         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE


              ALFIO ORLANDO LEWIS v. RICKY BELL, WARDEN

                 Direct Appeal from the Criminal Court for Davidson County
                        No. 2000-A-121   J. Randall Wyatt, Jr., Judge



                      No. M2004-02735-CCA-R3-HC - Filed April 14, 2005


The Petitioner, Alfio Orlando Lewis, appeals from the dismissal of his petition for the writ of habeas
corpus. The State has filed a motion requesting that the Court affirm the trial court’s denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals. We find the State’s motion has merit.
Accordingly, the motion is granted and the judgment of the trial court is affirmed pursuant to Rule
20, Rules of the Court of Criminal Appeals.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES, and
JERRY L. SMITH , JJ, joined.

Alfio Orlando Lewis, pro se, Nashville, Tennessee.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General,
for the appellee, State of Tennessee.



                                   MEMORANDUM OPINION

        The Petitioner was convicted of two counts of attempted second-degree murder and two
counts of aggravated assault on July 19, 2000. The trial court merged the two aggravated assault
convictions into the two attempted second-degree murder convictions. The trial court sentenced the
Petitioner to twelve years for each conviction, to be served consecutively, for an effective sentence
of twenty-four years. The Petitioner’s convictions were affirmed on direct appeal. State v. Alfio
Orlando Lewis, No. M2000-03160-CCA-MR3-CD, 2002 WL 360269 (Tenn. Crim. App., Mar. 6,
2002), perm. app. denied (Tenn. Sept. 16, 2002). On July 19, 2004, the Petitioner filed, pro se, a
petition for writ of habeas corpus relief in the Davidson County Criminal Court. He asserted that the
trial court lacked jurisdiction to sentence the Petitioner because his convictions for second-degree
murder and aggravated assault violated double jeopardy. On August 24, 2004, the trial court issued
an order dismissing the Petitioner’s petition for habeas corpus relief. On September 22, 2004, the
Petitioner filed, pro se, his second petition for writ of habeas corpus relief in the Davidson County
Criminal Court. He asserted that the 1989 Criminal Sentencing Reform Act was unconstitutional and
unconstitutionally applied to him. He therefore argues that the trial court did not have the authority
to impose a sentence above the statutory minimum without a jury’s determination of the facts used
to enhance his sentence, rendering his convictions and sentences void. On October 8, 2004, the trial
court dismissed the second petition, finding that the Davidson County Criminal Court had jurisdiction
to sentence the Petitioner and that the Petitioner’s sentence was not void. The Petitioner filed his
notice of appeal in the trial court on October 28, 2004.

        The grounds upon which a writ of habeas corpus may be issued are very narrow. McLaney
v. Bell, 59 S.W.3d 90, 92 (Tenn. 2001). A writ of habeas corpus is available only when it appears
from the face of the judgment or record that either the convicting court was without jurisdiction to
convict or sentence the petitioner, or the petitioner’s sentence has expired. Archer v. State, 851
S.W.2d 157, 164 (Tenn. 1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). In other words,
habeas corpus relief may only be sought when the judgment is void, not merely voidable. Taylor v.
State, 995 S.W.2d 78, 83 (Tenn. 1999). 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). A trial court may summarily dismiss a petition for writ
of habeas corpus without the appointment of a lawyer and without an evidentiary hearing if there is
nothing on the face of the judgment to indicate that the convictions addressed therein are void. See
Passarella v. State, 891 S.W.2d 619 (Tenn. Crim. App. 1994).

        The Petitioner, relying on Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), claims
that the trial court did not have the authority to impose a sentence above the statutory minimum
because it applied enhancement factors that were not found by a jury or admitted by the Petitioner,
rendering his sentences illegal.

        These allegations, even if true, do not provide the Petitioner with a valid ground for habeas
corpus relief. Even if there was a violation of the Petitioner’s constitutional rights at the time of
conviction and sentencing, such violation would render the judgment voidable, and not void, unless
the face of the record establishes that the trial court did not have jurisdiction to convict or sentence
the Petitioner. See Earl David Crawford v. State, No. M2004-02440-CCA-R3-HC, 2005 WL 354106,
at *1 (Tenn. Crim. App., at Nashville, Feb.15, 2005). Additionally, this Court has previously held,
with regard to post-conviction proceedings, that Blakely does not establish a new watershed rule, and
that Blakely does not apply retroactively to cases on collateral appeal. See Donald Branch v. State,
No. W2003-03042-CCA-R3-PC, 2004 WL 2996894, at *10 (Tenn. Crim. App., at Jackson, Dec. 21,
2004); Carl Johnson v. State, No. W2003-02760-CCA-R3-PC, 2005 WL 181699, at *4 (Tenn. Crim.
App., at Jackson, Jan. 25, 2005).

        The Petitioner has failed to establish by a preponderance of the evidence that his convictions
are void or his term of imprisonment has expired. Accordingly, the State’s motion is granted. The


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judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Court of Criminal
Appeals.


                                                     ___________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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