        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE

                MARQUISE HARRIS v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                                  No. 2004-C-2465


                  No. M2009-01834-CCA-R3-HC - Filed May 21, 2010


This matter is before the Court upon the State’s motion to dismiss or in the alternative to
affirm the judgment of the trial court by memorandum opinion pursuant to Rule 20, Rules
of the Court of Criminal Appeals. Petitioner, Marquise Harris, has appealed the trial court’s
order dismissing his petition for writ of habeas corpus in which Petitioner alleged that: (1)
he received ineffective assistance of counsel; (2) was subject to an illegal search, seizure, and
arrest; and (3) he received an unconstitutional enhancement of his sentences. Upon a review
of the record in this case, we are persuaded that the trial court was correct in dismissing the
petition for habeas corpus relief and that this case meets the criteria for affirmance pursuant
to Rule 20, Rules of the Court of Criminal Appeals. Accordingly, 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 Trial Court Affirmed
       Pursuant to Rule 20, Rules of the Court of Criminal Appeals

JERRY L. SMITH , J., delivered the opinion of the court, in which THOMAS T. WOODALL and ROBERT
W. WEDEMEYER, JJ. joined.

Marquise Harris, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter, and Clarence E. Lutz, Assistant ATtorney
General, for the appellee, State of Tennessee.

                                 MEMORANDUM OPINION

       Petitioner was indicted by the Davidson County Grand Jury in July of 2004 in case
number 2004-C-2465 for one count of attempted first degree murder, three counts of
aggravated assault, one count of criminal impersonation, one count of criminal trespass, and
one count of felonious possession of a weapon. In case number 2004-C-2468, Petitioner was
indicted for two counts of attempted first degree murder, two counts of aggravated assault,
and one count of felonious possession of a weapon.
        On January 13, 2006, Petitioner pled guilty to two counts of aggravated assault and
one count of felonious possession of a weapon in case number 2004-C-2465. Petitioner pled
guilty to two counts of attempted first degree murder in case number 2004-C-2468. The
remaining counts were dismissed. In exchange for the guilty pleas, Petitioner received an
effective sentence of twenty-three years.

       On July 10, 2008, Petitioner filed a petition for writ of habeas corpus in Lake County.
It was dismissed without a hearing by the Lake County Circuit Court. Petitioner then filed
an application for permission to appeal to the Tennessee Supreme Court. It was dismissed
on August 26, 2008.

        Subsequently, Petitioner filed a petition for writ of habeas corpus in Davidson County,
alleging that he received ineffective assistance of counsel; that he was subject to an illegal
search, seizure, and arrest; and that he received an unconstitutional enhancement to his
sentences. The trial court denied relief, granting the motion to dismiss filed by the State on
the basis that Petitioner failed to raise a cognizable claim for habeas corpus relief. Petitioner
filed a timely notice of appeal and now challenges the trial court’s decision to dismiss the
petition.

                                            Analysis

        The determination of whether to grant habeas corpus relief is a question of law. See
Hickman v. State, 153 S.W.3d 16, 19 (Tenn. 2004). As such, we will review the habeas
corpus court’s findings de novo without a presumption of correctness. Id. Moreover, it is
the petitioner’s burden to demonstrate, by a preponderance of the evidence, “that the sentence
is void or that the confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

        Article I, section 15 of the Tennessee Constitution guarantees an accused the right to
seek habeas corpus relief. See Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A writ of
habeas corpus is available only when it appears on the face of the judgment or the record that
the convicting court was without jurisdiction to convict or sentence the defendant or that the
defendant is still imprisoned despite the expiration of his sentence. Archer v. State, 851
S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). In other
words, habeas corpus relief may be sought only when the judgment is void, not merely
voidable. See Taylor, 995 S.W.2d at 83. “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.’ We have recognized that a sentence
imposed in direct contravention of a statute, for example, is void and illegal.” Stephenson
v. Carlton, 28 S.W.3d 910, 911 (Tenn. 2000) (quoting Taylor, 955 S.W.2d at 83).



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        However, if after a review of the habeas petitioner’s filings the habeas corpus court
determines that the petitioner would not be entitled to relief, then the petition may be
summarily dismissed. T.C.A. § 29-21-109; State ex rel. Byrd v. Bomar, 381 S.W.2d 280
(Tenn. 1964). Further, a habeas corpus court may summarily dismiss a petition for writ of
habeas corpus 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 addressed therein
are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

       The procedural requirements for habeas corpus relief are mandatory and must be
scrupulously followed. Summers v. State, 212 S.W.3d 251, 260 (Tenn. 2007); Hickman, 153
S.W.3d at 19-20; Archer, 851 S.W.2d at 165. A habeas corpus court “properly may choose
to summarily dismiss a petition for failing to comply with the statutory procedural
requirements.” Summers, 212 S.W.3d at 260; See also Hickman, 153 S.W.3d at 21.

       The trial court herein properly dismissed the petition for habeas corpus relief. None
of the grounds for relief presented by Petitioner were cognizable in a habeas corpus
proceeding. Petitioner’s claim of ineffective assistance of counsel should have been brought
in a post-conviction proceeding. Admittedly, a trial court can treat a petition for habeas
corpus relief as a petition for post-conviction relief. T.C.A. § 40-35-105. However, the
petition herein, if treated as a post-conviction petition, would be untimely. T.C.A. § 40-30-
102(a). Additionally, Petitioner’s claim that he was seized and searched illegally and that
police officers violated Petitioner’s Miranda rights was waived by Petitioner’s guilty plea.
Parker v. State, 492 S.W.2d 456, 457 (Tenn. Crim. App. 1972) (“A plea of guilty,
understandingly and voluntarily entered on the advice of counsel, constitutes an admission
of all facts alleged and is a waiver of all nonjurisdictional and procedural defects and
constitutional infirmities, if any, in any prior stage of the proceeding.”). Finally, Petitioner’s
challenge to his sentence appears to challenge the enhancement of his sentence under Blakely
v. Washington, 542 U.S. 296 (2004). Petitioner pled guilty to the offenses with an agreed
upon sentence. Therefore, no enhancement factors were used to determine Petitioner’s
sentence. Further, a Blakely violation would merely render the judgments herein voidable,
not void. See Donovan Davis v. State, No. M2007-00409-CCA-R3-HC, 2007 WL 2350093,
at *1 (Tenn. Crim. App., at Nashville, Aug. 15, 2007), perm. app. denied, (Tenn. Nov. 13,
2007). Petitioner is not entitled to relief.

                                          Conclusion

       Rule 20, Rules of the Court of Criminal Appeals provides inter alia:

       The Court, with the concurrence of all judges participating in the case, when
       an opinion would have no precedential value, may affirm the judgment or

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       action of the trial court by memorandum opinion rather than by formal opinion,
       when:

       The judgment is rendered or the action taken in a proceeding before the trial
       judge 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 . . . .

      We determine that this case meets the criteria of the above-quoted rule and, therefore,
we grant the State’s motion filed under Rule 20. We affirm the judgment of the trial court.




                                                  ____________________________________
                                                  JERRY L. SMITH, JUDGE




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