         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON

           TIMOTHY EARL WATERS v. TONY PARKER, WARDEN

                    Appeal from the Circuit Court for Lauderdale County
                            No. 6184   Joseph H. Walker, Judge



                     No. W2007-02739-CCA-R3-HC - Filed May 16, 2008


The Petitioner, Timothy Earl Waters, appeals the Lauderdale County Circuit Court’s denial of his
petition for the writ of habeas corpus. In 1989, Waters was convicted by a Shelby County jury of
first degree murder and assault with intent to commit first degree murder. The State has filed a
motion requesting that this court affirm the lower court’s ruling pursuant to Rule 20, Rules of the
Court of Criminal Appeals. Following review, we conclude that the petition fails to allege any
ground which would render the challenged judgments of conviction void. Accordingly, dismissal
of the petition 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.

Timothy Earl Waters, pro se, Henning, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; and Jennifer L. Bledsoe, Assistant Attorney
General, for the Appellee, State of Tennessee.


                                  MEMORANDUM OPINION

        The Petitioner is currently restrained of his liberty by virtue of his 1989 Shelby County jury
convictions for the crimes of first degree murder and assault with intent to commit first degree
murder. State v. Timothy Earl Waters, C.C.A. No. 107 (Tenn. Crim. App. at Jackson, July 18,
1990). As a result of these convictions, the Petitioner received two sentences of life imprisonment,
which were ordered to be served consecutively. Id. The Petitioner’s convictions have been the
subject of previous collateral attacks, all of which have been unsuccessful. Timothy Earl Waters v.
State, No. W2003-02460-CCA-R3-CO (Tenn. Crim. App. at Jackson, May 10, 2004); Timothy Earl
Waters v. Bruce Westbrooks, Warden, No. W2002-02893-CCA-R3-CO (Tenn. Crim. App. at
Jackson, Apr. 8, 2003); Timothy Earl Waters v. State, No. 02C01-9604-CR-00113 (Tenn. Crim.
App. at Jackson, Dec. 13, 1996).
       On November 2, 2007, the Petitioner filed a petition for habeas corpus relief alleging that his
sentences were imposed in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).
Specifically, the petition challenges:

         Whether the Sixth Amendment protections which guarantees [sic] [P]etitioner’s right
         to trial by jury was violated by use of enhancements not admitted by the Petitioner,
         nor reflected in the jury verdict?1

         Whether the application of Gray vs. State and Tennessee Code Annotated § 40-20-
         111 is unconstitutional when utilized as an additional fact relative to consecutive
         sentencing when extended to the “Class X Felonies Act of 1979 ” under the panoply
         of the Sixth Amendment[?]

        The State has filed a motion requesting that this court affirm the lower court’s denial of
habeas corpus relief pursuant to Rule 20, Rules of the Tennessee Court of Criminal Appeals. As
grounds for its motion, the State contends that the holding of Blakely v. Washington does not apply
retroactively. We agree.

         In this state, habeas corpus relief only addresses detentions that result from void judgments
or expired sentences. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). 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
v. State, 153 S.W.3d 16, 20 (Tenn. 2004) (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 relief.
However, where the allegations in a petition for writ of habeas corpus 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.3d 90, 93 (Tenn. 2001) (citing T.C.A. § 29-21-109 (2000); see, e.g., Archer, 851 S.W.2d at
164). The Petitioner does not contend that his sentences have expired, thus, he is only entitled to
relief if his judgments are void.

       This court has repeatedly held that Blakely v. Washington did not create a new rule of law
which was entitled to retroactive application when raised within the context of a habeas corpus
proceeding.2 See, e.g., Michael L. McKillip v. Jim Morrow, Warden, No. E2007-01225-CCA-R3-HC
(Tenn. Crim. App., Dec. 21, 2007) (no perm. to app. filed); Timothy R. Bowles v. Ricky J. Bell,
Warden, No. M2006-01685-CCA-R3-HC (Tenn. Crim. App. at Nashville, May 1, 2007) (no perm.


         1
          The Petitioner’s argument that his sentence of life imprisonment for his conviction of first degree murder was
“violated by use of enhancements . . . [not] reflected in the jury verdict” is clearly unfounded, as it was the jury who
fixed the Petitioner’s sentence at life imprisonment.
         2
             We would acknowledge that a Blakely claim is cognizable when raised in a timely post-conviction proceeding.

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to app. filed). Moreover, this court has specifically held that Blakely has no application to
consecutive sentences. See, e.g., State v. John Britt, No. W2006-01210-CCA-R3-CD (Tenn. Crim.
App. at Jackson, Dec. 12, 2007); State v. Joseph Wayne Higgins, No. E2006-01552-CCA-R3-CD
(Tenn. Crim. App. at Knoxville, Sept. 27, 2007).

       Because the petition in this case fails to state a cognizable claim, no relief is warranted. The
Appellant 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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