IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON 

KEVIN WILKINS v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. 97-13179 John T. Fowlkes, Jr., Judge

No. W2010-02089-CCA-R3-HC - Filed August 25, 2011

The Petitioner, Kevin Wilkins, appeals the Criminal Court of Shelby County’s dismissal of

his petition for writ of habeas corpus. The State has filed a motion requesting that this court

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affirm the trial court’s dismissal pursuant to Rule 20 of the Rules of the Court of Criminal

Appeals. Following our review, we grant the State’s motion and affirm the judgment of the

trial court.

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

Pursuant to Rule 20 of the Rules of the Court of Criminal Appeals

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and ALAN E. GLENN, JJ., joined.

Kevin Wilkins, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney

General, for the Appellee, State of Tennessee.

MEMORANDUM OPINION

The Petitioner was originally convicted of first degree murder and especially

aggravated kidnapping. Following his direct appeal, his conviction for first degree murder

was reversed and dismissed, and the conviction for especially aggravated kidnapping was

affirmed. State v. Kevin Wilkins, No. W1999-01462-CCA-MR3-CD, 2000 WL 1229156,

at *1 (Tenn. Crim. App., at Jackson, Aug. 18, 2000), perm. to appeal denied (Tenn. Feb. 20,

2001). The petitioner then filed a petition for post-conviction relief, which was dismissed

There is no transcript of a hearing on this matter included in the record on appeal. However, this

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court notes a minute entry which designated that the Petitioner’s “petition for post-conviction relief” was

heard by the parties, fully considered by the court, and taken under advisement. 
as untimely. On appeal, this court ruled that the petition had been timely filed and remanded

the case for an evidentiary hearing. Kevin Wilkins v. State, No. W2002-00436-CCA-R3-PC,

2002 WL 31624971, at *1 (Tenn. Crim. App., at Jackson, Nov. 14, 2002). On remand, the

Petitioner challenged trial counsel’sfailure to appeal the petitioner’s conviction for especially

aggravated kidnapping, and the post-conviction court granted the petitioner relief. The State

appealed and we reversed the judgment of the post-conviction court. Kevin Wilkins v. State,

No. W2006-00639-CCA-R3-PC, 2008 WL 1788055, at *1 (Tenn. Crim. App., at Jackson,

Apr. 18, 2008), perm. to appeal denied (Tenn. July 25, 2008). All of the issues raised in the

Petitioner’s preceding appeals concerned the sufficiency of the evidence supporting his

conviction.

On May 27, 2010, the Petitioner filed for writ of habeas corpus in the Criminal Court

of Shelby County, which was later amended on July 6, 2010. The Petitioner alleged, inter

alia,

The twenty-five (25) year sentence at 100% Petitioner received on the

Especially Aggravated Kidnapping conviction wasillegal because it was based

on the Court’s ruling that the Petitioner was a ‘violent offender’ because of his

prior First-Degree Murder conviction, which was ultimately overturned and

vacated. Additionally, said sentence is in violation of the Tennessee Criminal

Sentencing Reform Act of 1989 because the Petitioner’s sentence was outside

the range ordinarily established for a defendant under similar circumstances.

The Petitioner further argued in his petition and on appeal that his judgments were

void because his sentence was enhanced in violation of his right to a jury trial under Blakely

v. Washington, 542 U.S. 296 (2004).

The State filed a motion in opposition to the writ pointing out that the Petitioner did

not include the judgment of the especially aggravated kidnapping conviction and further

arguing that his petition did not warrant habeas corpus relief. The State explained that the

Petitioner was found guilty of especially aggravated kidnapping, a Class A felony, with a

sentence range of fifteen to twenty-five years imprisonment. The State maintained that the

trial court imposed a legal sentence pursuant to Tennessee Code Annotated Section 40-35-

112. The State further argued that Blakely claims are not cognizable for habeas corpus relief

because “any such violation merely renders the questioned judgment voidable rather than

void.” By written order, and after reviewing the original sentencing transcript attached to the

petitioner’s memorandum, the trial court denied habeas corpus relief. It is from this order

that the Petitioner now appeals.

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A prisoner is guaranteed the right to habeas corpus relief under Article I, section 15

of the Tennessee Constitution. See also T.C.A. § 29-21-101, et seq. However, the grounds

upon which a writ of habeas corpus may be issued are very narrow. Taylor v. State, 995

S.W.2d 78, 83 (Tenn. 1999). “Habeas corpus relief is available in Tennessee only when ‘it

appears upon the face of the judgment or the record of the proceedings upon which the

judgment is rendered’ that a convicting court was without jurisdiction or authority to

sentence a defendant, or that a defendant’s sentence of imprisonment or other restraint has

expired.” Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). “[T]he purpose of a habeas

corpus petition is to contest void and not merely voidable judgments.” Id. at 163. “A void

judgment is one in which the judgment is facially invalid because the court lacked

jurisdiction or authority to render the judgment or because the defendant’s sentence has

expired.” Taylor, 995 S.W.2d at 83.

In contrast, a voidable judgment is facially valid and requires the introduction

of proof beyond the face of the record or judgment to establish its invalidity.

Thus, in all cases where a petitioner must introduce proof beyond the record

to establish the invalidity of his conviction, then that conviction by definition

is merely voidable, and a Tennessee court cannot issue the writ of habeas

corpus under such circumstances.

Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004) (internal citation and quotations

omitted); see also Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007).

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

habeas corpus may be summarily dismissed. See Hickman, 153 S.W.3d at 20. Further, the

habeas corpus court may summarily dismiss the petition without the appointment of a lawyer

and without an evidentiary hearing if there is nothing on the face of the judgment to indicate

that the convictions are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.

1994), superseded by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC00266, 1998 WL 104492, at *1 n.2 (Tenn. Crim. App., at Jackson, Mar. 11, 1998).

As an initial matter, the petitioner has failed to comply with the procedural

requirements for habeas corpus relief by not attaching copies of his judgment to his petition.

See T.C.A. § 29-21-107; see also Hickman, 153 S.W.3d at 19-20 (stating that the procedural

requirements for habeas corpus relief are mandatory and must be scrupulously followed).

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On this ground alone, he is not entitled to habeas corpus relief. Even considering the

petitioner’s claim as stated in his brief to this court, “whether the trial court of Shelby County

Criminal Court imposed Appellant’s sentence term of twenty-five (25) years in direct

contravention of Tenn. Code Ann. § 40-35-210(c)”, the petitioner fails to present a

cognizable claim of habeas relief. This statute clearly provides the trial court with

jurisdiction to impose a sentence of twenty-five years for the Petitioner’s especially

aggravated kidnapping conviction. Finally, the petitioner’s claim that he was sentenced in

violation of Blakely v. Washington must fail. This court has repeatedly held that, even if

such a defect occurred, the defect would only render the judgment voidable, not void. See,

e.g., Wayford Demonbreun,Jr. v. State, No. M2004-03037-CCA-R3-HC, 2005 WL 1541873

(Tenn. Crim. App., at Nashville, June 30, 2005) perm. to appeal denied (Tenn. Oct. 31,

2005); Stanley Harvell v. Glen Turner, No. W2004-02643-CCA-R3-HC, 2005 WL 839891

(Tenn. Crim. App., at Jackson, Apr. 12, 2005) perm. to appeal denied (Tenn. Oct. 3, 2005);

Earl David Crawford v. Ricky Bell, No. M2004-02440-CCA-R3-HC, 2005 WL 354106

(Tenn. Crim. App., at Nashville, Feb. 15, 2005) perm. to appeal denied (Tenn. June 27,

2005). Also, the Tennessee Supreme Court has determined that the Blakely decision did not

announce a new rule of law, did not impact the validity of our statutory sentencing structure,

and is not subject to retroactive application. See State v. Gomez, 163 S.W.3d 632, 649-50,

658-62 (Tenn. 2005), vacated by Gomez v. Tennessee, 549 U.S. 1190 (2007); see also State

v. Gomez, 239 S.W.3d 733 (Tenn. 2007). The Petitioner is not entitled to habeas corpus

relief.

When an opinion would have no precedential value, the Court of Criminal Appeals

may affirm the judgment or action of the trial court by memorandum opinion when the

judgment is rendered or the action taken in a proceeding without a jury and such judgment

or action is not a determination of guilt, and the evidence does not preponderate against the

finding of the trial judge. See Tenn. Ct. Crim. App. R. 20. We conclude that this case

satisfies the criteria of Rule 20. Accordingly, it is ordered that the State’s motion is granted.

The judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Court

of Criminal Appeals.

__________________________

CAMILLER.McMULLEN,JUDGE

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