         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE            FILED
                         AUGUST SESSION, 1998          December 10, 1998

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

DARREL D. CANNON,                 )    C.C.A. NO. 03C01-9801-CC-00012
                                  )
           Appe llant,            )
                                  )    BLEDSOE COUNTY
V.                                )
                                  )
JAMES BOWLEN, Warden,             )    HON. CURTIS SMITH, JUDGE
and S TATE O F TEN NES SEE ,      )
                                  )
           Appellee.              )    (HABEAS COR PUS)



FOR THE APPELLANT:                     FOR THE APPELLEE:

DARR EL D. C ANNO N, pro se       JOHN KNOX WALKUP
STSRCF, Route 4, Box 600              Attorney General & Reporter
Pikeville, TN 37367
                                       TODD R. KELLEY
                                       Assistant Attorney General
                                       2nd Floor, Cordell Hull Building
                                       425 Fifth Avenue North
                                       Nashville, TN 37243




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                   OPINION
       The Petitioner, Darrel D. Cannon, appeals as of right the trial court’s dismissal

of his petition for writ of hab eas co rpus. W e affirm the judgm ent of the tria l court.



       On September 29, 1982, Petitioner was sentenced upon convictions of two

counts of voluntary manslaughter, two counts of use of a firearm during the

commission of a felony (voluntary m anslaughte r), and two counts of armed ro bbery.

Petitioner’s aggregate sentence for the convictions totaled thirty-four (34) years.



       Petitioner filed a pro se writ of habeas corpus on September 15, 1997. He

later filed a m otion to dism iss the State’s motio n to dis miss the pe tition, which the

trial court treated as an amendment to the petition for writ of habeas corpu s. In his

pro se pleadings, the Petitioner has asserted that the sentences are void because

of the cons ecutive an d conc urrent se ntencing structure im posed by the trial co urt,

and that the trial court illegally enhanced his sentence multiple times due to use of

a firearm .



       It is a well-established principle of law th at the re med y of hab eas c orpus is

limited in its nature a nd its sco pe. Archer v. State, 851 S.W.2d 157, 161-62 (Tenn.

1993); Passarella v. State, 891 S.W .2d 619 , 626 (T enn. C rim. App . 1994). In

Tennessee, habe as co rpus re lief is available only if “‘it 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 imprisonm ent or other restraint ha s expired.” Archer,

851 S.W.2d at 164 (citation omitted in original). The petitioner has the burden of

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establishing either a void judgment or an illegal confinement by a preponderance of

the evidenc e. Pass arella, 891 S.W .2d at 627. Mo reover, where a judg men t is not

void, but is merely voidable, such judgment may not be collate rally atta cked in a suit

for habe as corp us relief. Id.



      Tennessee Code Annota ted sectio n § 39-6 -1710(a )(3) [repea led; see Tenn.

Code Ann. § 39-17-1307] provides increased punishment for the offender who uses

a deadly w eapon in comm itting certain fe lonies. The subject statute does not crea te

a separate or distinct offense but provides increased punishment of the offender who

uses a dea dly wea pon in com mitting certain felonies. Wa lker v. State, 606 S.W.2d

531, 532-33 (Tenn. 1980). Pursuant to subsection (a)(3) of the repealed statute, the

five (5) year enhancement must run consecutively with any other period of

confinem ent. Furtherm ore, Petition er adm its that one of his sentences has not yet

expired, thereby making Petitioner’s first claim not cognizable under the habeas

corpus statute since h is senten ce has not expire d. See Tenn . Code Ann. § 29-21-

101 - 13 0.



      Petition er’s claims th at he wa s subjec t to illegal multiple enhancement factors,

and that the conse cutive/concurren t sentencing struc ture is “illegal,” are not proper

grounds for relief in a habeas corpus p rocee ding. T he en hanc eme nt alleg ation, if

meritorious, would merely make Petitioner’s judgments voidable, not void. The

same is true on the consecutive/concurrent sentencing structure. Therefore, these

claims are also not c ogniza ble und er the ha beas c orpus s tatute. See Tenn. Code

Ann. § 29-21-101 - 130.




                                           -3-
       Based on the foregoing, we find that Petitioner has failed to carry his burden

of establishing by a preponderance of the evidence either a void judgment or an

illegal confinem ent. Pass arella, 891 S .W .2d at 6 27. If it is clear from the face of the

petition that the petitioner is not entitled to relief, then the trial court is not required

to hold a hearing or inquire into the allegations in the petition, but may dismiss the

petition summ arily. Id. We agree with the tria l court’s dism issal of P etitione r’s

petition.



       Accordingly, the judgment of the trial court is affirmed.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge


CONCUR:


___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JOE G. RILEY, Judge




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