         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE

           RAYMOND WRITER v. HOWARD CARLTON, WARDEN

                      Appeal from the Criminal Court for Johnson County
                              No. 5173   Lynn W. Brown, Judge



                    No. E2008-00127-CCA-R3-HC - Filed February 11, 2009



The petitioner, Raymond Writer, filed in the Johnson County Criminal Court a petition for a writ of
habeas corpus, alleging that his sentence was void because the trial court did not follow the dictates
of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The habeas corpus court dismissed
the petition, finding that the petitioner did not allege a ground upon which habeas corpus relief could
be granted. On appeal, the petitioner challenges the habeas corpus court’s ruling. In response, the
State filed a motion requesting that this Court affirm the trial court’s denial of relief pursuant to Rule
20, Rules of the Court of Criminal Appeals. After review, we conclude that the petition was
properly dismissed. Accordingly, the State’s motion is granted and the judgment of the trial court
is affirmed.

    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed
              Pursuant to Rule 20, Rules of the Court of Criminal Appeals.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR.,
and D. KELLY THOMAS, JR., JJ., joined.

Raymond Writer, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Sophia S. Lee, Assistant Attorney
General, for the appellee, State of Tennessee.

                                    MEMORANDUM OPINION

        The petitioner, Raymond Writer, was convicted by a Sullivan County Criminal Court Jury
of rape of a child, the victim being his girlfriend’s four-year-old grandson. State v. Raymond Writer,
No. E2001-01062-CCA-R3-CD, 2003 WL 21339255, at *1 (Tenn. Crim. App. at Knoxville, June
10, 2003). Following the petitioner’s conviction, the trial court imposed a sentence of twenty-five
years, one hundred percent of which was to be served in confinement. Id. The petitioner appealed,
and this court affirmed his convictions and sentences. Id. Subsequently, the petitioner filed for post-
conviction relief. On appeal, this court upheld the lower court’s denial of post-conviction relief. See
Raymond Writer v. State, No. E2006-00770-CCA-R3-PC, 2007 WL 763223, at *1 (Tenn. Crim.
App. at Knoxville, Mar. 14, 2007), perm. to appeal denied, (Tenn. 2007).
        Thereafter, the petitioner filed a petition for a writ of habeas corpus, alleging that his sentence
was void because the trial court erred by applying enhancement factors that were not admitted by
him or found by a jury in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).
The State filed a motion to dismiss the petition, arguing that a Blakely claim was not cognizable in
a habeas corpus proceeding and that such an error, at best, would render the petitioner’s sentence
voidable, not void. The habeas corpus court dismissed the petition, finding that the petitioner failed
to allege anything that would render his sentence void nor did he allege that his sentence had
expired. On appeal, the petitioner contends that the habeas corpus court erred in dismissing his
petition.

        Initially, we note that the determination of whether to grant habeas corpus relief is a question
of law. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007). As such, we will review the trial
court’s findings de novo without a presumption of correctness. Id. Moreover, it is the petitioner’s
burden to demonstrate, 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).

         Article I, § 15 of the Tennessee Constitution guarantees an accused the right to seek habeas
corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). However, “[s]uch relief is
available only when it appears from the face of the judgment or the record of the proceedings that
a trial court was without jurisdiction to sentence a defendant or that a defendant’s sentence of
imprisonment or other restraint has expired.” Wyatt, 24 S.W.3d at 322; see also Tenn. Code Ann.
§ 29-21-101 (2000). In other words, habeas corpus relief may be sought only when the judgment
is void, not merely voidable. Taylor, 995 S.W.2d at 83. “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.’ We have recognized that a sentence imposed in
direct contravention of a statute, for example, is void and illegal.” Stephenson v. Carlton, 28 S.W.3d
910, 911 (Tenn. 2000) (citation omitted).

        The petitioner’s sole complaint is that his sentence, as imposed, violates Blakely. However,
this court has repeatedly stated that Blakely does not apply retroactively to cases on collateral appeal.
See James C. Johnson v. Tony Parker, Warden, No. W2005-01570-CCA-R3-HC, 2006 WL
1168830, at *3 (Tenn. Crim. App. at Jackson, May 2, 2006); Carl Johnson v. State, No.
W2003-02760-CCA-R3-PC, 2005 WL 181699, at *4 (Tenn. Crim. App. at Jackson, Jan. 25, 2005).
The petitioner is not entitled to relief on this issue.

       Accordingly, the State’s motion is granted. The judgment of the trial court is affirmed
pursuant to Rule 20, Rules of the Court of Criminal Appeals.


                                                         __________________________________
                                                         NORMA McGEE OGLE, JUDGE



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