         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


                    ELTON BOWERS v. STATE OF TENNESSEE

                 Direct Appeal from the Circuit Court for Hardeman County
                            No. 9745 Jon K. Blackwood, Judge



                     No. W2004-02407-CCA-R3-HC - Filed July 13, 2005




The Petitioner, Elton Bowers, 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.

J. Colin Morris, Jackson, Tennessee, for the appellant.

Paul G. Summers, Attorney General & Reporter; David Edward Coenen, Assistant Attorney
General, for the appellee, the State of Tennessee.



                                   MEMORANDUM OPINION

        The Petitioner, Elton Bowers, is currently confined at the Hardeman County Correctional
Facility in Hardeman County, Tennessee. On August 24, 2004, the Petitioner, represented by
counsel, filed a petition for writ of habeas corpus relief. Within the petition, Petitioner Bowers
alleged that he is being “illegally restrained of [his] liberty.” As grounds for the illegal restraint,
Petitioner alleged (1) “he was sentenced as a Range III offender when he should have been sentenced

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to a lower Range,” (2) “his convictions in Nashville, Davidson County Circuit Court C-3574, were
not in compliance with the State of Tennessee v. Mackey, 553 S.W.2d 377 ([Tenn.] 1977),” (3) his
effective 105-year sentence in the Department of Correction “defeats the purpose of the Sentencing
Reform Act of 1989,” (4) counsel was ineffective for failing to challenge the imposition of
consecutive sentences, and (5) the State failed to submit notice within ten days of his trial of its
intent to seek enhanced punishment.” By order entered September 3, 2004, the trial court dismissed
the petition, finding that the petition failed to state a cognizable claim for habeas corpus relief.
Petitioner filed a timely notice of appeal document.

        Initially, we note that the Petitioner has failed to attach any judgments of conviction to the
petition for habeas corpus relief. In this regard, in addition to procedural default, Petitioner has
placed both the trial court and this Court in an adversarial position of determining what convictions
are challenged within the context of the issues raised in this habeas corpus petition. As recognized
by the State, the Petitioner was convicted of aggravated robbery on three separate occasions. First,
Petitioner Elton Bowers was convicted of aggravated robbery and possession of a deadly weapon
resulting from a January 1992 robbery of the Days Inn motel in Jackson, Tennessee. See State v.
Elton Bowers, No. 02C01-9308-CR-00180, 1994 WL 553368, * 1 (Tenn. Crim. App., at Jackson,
Oct. 12, 1994), perm. to appeal denied, (Tenn. Mar. 6, 1995). For these offenses, the Petitioner was
sentenced, as a range II offender, to concurrent sentences of twenty years for the robbery and four
years for the weapons offense. Id. On direct appeal, this Court affirmed the aggravated robbery
conviction and sentence, but merged the weapons offense into the aggravated robbery conviction.
Id. Next, Petitioner Bowers was convicted of aggravated robbery and possession of a deadly
weapon for the March 7, 1992, robbery of the Savings Oil convenience store in Jackson, Tennessee.
See State v. Elton Donald Bowers aka Reshid Qawwi, No. 02C01-9503-CC-00064, 1996 WL
275023, *1 (Tenn. Crim. App., at Jackson, May 24, 1996), perm. to appeal denied, (Tenn. 1996).
For these convictions, the trial court imposed concurrent range III sentences of thirty and six years
respectively. Id. At some point, the trial court merged the weapons offense with the aggravated
robbery offense. Id. On direct appeal, a panel of this Court affirmed the aggravated robbery
conviction and accompanying thirty-year range III sentence. Id. Finally, Petitioner Bowers was
convicted of aggravated robbery and possession of a weapon for the March 11, 1992, robbery of a
Texaco Food Mart in Jackson, Tennessee. See State v. Elton Donald Bowers aka Rashid Qawwi,
No. 02C01-9509-CC-00282, 1997 WL 13743, *1 (Tenn. Crim. App., at Jackson, Jan. 16, 1997),
perm. to appeal denied, (Tenn. Sept. 8, 1997). The trial court merged the weapons offense into the
aggravated robbery conviction and sentenced the Petitioner, as a career offender to thirty years
confinement. Id. On direct appeal, a panel of this Court affirmed the Petitioner’s conviction for
aggravated robbery. Id. However, this Court found that the Petitioner was erroneously classified
as a career offender and remanded the matter for entry of a sentence within range III. Id. at *5.
Accordingly, as we infer that all three convictions are challenged within the petition.

         The State of Tennessee has filed a motion requesting that this Court affirm the trial court’s
denial of habeas corpus relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. As basis
for its motion, the State asserts (1) the Petitioner has failed to comply with the mandatory procedural
requirements of habeas corpus relief, (2) the legality of the restraint has previously been adjudged
in a prior proceeding, and (3) the petition fails to state a colorable claim for habeas corpus relief.

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The State’s position is well-taken.

        We agree with the State that the petition is subject to dismissal for failure to meet the
statutory requirements for pursuing state habeas corpus relief. See Tenn. Code Ann. §§ 29-21-101-
29-21-130. Our supreme court has recently confirmed that the procedural requirements are
mandatory and must be followed scrupulously. See Hickman v. State, 153 S.W.3d 16, 21 (Tenn.
2004). The Petitioner did not attach to his petition either copies of the challenged judgments or the
indictments. He also fails to give a satisfactory reason for their absence. See Tenn. Code Ann. § 29-
21-107(b)(2). An application for the issuance of habeas corpus may be summarily dismissed for
failure to attach the judgment forms. Id. The Petitioner has also failed to verify his petition by
affidavit. See Tenn. Code Ann. § 29-21-107(a). In this regard, we acknowledge that counsel
attempted to satisfy this requirement by filing a motion to supplement the record in this Court. This
motion was denied by this Court on May 16, 2005. See Elton Bowers v. State, No. W2004-02407-
CCA-R3-HC (Tenn. Crim. App., at Jackson, May 16, 2005) (order).

         Next, as a ground for habeas corpus relief, Petitioner challenges the range III sentences
imposed. Petitioner challenged the range III classification on direct appeal. Regarding the range
III sentence imposed for the March 7, 1992, robbery of the Saving Oil convenience store, this Court
held that, “[b]ecause the defendant had at least five prior class B, C, or D felony convictions, the trial
court properly classified the defendant as a persistent offender.” See State v. Elton Donald Bowers,
No. 02C01-9503-CC-00064, 1996 WL 275023, at *3. Moreover, this Court determined, with regard
to the conviction for the March 1992 robbery of the Texaco Food Mart, that the Petitioner was
improperly classified as a career offender. See State v. Elton Donald Bowers, No. 02C01-9509-CC-
00282, 1997 WL 13743, at * 5. This Court concluded, however, that the Petitioner did qualify as
a range III offender. Id. Accordingly, the Petitioner’s classification as a range III offender has
already been adjudicated in a prior proceeding. See Tenn. Code Ann. § 29-21-107(b)(3).

       Finally, it is well established that the grounds upon which habeas corpus relief may be
granted in this state are narrow. Hickman, 153 S.W.3d at 20 (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.

        Petitioner claims that (1) he was erroneously classified as a range III offender, (2) the
unidentified "Nashville" convictions used to enhance his sentences were obtained in violation of
State v. Mackey, (3) his effective sentence violates the purpose of the 1989 Sentencing Act, (4)
counsel was ineffective, and (5) the State failed to provide him timely notice of its intent to seek
enhanced punishment. None of these claims result in an illegal or void judgment and, therefore, are
not subject to habeas corpus relief. See generally Passarella, 891 S.W.2d at 627 (claims of


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ineffective assistance of counsel render a judgment voidable, not void); Steven L. Anderson v.
Warden Glen Turner and State of Tennessee, No. W2004-00623-CCA-R3-HC, 2005 WL 396378,
* 2 (Tenn. Crim. App., at Jackson, Feb. 18, 2005), perm. to appeal denied, (Tenn. May 23, 2005)
(allegation that trial court failed to comply with Mackey requirement not ground for habeas corpus
relief); 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) (State's failure to give notice of its
intent to seek enhanced punishment does not result in an illegal or void judgment); James Oliver
Ross v. State, No. W2003-00843-CCA-R3-HC, 2003 WL 23100816, at *1 (Tenn. Crim. App., at
Jackson, Dec. 31, 2003) (issues of enhancement or excessive sentence will not support a claim for
habeas corpus relief). 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.2d 90, 93 (Tenn. 2001).


        The Petitioner has not established that he is entitled to habeas corpus relief. He has
alleged neither a facially invalid judgment nor an expired sentence. Accordingly, it is ordered
that 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.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




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