IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 1, 2008

AUTHOR RAY TURNER v. STEPHEN DOTSON, WARDEN

Direct Appeal from the Circuit Court for Hardeman County

No. 07-02-0279 Joseph Walker, Judge

No. W2008-00011-CCA-R3-HC - Filed September 16, 2008

The petitioner, Author Ray Turner, appeals the circuit court’s order summarily dismissing his

petition for writ of habeas corpus. Following our review of the record and applicable law, we affirm

the court’s order.

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

J.C. MCLIN, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ALAN E.

GLENN, JJ., joined.

Author Ray Turner, Whiteville, Tennessee, Pro Se. 

Robert E. Cooper,Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General;

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

OPINION

It appears from the record before usthat in 1995 the petitioner, pursuant to a plea agreement,

entered guilty pleas to especially aggravated kidnapping, aggravated robbery and two counts of

aggravated rape. He was sentenced to twenty years for each of his aggravated rape convictions and

ten years for his especially aggravated kidnapping and aggravated robbery convictions. Thereafter,

the trial court ordered the petitioner’s sentences to run concurrent, except for the rape sentences

which were to run consecutive for an effective sentence of forty years. In April 1996, the petitioner

filed a petition for post-conviction relief, alleging ineffective assistance of counsel and improper

imposition of consecutive sentences. The petition was dismissed and this court affirmed the

dismissal on appeal. See Arthur R. Turner v. State, No. 01C01-9707-CR-00274, 1998 WL 652154

(Tenn. Crim. App., at Nashville, Sept. 23, 1998) perm. app. denied (Tenn. March 22, 1999).

Subsequently, the petitioner unsuccessfully filed a series of petitions seeking post-conviction relief.

See, e.g., Author R. Turner v. State, No. M2002-00541-CCA-R3-PC, 2003 WL 1877035 (Tenn.

Crim. App., at Nashville, April 15, 2003) perm. app. denied (Tenn. Sept. 2, 2003) (petition for relief

barred by statute of limitations). The petitioner also unsuccessfully sought post-conviction relief in

the federal district court via petition for writ of habeas corpus. See, e.g., Author Ray Turner v.
 The petitioner also refers to Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856 (2007). Blakely held 1

that any fact other than that of a prior conviction used to enhance a defendant’s sentence must be proven to a jury

beyond a reasonable doubt. 542 U.S. at 30. Cunningham applied the holding in Blakely and invalidated California’s

determinate sentencing law because it allowed a trial court to enhance a defendant’s sentence based on facts found by

the judge by a preponderance of the evidence. 549 U.S. at ----, 127 S. Ct. at 868. 

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Stephen Dotson, Warden, No. 06-5121, 2007 Fed. App. 0179N (6th Cir. Tenn. Mar. 6, 2007)

(petition for relief barred by statute of limitations).

On December 6, 2007, the petitioner filed a petition for writ of habeas corpus, alleging that

he received an illegal sentence because he was sentenced beyond the presumptive minimum sentence

on each of his convictions to which he pled guilty in violation of his Sixth Amendment right to a jury

trial as set forth in Blakely v. Washington, 542 U.S. 296 (2004) and its progeny. The habeas court

noted that the petitioner “made a tactical decision to waive his Sixth Amendment claims. He entered

a plea for an agreed sentence, and signed a written waiver.” The court also noted the petitioner’s

plea-bargained sentence may legally exceed the minimum sentence in the range. As such, the court

found that the petitioner’s habeas petition demonstrated no right to relief and dismissed the petition.

The petitioner appealed.

On appeal, the petitioner essentially reiterates his argument that he is entitled to habeas

corpus relief because he was sentenced beyond the presumptive minimum sentence on each of his

convictions to which he pled guilty in violation of his Sixth Amendment right to a jury trial as set

forth in Blakely and its progeny.1

Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas corpus

relief and Tennessee Code Annotated sections 29-21-101 et seq. codify the applicable procedures

for seeking a writ. 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). A writ of habeas corpus is available only

when it appears on the face of the judgment or the record of the proceedings upon which the

judgment was rendered that a court was without jurisdiction to convict or sentence the defendant or

that the defendant is still imprisoned despite the expiration of his sentence. Archer v. State, 851

S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). The purpose of a

habeas corpus petition is to contest void and not merely voidable judgments. Archer, 851 S.W.2d

at 163. A void judgment is a facially invalid judgment, clearly showing that a court did not have

statutory authority to render such judgment; whereas, a voidable judgment is facially valid, requiring

proof beyond the face of the record or judgment to establish its invalidity. See Taylor, 995 S.W.2d

at 83. The burden is on the petitioner to establish, by a preponderance of the evidence, “that the

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

Moreover, it is permissible for a court to summarily dismiss a petition for habeas corpus relief,

without the appointment of counsel and without an evidentiary hearing, if the petitioner does not

state a cognizable claim. See Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004).

At the onset of our review, we note that the challenged judgments of conviction are not in

the record before us. By not attaching the judgments of conviction, the petitioner has failed to
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comply with the mandatory procedural requirements for seeking habeas corpus relief and a court

may dismiss the petition without the appointment of counsel and without a hearing. Summers v.

State, 212 S.W.3d 251, 260-61 (Tenn. 2007); see generally Tenn. Code Ann. § 29-21-107.

In addition, as the trial court found, the petitioner’s claim is not cognizable in a habeas corpus

proceeding. While the petitioner failed to attach copies of his judgment of convictions and other

documentation regarding his guilty pleas, it appears from the available record that the petitioner’s

sentences were the product of a knowing and voluntary guilty plea, wherein the petitioner agreed to

the sentences imposed. “[A] knowing and voluntary guilty plea waives any irregularity as to

offender classification or release eligibility.” Hoover v. State, 215 S.W.3d 776, 780 (Tenn. 2007).

It also appears that the petitioner was sentenced within the range of his offender status. A

plea-bargained sentence is legal so long as it does not exceed the overall maximum punishment

range authorized for the plea offense. See id. Also, this court has consistently held that Blakely

violations do not apply retroactively to cases on collateral appeal. See, e.g., Billy Merle Meeks v.

Ricky J. Bell, Warden, No. M2005-00626-CCA-R3-HC, 2007 WL 4116486 (Tenn. Crim. App., at

Nashville, Nov. 13, 2007), perm. app. denied (Tenn. April 7, 2008); Timothy R. Bowles v. State, No.

M2006-01685-CCA-R3-HC, 2007 WL 1266594 (Tenn. Crim. App., at Nashville, May 1, 2007);

Ulysses Richardson v. State, No. W2006-01856-CCA-R3-PC, 2007 WL 1515162 (Tenn. Crim. App.

May 24, 2007), perm. app. denied (Tenn. Sept. 17, 2007) (“Apprendi/Blakely type issues regarding

allocating fact-finding authority to judges during sentencing are not in the narrow class of procedural

rules that apply retroactively.”); James R.W. Reynolds v. State, No. M2004-02254-CCA-R3-HC,

2005 WL 736715 (Tenn. Crim. App., at Nashville, Mar. 31, 2005), perm. app. denied (Tenn. Oct.

10, 2005). Furthermore, the petitioner’s claim that he was sentenced above the minimum sentence

in violation of Blakely fails because, even if such a defect occurred, the defect would only render the

judgment voidable, not void. See, e.g., Meeks, 2007 WL 4116486; Bowles, 2007 WL 1266594;

Donovan Davis v. State, No. M2007-00409-CCA-R3-HC, 2007 WL 2350093 (Tenn. Crim. App.,

at Nashville, Aug. 15, 2007), perm. app. denied (Tenn. Nov. 13, 2007).

In sum, the petitioner has clearly failed to show that his sentences are void or that his

effective sentence has expired. As a result, the court’s summary dismissal was proper. See

Summers, 212 S.W.3d at 260.

___________________________________ 

J.C. McLIN, JUDGE