IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 13, 2010

DANIEL LIVINGSTON v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Hardeman County

No. 09-CR-179 Joe H. Walker, III, Judge

No. W2009-02372-CCA-R3-HC - Filed December 17, 2010

The pro se petitioner, Daniel Livingston, appeals the summary dismissal of his petition for

writ of habeas corpus relief. The petitioner entered a guilty plea to one count of facilitation

of sale of a Schedule II controlled substance, a Class D felony, in exchange for a six-year

sentence, to be served as a Range I, standard offender at thirty percent. The court ordered

the sentence to be served consecutive to a sentence imposed following a parole violation.

On appeal, he argues that his sentence is illegal. After careful review, we affirm the

summary dismissal of the petition for writ of habeas corpus relief.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which THOMAS T.

WOODALL and CAMILLE R. MCMULLEN, JJ., joined.

Daniel Livingston, Nashville, Tennessee, Pro Se.

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

General; and D. Michael Dunavant, District Attorney General, for the appellee, State of

Tennessee.

OPINION

The petitioner filed his petition for writ of habeas corpus relief on September 24,

2009, and alleged that his sentence was illegal because he was sentenced to six years as a

Range I offender. He argues that he should have been sentenced to between two and four

years. The habeas corpus courtsummarily dismissed the petition by written order on October

8, 2009, and held that the petitioner agreed to the six-year sentence. Further, the habeas

corpus court concluded that the petitioner had already raised the issue in a previous habeas

corpus petition. The petitioner signed his notice of appeal on November 10, 2009. The
notice of appeal was not filed until November 16, 2009. The State argues that the appeal

should be dismissed because the petitioner failed to file a timely notice of appeal.

Tennessee Rule of Appellate Procedure 4(a) states:

In an appeal as of right to the Supreme Court, Court of Appeals or Court of

Criminal Appeals, the notice of appeal required by Rule 3 will be filed with and

received by the clerk of the trial court within 30 days after the date of entry of the

judgment appealed from; however, in all criminal cases the “notice of appeal”

document is not jurisdictional and the filing of such document may be waived in the

interest of justice. The appropriate appellate court shall be the court that determines

whether such a waiver is in the interest of justice.

The State argues that the petitioner has provided no reason why the interest of justice

requires a waiver of the notice requirement. In his reply brief, the petitioner argues that his

notice of appeal was timely filed and asserts that his notice was delivered to the mailroom

officer at his correctional facility on Monday, November 9, 2009, one day after the last day

for filing an appeal, which was Sunday, November 8, 2009. However, his notice of appeal

states that he signed the document on “the 10 day of , 2009.” His reply brief also contains

a statement that the interest of justice warrants a waiver of the notice of appeal but contains

no reason for waiver.

The waiver notwithstanding, the trial court correctly denied habeas corpus relief

because the petitioner failed to state a cognizable claim for relief. Article I, section 15 of

the Tennessee Constitution guarantees the right to seek habeas corpus relief. Tennessee

Code Annotated sections 29-21-101 et seq. codify the applicable procedures for seeking a

writ. While there is no statutory time limit in which to file for habeas corpus relief,

Tennessee law provides very narrow grounds upon which such relief may be granted.

Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A habeas corpus petition may be used

only to contest void judgments which are facially invalid because: (1) the convicting court

was without jurisdiction or authority to sentence a [petitioner]; or (2) the [petitioner’s]

sentence has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). It is the

petitioner’s burden to demonstrate, by a preponderance of the evidence, that the judgment

is void or that the confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

If the habeas corpus court determines from the petitioner’s filings that no cognizable claim

for relief has been stated and the petitioner is not entitled to relief, the petition for writ of

habeas corpus relief may be summarily dismissed. Hickman v. State, 153 S.W.3d 16, 20

(Tenn. 2004).

Here, the habeas corpus court correctly dismissed the petition for writ of habeas

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corpus because nothing in the petition supports a finding that the petitioner’s conviction is

void or that the sentence has expired. The petitioner contends that he was illegally

sentenced to six years and argues that his sentence should have been limited to four years.

However, the petitioner agreed to the sentence of six years, which was within the range for

a [petitioner] convicted of a Class D felony. The petitioner has failed to show that the

judgment is facially invalid and has not demonstrated that his sentence has expired.

Therefore, he is not entitled to relief.

Conclusion

Based on the foregoing and the record as a whole, we affirm the summary dismissal

of the petition for writ of habeas corpus relief.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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