            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON

                    KEVIN WILKINS v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Shelby County
                       No. 97-13179    John T. Fowlkes, Jr., Judge


                  No. W2010-02089-CCA-R3-HC - Filed August 25, 2011


The Petitioner, Kevin Wilkins, appeals the Criminal Court of Shelby County’s dismissal of
his petition for writ of habeas corpus.1 The State has filed a motion requesting that this court
affirm the trial court’s dismissal pursuant to Rule 20 of the Rules of the Court of Criminal
Appeals. Following our review, we grant the State’s motion and affirm the judgment of the
trial court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
         Pursuant to Rule 20 of the Rules of the Court of Criminal Appeals

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and A LAN E. G LENN, JJ., joined.

Kevin Wilkins, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General, for the Appellee, State of Tennessee.

                                  MEMORANDUM OPINION

       The Petitioner was originally convicted of first degree murder and especially
aggravated kidnapping. Following his direct appeal, his conviction for first degree murder
was reversed and dismissed, and the conviction for especially aggravated kidnapping was
affirmed. State v. Kevin Wilkins, No. W1999-01462-CCA-MR3-CD, 2000 WL 1229156,
at *1 (Tenn. Crim. App., at Jackson, Aug. 18, 2000), perm. to appeal denied (Tenn. Feb. 20,
2001). The petitioner then filed a petition for post-conviction relief, which was dismissed


        1
         There is no transcript of a hearing on this matter included in the record on appeal. However, this
court notes a minute entry which designated that the Petitioner’s “petition for post-conviction relief” was
heard by the parties, fully considered by the court, and taken under advisement.
as untimely. On appeal, this court ruled that the petition had been timely filed and remanded
the case for an evidentiary hearing. Kevin Wilkins v. State, No. W2002-00436-CCA-R3-PC,
2002 WL 31624971, at *1 (Tenn. Crim. App., at Jackson, Nov. 14, 2002). On remand, the
Petitioner challenged trial counsel’s failure to appeal the petitioner’s conviction for especially
aggravated kidnapping, and the post-conviction court granted the petitioner relief. The State
appealed and we reversed the judgment of the post-conviction court. Kevin Wilkins v. State,
No. W2006-00639-CCA-R3-PC, 2008 WL 1788055, at *1 (Tenn. Crim. App., at Jackson,
Apr. 18, 2008), perm. to appeal denied (Tenn. July 25, 2008). All of the issues raised in the
Petitioner’s preceding appeals concerned the sufficiency of the evidence supporting his
conviction.

       On May 27, 2010, the Petitioner filed for writ of habeas corpus in the Criminal Court
of Shelby County, which was later amended on July 6, 2010. The Petitioner alleged, inter
alia,

       The twenty-five (25) year sentence at 100% Petitioner received on the
       Especially Aggravated Kidnapping conviction was illegal because it was based
       on the Court’s ruling that the Petitioner was a ‘violent offender’ because of his
       prior First-Degree Murder conviction, which was ultimately overturned and
       vacated. Additionally, said sentence is in violation of the Tennessee Criminal
       Sentencing Reform Act of 1989 because the Petitioner’s sentence was outside
       the range ordinarily established for a defendant under similar circumstances.

       The Petitioner further argued in his petition and on appeal that his judgments were
void because his sentence was enhanced in violation of his right to a jury trial under Blakely
v. Washington, 542 U.S. 296 (2004).

        The State filed a motion in opposition to the writ pointing out that the Petitioner did
not include the judgment of the especially aggravated kidnapping conviction and further
arguing that his petition did not warrant habeas corpus relief. The State explained that the
Petitioner was found guilty of especially aggravated kidnapping, a Class A felony, with a
sentence range of fifteen to twenty-five years imprisonment. The State maintained that the
trial court imposed a legal sentence pursuant to Tennessee Code Annotated Section 40-35-
112. The State further argued that Blakely claims are not cognizable for habeas corpus relief
because “any such violation merely renders the questioned judgment voidable rather than
void.” By written order, and after reviewing the original sentencing transcript attached to the
petitioner’s memorandum, the trial court denied habeas corpus relief. It is from this order
that the Petitioner now appeals.




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        A prisoner is guaranteed the right to habeas corpus relief under Article I, section 15
of the Tennessee Constitution. See also T.C.A. § 29-21-101, et seq. However, the grounds
upon which a writ of habeas corpus may be issued are very narrow. Taylor v. State, 995
S.W.2d 78, 83 (Tenn. 1999). “Habeas corpus relief is available in Tennessee only when ‘it
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.” Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). “[T]he purpose of a habeas
corpus petition is to contest void and not merely voidable judgments.” Id. at 163. “A void
judgment is one in which the judgment is facially invalid because the court lacked
jurisdiction or authority to render the judgment or because the defendant’s sentence has
expired.” Taylor, 995 S.W.2d at 83.

       In contrast, a voidable judgment is facially valid and requires the introduction
       of proof beyond the face of the record or judgment to establish its invalidity.
       Thus, in all cases where a petitioner must introduce proof beyond the record
       to establish the invalidity of his conviction, then that conviction by definition
       is merely voidable, and a Tennessee court cannot issue the writ of habeas
       corpus under such circumstances.

 Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004) (internal citation and quotations
omitted); see also Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007).

      Moreover, it is the petitioner’s burden to demonstrate, by a preponderance of the
evidence, that the judgment is void or that the confinement is illegal. Wyatt v. State, 24
S.W.3d 319, 322 (Tenn. 2000).

        If the habeas corpus court determines from the petitioner’s filings that no cognizable
claim has been stated and that the petitioner is not entitled to relief, the petition for writ of
habeas corpus may be summarily dismissed. See Hickman, 153 S.W.3d at 20. Further, the
habeas corpus court may summarily dismiss the petition without the appointment of a lawyer
and without an evidentiary hearing if there is nothing on the face of the judgment to indicate
that the convictions are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.
1994), superseded by statute as stated in State v. Steven S. Newman, No. 02C01-9707-CC-
00266, 1998 WL 104492, at *1 n.2 (Tenn. Crim. App., at Jackson, Mar. 11, 1998).

       As an initial matter, the petitioner has failed to comply with the procedural
requirements for habeas corpus relief by not attaching copies of his judgment to his petition.
See T.C.A. § 29-21-107; see also Hickman, 153 S.W.3d at 19-20 (stating that the procedural
requirements for habeas corpus relief are mandatory and must be scrupulously followed).

                                               -3-
On this ground alone, he is not entitled to habeas corpus relief. Even considering the
petitioner’s claim as stated in his brief to this court, “whether the trial court of Shelby County
Criminal Court imposed Appellant’s sentence term of twenty-five (25) years in direct
contravention of Tenn. Code Ann. § 40-35-210(c)”, the petitioner fails to present a
cognizable claim of habeas relief. This statute clearly provides the trial court with
jurisdiction to impose a sentence of twenty-five years for the Petitioner’s especially
aggravated kidnapping conviction. Finally, the petitioner’s claim that he was sentenced in
violation of Blakely v. Washington must fail. This court has repeatedly held that, even if
such a defect occurred, the defect would only render the judgment voidable, not void. See,
e.g., Wayford Demonbreun, Jr. v. State, No. M2004-03037-CCA-R3-HC, 2005 WL 1541873
(Tenn. Crim. App., at Nashville, June 30, 2005) perm. to appeal denied (Tenn. Oct. 31,
2005); Stanley Harvell v. Glen Turner, No. W2004-02643-CCA-R3-HC, 2005 WL 839891
(Tenn. Crim. App., at Jackson, Apr. 12, 2005) perm. to appeal denied (Tenn. Oct. 3, 2005);
Earl David Crawford v. Ricky Bell, No. M2004-02440-CCA-R3-HC, 2005 WL 354106
(Tenn. Crim. App., at Nashville, Feb. 15, 2005) perm. to appeal denied (Tenn. June 27,
2005). Also, the Tennessee Supreme Court has determined that the Blakely decision did not
announce a new rule of law, did not impact the validity of our statutory sentencing structure,
and is not subject to retroactive application. See State v. Gomez, 163 S.W.3d 632, 649-50,
658-62 (Tenn. 2005), vacated by Gomez v. Tennessee, 549 U.S. 1190 (2007); see also State
v. Gomez, 239 S.W.3d 733 (Tenn. 2007). The Petitioner is not entitled to habeas corpus
relief.

        When an opinion would have no precedential value, the Court of Criminal Appeals
may affirm the judgment or action of the trial court by memorandum opinion when the
judgment is rendered or the action taken in a proceeding without a jury and such judgment
or action is not a determination of guilt, and the evidence does not preponderate against the
finding of the trial judge. See Tenn. Ct. Crim. App. R. 20. We conclude that this case
satisfies the criteria of Rule 20. 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.


                                                            __________________________
                                                            CAMILLE R. McMULLEN, JUDGE




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