        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs December 6, 2011

             ALBERT FRANK KELLY v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 01-11190    James C. Beasley, Jr., Judge


                No. W2011-01216-CCA-R3-HC - Filed March 15, 2012


The petitioner, Albert Frank Kelly, appeals the Shelby County Criminal Court’s dismissal
of his petition for writ of habeas corpus. Following our review, we affirm the summary
dismissal of the petition.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

A LAN E. G LENN, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and
J EFFREY S. B IVINS, JJ., joined.

Albert Frank Kelly, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Reginald Henderson, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

       In 2001, the petitioner pled guilty in the Shelby County Criminal Court to rape, a
Class B felony, for having raped his fifteen-year-old niece, who later gave birth to his child.
Albert Frank Kelly v. State, No. W2004-01580-CCA-R3-PC, 2005 WL 525266, at *1 (Tenn.
Crim. App. Mar. 4, 2005), perm. to appeal denied (Tenn. June 27, 2005). Following a
sentencing hearing, the trial court applied several enhancement factors to sentence the
petitioner as a Range II offender to twenty years in the Department of Correction.

      The petitioner subsequently filed a petition for post-conviction relief, which was
denied. See id. He then filed a motion to reopen his post-conviction petition on the basis
that Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny announced a new
constitutional rule of law. Albert F. Kelly v. State, No. W2008-02236-CCA-R3-PC, 2009
WL 1643436, at *1 (Tenn. Crim. App. June 12, 2009). The post-conviction court summarily
denied the petition, and we dismissed the appeal on the basis that the petitioner failed to
comply with the statutory requirements for appealing the denial of a motion to reopen. Id.
at *2-3. We further observed, however, that even had we been vested with jurisdiction, we
would have agreed that the petitioner failed to state a valid claim for reopening his petition
for post-conviction relief because it has been repeatedly held that “the line of cases relied
upon by the petitioner are not to be applied retroactively on collateral appeal.” Id. at *3
(citations omitted).

        On April 28, 2011, the petitioner filed a petition for writ of habeas corpus, alleging
that his sentence was illegal and void because the trial court applied enhancement factors in
sentencing that violated his Sixth Amendment right to trial by jury, as announced by
Apprendi and its progeny. On May 13, 2011, the habeas court entered an order summarily
dismissing the petition on the basis that it failed to state a valid claim for habeas corpus
relief. This appeal followed.

                                        ANALYSIS

        Whether the petitioner is entitled to habeas corpus relief is a question of law.
Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007); Hart v. State, 21 S.W.3d 901, 903
(Tenn. 2000). As such, our review is de novo with no presumption of correctness given to
the trial court’s findings and conclusions. Id.

        It is well-established in Tennessee that the remedy provided by a writ of habeas corpus
is limited in scope and may only be invoked where the judgment is void or the petitioner’s
term of imprisonment has expired. Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007);
State v. Ritchie, 20 S.W.3d 624, 629 (Tenn. 2000); State v. Davenport, 980 S.W.2d 407, 409
(Tenn. Crim. App. 1998). A void, as opposed to a voidable, judgment is “one that is facially
invalid because the court did not have the statutory authority to render such judgment.”
Summers, 212 S.W.3d at 256 (citing Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998)).
A petitioner bears the burden of establishing a void judgment or illegal confinement by a
preponderance of the evidence. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).
Furthermore, when “a habeas corpus petition fails to establish that a judgment is void, a trial
court may dismiss the petition without a hearing.” Summers, 212 S.W.3d at 260 (citing
Hogan v. Mills, 168 S.W.3d 753, 755 (Tenn. 2005)).

        A claim of an erroneously enhanced sentence based upon the holdings of Apprendi
and its progeny would render the judgment voidable if proven, not void, and, therefore, is not

                                              -2-
cognizable in a petition for writ of habeas corpus. See Timothy R. Bowles v. State, No.
M2006-01685-CCA-R3-HC, 2007 WL 1266594, at *2-3 (Tenn. Crim. App. May 1, 2007).
Accordingly, we affirm the habeas court’s summary dismissal of the petition.

                                      CONCLUSION

       We conclude that the petitioner’s allegations do not entitle him to habeas corpus relief
and, therefore, affirm the summary dismissal of his petition for writ of habeas corpus.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




                                              -3-
