         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


             DALE EUGENE WALKER v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Fayette County
                            No. 5264 Jon K. Blackwood, Judge



                    No. W2004-00622-CCA-R3-HC - Filed March 4, 2005




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

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and
J.C. MCLIN , JJ., joined.

Dale Eugene Walker, pro se.

Paul G. Summers, Attorney General & Reporter; Michael Markham, Assistant Attorney General,
for the appellee, the State of Tennessee.


                                  MEMORANDUM OPINION


        On November 22, 2002, Petitioner entered guilty pleas to one count of forgery over
$1,000, and one count of theft of property over $1,000. For these offenses, he was sentenced to
an effective twelve-year sentence as a career offender.




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        On July 6, 2004, the Petitioner filed an application for writ of habeas corpus relief,
alleging that his sentences are illegal and that the trial court did not have jurisdiction to enter the
judgments of conviction because Petitioner does not qualify as a career offender. The State filed
a motion to dismiss, stating that the Petitioner failed to state a ground for habeas corpus relief.
By order entered August 16, 2004, the trial court granted the State’s motion and dismissed the
petition. Petitioner timely filed a notice of appeal document.

       The State has filed a motion requesting this Court to affirm the decision of the lower
court pursuant to Rule 20, Rules of the Tennessee Court of Criminal Appeals. The State
contends that the Petitioner has failed to allege a ground for which habeas corpus relief may be
granted.

         The right to seek habeas corpus relief is guaranteed by article I, section 15 of the
Tennessee Constitution. Roger L. Hickman v. State, — S.W.3d —, 2004 WL 2563267, * 1
(Tenn. 2004). However, the grounds upon which habeas corpus relief will be granted are narrow.
Id. (citations omitted). Relief will only be granted if the petition establishes that the challenged
judgment is void. Id. 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.” Roger L. Hickman v. State, – S.W.3d at –, 2004
WL 2563267, *1 (quoting State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000) (citations omitted)).
Unlike the post-conviction petition, the purpose of the habeas corpus petition is to contest a void,
not merely voidable, judgment. State ex rel. Newsome v. Henderson, 221 Tenn. 24, 424 S.W.2d
186, 189 (1968).


       The petitioner has 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 release.
Id. However, if the habeas corpus petition fails to demonstrate that the judgment is void or that
the confinement is illegal, neither appointment of counsel nor an evidentiary hearing are required
and the trial court may properly dismiss the petition. Roger L. Hickman v. State, – S.W.3d at –,
2004 WL 2563267, *1 (citing Tenn. Code Ann. § 29-21-109 (2000); Dixon v. Holland, 70
S.W.3d 33, 36 (Tenn. 2002)); Passarella v. State, 891 S.W.2d 619 (Tenn. Crim. App. 1994).


        Petitioner contends that his sentence is illegal. Specifically, he complains that he does
not possess the requisite amount of felony convictions to justify a sentence as a career offender.
Offender classifications and release eligibility "are non-jurisdictional and legitimate bargaining
tools in plea negotiations under the Criminal Sentencing Reform Act of 1989." Bland v. Dukes,
97 S.W.3d 133, 134 (Tenn. Crim. App. 2002) (citing McConnell v. State, 12 S.W.3d 795, 798
(Tenn. 2000); Hicks v. State, 945 S.W.2d 706, 709 (Tenn. 1997)). Moreover, our supreme court
held in Hicks that hybrid sentences are permissible because "a knowing and voluntary guilty plea
waives any irregularity as to offender classification or release eligibility." Hicks, 945 S.W.2d at

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709. A sentence is not illegal when the defendant expressly agrees to a particular offender
classification and when the sentence imposed is clearly within the statutory limits fixed for the
offense of conviction. State v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1987). Additionally, any
claims relating to an unknowing and involuntary guilty plea stemming from the classification are
not cognizable in a habeas corpus action because, even if true, the judgment would not be
rendered void, but merely voidable. See Bryan Pearson v. State, No. E2003-02597-CCA-R3-
CD, 2004 WL 1606982, * 2 (Tenn. Crim. App., at Knoxville, Jul. 16, 2004), perm. to appeal
denied, (Tenn. Nov. 8, 2004).

        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.




                                              ___________________________________
                                              JOHN EVERETT WILLIAMS, JUDGE




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