         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs November 15, 2005

          JAMES EMMETT MOSES, JR. v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Hardeman County
                      No. 05-02-0026    Jon Kerry Blackwood, Judge



                  No. W2005-01071-CCA-R3-HC - Filed December 9, 2005


The petitioner, James Emmett Moses, Jr., pleaded guilty to aggravated burglary, two counts of
robbery, and theft of property under $500, for which he received an effective 26-year incarcerative
sentence. On direct appeal, the petitioner unsuccessfully challenged his sentences as excessive. See
State v. James Emmett Moses, Jr. v. State, No. W1999-01509-CCA-R3-CD (Tenn. Crim. App.,
Jackson, Mar. 7, 2000) (hereinafter Moses I). The petitioner then sought and was denied post-
conviction relief. See James Emmett Moses, Jr. v. State, No. W2001-01394-CCA-R3-PC (Tenn.
Crim. App., Jackson, Feb. 22, 2002) (hereinafter Moses II). The petitioner subsequently filed a
habeas corpus petition alleging that he received an illegal sentence pursuant to Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and the habeas corpus court summarily dismissed
the petition. The petitioner now brings the instant appeal challenging that denial, and after a
thorough review of the record and applicable law, we affirm the judgment of the lower court.

               Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which NORMA MCGEE OGLE
and J.C. MCLIN , JJ., joined.

James Emmett Moses, Jr., Appellant, Pro Se.

Paul G. Summers, Attorney General & Reporter; Brian C. Johnson, Assistant Attorney General; and
Elizabeth T. Rice, District Attorney General, for the Appellee, State of Tennessee.

                                            OPINION

               On direct appeal, this court summarized the facts underlying the petitioner’s
convictions as follows:

               The appellant’s convictions stem from one continuous criminal episode which
       occurred on the afternoon of September 16, 1998, in Halls, Tennessee. Around 3:30
       p.m., the appellant approached Neal Dyer and demanded his money. Mr. Dyer
        handed the appellant $102 and the appellant fled in his vehicle. This incident
        resulted in the appellant’s charge for theft.

                Around 4:40 p.m., the appellant entered the residence of Doris and Jack
        Henderson under the pretense that he needed to use their telephone. Immediately
        upon entering the residence, he grabbed Mrs. Henderson, putting his hand over her
        mouth, telling her that he had a gun and he was going to kill her. After moving into
        the kitchen with his victim, the appellant threw Mrs. Henderson onto the floor and
        “beat [her] across the head and the back.” The appellant then took an undetermined
        amount of money from Mrs. Henderson’s purse. At this point, Mr. Henderson
        entered his home and was grabbed by the appellant. After being “push[ed] and
        shov[ed] around,” the appellant began “hollering” at Mr. Henderson, “I’ll kill you!”
        and “I want your money!” Mr. Henderson retrieved his wallet from the bedroom and
        handed the appellant the thirty dollars it contained. The appellant then fled from the
        residence.

Moses I, slip op. at 2.

        The petitioner argues that the habeas corpus court erred when summarily dismissing his
petition because he is entitled to relief pursuant to Blakely. The state counters that the court correctly
summarily dismissed the petition because the petitioner had failed to allege a cognizable basis for
habeas corpus relief.

                  In Tennessee, “[a]ny person imprisoned or restrained of his liberty, under any pretense
whatsoever, except [those held under federal authority], may prosecute a writ of habeas corpus to
inquire into the cause of such imprisonment and restraint.” Church v. State, 987 S.W.2d 855, 857
(Tenn. Crim. App. 1998); see Tenn. Code Ann. § 29-21-101 (2000). The burden is on the petitioner
to establish that the judgment is void or that the sentence has expired. State ex rel. Kuntz v. Bomar,
214 Tenn. 500, 504, 381 S.W.2d 290, 291-92 (1964). If the petitioner carries this burden, he is
entitled to immediate release. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).
A petition seeking issuance of a writ of habeas corpus may be summarily dismissed by a trial court
if it fails to indicate that the petitioner’s conviction is void. Tenn. Code Ann. § 29-21-109 (2000).

                As noted above, the petitioner seeks habeas corpus relief pursuant to Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), alleging that his sentence was impermissibly
enhanced in violation of his right to trial by jury. However, this argument must fail because our
supreme court has recently held that Blakely is inapplicable to the Tennessee sentencing scheme.
See State v. Gomez, 163 S.W.3d 632 (Tenn. 2005), petitions for reh'g denied (Tenn. 2005).
Accordingly, the sentencing considerations applied to the petitioner’s sentence do not run afoul of
the petitioner’s Sixth Amendment right to trial by jury. Moreover, prior to the publication of Gomez,
this court held that any Blakely-type errors would merely render a sentence voidable, not void. See
Earl David Crawford v. Ricky Bell, No. M2004-02440-CCA-R3-HC, slip op. at 2 (Tenn. Crim. App.,
Nashville, Feb. 15, 2005) (noting that “even if there was a violation of the [petitioner]’s


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constitutional right 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]”).

                 In sum, the petitioner has failed to demonstrate that his convictions are void or that
his sentences have expired. Accordingly, we hold that the petitioner is not entitled to habeas corpus
relief, and the judgment of the lower court is affirmed.



                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




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