         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE

                 JAMES R. BLEVINS v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Washington County
                             No. 30570 Lynn W. Brown, Judge


                       No. E2004-02497-CCA-R3-PC Filed July 13, 2005


The pro se petitioner, James R. Blevins, appeals from the dismissal of his motion to reopen his post-
conviction petition. The states moves the court to affirm the judgment of the trial court pursuant to
Rule 20 of this court’s rules. The motion was properly dismissed for lack of merit. 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 Circuit Court Affirmed
               Pursuant to Rule 20, Rules of the Court of Criminal Appeals

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
JAMES CURWOOD WITT , JR., J., joined.

James R. Blevins, Mountain City, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General, for
the Appellee, State of Tennessee.

                                MEMORANDUM OPINION

       The petitioner was convicted of four counts of rape. The trial judge sentenced him as a
standard offender to a Range I sentence of seven years for each count. The sentences were ordered
to be served consecutively for an effective sentence of twenty-eight years. The judgment was
affirmed on appeal. See State v. James R. Blevins, No. 250 (Tenn. Crim. App. Aug. 31, 1989), reh’g
denied (Tenn. Crim. App. Oct. 18, 1989), app. denied (Tenn. Jan. 2, 1990), reh’g denied (Tenn. Feb.
5, 1990). Thereafter, the petitioner’s petition for post-conviction relief was dismissed following an
evidentiary hearing. On appeal, the judgment was affirmed. See James R. Blevins v. State, No.
03C01-9106-CR-00171 (Tenn. Crim. App. Oct. 27, 1994), app. denied (Tenn. Feb. 6, 1995).

       On August 6, 2004, the petitioner filed a motion to reopen his post-conviction petition. See
Tenn. Code Ann. § 40-30-117 (2005); see also Tenn. Sup. Ct. R. 28 § 10(b). He alleged that the
decision of the United States Supreme Court in Blakely v. Washington, 542 U.S. ___, 124 S. Ct.
2531 (2004) established a new rule of law retrospectively applicable to his case that entitled him to
reopen his post-conviction proceedings. See Tenn. Code Ann. § 40-30-117(a)(1). In particular, the
petitioner submitted that his sentence was enhanced by the trial court beyond the statutory maximum
in violation of the Blakely holding. On August 26, 2004, the trial court dismissed the motion,
finding that Blakely did not establish a new constitutional right and that the decision was not
applicable to cases on collateral review.

        On September 3, 2004, the petitioner filed a "notice of appeal" from the order of dismissal.
The trial court clerk transmitted a record which was filed in this court on October 25, 2004. The
petitioner filed a brief, and the state responded with the instant Rule 20 motion.

        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 this case, the petitioner instead filed within 10 days a "notice of appeal" in the trial court
with no attachments and nothing to reflect the nature of the grounds that he alleged supported
reopening his post-conviction petition. Relevant information, including the challenged order, is
before this court only because a record was transmitted as if this were an appeal as of right rather
than an application for discretionary review. Based on the cited deficiencies, we conclude that the
notice of appeal is not properly construed as an application for permission to appeal. See Graham
v. State, 90 S.W.3d 687, 691 (Tenn. 2002). Finally, even were we to consider the application on its
merits, we would conclude that the petitioner has failed to establish that he is entitled to relief. In
State v. Gomez and Londono, No. M2002-01209-SC-R11-CD, 2005 Tenn. LEXIS 350, ** 39, 41
(Tenn. Apr. 15, 2005), reh’g denied, (Tenn. May 18, 2005), the Tennessee Supreme Court 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 *45, n.16. The petitioner’s reliance on Blakely
thus avails him nothing.

        Upon due consideration of the pleadings, the record, and the applicable law, the court
concludes that the trial court properly dismissed the petitioner’s motion to reopen his post-conviction
petition. Accordingly, 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.



                                                         ___________________________________
                                                          NORMA McGEE OGLE, JUDGE




                                                   -2-
