Central Correctional Facility (SCCF) in
1999 and from 2000-2001 he took all required programs, including anger management
and substance abuse programs.
37. Determined to pursue his interest in computer science, Mr. Davis joined the computer
information processing class and then the computer refurbishing program offered at
SCCF. He graduated from the program with a 4.0 grade point average. Mr. Davis also

13

worked as the education clerk in order to assist others in the pursuit of their educational
goals.
38. Mr. Davis spent 10 years, from 2001-2011, dedicating himself to studying computer
programming full time. As a resourceful and industrious young man, Mr. Davis reached
out to external professors and educators, read dozens of text books, academic journals,
and white papers in order to create his own course of study and become an expert in IT,
computer software design and operating systems.
39. His hard work and dedication to his studies enabled Mr. Davis to become the lead
employee in the computer refurbishing department at SCCF from 2003-2011. He was
often the employee of the month, and his responsibilities at SCCF included assisting in
the creation of the education network and serving as the system administrator, as well as
repairing and maintaining SCCF computers.
40. In fact, Mr. Davis created his own software program that the prison otherwise would have
had to purchase and relinquished his intellectual property rights to SCCF. Mr. Daviss
software allows SCCF to continue running the computer refurbishing program which in
turn refurbishes thousands of computers used in Tennessee schools and government
offices. Mr. Daviss software has proven to be extremely useful and is still in use by
SCCF today.
41. In addition to his academic studies, Mr. Davis has taken it upon himself to give back to
his community even while being separated from it. From 2001-2006 Jacob Davis and a
fellow prisoner at SCCF met with and spoke to over 1,500 8th graders from surrounding
counties about his life and choices. He did this voluntarily as a public service because he
wanted at risk youth to understand that they could reach out for help if they needed it and

14

that they did not have to make the same choices he made.5 Mr. Davis has also regularly
attended worship services for 15 of his 17 years of incarceration.
42. From 2013-2014, when he was at RMSI, Mr. Davis was enrolled as a college student
through Lipscomb Universitys LIFE Program. Mr. Davis was a leader in this program
and carried a 4.0 grade point average. One of his papers written for a class on Restorative
Justice, a paper titled Redemptive Imagination: the Fallacy of Judging across Borders of
Ignorance was published in the Contemporary Justice Review, an academic journal that
focuses on issues in criminal, social, and restorative justice.6 Through his writing, Mr.
Davis was also a participant in this years Re-visioning Justice Conference held in April
at Vanderbilt University.
43. In 17 years of incarceration Mr. Davis has had no write-ups for violent offenses or drug
charges, and has never been affiliated with a gang or gang activity. TOMIS Disciplinary
Report through August 30, 2014. Mr. Davis is respected and loved by his family and a
broad community of educators and professionals. It is because he is the kind of man who
is capable of accomplishing all of the above that a jury determined that Mr. Davis should
have a chance at parole one day, that chance should be a meaningful chance because the
broader community of this state would be better off with Mr. Davis functioning and
contributing to our society as a free citizen.
COUNT ONE
44. Petitioner incorporates the preceding paragraphs in their entirety.

Newspaper and magazine articles were written about this project and an interview with Mr. Davis and his story
figure prominently in the forthcoming book, Where the River Bends: Considering Forgiveness in the Lives of
Prisoners, to be published by Cascade Books in winter 2015.
6
Mr. Davis also writes about restorative justice, a cause to which he became dedicated after being contacted by the
parents of a young woman who was the victim in a case similar to Mr. Daviss.

15

45. This Court should declare that the only mandatory minimum sentence set forth in the
applicable statute is 25 years and if interpreted otherwise, the statute should be held
constitutionally void for vagueness.
46. Section 40-35-501(h)(1), provides that those subject to the statute are eligible for parole
after serving 60% of a 60 year sentence, or 36 years. The minimum sentence of 36 years
may be further reduced by sentence credits, such that the defendant may be eligible for
parole after serving 25 years.
47. Section 40-35-501(i)(1), which is the product of a 1995 amendment, provides that
persons subject to the statute shall serve 100% of the sentence imposed by the court,
with a maximum allowable reduction of 15% for sentencing credits earned. This section
does not specify the number of years that constitutes a life sentence.
48. The TDOC interprets the statute to mean that Mr. Davis must serve 85% of a 60 year
sentence, or 51 years, before being considered for parole. Neither one of these figures is
set forth in 40-35-501(i)(1). Rather, as shown, the only time period referenced in the
statute is the 36 year period (60% of 60 years), which may be reduced to 25 years.
49. At most, the statute is unclear as to whether it imposes a sentence greater than 25 years.
In such a circumstance, the rule of lenity demands that ambiguities in criminal statutes be
resolved in favor of the defendant. Therefore, Mr. Davis should be required to serve the
less severe sentence of a minimum of 25 years rather than 51 years. State v. Horton, 880
S.W.2d 732, 735 (Tenn. Crim. App. 1994) (applying the rule of lenity as a tie-breaker
when there is an otherwise-unresolved ambiguity.) (internal citation omitted).
50. Alternatively, if the 1995 amendment is found to be constitutionally valid and applicable,
the appropriate minimum term for life imprisonment is 36 years, not 60 years as

16

interpreted by the TDOC. The 1995 amendment states that the person shall serve one
hundred percent (100%) of the sentence imposed by the courts. However, because this
provision does not specify the number of years to be served, courts and the TDOC must
look to the statute as a whole to determine the appropriate sentence calculation.
Subsection (h) clearly provides that an individual sentenced to life imprisonment shall be
eligible for parole after 36 years. Thus a 36-year baseline sentence as provided by
subsection (h) must inform the subsequent interpretation of subsection (i).
51. Read together, subsections (h) and (i) would establish that the sentence imposed by the
courts is 36 years; therefore an individual must serve 100% of a 36-year sentence before
becoming eligible for parole. Additionally, subsection (i) provides that this sentence can
be further reduced by 15% based on sentencing credits, which when applied to a 36-year
sentence results in a minimum of 31.5 years served prior to parole eligibility.
52. If 40-35-501 is not interpreted in one of the manners set forth above, it would be void
for vagueness because it does not provide notice of the possible number of years a life
sentence entails. If the later amended paragraph, (i)(1), is interpreted to supersede the
earlier drafted paragraph, (h)(1), it would be entirely unclear what number of years an
individual is required to serve 85% of.

Constitutional due process provides that

individuals must be provided with clear notice of the sentences to which they are subject.
Lindsey v. Washington, 301 U.S. 397, 401 (1937) (due process prevented sentence from
being retroactively changed); California Dept of Corr. v. Morales, 514 U.S. 499, 508509 (1995) (changing application of parole statute after sentencing violated due process);
United States v. Harriss, 347 U.S. 612, 617 (1954) (lack of notice of criminalized conduct
violated due process). It therefore follows that individuals cannot be sentenced under

17

statutes that are unclear as to what the sentence for a given crime is. When Mr. Davis
was discussing plea options with his lawyer, the vagueness of the statute made it unclear
as to what sentence he actually faced under 40-35-501 if found guilty. To the extent the
statute is not clear as to how long an individual must serve before becoming eligible for
parole, the statute violates the notice requirements of due process.
53. Furthermore, the vagueness of the statute and courts application of it violate the
separation of powers required by Article II, Section 3 of the Tennessee Constitution,
which vests the states legislative power solely in the General Assembly. In general,
legislative power is the authority to make, order, and repeal law. State v. King, 973
S.W.2d 586, 588 (Tenn. Crim. App. 1998). Specifically, the General Assembly may not
delegate to the courts or to an executive branch agency the exercise of the legislatures
discretion as to what the law shall be, because this is a purely legislative function. See
Dept of Pub. Welfare v. Natl Help U Assn, 270 S.W.2d 337, 339 (Tenn. 1954);
State v. Edwards, 572 S.W.2d 917, 919 (Tenn. 1978). The amended section of the statute
nowhere provides the number of years that should be used to calculate a life sentence.
The only part of the statute that provides that a life sentence should be 60 years also
provides that the defendant shall be eligible for parole after 36 years, which may be
further reduced to 25 years. This is the same section that the TDOC interprets to be
superseded by the newly amended section. Section 40-35-501(h)(1) cannot be interpreted
to be selectively in effect and selectively superseded, based on the whim of the TDOC.
By interpreting the statute this way, the judicial and executive branches have decided that
the minimum term for life imprisonment is 60 years, a decision that is exclusively for the
legislature to make.

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COUNT TWO
54. Petitioner incorporates the preceding paragraphs in their entirety.
55. The Court should declare that as interpreted by the TDOC, 40-35-501(i)(1), which has
the effect of amending other Tennessee statutes without providing notice, violates Article
II, Section 17 of the Tennessee Constitution. Where a statute fails to comply with the
requirements of Article II, Section 17, it will be struck down by the judiciary. State v.
Hailey, 505 S.W.2d 712, 713 (Tenn. 1974). As interpreted by the TDOC, the 1995
amendment to 40-35-501 would have the effect of changing the meaning of at least
three other statutes without including in its caption, or otherwise, that it affects other
statutes, as required by Article II, Section 17 of the Tennessee Constitution. First, as
interpreted, 40-35-501(i)(1) would change the meaning of 40-35-501 (h)(1) by
establishing a minimum sentence that differs from the minimum sentence set forth in
40-35-501 (h)(1): 60% of 60 years, or 36 years, which can be further reduced to 25
years. Second, as interpreted, 40-35-501(i)(1) would change the meaning of 39-13204(a), which provides three distinct sentences for first degree murder, by eliminating the
distinction between the separate sentences of life without the possibility of parole and life
with the possibility of parole. Similarly, 39-13-203, 39-13-204(h), 39-13-206 and
39-13-207, all of which distinguish between life sentences and life without parole
sentences, would be undermined. Third, as interpreted, 40-35-501(i)(1) would change
the meaning of 39-13-204(e)(2), which provides that in a sentencing hearing for first
degree murder the judge shall instruct the jury that a defendant who receives a sentence
of imprisonment for life shall not be eligible for parole consideration until the defendant
has served at least twenty-five (25) full calendar years of the sentence. Such repeal or
amendment of former laws without reference in the caption, or otherwise, to the title or
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substance of the law repealed or amended would violate Article II, Section 17 of the
Tennessee Constitution. Should the Court find that the caption to the 1995 amendment,
which references Title 40, Chapter 35, satisfies the requirements of Article II, Section
17 with respect to its effect on 40-35-501(h)(1), despite its failure to mention that, as
interpreted, (i)(1) would have a direct impact on (h)(1), the statutes failure to identify
other code sections that it amends, nevertheless renders it invalid.
COUNT THREE
56. Petitioner incorporates the preceding paragraphs in their entirety.
57. The Court should declare that 40-35-501 violates Mr. Daviss constitutionally protected
liberty interest in his parole eligibility. The applicable sentencing statute, Tenn. Code
Ann. 39-13-204 provides three distinct sentences for a first degree murder conviction:
life with the possibility of parole, life without the possibility of parole and the death
penalty. Of these three options, Mr. Davis was sentenced to life with the possibility of
parole. A statute must be interpreted to effectuate all of its terms. The fact that the
Tennessee General Assembly created three distinct sentences requires courts and the
TDOC to interpret the statute based on these clear distinctions and give proper meaning
to each. The inclusion of a sentence of life with the possibility of parole (1) evidences
legislative intent to distinguish this sentence from life without the possibility of parole
and (2) creates a vested interest for Mr. Davis in his parole eligibility.
58. The TDOCs interpretation of 40-35-501 effectively eliminates the distinction between
life with and without the possibility of parole. Requiring Mr. Davis to wait 51 years
before even being considered for parole, when he will be 70 years old, is in effect
requiring that he serve a life sentence without parole. Baldwin v. Tennessee Bd. of
Paroles, 125 S.W.3d 429 (Tenn. Crim. App. 2003) (reversing Parole Boards decision to
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defer parole re-consideration until petitioner had served 42 years, finding that such
deferral would have had the essential effect of changing petitioners life sentence to
life without parole, contrary to what the Legislature intended.); see also State v. Golden,
No. 02C01-9709-CR-00362, 1998WL 518071, *8 (Tenn. Crim. App. Aug. 21, 1998)
(observing that a 51 year sentence is, as a practical matter, the same as a life without
parole sentence). Particularly given the lowered life expectancy rates for prisoners7, this
interpretation eliminates any meaningful distinction between sentences of life with the
possibility of parole and life without the possibility of parole.
59. Furthermore, the inclusion of the possibility of parole by the legislature in the sentencing
structure creates a constitutionally protected liberty interest in the right to a meaningful
opportunity for parole. In Baldwin, the Court held that the thrust of [the parole] statutes,
and indeed of the whole concept of parole, is that over time people can change, and that
even a convicted felon may be able to live in accordance with the law, if he or she is
released before the end of his sentence. Baldwin v. Tenn. Bd. of Paroles, 125 S.W.3d
429, 434 (Tenn. Ct. App. 2003). In Baldwin, after serving over twenty years of his
sentence, the petitioner was considered for parole and his parole was denied. The parole
board then deferred his next consideration date for twenty years. The Court held this
deferral was improper, noting that it prevented members of four subsequent parole boards
from even making an initial consideration of whether Mr. Baldwin could be a suitable
candidate for parole. Id.
60. By providing one first degree murder sentence that has a parole opportunity and one that
does not, the legislature adopted the idea that those people who a jury determines can

Evelyn J. Patterson, PhD., The Dose-Response of Time Served in Prison on Mortality: New York State, 19892003, Am. J. Pub. Health, March 2013, 103(3): 523-528, http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3673515/.

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change, should be given the opportunity for parole.

The absence of a meaningful

opportunity for parole is equivalent to no opportunity for parole. To read 40-35-501 as

requiring a minimum sentence of 51 years, ignores the concept of parole and changes Mr.
Daviss sentence from one that provides an opportunity for parole to one that does not.
61. The TDOCs misinterpretation of the statute means that Mr. Davis must serve, at
minimum, an additional 26 years of incarceration over and above the specified minimum
of 25 years before receiving the initial consideration. In Baldwin, the court reversed
the 20-year deferral of parole on the basis that the Parole Board had acted arbitrarily,
noting that constitutional issues should only be decided where necessary. Id. at 435, 433.
In this case, the constitutional issue must be addressed because TDOCs interpretation of
the statute has caused the 26 year deferral of parole consideration and violated Mr.
Daviss due process rights by denying him the opportunity for parole without any
procedure.
62. Moreover, due to the current calculation of Mr. Daviss sentence under 40-35-501, the
TDOC renders meaningless the sentence reduction credits that Mr. Davis continues to
earn. Because Mr. Davis has a vested interest in the retention and calculation of any
sentence credits earned, the TDOC must give effect to the sentence credits he has earned.
COUNT FOUR
63. Petitioner incorporates the preceding paragraphs in their entirety.
64. The Court should declare that 40-35-501, as interpreted by the TDOC, violates the
Eighth Amendment by creating a disproportionate sentence. As discussed in more detail
above, the sentencing statute, 39-13-204 very clearly provides for a life sentence that
allows for parole and one that does not. In the sentencing phase, the jury assigns the
sentence that they deem proportionate to the crime.
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It may be inferred that if an

individual is sentenced to life with the possibility of parole that the jury determined that a
sentence of life without the possibility of parole was disproportionate to the severity of
the offense. By interpreting the statute in a way that effectively obliterates the difference
between these two sentences, the TDOC subjects Mr. Davis to a disproportionate
sentence and violates his Eighth Amendment right. Weems v. United States, 217 U.S.
349 (1910) (holding that a sentence may violate the Eighth Amendments prohibition
against cruel and unusual punishment when it is disproportionately severe compared to
the crime for which it is inflicted); Miller v. Alabama, 132 S. Ct. 2455 (2012) (holding
that proportionality between the offense and the punishment is central to the Eighth
Amendment cruel and unusual punishment analysis).
COUNT FIVE
65. Petitioner incorporates the preceding paragraphs in their entirety.
66. The Court should declare that the cost of implementing 40-45-501(i) grossly exceeds
the cost contemplated by the legislature in the fiscal note accompanying the bill and thus
should be reconsidered. Tenn. Code Ann. 3-2-107 provides that [f]iscal notes shall be
provided for all general bills or resolutions increasing or decreasing state or local
revenues, making sum-sufficient appropriations, or increasing or decreasing existing
appropriations or the fiscal liability of the state or of the local governments of the state.
While the statute makes an exception for where it is determined that no dollar estimate
is possible, in that situation it requires that the note shall contain a statement to that
effect, setting for the reasons why no dollar estimate can be given. In order to give
effect to this statute, the legislature should not be permitted to rely on fiscal notes that
have no correlation to the actual costs of implementing a bill.

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67. In consideration of Public Chapter 492 (House Bill 1762, Senate Bill 1747), the General
Assembly was

provided with a fiscal note that projected an increase in state

expenditures of $57,899,352 for incarceration along with a $2,100,040 recurring cost of

judicial process and a $279,500 one-time cost. Fiscal Note from James A. Davenport,
Executive Director, to Chief Clerks of the Senate and the House regarding SB 1747 - HB
1762 (Mar. 15, 1995) http://www.capitol.tn.gov/Bills/99/Fiscal/SB1747.pdf. This note
provides a 10-year estimate for implementing the entirety of 40-35-501(i), the provision
that increased the length of incarceration for fifteen offenses, not just murder in the first
degree. The actual cost of incarcerating persons sentenced to life since the enactment of
the 40-35-501(i), subject to the TDOCs interpretation of the statute which requires a
minimum sentence of 51 years would be approximately $1.3 billion.8 This amount is
nearly 22 times the amount that was considered by the General Assembly in the fiscal
note to the bill. Even if the estimate provided in the fiscal note is projected out for 50
years instead of 10, making the projected cost $300 million, that is less than one quarter
of the actual cost of enforcing the statute with respect to the population of inmates
sentenced to life with the possibility of parole as of 2013.
68. It is clear from the recordings of the legislative session, that the costs associated with
implementing the act were not clear to those considering it. At various points in the
session, speakers mentioned the numbers $9.5 million for incarceration and an additional
$1 million for judicial costs, $160 million, $20 million, and $58 million in year 10. ,
8

The estimated cost for individuals currently incarcerated and serving a life sentence in TDOC under 40-35-501(i)
was derived by using an approximate cost of $25,000 per year per person for incarcerated individuals under the age
of 50 and an increased cost of $50,000 per year per person for incarcerated individuals 50 or more years old. The
cost was calculated using data for all individuals serving a 51-year sentence as of 2013 at a cost of $25,000 per year
for each individual from the time of their sentencing to age 49 and at a cost of $50,000 per year from age 50 to age
90. If this cost estimate were reduced based on the likelihood that individuals will die before they serve 51 years or
reach the age of 90, this would simply confirm the fact that a 51 year minimum sentence is the functional equivalent
of a sentence of life without parole.

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Audio tape: House Committee on Judiciary, held by the Tennessee General Assembly.
G.A., 1st Session (May 2 and 3, 1995), tape #s 1 and 3. At one point a speaker said, Id
like to first ask you where youre getting your 58 million Id. and when directed to the
fiscal note he said I dont believe its going to be as extreme as what the fiscal note
would indicate. Id.

He further notes, [w]ell, as you know, there has been some

discrepancies about the fiscal note; how we arrive at those figures. Id. It is apparent
from the legislative session recordings that the General Assembly never had a $1.3 billion
price tag in mind when enacting the legislation, and certainly did not have the even larger
price tag that must result when the costs of increased incarceration for the other fourteen
affected offenses are taken into consideration.
COUNT SIX
69. Petitioner incorporates the preceding paragraphs in their entirety
70. For the reasons set forth above, Mr. Davis should be eligible for parole after serving a
minimum of 25 years. The TDOCs interpretation of the statute is further undermined by
the fact that, if they are correct in their interpretation of the statute to mean that Mr. Davis
must serve 51 years prior to parole eligibility, his conviction must then be improper
because in that circumstance the jury should have been informed that a life sentence
would carry with it a 51 year minimum sentence. Vaughn v. State of Tenn., 202 S.W.3d
106, 119-120 (Tenn. 2006). In Vaughn, the defendants were convicted of first degree
murder (among other offenses) and sentenced to life. Vaughn, 202 S.W.3d at 111-12
(Tenn. 2006). Prior to deliberations, the jury was not informed that the defendants would
be required to serve a minimum of 51 years if sentenced to life. Id. at 116-17. The Court
therefore reversed the defendants convictions, observing that it was reasonably
probable that the juries would have convicted [defendants] of a lesser offense had they
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been read a correct instruction on release eligibility. Id. at 120. In Mr. Daviss case, the
jury was not formally instructed that a life sentence would carry with it a 51 year
minimum sentence. In Mr. Daviss case, after having found Mr. Davis guilty of first
degree murder, the jury consciously chose to give him a life sentence instead of a life
without parole sentence, but they found him guilty and sentenced him to life ignorant of
the fact that the life sentence they imposed [would], as a practical matter, have the same
effective sentence as life without parole. State v. Golden, No. 02C01-9709-CR-00362,
1998 WL 518071, at *8 (Tenn. Crim. App Aug. 21, 1998). The State cannot have it both
ways: it cannot insist that Mr. Davis serve a minimum of 51 years and also maintain as
proper his conviction where the jury was not informed that, if it convicted Mr. Davis of
first degree murder, Mr. Davis would be required to serve 51 years before being eligible
for parole consideration.
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CONCLUSION
71. For the above stated reasons, Mr. Davis seeks a Declaratory Order recalculating his
sentence based on 40-35-501(h)(1), requiring that he serve 60% of a 60 year sentence
less sentence credits earned to reduce his sentence to a minimum of 25 years served, or in
the alternative, 85% of 36 years, or 31.5 years. Additionally Mr. Davis requests a
Declaratory Order instructing the TDOC to record any sentence reduction credits earned
and retained and to retroactively credit Mr. Davis with any previously earned sentence
reduction credits that were not properly recorded.

This Is The First Application For Extraordinary Relief.

Respectfully submitted,

William Howell
175 Stonewall St. #201
Memphis, TN 38104
(828) 713-0294

CLEARY GOTTLIEB STEEN & HAMILTON LLP

David H. Herrington (pro hac vice application pending)

One Liberty Plaza
New York, New York
Phone: (212) 225-2266
Fax: (212) 225-3999

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