         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                        AT NASHVILLE

               LAQUENTON MONGER v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Davidson County
                                         No. 3937


                   No. M2008-01203-CCA-R3-CO - Filed January 13, 2009


The Appellant, Laquenton Monger, appeals the trial court's dismissal of his petition for habeas
corpus relief. The Appellant fails to assert a cognizable claim for which habeas corpus relief may
be granted. Accordingly, 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

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

Laquenton Monger, pro se.

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

                                  MEMORANDUM OPINION

         The Appellant was convicted of aggravated child abuse and second degree murder, for which
he received concurrent twenty year sentences. The Appellant subsequently filed a petition which the
trial court treated as one seeking habeas corpus relief. The Appellant alleged that his sentences were
imposed in violation of his constitutional rights. The trial court disagreed and dismissed the petition
without a hearing. The Appellant appealed, and the State has filed a motion to affirm pursuant to
Court of Criminal Appeals Rule 20. For the reasons stated below, the State’s motion is granted.

         Article I, Section 15 of the Tennessee Constitution guarantees the right to seek habeas corpus
relief, and Tennessee Code Annotated Sections 29-21-101 et seq. codify the applicable procedures
for seeking such a writ. However, the grounds upon which our law provides relief are very narrow.
 McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). Habeas corpus relief is available in this state only
when it appears on the face of the judgment or the record of the proceedings 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). In other words, habeas
corpus relief may only be sought when the judgment is void, not merely voidable. Taylor v. State,
995 S.W.2d 78, 83(Tenn. 1999). "[W]here 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, 59 S.W.3d at 93. A petitioner cannot collaterally attack a facially valid
conviction in a habeas corpus proceeding. Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992); State ex
rel. Holbrook v. Bomar, 364 S.W.2d 887, 888 (Tenn. 1963). Unlike a post-conviction petition, the
purpose of a habeas corpus petition is to contest a void, not merely voidable, judgment. State ex rel.
Newsome v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968).

        The gist of the Appellant’s claim for habeas corpus relief is that the Tennessee Supreme
Court’s recent decision in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007), established a new rule of
constitutional law that applies to his case. In Cunningham v. California, 549 U.S.270 (2007) the
United States Supreme Court, relying upon the principles discussed in Apprendi v. New Jersey, 530
U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), reaffirmed the rule, "rooted in
longstanding common-law practice," that the Sixth Amendment prohibits a state's sentencing scheme
from allowing a judge to enhance a sentence based on a fact, other than a prior conviction, not found
by a jury or otherwise admitted by the defendant. We are aware that our supreme court recently
issued its opinion on remand from the United States Supreme Court in State v. Gomez. Although
the court concluded that the trial court’s enhancement of the defendants’ sentences on the basis of
judicially determined facts violated their Sixth Amendment rights, the issue was considered through
a plain error analysis on the direct appeal of the defendants’ convictions. However, this Court has
held that Blakely -type claims garner no relief retroactively through attacks on collateral review. See
Donald Branch v. State, No. W2003-03042-CCA-R3-PC, 2004 WL 2996894 (Tenn. Crim. App.,
Dec. 21, 2004), perm. to app. denied, (Tenn., May 23, 2005). Similarly, the holding in Cunningham
does not require retroactive application. See Billy Merle Meeks v. State, No. M2005-00626-CCA-
R3-HC, 2007 WL 4116486 (Tenn. Crim. App., Nov. 13, 2007), perm. to app. denied, (Tenn., Apr.
7, 2008). Moreover, as this Court held in Meeks, “even if Apprendi, Blakely, and Cunningham
could be applied retroactively, it would render the judgment merely voidable, and not void, and
therefore Petitioner’s claims are not cognizable in a Tennessee state habeas corpus proceeding.” Id.

         To the extent the Appellant raises any issues for the first time on appeal, the Appellant has
waived consideration by this Court. See, e.g., Charles Orlando Fields v. State, No. W2003-02051-
CCA-R3-PC, 2004 WL 1405012 (Tenn. Crim. App., Jun. 23, 2004), perm. to app. denied, (Tenn.,
Dec. 20, 2004). Moreover, the Appellant is precluded by the principles of res judicata from re-
litigating claims he presented in his previous habeas corpus petition. See, e.g., James Yates v. State,
No. W2005-01047-CCA-R3-HC, 2005 WL 2759737 at*2 (Tenn. Crim. App., Oct. 25, 2005).

        For the reasons stated above, the State’s motion is granted. The judgment of the trial court
is affirmed in accordance with Rule 20.


                                       ____________________________________
                                       ROBERT W. WEDEMEYER, JUDGE


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