        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE

          FERNANDEZ D. DAVENPORT v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Wayne County
                                      No. 14913


               No. M2010-02058-CCA-R3-HC - Filed November 16, 2011


The Appellant, Fernandez D. Davenport, 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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and J EFFREY S. B IVINS, JJ. joined.

Fernandez D. Davenport, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Lindsy Paduch Stempel, Assistant
Attorney General, for the appellee, State of Tennessee.

                               MEMORANDUM OPINION

       On December 14, 2004, the Appellant was convicted of second degree murder and
sentenced to sixty years imprisonment. The Appellant subsequently filed a habeas corpus
petition challenging the validity of his sentence. The trial court dismissed the petition
without a hearing. The Appellant appealed, and the State filed the instant motion to affirm
pursuant to Court of Criminal Appeals Rule 20. For the reasons stated below, the State’s
motion is hereby 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 procedure for seeking such a writ. The grounds upon which our law provides
relief, however, 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.

       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. The gist of the Appellant’s claim
for habeas corpus relief in this case is that his sentence runs afoul of this principle as
explained by our supreme court in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007). Although
the court concluded in Gomez 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.

       This Court, however, has stated 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.

        The Appellant’s sentence has not expired and there is nothing in the record to suggest
that the trial court lacked jurisdiction to sentence the Appellant. The trial court, therefore,
did not err in dismissing the Appellant’s habeas corpus petition. The judgment of the trial
court is affirmed in accordance with Rule 20.

                                                   ____________________________________
                                                   T HOMAS T. W OODALL, J UDGE




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