        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                Assigned on Briefs November 24, 2009 at Knoxville

      MILBURN L. EDWARDS v. CHERRY LINDAMOOD, WARDEN

                   Appeal from the Circuit Court for Wayne County
                         No. 14412 Robert L. Jones, Judge




                No. M2009-01132-CCA-MR3-HC - Filed May 27, 2010




The pro se Petitioner, Milburn L. Edwards, appeals the summary dismissal of his petition for
a writ of habeas corpus attacking his 1991 convictions for twenty-one counts of rape; two
counts of first degree burglary; two counts of aggravated burglary; one count of second
degree burglary; one count of aggravated rape; one count of assault with intent to commit
rape; and one count of robbery. Following his convictions, the Petitioner initially received
an effective sentence of life plus 415 years, which was later modified to life plus 195 years
on appeal. State v. Edwards, 868 S.W.2d 682 (Tenn. Crim. App. 1993). A petition for post-
conviction relief was denied by the trial court, and the denial was affirmed on appeal.
Milburn L. Edwards v. State, No. M2002-02124-CCA-R3-PC, 2003 WL 23014683 (Tenn.
Crim. App. Dec. 15, 2003). Two separate petitions for a writ of habeas corpus were
summarily dismissed by the trial court, and their denials were affirmed on appeal. Milburn
L. Edwards v. Cherry Lindamood, No. M2006-01092-CCA-R3-HC, 2007 WL 152233 (Tenn.
Crim. App. Jan. 17, 2007), perm. app. denied (Tenn. April 16, 2007); Milburn L. Edwards
v. State, No. M2004-01378-CCA-R3-HC, 2005 WL 544714 (Tenn. Crim. App. March 7,
2005), perm. app. denied (Tenn. Aug. 29, 2005). On March 15, 2008, the petitioner filed a
third pro se petition for a writ of habeas corpus challenging his convictions on several
grounds. The trial court dismissed his petition without the appointment of counsel or an
evidentiary hearing. Following our review, we affirm the judgment of the trial court.

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

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and N ORMA M CG EE O GLE, JJ., joined.

Milburn L. Edwards, Clifton, Tennessee, Pro Se.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; T. Michel Bottoms, District Attorney General; and Joel Douglas Dicus, Assistant
District Attorney General, attorneys for appellee, State of Tennessee.

                                          OPINION

       In this appeal as of right, the Petitioner contends that the trial court erred by
summarily dismissing his petition without a hearing or the appointment of counsel. Among
other arguments, the Petitioner also contends that his motion to set aside the order summarily
dismissing the petition was never ruled upon. The State responds that the dismissal was
appropriate because he has failed to show that his judgments are void or that his sentences
have expired.

                                         ANALYSIS


        In Tennessee, the “grounds upon which habeas corpus relief will be granted are very
narrow.” Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). The writ will issue only when
the petitioner has established a lack of jurisdiction for the order of confinement or that he is
otherwise entitled to immediate release because of the expiration of his sentence. See Ussery
v. Avery, 432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell,443 S.W.2d 839
(Tenn. Crim. App. 1969). The purpose of the habeas corpus petition is to contest a void, not
merely a voidable, judgment. State ex rel. Newsome v. Henderson, 424 S.W.2d 186, 189
(Tenn. 1968). 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
v. State, 212 S.W.3d 251, 256 (Tenn. 2007). A petitioner bears the burden of establishing
a void judgment or illegal confinement by a preponderance of the evidence. See Wyatt v.
State, 24 S.W.3d 319, 322 (Tenn. 2000). A court may summarily dismiss a petition for
habeas corpus relief, without the appointment of counsel and without an evidentiary hearing,
if the petition does not state a cognizable claim. See Hickman v. State, 153 S.W.3d 16, 20
(Tenn. 2004). The determination of whether to grant habeas corpus relief is a matter of law;
therefore, we will review the trial court’s finding de novo without a presumption of
correctness. McLaney v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001).

       The Petitioner contends that he should have been sentenced pursuant to the 1989
Sentencing Act instead of the 1982 Sentencing Act for several of his convictions. The
Petitioner believes that he would have received a lesser sentence for these convictions under
the 1989 Sentencing Act. The State responds that this issue has been addressed on direct
appeal. We agree with the State.



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        This issue was fully litigated on direct appeal and was again addressed in the
Petitioner’s first petition for a writ of habeas corpus. On direct appeal, this court noted that
the trial court was correct in sentencing the Petitioner in accordance with the 1982
Sentencing Act because he would have been classified as a career offender and received a
greater sentence under the 1989 Sentencing Act. Edwards, 868 S.W.2d at 701-02. Following
the denial of the Petitioner’s first petition for a writ of habeas corpus, this court noted that
this issue was “fully addressed by this court on direct appeal.” Edwards, 2005 WL 544714,
at *2. Habeas corpus “proceedings may not be employed to raise and relitigate or review
questions decided and disposed of in a direct appeal from a conviction.” Gant v. State, 507
S.W.2d 133, 137 (Tenn. Crim. App. 1973) (citations omitted). Accordingly, we conclude
that the Petitioner’s argument is without merit and that this issue has already been fully
litigated.

        Next, the Petitioner contends that the judgment form does not reflect a release
eligibility date for the life sentence that he received for the aggravated rape conviction in
count 7. He states that the failure to include a release eligibility classification of forty percent
is “additional proof that [the Petitioner’s] life sentence is illegal and void.” However, under
the 1982 Sentencing Act, the Petitioner is only eligible for release after the service of a
specified term of years as opposed to after the completion of a percentage of his sentence.
Tenn. Code Ann. § 40-35-501(f) (1982) (repealed). Accordingly, pursuant to the 1982
Sentencing Act, the Petitioner would be eligible for release after serving thirty years. Id.
This issue was not raised in his petition for post-conviction relief, and this type of claim is
not effective in a habeas corpus petition because release eligibility classifications are “non-
jurisdictional.” McConnell v. State, 12 S.W.3d 795, 798 (Tenn. 2000).

        The Petitioner also contends that, contrary to Tennessee Code Annotated section 40-
20-107, the trial court erroneously “fixed the maximum sentences.” The provision cited by
the Petitioner is inapplicable to his case, and this issue was also not raised in his petition for
post-conviction relief. Tennessee Code Annotated section 40-20-107 “is the old jury
sentencing statute which discusses the jury’s role in setting sentences for crimes committed
prior to 1982.” Marvin Anthony Matthews v. Charles C. Noles, Warden, No. 02C01-9206-
CC-00140, 1993 WL 46546, at *2 (Tenn. Crim. App. Feb. 24, 1993), perm. app. denied
(Tenn. 1993). The Defendant committed these offenses in 1988 and 1989. Accordingly,
Tennessee Code Annotated section 40-35-203 applies to all of the Petitioner’s sentences.
Notably, both the 1982 and 1989 versions provide that “in felony and misdemeanor cases
[the sentence] shall be imposed by the court.” Tenn. Code Ann. § 40-35-203(a).

       In his petition, the Petitioner also appears to contend that Tennessee Code Annotated
section 40-35-203 mandated jury sentencing in his case because he was sentenced as a career
offender for some of his convictions. The Petitioner fails to acknowledge that this section

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of the statute only relates to situations where “the criminal offense for which the [petitioner]
is charged carries an enhanced punishment for a second or subsequent violation of the same
offense.” Tenn. Code Ann. § 40-35-203(e). If the Petitioner were charged with such an
offense, the indictment should have reflected the possibility of the enhanced punishment, and
if the Petitioner were convicted, the jury must have then “f[ou]nd beyond a reasonable doubt
[that] the defendant ha[d] been previously convicted the requisite number of times for the
same offense.” Tenn. Code Ann. § 40-35-203(e). Such is not the case here. The Defendant
was charged and convicted of rape, first degree burglary, aggravated burglary, second degree
burglary, aggravated rape, assault with intent to commit rape, and robbery. His convictions
were not ones in which the Petitioner could have received an enhanced punishment for a
subsequent violation of the same offense. His career offender status related to his overall
criminal history and not to the type of conviction offense.

        The Petitioner also contends that his sentences in counts 23, 24, and 26 are in excess
of the statutory provisions and are illegal because the sentences imposed on the judgment
forms are different from those pronounced by the trial court at the sentencing hearing. The
State responds that this issue has also been addressed on appeal and that the transcript
reflects the correct sentences for these counts. We agree with the State.

       This issue has also been fully litigated in one of the Petitioner’s previous petitions for
a writ of habeas corpus. Edwards, 2005 WL 544714, at *2. In reviewing this issue, this
court stated,

               The [P]etitioner, a Range III offender, actually received 30-year
               sentences, not 60-year sentences, for the rape convictions on
               counts 23 and 24. Likewise, the trial court ordered a sentence
               of 15 years, not 30, for the robbery conviction on count 26. As
               the [S]tate notes, the sentences were within the applicable
               ranges. In consequence, this issue is without merit.

Id. (citations omitted). Accordingly, we conclude that the Petitioner’s argument is without
merit and that this issue has already been fully litigated. Myers, 462 S.W.2d at 269.

        In his reply brief, the Petitioner again contends that his claims are legally well-
founded and valid; therefore, he was entitled to counsel and an evidentiary hearing. In
addition, he argues that (1) the trial court erred in failing to include in its final written order
findings of fact and conclusions of law and (2) all arguments raised by the State that were
not raised in the motion to dismiss or in the trial court are waived. Following our review of
these issues, we conclude that “[n]either claim addresses the voidness of his judgments of
conviction, therefore, neither claim is proper in a petition for habeas corpus relief.” State v.

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Willie L. Hicks, No. M2006-01640-CCA-R3-PC, 2007 WL 1790446, at *2 (Tenn. Crim.
App. 2007) (citing Wyatt v. State, 24 S.W.3d 319, 322 (Tenn.2000); Archer v. State, 851
S.W.2d 157, 163 (Tenn.1993)). “Furthermore, the procedure followed by the habeas court
was proper.” Id. “A trial court is not required, as a matter of law, to grant the writ or
conduct an inquiry into the allegations contained in the petition if the petitioner fails to state
a cognizable claim for relief.” Id. (citing Tenn. Code Ann. § 21-21-109). Accordingly, we
conclude that the trial court did not err in summarily dismissing the petition and in declining
to review the motion to set aside the order summarily dismissing the petition.

                                        CONCLUSION

       In consideration of the foregoing and the record as a whole, the habeas corpus court’s
denial of relief is affirmed.




                                                     _____________________________
                                                     D. KELLY THOMAS, JR., JUDGE




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