         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


                   MICHAEL BELL v. TONY PARKER, WARDEN

                    Direct Appeal from the Circuit Court for Lake County
                          No. 04-CR-8662 R. Lee Moore, Jr., Judge



                     No. W2004-02991-CCA-R3-HC - Filed May 25, 2005




The Petitioner, Michael Bell, appeals the trial court’s denial of his petition for habeas corpus relief.
The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule 20,
Rules of the Court of Criminal Appeals. The State’s motion is granted. The judgment of the trial
court is affirmed.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN , JJ. joined.

Michael Bell, pro se.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General,
for the appellee, the State of Tennessee.



                                   MEMORANDUM OPINION


        On May 7, 1983, a Dyer County jury found the Petitioner, Michael Bell, guilty of murder in
the second degree. See Michael Bell v. Neil Rone, Warden, No. 02C01-9109-CC-00216, 1992 WL
105969, *1 (Tenn. Crim. App., at Jackson, May 20, 1992), perm. to appeal denied, (Tenn. Jul. 27,
1992). On May 31, 1983, he was sentenced to serve fifty years as a range II persistent offender. Id.
No direct appeal of the sentence was taken. On August 8, 1989, Petitioner filed a petition for post-


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conviction relief. This petition was summarily denied by the trial court as time-barred. Id. A
subsequent petition for post-conviction relief was similarly dismissed. Id. On September 16, 1991,
Petitioner filed a petition for habeas corpus relief attacking the fifty-year sentence imposed by the
trial court. Id. Specifically, Petitioner argued that the trial court unlawfully relied upon prior
convictions from the State of Missouri to impose a range II sentence. Id. The trial court denied
habeas corpus relief, finding, in part, that “[t]he statute authorized consideration of ‘prior felony
convictions,’” and “did not limit the consideration to Tennessee convictions alone. . . .” Id. This
Court affirmed the lower court’s denial pursuant to Rule 20, Rules of the Tennessee Court of
Criminal Appeals. Id. Petitioner is currently confined at the Northwest Correctional Complex in
Lake County, Tennessee.

        On November 19, 2004, Petitioner filed a petition for writ of habeas corpus relief in the Lake
County Circuit Court attacking the validity of his 1983 conviction for second degree murder. As
grounds for relief, Petitioner alleged that his conviction and sentence were void because (1) the State
failed to file notice of enhancement of the Petitioner’s sentence and (2) the sentence imposed is
greater than the maximum sentence prescribed by law. Petitioner also claimed that the decision in
Blakely v. Washington rendered his conviction void as “[n]o jury heard the prejudicial testimony or
agreed on the presence or absence of aggravating circumstances.” On December 3, 2004, the trial
court denied relief. A timely notice of appeal document was filed.

         The grounds upon which habeas corpus relief may be granted in this state are narrow.
Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004) (citations omitted). Relief will be granted if the
petition establishes that the challenged judgment is void. Id. A judgment is void “only when ‘[i]t
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.” Hickman, 153 S.W.3d at 20
(quoting State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000) (citations omitted)). The petitioner bears
the burden of establishing either a void judgment or an illegal confinement by a preponderance of
the evidence. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). If the petitioner
carries this burden, he is entitled to immediate release. Id. However, if the habeas corpus petition
fails to demonstrate that the judgment is void or that the confinement is illegal, neither appointment
of counsel nor an evidentiary hearing are required and the trial court may properly dismiss the
petition. Hickman, 153 S.W.3d at 20 (citations omitted).

        Petitioner claims that the State’s failure to provide him notice of its intent to use his
Missouri convictions to enhance his sentence and the trial court’s use of his prior Missouri
convictions to impose a range II, fifty-year sentence render the conviction and judgment against
him void. These claims fail. The State’s failure to give notice of its intent to seek enhanced
punishment does not result in an illegal or void judgment and is not, therefore, subject to habeas
corpus relief. See Milburn L. Edwards v. State, No. M2004-01378-CCA-R3-HC, 2005 WL
544714, at *2 (Tenn. Crim. App., at Nashville, Mar. 7, 2005) (citation omitted). Moreover, the
Petitioner raised these same claims in his prior petition for habeas corpus relief. These claims
were previously determined as without merit by the trial court; this Court affirmed the lower


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court’s decision. Michael Bell v. Neil Rone, Warden, No. 02C01-9109-CC-00216, 1992 WL
105969, *1. A petitioner may not “relitigat[e] questions previously determined adversely to him
in . . . separate habeas corpus cases by courts of competent jurisdiction.” Billy Joe Harris v. Fred
Raney, Warden, No. 02C01-9808-CC-00240, 1999 WL 134732, * 1, n.1 (Tenn. Crim. App., at
Jackson, Mar. 12, 1999) (quoting Myers v. State, 3 Tenn. Crim. App. 414, 462 S.W.2d 265, 269
(1970) (internal citations omitted)). Accordingly, Petitioner is not entitled to relief on these
claims.


         Next, the Petitioner alleges that his convictions are void as he was denied his
constitutional right to a trial by jury. In support of this proposition, Petitioner relies upon the
United States Supreme Court decision in Blakely v. Washington, 524 U.S. –, 124 S. Ct. 2531
(2004). The Petitioner's argument has no merit. First, the argument fails because even if there
was a violation of the Petitioner's constitutional right at the time of conviction and sentencing,
such violation would render the judgment voidable, and not void.1 See Earl David Crawford v.
Ricky Bell, No. M2004-02440-CCA-R3-HC, 2005 WL 354106, *1 (Tenn. Crim. App., at
Nashville, Feb. 15, 2005). Secondly, the Blakely holding is not to be applied retroactively and
is, thus, inapplicable to the Petitioner's case. Id.; see also Isaac Herron v. State, No. W2004-
02533-CCA-R28-PC (Tenn. Crim. App., at Jackson, Nov. 22, 2004) (order). Where the
allegations in a petition for writ of habeas corpus relief do not demonstrate that the judgment is
void, a trial court may correctly dismiss the petition without a hearing. McLaney v. Bell, 59
S.W.3d 90, 93 (Tenn. 2001).

      The Petitioner has not established that he is entitled to habeas corpus relief. He has
demonstrated neither a facially invalid judgment nor an expired sentence. Accordingly, the
judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Court of Criminal
Appeals.




                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE



         1
          Our supreme court has recently held that the Sentencing Reform Act of 1989 does not violate the Sixth
Amendment guarantee of a jury trial and was not affected by either the Blakely or Booker decisions. See State v.
Edwin Gomez and Jonathan S. Londono, No. M2002-01209-SC-R11-CD, 2005 W L 856848, *1 (Tenn. Apr. 15,
2005), pet. for reh’g filed, (Apr. 20, 2005). W e note that, as the supreme court’s decision was limited to the 1989
Sentencing Act, the Gomez/Londono ruling is not dispositive of the issue in this case as the Petitioner was sentenced
under the 1982 Act.

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