         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 30, 2007

             MICHAEL L. McKILLIP v. JIM MORROW, WARDEN,
                 TENNESSEE STATE PENITENTIARY, and
                         STATE OF TENNESSEE

                       Appeal from the Circuit Court for Bledsoe County
                           No. 25-2007     Buddy D. Perry, Judge


                   No. E2007-01225-CCA-R3-HC - Filed December 21, 2007



The pro se petitioner, Michael L. McKillip, appeals as of right the Bledsoe County Circuit Court’s
summary dismissal of his petition for a writ of habeas corpus. The petitioner was convicted of
aggravated sexual battery pursuant to his guilty plea in the Shelby County Criminal Court and
received a sentence of fifteen years as a Range II offender to be served at one hundred percent. He
alleges that he is entitled to habeas corpus relief because the trial court erroneously allowed him to
plead outside his range and because the 1989 Criminal Sentencing Reform Act violates the United
States Supreme Court’s holding in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).
The trial court summarily dismissed the petition for failure to state a cognizable claim. 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. KELLY THOMAS, JR., J., delivered the opinion of the court, in which DAVID H. WELLES and
DAVID G. HAYES, JJ., joined.

Michael L. McKillip, Pikeville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General & Reporter; and Cameron L. Hyder, Assistant Attorney
General, attorneys for appellee, State of Tennessee.


                                             OPINION

        The petitioner was originally indicted for several sexual offenses involving allegations of an
ongoing sexual relationship between himself and his daughter occurring when the child was between
eleven and thirteen years old. The petitioner entered a guilty plea to one count of aggravated sexual
battery with an agreed sentence of fifteen years as a Range II offender, which was outside the
petitioner’s qualifying range and above the statutory minimum of twelve years. The petitioner filed
Motion for Correction or Reduction of Sentence which was denied by the trial court. He also
unsuccessfully filed a petition for post-conviction relief. In this petition for a writ of habeas corpus
the petitioner asserted at the trial court level that his sentence is illegal because the trial court should
not have imposed a sentence outside his appropriate range classification. The habeas corpus court
summarily dismissed the petition for writ of habeas corpus based upon its finding that the
petitioner’s claim was not cognizable in a habeas corpus proceeding. On appeal he asserts that the
summary dismissal was erroneous and that the trial court should have declared him indigent and
appointed counsel. As an additional basis of relief, he claims that his sentence is illegal because it
was imposed in contravention to Blakely. The state counters that the trial court correctly denied
habeas corpus relief.

                                               ANALYSIS

         Tennessee law provides that “[a]ny person imprisoned or restrained of his liberty under any
pretense whatsoever . . . may prosecute a writ of habeas corpus to inquire into the cause of such
imprisonment.” Tenn. Code Ann. § 29-21-101. Habeas corpus relief is limited and available only
when it appears on the face of the judgment or the record of proceedings below that a trial court was
without jurisdiction to convict the petitioner or that the petitioner’s sentence has expired. Archer
v. State, 851 S.W.2d 157, 164 (Tenn. 1993). To prevail on a petition for a writ of habeas corpus,
a petitioner must establish by a preponderance of the evidence that a judgment is void or that a term
of imprisonment has expired. See State ex rel. Kuntz v. Bomar, 214 Tenn. 500, 504, 381 S.W.2d
290, 291-92 (1964). If a petition fails to state a cognizable claim, it may be dismissed summarily
by the trial court without further inquiry. See State ex rel. Byrd v. Bomar, 214 Tenn. 476, 483, 381
S.W.2d 280, 283 (1964); Tenn. Code Ann. § 29-21-109. We note that 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).

         We agree with the state’s assertion that the petitioner claim regarding offender classification
is not cognizable in a habeas corpus proceeding when the offender classification was a bargained-
element of the plea agreement. State v. McConnell, 12 S.W.2d 795, 797-98 (Tenn. 2000).
Regarding the Blakely allegation, we initially note that the petitioner is precluded from changing or
from raising additional allegations for the first time on appeal. State v. Adler, 71 S.W.3d 299, 303
(Tenn. Crim. App. 2001). Furthermore, the petitioner’s Blakely claim would render the judgment
of conviction merely voidable, not void, and therefore is not cognizable in a habeas corpus
proceeding. See Billy Merle Meeks v. Ricky J. Bell, Warden, 2007 WL 4116486, No. M2005-00626-
CCA-R3-HC, at *12 (Tenn. Crim. App. Nov. 13, 2007). As previously stated, the trial court may
summarily dismiss a petition for a writ of habeas corpus without further inquiry when the petition
fails to state a cognizable claim. Therefore, it was unnecessary for the trial court to determine the
petitioner’s indigence. For the foregoing reasons, we affirm the trial court’s summary dismissal of
the petition for a writ of habeas corpus.




                                                    -2-
                                         CONCLUSION

        Upon thorough review, we conclude that the trial court correctly dismissed the petition for
a writ of habeas corpus. The judgment of the trial court is affirmed.



                                                      ___________________________________
                                                      D. KELLY THOMAS, JR., JUDGE




                                                -3-
