           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE


                  AUTHOR RAY TURNER v. STATE OF TENNESSEE

                         Appeal from the Criminal Court for Davidson County
                               No. 95-C-1691   Steve R. Dozier, Judge



                          No. M2004-02831-CCA-R3-CO - Filed July 21, 2005


The Petitioner, Author Ray Turner, appeals the trial court’s denial of his motion to reopen his
petition for post-conviction relief contending that Blakely v. Washington, 542 U.S. __, 124 S.Ct.
2531 (2004) established a new rule of law that was retrospectively applicable to his case and entitled
him to reopen his post-conviction proceedings. The State has 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. We find the State’s motion has merit. Accordingly, the motion is granted and the appeal
is affirmed pursuant to Rule 20, Rules of the Court of Criminal Appeals.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES, and
JERRY L. SMITH , JJ, joined.

Author Ray Turner, pro se.

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

                                         MEMORANDUM OPINION

        On November 16, 1995, the Petitioner entered a guilty plea to especially aggravated
kidnapping, aggravated robbery, and two counts of aggravated rape. The Petitioner was sentenced
to serve an effective sentence of forty years. In 1996, the Petitioner filed a petition for post-
conviction relief, the trial court dismissed his petition, and this Court affirmed the dismissal on
appeal. Arthur R. Turner1 v. State, No. 01C01-9707-CR-00274, 1998 WL 652154 (Tenn. Crim.
App., at Nashville, Sept. 23, 1998), perm. app. denied (Tenn. Mar. 22, 1999). On January 7, 2004,
the Petitioner filed a second petition for post-conviction relief alleging ineffective assistance of

       1
           W e note the difference in the spelling of the Petitioner’s name in this proceeding.
counsel and that his guilty plea was involuntary. The trial court dismissed the Petitioner’s petition,
and this Court affirmed the dismissal on appeal. On June 14, 2004, the Petitioner filed a motion to
reopen his post-conviction petition, and the trial court denied his motion on June 30, 2004. On
September 28, 2004, the Petitioner filed a second motion to reopen his post-conviction, which the
trial court denied on October 1, 2004. The Petitioner filed his notice of appeal in the trial court on
November 22, 2004.

        The Petitioner now appeals and alleges that Blakely v. Washington, 542 U.S. __, 124 S.Ct.
2531 (2004) established a new rule of law that was retrospectively applicable to his case and entitled
him to reopen his post-conviction proceedings. Pursuant to Tennessee Code Annotated section 40-
30-117(c), upon the denial of a motion to reopen a post-conviction proceeding, “the petitioner shall
have ten (10) days to file an application in the court of criminal appeals seeking permission to
appeal. The application shall be accompanied by copies of all the documents filed by both parties
in the trial court and the order denying the motion.” In the case under submission, the notice of
appeal is untimely filed. Further, if the motion to reopen is considered on its merits, the Petitioner
has failed to establish that he is entitled to relief. The Petitioner’s reliance on Blakely is misplaced.
In State v. Gomez, __ S.W.3d __, 2005 WL 856848 (Tenn. Apr. 15, 2005), the Tennessee Supreme
Court recently held that Blakely did not establish a new rule of law. The Court thus noted that the
filing of a motion to reopen based on Blakely “would be a futile endeavor.” Id. at *32 n.16; see also
Thomas Eugene Graham, No. E2004-02958-CCA-R3-PC, 2005 WL 1269188 at *1 (Tenn. Crim.
App., at Knoxville, May 26, 2005), no perm. app. filed.

       Accordingly, the State’s motion is hereby granted. The judgment of the trial court is affirmed
in accordance with Rule 20, Rules of the Court of Criminal Appeals.



                                                        ___________________________________
                                                        ROBERT W. WEDEMEYER, JUDGE




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