         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


             JAMES AARON EARNEST v. STATE OF TENNESSEE

                 Direct Appeal from the Circuit Court for Hardeman County
                            No. 5036 Joe H. Walker, III, Judge



                    No. W2005-00714-CCA-R3-PC - Filed October 4, 2005




         The Petitioner, James Aaron Earnest, appeals the trial court's denial of his motion to reopen
his petition for post-conviction 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. Because
this Court is without jurisdiction to entertain this appeal, the above-captioned matter is dismissed.


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

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES            AND   JOHN
EVERETT WILLIAMS, JJ. joined.

James Aaron Earnest, pro se.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry, Assistant Attorney General, for
the appellee, the State of Tennessee.



                                  MEMORANDUM OPINION


       The Petitioner, James Aaron Earnest, was “convicted of assault with intent to commit first
degree murder, involving bodily injury and the use of a firearm, and of shooting into an occupied
dwelling house.” State v. James A. Earnest, No. 3, 1989 WL 70779, * 1 (Tenn. Crim. App., at
Jackson, Jun. 28, 1989). The trial court imposed an effective sentence of thirty-five years. Id. This


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Court affirmed both convictions and the sentence on direct appeal. Id. Although Petitioner
maintains that a petition for post-conviction relief was filed alleging the ineffective assistance of trial
counsel, the record fails to verify this allegation.

        On March 4, 2005, the Petitioner filed a petition to reopen his post-conviction petition. As
basis for relief, Petitioner alleged that trial counsel was ineffective. In support of his claim,
Petitioner complained (1) his convictions and sentences violate constitutional protections against
double jeopardy, (2) his sentence was illegally enhanced in violated of Blakely v. Washington, (3)
trial counsel was ineffective, and (4) the evidence is insufficient to support the jury’s verdicts. By
order entered March 14, 2005, the trial court denied the petition. In so ruling, the trial court
determined that the petition was barred by the one-year statute of limitations and that the petition was
not filed in the court of conviction.1 The court further found that, if the petition were treated as a
petition for habeas corpus relief, the petition is similarly denied as the Petitioner’s sentence had not
yet expired and the trial court had jurisdiction to enter the judgments against the Petitioner. A notice
of appeal document was filed in the trial court on March 23, 2005.

        The State has filed a motion to affirm the lower court’s denial of relief. Specifically, the
State contends that (1) the petition is untimely as a petition for post-conviction relief and (2) the
petition fails to state a ground upon which to grant a motion to reopen a post-conviction petition.


                                 A. Petition for Post-Conviction Relief

         Despite the Petitioner’s allegations otherwise, the record before this Court fails to reflect that
a prior petition for post-conviction relief was filed. It appears that the trial court treated the petition
as the first petition for post-conviction relief. Accordingly, the trial court summarily dismissed the
petition as time-barred.

         The Petitioner’s convictions were entered on September 16, 1988. This Court affirmed the
convictions and sentences on June 28, 1989. At the time Petitioner's convictions became final, the
statute of limitations applicable to post-conviction proceedings was three years. Tenn. Code Ann.
§ 40-30-102 (repealed 1995). His conviction became final in 1989. Petitioner, therefore, needed
to file his petition by June 28, 1992, in order to toll the running of the statute. However, Petitioner
did not file this petition for post-conviction relief until March 4, 2005, thus barring any claims he
might have had.

       While due process dictates that the statute of limitations not be so strictly applied as to deny
a person the opportunity to have his claim heard and determined at a meaningful time and in a


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         The record before this Court reveals that the convictions against the Petitioner were entered in the
Hardeman County Circuit Court on September 16, 1988. The “petition to re-open post-conviction” was filed in the
Hardeman County Circuit Court. Accordingly, the petition was filed in the court of conviction. See Tenn. Code
Ann. § 40-30-104(a)..

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meaningful manner, State v. McKnight, 51 S.W.3d 559 (Tenn. 2001); Seals v. State, 23 S.W.3d 272
(Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn. 1992), the exceptions to the statute of
limitations are explicitly limited, i.e., (1) claims based upon a new rule of constitutional law
applicable to a petitioner's case, (2) claims based upon new scientific evidence showing innocence,
and (3) claims based upon enhanced sentences that were enhanced because of convictions
subsequently found to be illegal. See Tenn. Code Ann. § 40-30-102(b)(1)- (3). Petitioner asserts
that a claim he alleges is based upon a final ruling of an appellate court establishing a constitutional
right that was not recognized as existing at the time of trial. Specifically, Petitioner asserts that the
United States Supreme Court’s decision in Blakely v. Washington invalidates the sentences imposed
by the trial court. This Court has previously held that retrospective application of the rule in Blakely
to cases on collateral review is not required. See Issac Herron v. State, No. W2004-02533-CCA-
R28-PC (Tenn. Crim. App., at Jackson, Nov. 22, 2004) (order). Accordingly, Petitioner has failed
to establish a ground that would toll the statute of limitations.

       For these reasons, the petition to reopen, considered as an original petition for post-
conviction relief, is time-barred.


                    B. Motion to Re-Open Petition for Post-Conviction Relief

        The Petitioner alleges that he had previously filed a petition for post-conviction relief,
alleging ineffective assistance of counsel as a basis for relief. Petitioner further asserts that counsel
was appointed and a hearing was held. The record is absent any verification of this petition.
Notwithstanding, we proceed to address the petition as a motion to re-open a petition for post-
conviction relief.

         As a motion to re-open, the Petitioner's appeal fails for several reasons. First, in seeking
review of the trial court's denial of a motion to reopen, a petitioner shall file, within ten days of the
lower court's ruling, an application in the Court of Criminal Appeals seeking permission to appeal.
See Tenn. Code Ann. § 40-30-117(c)(2003) (emphasis added); Tenn. Sup. Ct. R. 28 § 10(b). The
application shall be accompanied by copies of all the documents filed by both parties in the trial
court and the order denying the motion. Tenn. Code Ann. § 40-30-117(c)(emphasis added); see also
Tenn. Sup. Ct. R. 28 § 10(b). In the present case, Petitioner has failed to comply with the statutory
requirements for seeking appellate review. Specifically, although timely filed, the Petitioner failed
to file his application in the proper court and Petitioner failed to attach the documents filed by the
parties in the trial court and the order of the trial court denying the motion.

        Rules 3 and 4, Tennessee Rules of Appellate Procedure, govern appeals as of right. An
appeal as of right is not available for review of a lower court’s denial of a motion to reopen a petition
for post-conviction relief. See Tenn. R. App. P. 3(b); see also John Harold Williams, Jr. v. State,
No. W1999-01731-CCA-R3-PC (Tenn. Crim. App. at Jackson, Mar. 23, 2000), perm. to appeal
denied, (Tenn. Oct. 16, 2000).



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          In order to obtain appellate review of the trial court’s order, a petitioner must comply with
the statutory requirements contained in Section 40-30-117(c). See John Harold Williams, Jr. v.
State, No. W1999-01731-CCA-R3-PC; William Lee Drumbarger v. State, No. M1999-01444-CCA-
R3-PC (Tenn. Crim. App. at Nashville, Dec. 7, 1999); Lucy Killebrew v. State, No. 03C01-9809-CR-
00320 (Tenn. Crim. App. at Knoxville, Oct. 5, 1999), perm. to appeal denied, (Tenn. Apr. 24, 2000).
The failure of a petitioner to comply with statutory requirements governing review of a denial of a
motion to reopen deprives this Court of jurisdiction to entertain such matter. John Harold Williams,
Jr. v. State, No. W1999-01731-CCA-R3-PC. Finally, neither the Post-Conviction Procedure Act
nor the Rules of the Supreme Court permit this Court to suspend the statutory requirements. Id.
Accordingly, this Court is without jurisdiction to entertain this matter.


        Finally, even had the Petitioner properly invoked this Court's jurisdiction in this matter, a
review of the motion to reopen reveals that the Petitioner has failed to allege a ground upon which
such petition may be granted. Section 40-30-117, Tennessee Code Annotated, see also Tenn. Sup.
Ct. R. 28 § 2(c), governs motions to reopen a post-conviction petition. A motion to reopen a prior
post-conviction petition may only be filed if the petitioner alleges that:
        (1) a final ruling of an appellate court establishes a constitutional right that was not
        recognized as existing at the time of trial and retrospective application of the right is
        required; or
        (2) new scientific evidence exists establishing that the petitioner is actually innocent
        of the convicted offense(s); or
        (3) the petitioner’s sentence was enhanced based upon a prior conviction which has
        subsequently been found invalid.
Tenn. Code Ann. § 40-30-117(a)(1-3). If the claim is based upon a new constitutional rule of law,
the claim must be brought within one year of the ruling establishing that right. Tenn. Code Ann. §
40-30-117(a)(1). If the claim is based upon an invalid prior conviction, the claim must be brought
within one year of the ruling holding the prior conviction invalid. Tenn. Code Ann. § 40-30-
117(a)(3).

         In the present case, the Petitioner essentially asserts that the trial court abused its discretion
in denying his motion to reopen his post-conviction petition because Blakely created a new rule of
constitutional law. The ruling in Blakely v. Washington was rendered on June 24, 2004. This Court
has previously held that retrospective application of the rule in Blakely to cases on collateral review
is not required. See Issac Herron v. State, No. W2004-02533-CCA-R28-PC (Tenn. Crim. App., at
Jackson, Nov. 22, 2004) (order); cf. State v. Gomez, 163 S.W.3d 632, 650-51 (Tenn.), reh’g denied,
( 2005) (rejecting application of Blakely decision to 1989 Tennessee Sentencing Act). Petitioner
neither complains that the sentences were enhanced based upon a prior conviction which has been
found invalid nor does he allege that new scientific evidence establishes his innocence.
Accordingly, Petitioner’s motion to reopen fails to allege a ground under which a post-conviction
petition may be reopened.




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                                     C. Writ of Habeas Corpus

         Finally, we proceed, as did the trial court, to consider the petition as one seeking habeas
corpus relief. It is well established that the grounds upon which habeas corpus relief may be granted
in this state are narrow. Hickman v. State, 153 S.W.3d 16, 20 (Tenn. 2004) (citations omitted).
Relief will 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."
Hickman, 153 S.W.3d at 20 (quoting State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000) (citations
omitted)). The petitioner bears 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.

        Petitioner claims that (1) his convictions and sentences violate constitutional protections
against double jeopardy, (2) trial counsel was ineffective, (3) his sentences were improperly
enhanced in violation of Blakely v. Washington, and (4) the evidence at trial was insufficient to
support his convictions. The claims challenging the Petitioner's convictions do not, even if proven,
render the convictions void. See, e.g., Passarella, 891 S.W.2d at 627(claims of ineffective assistance
of counsel render a judgment voidable, not void); Gant v. State, 507 S.W.2d 133, 136 (Tenn. Crim.
App. 1973) (sufficiency of evidence not cognizable in habeas corpus proceeding); Earl David
Crawford v. Ricky Bell, No. M2004-02440-CCA-R3-HC, 2005 WL 354106, *1 (Tenn. Crim. App.,
at Nashville, Feb. 15, 2005) (Blakley violation, if any, would only render judgment voidable, not
void); William A. Ransom v. State, No. 01C01-9410-CR-00361, 1995 WL 555064, at *3 (Tenn.
Crim. App., at Nashville, Sept. 20, 1995), perm. to appeal denied, (Tenn. Feb. 5, 1996) (claims
involving protections against double jeopardy do not render judgment void). Thus, these claims are
not cognizable in a habeas corpus proceeding. Where the allegations in a petition for writ of habeas
corpus relief do not demonstrate that the judgment is void, a trial court may correctly dismiss the
petition without a hearing. McLaney v. Bell, 59 S.W.2d 90, 93 (Tenn. 2001).



        For the reasons stated herein, we conclude that the trial court did not err in summarily
dismissing the petition for post-conviction relief as time-barred nor did the court err in dismissing
the petition for failing to state a ground cognizable in a habeas corpus proceeding. Moreover, if
treated as a motion to reopen, the Petitioner’s failure to properly perfect an application for
permission to appeal divested this Court of jurisdiction to consider the appeal. 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.



                                               ___________________________________
                                               ALAN E. GLENN, JUDGE

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