IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 30, 2007

MICHAEL L. McKILLIP v. JIM MORROW, WARDEN,

TENNESSEE STATE PENITENTIARY, and

STATE OF TENNESSEE

 Appeal from the Circuit Court for Bledsoe County

No. 25-2007 Buddy D. Perry, Judge

No. E2007-01225-CCA-R3-HC - Filed December 21, 2007

The pro se petitioner, Michael L. McKillip, appeals as of right the Bledsoe County Circuit Court’s

summary dismissal of his petition for a writ of habeas corpus. The petitioner was convicted of

aggravated sexual battery pursuant to his guilty plea in the Shelby County Criminal Court and

received a sentence of fifteen years as a Range II offender to be served at one hundred percent. He

alleges that he is entitled to habeas corpus relief because the trial court erroneously allowed him to

plead outside his range and because the 1989 Criminal Sentencing Reform Act violates the United

States Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).

The trial court summarily dismissed the petition for failure to state a cognizable claim. Following

our review, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed 

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which DAVID H. WELLES and

DAVID G. HAYES, JJ., joined.

Michael L. McKillip, Pikeville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General & Reporter; and Cameron L. Hyder, Assistant Attorney

General, attorneys for appellee, State of Tennessee.

OPINION

The petitioner was originally indicted for several sexual offenses involving allegations of an

ongoing sexual relationship between himself and his daughter occurring when the child was between

eleven and thirteen years old. The petitioner entered a guilty plea to one count of aggravated sexual

battery with an agreed sentence of fifteen years as a Range II offender, which was outside the

petitioner’s qualifying range and above the statutory minimum of twelve years. The petitioner filed
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Motion for Correction or Reduction of Sentence which was denied by the trial court. He also

unsuccessfully filed a petition for post-conviction relief. In this petition for a writ of habeas corpus

the petitioner asserted at the trial court level that hissentence is illegal because the trial court should

not have imposed a sentence outside his appropriate range classification. The habeas corpus court

summarily dismissed the petition for writ of habeas corpus based upon its finding that the

petitioner’s claim was not cognizable in a habeas corpus proceeding. On appeal he asserts that the

summary dismissal was erroneous and that the trial court should have declared him indigent and

appointed counsel. As an additional basis of relief, he claims that his sentence is illegal because it

was imposed in contravention to Blakely. The state counters that the trial court correctly denied

habeas corpus relief.

ANALYSIS

Tennessee law provides that “[a]ny 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. Habeas corpus relief is limited and available only

when it appears on the face of the judgment or the record of proceedings below that a trial court was

without jurisdiction to convict the petitioner or that the petitioner’s sentence has expired. Archer

v. State, 851 S.W.2d 157, 164 (Tenn. 1993). To prevail on a petition for a writ of habeas corpus,

a petitioner must establish by a preponderance of the evidence that a judgment is void or that a term

of imprisonment has expired. See State ex rel. Kuntz v. Bomar, 214 Tenn. 500, 504, 381 S.W.2d

290, 291-92 (1964). If a petition fails to state a cognizable claim, it may be dismissed summarily

by the trial court without further inquiry. See State ex rel. Byrd v. Bomar, 214 Tenn. 476, 483, 381

S.W.2d 280, 283 (1964); Tenn. Code Ann. § 29-21-109. We note that the determination of whether

to grant habeas corpus relief is a matter of law; therefore, we will review the trial court’s finding de

novo without a presumption of correctness. McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). 

We agree with the state’s assertion that the petitioner claim regarding offender classification

is not cognizable in a habeas corpus proceeding when the offender classification was a bargainedelement of the plea agreement. State v. McConnell, 12 S.W.2d 795, 797-98 (Tenn. 2000).

Regarding the Blakely allegation, we initially note that the petitioner is precluded from changing or

from raising additional allegations for the first time on appeal. State v. Adler, 71 S.W.3d 299, 303

(Tenn. Crim. App. 2001). Furthermore, the petitioner’s Blakely claim would render the judgment

of conviction merely voidable, not void, and therefore is not cognizable in a habeas corpus

proceeding. See Billy Merle Meeks v. Ricky J. Bell, Warden, 2007 WL 4116486, No. M2005-00626-

CCA-R3-HC, at *12 (Tenn. Crim. App. Nov. 13, 2007). As previously stated, the trial court may

summarily dismiss a petition for a writ of habeas corpus without further inquiry when the petition

fails to state a cognizable claim. Therefore, it was unnecessary for the trial court to determine the

petitioner’s indigence. For the foregoing reasons, we affirm the trial court’s summary dismissal of

the petition for a writ of habeas corpus.

 
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CONCLUSION

Upon thorough review, we conclude that the trial court correctly dismissed the petition for

a writ of habeas corpus. The judgment of the trial court is affirmed.

___________________________________ 

D. KELLY THOMAS, JR., JUDGE