         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


              CLIFFORD L. TAYLOR v. DAVID MILLS, WARDEN

                Direct Appeal from the Circuit Court for Lauderdale County
                              No. 5958 Joe H. Walker, Judge



                  No. W2005-01587-CCA-R3-HC - Filed December 29, 2005




       The Petitioner, Clifford L. Taylor, appeals the lower court’s denial of his petition for habeas
corpus relief. The State has filed a motion requesting that this Court affirm the trial court pursuant
to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner has failed to allege any ground
that would render the judgment of conviction void. Accordingly, we affirm the trial court’s
dismissal.



Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of the
Court of Criminal Appeals

J.C. MCLIN , J., delivered the opinion of the court, in which DAVID G. HAYES AND JOHN EVERETT
WILLIAMS, JJ. joined.

Clifford L. Taylor, pro se.

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner, Assistant Attorney General, for
the appellee, the State of Tennessee.



                                  MEMORANDUM OPINION


       In 1980, the Petitioner Clifford L. Taylor was convicted of two counts of aggravated
kidnapping and one count of armed robbery. See State v. Taylor, 628 S.W.2d 42, 44 (Tenn. Crim.


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App. 1981), perm. to appeal denied, (Tenn.1982). The trial court imposed a thirty year sentence for
each count of aggravated kidnapping. Id. For the armed robbery conviction, the Appellant was
sentenced, as a habitual criminal, to life imprisonment. Id. The trial court further ordered that the
aggravated kidnapping charges be served concurrently with each other but consecutive to the
enhanced armed robbery sentence. Id. The three sentences were further ordered to be served
consecutive to a twenty-five-year sentence from a prior conviction for which the Appellant was on
parole when the kidnappings and robbery were committed. Id. This Court affirmed the convictions
and sentences on direct appeal. Id. The Petitioner is currently confined in the West Tennessee State
Penitentiary in Henning, Tennessee.

         In May 2005, the Petitioner filed a petition for habeas corpus relief in the Lauderdale Count
Circuit Court. As grounds for relief, the Petitioner alleged that his sentences were imposed in
violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), which created a new
constitutional rule of law. Specifically, Petitioner complains that his sentences were
unconstitutionally imposed in violation of his right to a jury trial as proscribed by Blakely v.
Washington. The trial court summarily denied habeas corpus relief, concluding that the Petitioner
failed to satisfy the procedural requirements for habeas corpus relief and that “the criminal court had
jurisdiction to sentence the defendant to the sentence that he received and that the sentence has not
expired.” The Petitioner timely filed a notice of appeal document.

        The State has filed a motion requesting that this Court affirm the lower court’s denial of
habeas corpus relief pursuant to Rule 20, Rules of the Tennessee Court of Criminal Appeals. As
basis for its motion, the State asserts that the Petitioner failed to state a colorable claim for habeas
corpus relief. Additionally, the State contends that the Petitioner failed to comply with the
procedural requirements for habeas corpus relief. The Petitioner has filed a response in opposition
to the State’s motion. In addition to a response to the State’s argument for summary affirmance, the
Petitioner raises the additional claim that the indictments against him were fatally defective in that
the indictments failed to include all the elements of the offenses charged. With regard to this new
claim, review by this Court at this juncture is inappropriate as the claim was not presented to the trial
court.

       As noted by the State, that the Petitioner failed to attach copies of the judgments of
conviction to his petition for habeas corpus relief filed in the trial court. See T.C.A. § 29-21-
107(b)(2). The procedural requirements for habeas corpus relief are mandatory and must be
scrupulously followed. Archer v. State, 851 S.W.2d 157, 165 (Tenn. 1993). An application for the
issuance of the writ of habeas corpus may be summarily dismissed for the failure to attach the
judgment forms. T.C.A. § 29-21-107(b)(2). The Petitioner’s responses to the State’s argument are
not well-taken. Accordingly, we conclude that the trial court’s summary dismissal was appropriate.

         The State is correct that summary dismissal was appropriate based solely on the Petitioner’s
failure to attach copies of the judgment forms. Notwithstanding, the trial court’s dismissal for failing
to state a cognizable ground for habeas relief was also correct. In this state, habeas corpus relief only
addresses detentions that result from void judgments or expired sentences. See Archer, 851 S.W.2d


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at 164. A judgment is void “only when ‘[i]t appears upon the face of the judgment or the record of
the proceedings upon which the judgment is rendered’ that a convicting court was without
jurisdiction or authority to sentence a defendant, or that a defendant’s sentence of imprisonment or
other restraint has expired.” Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004) (quoting State v.
Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000) (citations omitted)). The petitioner bears the burden of
establishing either a void judgment or an illegal confinement by a preponderance of the evidence.
Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994). If the petitioner carries this
burden, he is entitled to immediate relief. However, where 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 v. Bell, 59 S.W.3d 90, 93 (Tenn. 2001) (citing T.C.A. § 29-21-
109 (2000); see, e.g., Archer, 851 S.W.2d at 164 (parenthetical omitted)). The Petitioner does not
contend that his sentences have expired, thus, he is only entitled to relief if his judgments are void.

        In the present case, the trial court found that the petition failed to allege any ground
demonstrating that the judgment was void. We agree; his claim that his convictions or sentences are
void as he was sentenced in violation of Blakely v. Washington fails as, even if such a violation had
occurred, the violation would only render the judgment voidable, not void. See Earl David
Crawford v. Ricky Bell, No. M2004-02440-CCA-R3-HC, 2005 WL 354106, *1 (Tenn. Crim. App.,
at Nashville, Feb. 15, 2005). Thus, the Petitioner’s claim is not cognizable in a habeas corpus
proceeding. Where the allegations in a petition for writ of habeas corpus relief do not demonstrate
that the judgment is void, the trial court may properly dismiss the petition without a hearing.
McLaney, 59 S.W.3d at 93.

        Additionally, while a claim alleging a constitutional violation may be raised in a petition for
post-conviction relief, see T.C.A. § 40-30-103, the Petitioner is statutorily time-barred from seeking
such relief in the instant case. See T.C.A. § 40-30-102(a). Although certain circumstances,
including a final ruling of an appellate court establishing a new constitutional right, permit the tolling
of the statute of limitations, see, e.g., T.C.A. § 40-30-102(b)(1), the United States Supreme Court’s
holding in Blakley v. Washington fails to afford the Petitioner a ground for post-conviction relief as
the Blakley decision is not to be given retroactive application. See State v. Gomez, 163 S.W.3d 632
(Tenn.), reh’g denied, (2005); Earl David Crawford v. State, No. M2004-02440-CCA-R3-HC, 2005
WL 354106, *1; see also Isaac Herron v. State, No. W2004-02533-CCA-R28-PC (Tenn. Crim.
App., at Jackson, Nov. 22, 2004) (order).

        We conclude that the Petitioner has failed to establish that he is entitled to habeas corpus
relief. He has alleged neither a facially invalid judgment nor an expired sentence. Accordingly, it
is ordered that the State’s motion is granted. The judgment of the trial court is affirmed in
accordance with Rule 20, Rules of the Court of Criminal Appeals.




                                                         ___________________________________
                                                                              J.C. MCLIN, JUDGE
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