        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE

              ROBERT M. LINDER v. DAVID MILLS, WARDEN

                   Appeal from the Circuit Court for Morgan County
                     No. 09-CR-9514      Eugene E. Eblen, Judge


                  No. E2010-00462-CCA-R3-HC - Filed July 21, 2010


The Petitioner, Robert Linder, appeals pro se the trial court’s summary dismissal of his
petition for habeas corpus relief from his conviction for especially aggravated sexual
exploitation of a minor, a Class B felony. The State has filed a motion requesting that this
court affirm the trial court’s summary dismissal pursuant to Rule 20 of the Rules of the Court
of Criminal Appeals. The petition fails to state a cognizable claim for habeas corpus relief,
and the Petitioner failed to comply with the procedural requirements of the habeas corpus
statute. 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 Affirmed
           Pursuant to Rule 20, Rules of the Court of Criminal Appeals

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and N ORMA M CG EE O GLE, JJ., joined.

Robert M. Linder, Appellant, pro se.

Robert E. Cooper, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General, for the appellee, State of Tennessee.


                              MEMORANDUM OPINION

       The Petitioner was convicted of especially aggravated sexual exploitation of a minor
following a bench trial in the Blount County Circuit Court. He was sentenced as a Range I,
standard offender to twelve years in the Department of Correction. On appeal, this court
modified his sentence to eleven years. State v. Robert Linder, No. E2004-02848-CCA-R3-
CD, Blount County, slip op. (Tenn. Crim. App. Sept. 22, 2006), app. denied (Tenn. Jan. 29,
2007), app. denied (Tenn. Apr. 14, 2010). The Petitioner filed a pro se petition for writ of
habeas corpus in which he alleged that the trial court unconstitutionally enhanced his
sentence in violation of Blakely v. Washington, 542 U.S. 296 (2004), and Cunningham v.
California, 459 U.S. 270 (2007). The trial court summarily dismissed it because the
procedural requirements for habeas corpus were not followed and because the petition failed
to state a cognizable claim for habeas corpus relief.

        In Tennessee, the grounds upon which habeas corpus relief may be granted are very
narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The writ will issue only when the
petitioner has established lack of jurisdiction for the order of confinement or that he is
otherwise entitled to immediate release because of the expiration of his sentence. See Ussery
v. Avery, 432 S.W.2d 656 (1968); State ex rel. Wade v. Norvell, 443 S.W.2d 839 (1969).
The purpose of the habeas corpus petition is to contest a void, not merely a voidable,
judgment. State ex rel. Newsom v. Henderson, 424 S.W.2d 186, 189 (1969). A void, as
opposed to a voidable, judgment is “one that is facially invalid because the court did not have
the statutory authority to render such judgment.” Summers v. State, 212 S.W.3d 251, 256
(Tenn. 2007). A petitioner bears the burden of establishing a void judgment or illegal
confinement by a preponderance of the evidence. See Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000). A court may summarily dismiss a petition for habeas corpus relief, without
the appointment of counsel and without an evidentiary hearing, if the petition does not state
a cognizable claim. See Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004). In addition, a
petitioner is required to attach a copy of the judgment of conviction from which relief is
sought or to provide a satisfactory reason for its absence. T.C.A. § 29-21-107(b)(2).

        In Blakely, the Supreme Court held 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 301. In Cunningham, the Court extended Blakely to strike down a state’s
sentencing structure that permitted enhanced sentencing based on judicially found facts. 549
U.S. at 290. Initially, the Petitioner has failed to state a cognizable claim for habeas corpus
relief because a Blakely violation would render the judgement voidable, not void.
Additionally, this court has repeatedly held that Blakely and its progeny, including
Cunningham, did not create a new rule of law entitled to retroactive application in the context
of a collateral, habeas corpus proceeding. See e.g., Gary Wallace v. State, No.
W2007-01949-CCA-R3-CO, slip op. at 2 (Tenn. Crim. App., Jul. 2, 2008); Glen Cook v.
State, No. W2006-01514-CCA-R3-PC, slip op. at 11-12 (Tenn. Crim. App., Jackson, Mar.
27, 2008); Billy Merle Meeks v. Ricky J. Bell, Warden, No. M2005-00626-CCA-R3-HC, slip
op. at 8-9 (Tenn. Crim. App. Nov. 13, 2007), app. denied (Tenn. Apr. 7, 2008), cert. denied,
129 S. Ct. 899 (2009) (mem.). Finally, the Petitioner failed to attach the judgments of
conviction to his petition and failed to provide any reason for their absence. See T.C.A. §
29-21-107(b)(2).

       The State’s motion is granted. The opinion provides no precedential value, the

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proceeding occurred before the trial court without a jury, the action was not a determination
of guilt, the evidence does not preponderate against the trial court’s findings, and no error
of law is apparent on the record. See Tenn. Ct. Crim. App. R. 20(1)(a), (2). The judgment
of the trial court is affirmed in accordance with Rule 20, Rules of the Court of Criminal
Appeals.

                                             _____________________________________
                                             JOSEPH M. TIPTON , PRESIDING JUDGE




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