         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


                   CORVACK SHAW v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                     No. 93-08189; 93-08190 W. Otis Higgs, Jr., Judge



                     No. W2005-01332-CCA-R3-PC - Filed March 7, 2006




The Petitioner, Corvack Shaw, appeals the lower court’s denial of his motion requesting relief from
an invalid sentence. 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 Petitioner has failed to establish
his entitlement to relief from an unconstitutional or invalid sentence. Accordingly, we affirm the trial
court’s dismissal.



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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN AND J.C.
MCLIN , JJ. joined.

Gregory Thomas Carman, Memphis, Tennessee, for the Petitioner, Corvack Shaw.

Paul G. Summers, Attorney General & Reporter; J. Ross Dyer, Assistant Attorney General, for the
appellee, the State of Tennessee.



                                   MEMORANDUM OPINION

        The Petitioner, Corvack Shaw, was indicted in September 1993 for first degree murder and
attempt to commit first degree murder. On November 3, 1994, Petitioner Shaw entered guilty pleas
to one count of murder in the second degree and one count of attempt to commit first degree murder.


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For the second degree murder conviction, the trial court imposed a range III sentence of forty-five
(45) years. For the attempted first degree murder conviction, the trial court imposed a range I
sentence of fifteen (15) years. The trial court further ordered that the sentences be served
concurrently.

       The Petitioner first sought post-conviction relief on July 15, 1999. This petition was
dismissed as time-barred. On May 24, 2000, the Petitioner filed a second petition for post-
conviction relief. The trial court summarily dismissed the petition as time-barred. See Corvack
Shaw v. State, No. W2000-01567-CAC-R3-PC (Tenn. Crim. App., at Jackson, Jun. 26, 2001)
(order). This Court affirmed the trial court’s summary dismissal. Id. A third petition was filed on
May 2, 2002. This petition was dismissed on May 10, 2002.


        On October 18, 2004, the Petitioner filed, pro se, a pleading in the Shelby County Criminal
Court captioned “Constitutional Challenge to Vacate Invalid Sentence.”1 The pleading challenged
the legality of the Petitioner’s sentences based upon the United States Supreme Court decisions in
Apprendi v. New Jersey and Blakely v. Washington. The State orally responded to the pleading on
April 26, 2005. The State noted that the Petitioner, who had exhausted his remedies for post-
conviction relief; this being the fifth petition for post-conviction relief. The State further advised
the court that the Petitioner was attempting for relief through an extraordinary writ. In this regard,
the State noted that the Petitioner “has not raised any claim which the Tennessee law has any relief
for.” The trial court summarily dismissed the petition by order entered April 26, 2005. The court
then appointed counsel for purpose of appeal. Appointed counsel filed a timely notice of appeal
document.

         The Petitioner filed a pleading captioned “Constitutional Challenge to Vacate Invalid
Sentence,” with reliance upon section 29-1-106, Tennessee Code Annotated. In its order denying
relief, the trial court apparently treated the petition as one seeking habeas corpus relief, in that it
relied upon section 29-21-101, Tennessee Code Annotated. While the exact nature of the
Petitioner’s motion is unclear, any appeal thereof fails for several reasons.

         The motion may not be treated as a motion for correction or reduction of sentence as the
motion was not filed within the 120-day time limit for filing the motion. See Tenn. R. Crim. P.
35(b). Similarly, the motion is procedurally barred if treated as a petition for post-conviction relief.
See T.C.A. § 40-30-102(a), (c) (must be filed within one year of judgment becoming final; only one
petition for relief may be filed). While due process dictates that the statute of limitations not be so
strictly applied as to deny a person the opportunity to have his claim heard and determined at a
meaningful time and in a meaningful manner, State v. McKnight, 51 S.W.3d 559 (Tenn. 2001); Seals


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          The pleading cited to section 29-1-106, Tennessee Code Annotated, as the basis for the filing. Section 29-
1-106 provides: “Injunctions, attachments, except as otherwise provided, writs of ne exeat, and other extraordinary
process are granted by the chancellors, circuit judges, and judges of criminal and special courts.”



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v. State, 23 S.W.3d 272 (Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn. 1992), the exceptions
to the statute of limitations are explicitly limited, i.e., (1) claims based upon a new rule of
constitutional law applicable to a petitioner's case, (2) claims based upon new scientific evidence
showing innocence, and (3) claims based upon enhanced sentences that were enhanced because of
convictions subsequently found to be illegal. See T.C.A. § 40-30-102(b)(1)-(3). Petitioner asserts that
a claim he alleges is based upon a final ruling of an appellate court establishing a constitutional right
that was not recognized as existing at the time of trial. Specifically, Petitioner asserts that the United
States Supreme Court's decision in Blakely v. Washington invalidates the sentences imposed by the
trial court. This Court has previously held that retrospective application of the rule in Blakely to
cases on collateral review is not required. See Issac Herron v. State, No. W2004-02533-CCA-R28-
PC (Tenn. Crim. App., at Jackson, Nov. 22, 2004) (order ). Accordingly, Petitioner has failed to
establish a ground that would toll the statute of limitations.

        The Petitioner had filed prior petitions for post-conviction relief, thus, we may construe the
pleading as a motion to reopen a petition for post-conviction relief. However, even treating the
pleading as such, it fails. First, the appeal fails as the Petitioner has not satisfied the procedural
requirements for vesting jurisdiction in this Court. See T.C.A. § 40-30-117(c); Tenn. Sup. Ct. R.
28 § 10(b). The appeal was not filed within ten days of the lower court’s ruling, no application for
permission to appeal was filed and the notice of appeal was filed in the trial court, not this Court.
Nothing in the notice of appeal document would indicate that it could be effectively treated as an
application for permission to appeal. See Graham v. State, 90 S.W.3d 687, 691 (Tenn. 2002).
Neither the Post-Conviction Procedure Act nor the Rules of the Supreme Court permit this Court to
suspend the statutory requirements for vesting jurisdiction. See Mario Gates v. State, No. W2002-
02873-CCA-R3-PC, 2003 WL 23100815, at *2 (Tenn. Crim. App., at Jackson, Dec. 31, 2003).
Moreover, even had the Petitioner properly invoked this Court’s jurisdiction, the application would
fail on its merits. The Petitioner asserts that the Blakely created a new rule of constitutional law.
This Court has previously held that retrospective application of the rule announced in Blakely v.
Washington to cases on collateral review is not required. See Issac Herron v. State, No. W2004-
02533-CCA-R28-PC; see also State v. Gomez, 163 S.W.3d 632, 650-51 (Tenn.), reh ’g denied,
(2005). Thus, the Petitioner failed to allege a ground under which a petition for post-conviction
relief may be reopened.

        Finally, the petition also fails if treated as an application for habeas corpus relief. Habeas
corpus relief is available in this state only when it appears on the face of the judgment or the record
that the trial court was without jurisdiction to convict or sentence the defendant or that the sentence
of imprisonment has otherwise expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993); Potts
v. State, 833 S.W.2d 60, 62 (Tenn. 1992). A petitioner cannot collaterally attack a facially valid
conviction in a habeas corpus proceeding. Potts, 833 S.W.2d at 62. In the present case, the
Petitioner attacks the validity of his convictions because he was denied his right to trial by jury with
regard to sentencing. This Court has previously rejected this claim in the habeas corpus context,
concluding that such claims are voidable, not void, and that the Blakely holding is not to be applied
retroactively. 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). Additionally, we note that, if treated
as an application for habeas corpus relief, the application was filed in the wrong court. See T.C.A.

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§ 29-21-105 (petition for habeas corpus must be made to court most convenient to the location of
the petitioner).


       The Petitioner has failed to establish that he is entitled to relief. The trial court properly
dismissed the motion requesting relief from an invalid sentence. 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.




                                                      ___________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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