         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
        ON REMAND FROM THE UNITED STATES SUPREME COURT

              BILLY MERLE MEEKS v. RICKY J. BELL, WARDEN

                 Direct Appeal from the Circuit Court for Davidson County
                        No. 04C-3157 Thomas W. Brothers, Judge



                  No. M2005-00626-CCA-R3-HC - Filed November 13, 2007


Petitioner, Billy Merle Meeks, filed a petition for writ of habeas corpus, attacking his convictions
for aggravated kidnapping, especially aggravated robbery, especially aggravated burglary, and
extortion. He was convicted in August 1990, received an effective sentence of thirty-nine (39) years
after partial consecutive sentencing, and filed his habeas corpus petition in 2004. The petition was
dismissed and this Court affirmed. Billy Merle Meeks v. Ricky J. Bell, Warden, No. M2005-00626-
CCA-R3-HC, 2005 WL 3504665 at *1 (Tenn. Crim. App., at Nashville, Dec. 22, 2005) perm. app.
denied (Tenn. May 1, 2006) (Meeks I). On petition for writ of certiorari, the United States Supreme
Court granted the petition, vacated the judgment of this Court, and remanded this case for further
consideration in light of Cunningham v. California, 549 U.S. _____ 127 S. Ct. 856 (2007). Counsel
was appointed for Petitioner and the parties were ordered to file additional briefs in light of the
remand. Following review of the record and the arguments of Petitioner and the State, we affirm the
judgment of the trial court dismissing the petition for writ of habeas corpus.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which DAVID H. WELLES and
ROBERT W. WEDEMEYER , JJ., joined.

Patrick G. Frogge, Nashville, Tennessee, for the appellant, Billy Merle Meeks.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; and
Victor S. (Torry) Johnson III, District Attorney General, for the appellee, the State of Tennessee.

                                            OPINION

I. Background

       A review of the history of this case and the appellate decisions which have affected its
ultimate disposition is necessary to place in perspective the result reached herein.
In his pro se petition for habeas corpus relief, Petitioner includes the following allegation:

Petitioner’s convictions are VOID and the only legal sentence he could have received
has expired. Petitioner received the unconstitutional and illegal effective sentence
of thirty-nine (39) years. The maximum sentence allowed by law, if he had been
legally and lawfully convicted [sic] was an effective sentence of [t]welve (12) years.
Petitioner has now served fifteen (15) years day for day without the calculation on
any earned sentence credits.

The following five specific grounds for relief are set forth as they appear in the petition:

1.)    Petitioner has been sentenced by a Trial Court that was without the authority
       to impose the illegal sentence in violation of Article 1, § 6, of the
       Constitution of Tennessee and the Sixth Amendment to the United States
       Constitution, made applicable to the states through the Fourteenth
       Amendment. Therefore, Petitioner is being unlawfully restrained of his
       liberty by the Respondent and the State of Tennessee. Petitioner’s
       convictions are VOID, his sentences are illegal.

2.)    The Criminal Sentencing Reform Act of 1989, Tennessee Code Annotated
       (TENNESSEE CODE ANNOTATED SECTION) §§ 40-35-101, thru 40-35-
       504, is unconstitutional and in violation of both the the [sic] United States
       Constitution Fifth, Sixth and Fourteenth Amendments and Article 1, §§ 6, 9,
       & 15 of the Tennessee State Constitution and the Act was unconstitutionally
       applied to the Defendant in this case.

3.)    The Trial Court exceeded its authority and jurisdiction by imposing enhanced
       sentences pursuant to T.C.A. §§ 40-35-101, thru 40-35-504, in connection
       with all counts of the indictments when the enhancement factor of “serious
       bodily injury,” a necessary element of each charged offense, had been
       included in the indictments, but had not been proven to a jury beyond a
       reasonable doubt or admitted by Danny Ray Meeks [sic] but rather was
       determined by virtue of the Trial Judge’s personal opinion in violation of
       Petitioner’s Sixth Amendment jury trial rights and In re Winship, 397 U.S.
       358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970).

4.)    The Trial Court exceeded its authority and jurisdiction by imposing an
       enhanced sentences [sic] pursuant to T.C.A.. §§ 40-35-101, thru 40-35-504,
       in connection with all counts of the indictments when the enhancement
       factors had not been included in the indictments, had not been proven to a
       jury beyond a reasonable doubt and had not been admitted by Billy M.
       Meeks, in violation of his Sixth Amendment jury trial rights and Blakely v.
       Washington, 542 U.S. 296, 124 S.Ct. 2531 June 24, 2004.


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       5.)     The Constitution of Tennessee Article 1, § 15, and T.C.A. § 29-21-101, et
               seq. does not restrict habeas corpus review to jurisdictional issues and
               expiration of sentences as the sole grounds for relief. Judges in Tennessee
               erroneously rely upon the well settled (Judge-Made Law) law that habeas
               corpus relief is available only if the convicting court was without jurisdiction
               or authority to impose the sentence or the sentence has expired.

         The Respondent (State) filed a motion to dismiss the petition without having an evidentiary
hearing. On March 10, 2005, the trial court granted the motion. The trial court ruled that
Petitioner’s fifth ground for relief was “contrary to the well established standard for granting habeas
relief in Tennessee, and is therefore, not well taken.” Recognizing that Petitioner’s other four
grounds for relief were based upon the assertion that Petitioner was unconstitutionally sentenced in
light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the trial
court concluded that Petitioner was not entitled to relief because this Court had held that “like other
jurisdictions, we decline to find Blakely retroactively applicable to cases on collateral appeal.”
Donald Branch v. State, No. W2003-03042-CCA-R3-PC, 2004 WL 2996894, slip op. at _____
(Tenn. Crim. App., at Jackson, Dec. 21, 2004) perm. app. denied (Tenn. May 23, 2005). The
wisdom of the trial court is reflected in this Court’s ultimate holding herein.

        Petitioner appealed the dismissal of his habeas corpus petition and this Court affirmed, as
noted above. Approximately one month after the trial court dismissed the habeas petition, the
Supreme Court of Tennessee filed its opinion in State v. Gomez, 163 S.W.3d 632 (Tenn. 2005)
(Gomez I), in which the Court addressed the issue of “whether the defendants’ sentences were
imposed in violation of their Sixth Amendment right to trial by jury” as interpreted by Blakely. Id.
at 636. In Cunningham v. California, 549 U.S. _____, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007), the
case that caused the case sub judice to be remanded to this Court, the United States Supreme Court
stated,

       Because circumstances in aggravation are found by the judge, not the jury, and need
       only be established by a preponderance of the evidence, not beyond a reasonable
       doubt [citation omitted] the [California sentencing scheme] violates Apprendi’s
       [Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000)] bright-line rule:
       Except for a prior conviction, “any fact that increases the penalty for a crime beyond
       the prescribed statutory maximum must be submitted to a jury, and proved beyond
       a reasonable doubt.” 530 U.S. at 490, 120 S. Ct. 2348. While “[t]hat should be the
       end of the matter,” Blakely, 542 U.S. at 313, 214 S. Ct. 2531 . . . , the California
       Supreme Court held otherwise.

Cunningham, 549 U.S. at _____, 127 S. Ct. at 868.

       In Blakely, the United States Supreme Court stressed that:




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       the “statutory maximum” for Apprendi purposes is the maximum sentence a judge
       may impose solely on the basis of the facts reflected in the jury verdict or admitted
       by the defendant. In other words, the relevant “statutory maximum” is not the
       maximum sentence a judge may impose after finding additional facts, but the
       maximum he may impose without any additional findings. When a judge inflicts
       punishment that the jury’s verdict alone does not allow, the jury has not found all the
       facts “which the law makes essential to the punishment,” and the judge exceeds his
       proper authority.

Blakely, 542 U.S. at 303-04 (citations omitted).

        In Gomez I, the Tennessee Supreme Court held that “because the defendants failed to raise
and to preserve for review their Sixth Amendment challenge [relying on Blakely], the defendants are
limited to seeking relief via plain error review.” Gomez I at 651. One of the five required factors
which must be shown in order to reverse for plain error is that “a clear and unequivocal rule of law
[has] been breached,” Id. at 652 (quoting State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000)). After
an extensive analysis, the court concluded that this Smith factor did not apply and therefore the
defendants in Gomez I were not entitled to relief. The court held:

       We conclude that Tennessee’s sentencing structure does not violate the Sixth
       Amendment. . . . In light of our holding that the defendants’ sentences were not
       imposed in violation of the Sixth Amendment, the defendants are not entitled to relief
       because the record reflects no plain error.

Gomez I, at 661-62.

        Subsequent to the filing of Gomez I, when the Petitioner’s appeal first reached this Court, the
State filed a motion to affirm the judgment of the trial court by memorandum opinion pursuant to
Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee. We granted the motion and
filed our memorandum opinion, in which we agreed with the trial court that Petitioner’s fifth ground
for relief was contrary to well established law and accordingly had no merit. However, as to
Petitioner’s four other grounds for relief based upon his Sixth Amendment rights as set forth in
Blakely, instead of affirming the trial court by using the same legal reasoning relied upon by the trial
court (that Blakely does not apply retroactively to cases collaterally attacking a judgment of
conviction) we relied only upon Gomez I and stated “[o]ur supreme court recently held in State v.
Gomez, 163 S.W.3d 632 (Tenn. 2005), that Tennessee’s criminal sentencing statutes do not violate
the Sixth Amendment as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147
L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403
(2004).” Meeks I, 2005 WL 3504665 at *1.




                                                  -4-
II. Analysis

        Our analysis is limited to the Tennessee Criminal Sentencing Reform Act of 1989 (Reform
Act) as it existed prior to June 7, 2005, when the legislature made substantial changes in order for
the sentencing scheme to not run afoul of the Sixth Amendment right to a jury trial. 2005 Tenn. Pub.
Acts ch. 353. These revisions have resulted in the Reform Act now being in compliance with the
Sixth Amendment regarding judge sentencing, as implicitly noted by the United State Supreme Court
in Cunningham, 549 U.S. at _____ n. _____, 127 S. Ct. At 871 n. 18. Petitioner was obviously
sentenced prior to the effective date of the 2005 revisions.


        Pertinent to the case sub judice, we recognize that the definition of the term “prescribed
statutory maximum” as it applies to a sentence under scrutiny is what primarily caused differences
of opinion among various appellate courts. See Graham v. State, 90 S.W.3d 687, 692 (Tenn. 2002).
In Graham, the petitioner had been convicted of aggravated rape, aggravated kidnapping, and
aggravated burglary, and received a total effective sentence of twenty-five (25) years. The sentence
was longer than the statutory presumptive sentence authorized upon conviction. The petitioner filed
a motion to reopen his previously denied post-conviction petition on the basis that Apprendi created
a new constitutional right. The trial court denied the motion and this Court affirmed.

        The Tennessee Supreme Court affirmed, but on a basis different than this Court. The
Petitioner’s sentenced had been enhanced to the maximum Range I sentence based upon several
enhancement factors. In affirming the denial of the motion, our supreme court held,

       The petitioner in this case received a sentence within the statutory maximum for each
       crime. Accordingly, the trial court was well within its constitutional and statutory
       authority to consider enhancing factors for the purpose of sentencing without the
       assistance of the jury. Thus, Apprendi provides the petitioner with no relief.

Graham, 90 S.W.3d at 692.

Thus, in Graham, our supreme court held that no Apprendi violation occurs as long as the trial court
does not enhance the sentence above the maximum possible sentence that can be lawfully imposed
within the appropriate range. As noted above, the Supreme Court in Blakely held otherwise by
stating that “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose
after finding additional facts, but the maximum he may impose without any additional findings.”
Id. at 303-04, 124 S. Ct. at 2537 (quoting 1 J. Bishop, Criminal Procedure § 87, p. 55 (2d ed. 1872)).

       In Gomez I the majority of our supreme court concluded that

       [The Tennessee Criminal Sentencing Reform Act of 1989] [(Reform Act)] does not
       include a formula, a grid, or any other mechanical process. It instead sets out broad
       sentencing principles, enhancement and mitigating factors, and a presumptive


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       sentence, all of which serve to guide trial judges in exercising their discretion to
       select an appropriate sentence within the range set by the Legislature. Under the
       Reform Act, the finding of an enhancement factor does not mandate an increased
       sentence. The Reform Act does not provide a system which requires or even allows
       judicial power to “infringe[ ] upon the province of the jury.” Blakely, 124 S. Ct. at
       2540. Thus, for these reasons, and in accordance with our duty to indulge every
       presumption in favor of the constitutionality of statutes – a duty which the dissent
       fails to discuss – we conclude that Tennessee’s sentencing structure does not violate
       the Sixth Amendment. (emphasis added).

Gomez I at 661. (emphasis added).

         Our Court affirmed the dismissal of Petitioner’s habeas corpus petition in light of Gomez I.
In Cunningham, the United States Supreme Court re-emphasized that in Blakely, the Court stated,
“we held it irrelevant that the [Washington Sentencing] Reform Act ultimately left the decision
whether or not to depart [from the presumptive sentence] to the judge’s discretion: ‘Whether the
judicially determined facts require a sentence enhancement or merely allow it,’ we noted, ‘the
verdict alone does not authorize the sentence.’” Cunningham, 127 S. Ct. at 865 (quoting Blakely, 542
U.S. at 305 n.8). Furthermore, the essential holding of Cunningham is that the Court’s decisions
from Apprendi to United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005)
direct that a designated starting point, such as Tennessee’s presumptive sentence used in sentencing
Petitioner, is the relevant statutory maximum sentence, and when the judge, but not the jury, is the
finder of facts necessary to increase the sentence beyond the presumptive sentence, “the [statutory
sentencing] system cannot withstand measurement against our Sixth Amendment precedent.”
Cunningham, 549 U.S. at _____ 127 S. Ct. at 871 (specifically referencing the California
determinate sentencing law).

        The United States Supreme Court vacated the Tennessee Supreme Court’s decision in Gomez
I and remanded the case for reconsideration in light of Cunningham. State v. Gomez, _____ S.W.3d
_____, No. M2002-01209-SC-R11-CD (Tenn. Oct. 9, 2007) slip op. at 3 (Gomez II).

       Since the remand from the United States Supreme Court and the filing of the briefs in the
case sub judice, the Tennessee Supreme Court has filed its opinion regarding the remand of Gomez
I.

       In Gomez II, our supreme court held that

       Applying Cunningham, we conclude that the [Tennessee Criminal Sentencing
       Reform Act of 1989] failed to satisfy the Sixth Amendment insofar as it allowed a
       presumptive sentence to be enhanced based on judicially determined facts. That is,
       to the extent the Reform Act permitted enhancement based on judicially determined
       facts other than the fact of a prior conviction, it violated the Sixth Amendment [right



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       to a jury trial] as interpreted by the Supreme Court in Apprendi, Blakely, and
       Cunningham.

Gomez II, slip op. at 6-7 (footnote omitted).

       Petitioner was convicted and sentenced in 1990, ten years prior to the United States Supreme
Court’s decision in Apprendi. It is clear from Blakely, Cunningham, and Gomez II, that Petitioner’s
sentences, (insofar as they were increased as a result of judicial fact finding of applicable
enhancement factors other than prior convictions) were imposed in violation of Petitioner’s Sixth
Amendment right to a jury trial as interpreted by Apprendi.

         Consistent with allegations in his petition for habeas corpus relief which was dismissed by
the trial court without a hearing, Petitioner asserts on appeal, after remand from the United States
Supreme Court, that his sentences have expired because he has served more time in custody than the
jury verdicts alone would allow.

       According to the judgments filed with the habeas corpus petition and included in the record
on appeal, Petitioner was convicted of the following offenses and received the indicated sentences:

       (1)     Aggravated Kidnapping, a Class A felony, Range I Standard, 15 years

       (2)     Especially Aggravated Robbery, a Class A felony, Range I Standard, 20 years

       (3)     Aggravated Burglary, a Class C felony, Range II Multiple, 10 years

       (4)     Extortion, a Class D felony Range II Multiple, 4 years

        The trial court ordered the twenty-year sentence to be served consecutively with the fifteen-
year sentence and the four-year sentence to be served consecutively to the twenty-year sentence, and
the ten-year sentence to be served concurrently with the twenty-year sentence, for an effective
sentence of thirty-nine (39) years.

        As pertinent to the appeal, the Range I fifteen-year sentence for aggravated kidnapping is the
presumptive minimum sentence at the time of the Petitioner’s offense and thus would not violate the
Sixth Amendment as construed by Blakely. Likewise, the Range II four-year sentence for extortion
is the minimum presumptive sentence for extortion. The elevated Range II sentence was reached
solely by prior felony convictions, so there would be no Sixth Amendment violation in imposing the
length of this sentence. Cunningham, 127 S. Ct. at 868.

        Thus only the twenty-year sentence for especially aggravated robbery (increased from the
presumptive sentence of fifteen years for a Class A felony at the time of the Petitioner’s offense) and
the ten-year sentence for aggravated burglary (increased frm the presumptive sentence of six years)



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must be examined in light of Cunningham. In addition, the consecutive sentencing must be reviewed
to address Petitioner’s argument that consecutive sentencing violates Apprendi and its progeny.

        This case was remanded to this Court for further consideration in light of Cunningham. Billy
Merle Meeks v. Ricky Bell, Warden, _____ U.S. _____, 127 S. Ct. 1243, 167 L. Ed. 2d 60 (2007).
While a ruling in compliance with Cunningham would clearly control Petitioner’s sentencing had
the issue been raised by Petitioner at the time of his sentencing in 1990, he did not raise the Apprendi
and Blakely issue until he filed his habeas corpus petition in 2004.

        While Petitioner couches his argument on the basis that his effective sentence has expired
(a well recognized ground for habeas corpus relief), this premise is based on the assertions that he
should have received the presumptive sentence of fifteen years for especially aggravated robbery and
six years for aggravated burglary, and that the consecutive sentences imposed also violated the
rulings in Apprendi, Blakely, and Cunningham. We have thoroughly examined Cunningham, and
found no guidance as to whether Apprendi and its progeny are to be given retroactive application in
cases such as Petitioner’s which are collateral attacks upon final judgments of conviction. Petitioner
has not directed our attention to any portion of Cunningham which would authorize such retroactive
application. In fact, the weight of authority is contrary to Petitioner’s assertions. See United States
v. Mora, 293 F.3d 1213 (10th cir. 2002); Davis v. United States, 2007 WL 2138619 (E.D.T.N..
2007); Lopez v. Campbell, 2007 WL 2500424 (E.D.C.A. 2007).

        Petitioner also argues that the ruling in Cunningham dictates that Apprendi and its progeny
require that facts relied upon to impose consecutive sentences (other than prior convictions) must
be found by a jury and not a judge. Neither the Cunningham, nor the Blakely, nor the Apprendi
decisions directly address the issue of whether the determination to impose consecutive service of
multiple sentences implicates Sixth Amendment Apprendi concerns. Each case does address the
Sixth Amendment issue as it applies to the methods of enhancement of individual sentence length
coupled with the determination of guilt. The manner of service of a sentence(s) has no direct
correlation to the finding of guilt, other than conviction of certain offenses limit the options of
certain manners of serving the sentence.

         Without specific guidance in Cunnningham, we rely upon prior decisions of this Court and
conclude that Apprendi and its progeny do not affect the trial court’s ability to find facts essential
to justify consecutive sentencing. See State v. Eric Lumpkins, No. W2005-02805-CCA-R3-CD,
2007 WL 1651881, at *12 (Tenn. Crim. App., ad Jackson, June 7, 2007) perm. app. granted (Tenn.
Oct. 15, 2007), and cases cited therein. As to retroactive application of Apprendi, Blakely, and
Cunningham to Petitioner’s convictions and sentences, we also conclude that the holdings are not
to be applied retroactively. See Timothy R. Bowles v. State, No. M2006-01685-CCA-R3-HC, 2007
WL 1266594, at *2-3 (Tenn. Crim. App. at Nashville, May 1, 2007) no. Tenn. R. App. P. 11
application filed, and cases cited therein.

       Finally, we find nothing in the Cunningham, Apprendi, or Blakely decisions which would
expand Petitioner’s right under Tennessee’s habeas corpus procedure to attack a judgment which is


                                                  -8-
merely voidable but not void on its face. It is clear that the imposition of a sentence by the trial
judge is constitutionally permissible. It is constitutionally permissible for a trial judge to enhance
a sentence above the “statutory maximum” sentence, based upon a finding by the court of prior
convictions. Blakely, 542 U.S. at 301, 124 S. Ct. at 2536 (citing Apprendi, 530 U.S. at 490). It is
constitutional error in violation of a defendant’s right to trial by jury for the trial court to increase
a sentence above the “statutory maximum” sentence based upon facts, other than prior convictions,
not found by a jury. However, Apprendi and its progeny have not held that this error is fundamental
constitutional error wherein the doctrine of constitutional harmless error would not apply. As such,
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. See Archer v. State, 851 S.W.2d 157 (Tenn. 1993);
Taylor v. State, 995 S.W.2d 78 (Tenn. 1999). Accordingly, Petitioner is not entitled to relief in this
appeal.

                                           CONCLUSION

       While the United States Supreme Court’s decision in Cunningham clearly mandates that
sentences such as those imposed upon Petitioner in 1990 for his convictions for especially
aggravated robbery and aggravated burglary would be subject to the restrictions of the Sixth
Amendment as subsequently set forth in Apprendi, Petitioner is not entitled to relief because
Apprendi and its progeny are not to be applied retroactively in collateral attacks upon final judgments
and Apprendi and its progeny do not apply to consecutive sentencing. Further, Tennessee’s habeas
corpus procedure is available to set aside only void judgments and, as Petitioner’s judgments at most
would be voidable, his claims are not cognizable in our state’s habeas corpus proceedings.


                                                _________________________________________
                                                THOMAS T. WOODALL, JUDGE




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