            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON

               JASON CRAWFORD v. STEVEN DOTSON, WARDEN

                         Appeal from the Circuit Court for Hardeman County
                               No. 08-02-0330 Joe Walker, Judge



                     No. W2008-01749-CCA-R3-HC - Filed February 6, 2009


The petitioner, Jason Crawford, appeals the circuit court’s order denying his petition for habeas
corpus relief. The state has filed a motion requesting that this court dismiss the appeal as untimely
filed or, in the alternative, affirm the circuit court pursuant to Rule 20 of the Tennessee Court of
Criminal Appeals. Following our review of the parties’ briefs, the record, and the applicable law,
we conclude that the petitioner failed to timely file his notice of appeal and his claims do not warrant
consideration in the “interest of justice.” Therefore, his appeal is dismissed.

                     Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

J.C. MCLIN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and CAMILLE
R. MCMULLEN , JJ., joined.

Jason Crawford, Pro Se, Whiteville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; and John H. Bledsoe, Assistant Attorney
General, for the appellee, State of Tennessee.

                                       MEMORANDUM OPINION

                                               I. Background

       In 2002, the petitioner was indicted for first degree murder, felony murder, especially
aggravated robbery, and conspiracy to commit robbery. The state filed notice of its intent to seek
punishment of life without parole. In January of 2003, pursuant to a plea agreement the petitioner
entered pleas of guilty to second degree murder, a Class A felony; and conspiracy to commit
aggravated robbery, a Class C felony. The petitioner agreed to serve a three-year sentence at thirty
percent for his conspiracy conviction. He also expressly agreed to serve a forty-year sentence at one
hundred percent for his second degree murder conviction.1 The remaining charges were dismissed.
The trial court ordered the petitioner to serve his sentences concurrently. Subsequently, the


        1
           The judgment specifically notes that “Defendant expressly waives Range of Punishment and agrees to be
sentences out of range to 40 years (Range 2), 100% violent offender.”
petitioner unsuccessfully sought post-conviction relief. See Jason Crawford v. State, No.
M2004-01541-CCA-R3-PC, 2005 WL 2546924 (Tenn. Crim. App. at Nashville, Oct. 11, 2005),
perm. app. denied (Tenn. Feb. 6, 2006).

        On June 3, 2008, the petitioner filed a petition for writ of habeas corpus, alleging that his
judgments were void and illegal because he was sentenced outside of the applicable range for his
offender classification, and he was exposed to an illegal sentencing scheme which violated his
constitutional right to a jury trial as set forth in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531
(2004) and its progeny.2 On June 11, 2008, the habeas court entered an order noting that the
petitioner “received the sentence he agreed to in the negotiated plea agreement” and he “waived any
irregularity concerning his offender classification or release eligibility when he pleaded guilty.” The
court further noted that the petitioner’s Blakely claim was not to be applied retroactively to cases
already determined final on direct appeal. As such, the court found that the petitioner’s habeas
petition demonstrated no right to relief and dismissed the petition. On August 7, 2008, the
petitioner filed the instant appeal.

                                           II. Standard of Review

         Article I, section 15 of the Tennessee Constitution guarantees the right to seek habeas corpus
relief. Tennessee Code Annotated sections 29-21-101 through 29-21-130 codify the applicable
procedures for seeking a writ. However, the grounds upon which a writ of habeas corpus may be
issued are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A writ of habeas corpus
is available only when it appears on the face of the judgment or the record of the proceedings upon
which the judgment was rendered that a court was without jurisdiction to convict or sentence the
defendant or that the defendant is still imprisoned despite the expiration of his sentence. See
Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007); Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). The purpose of a habeas corpus petition is
to contest void and not merely voidable judgments. Archer, 851 S.W.2d at 163. A void judgment
is a facially invalid judgment, clearly showing that a court did not have statutory authority to render
such judgment; whereas, a voidable judgment is facially valid, requiring proof beyond the face of
the record or judgment to establish its invalidity. See Taylor, 995 S.W.2d at 83. The burden is on
the petitioner to establish by a preponderance of the evidence, “that the sentence is void or that the
confinement is illegal.” Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). Moreover, it is
permissible for a court to summarily dismiss a petition for habeas corpus relief, without the
appointment of counsel and without an evidentiary hearing, if the petitioner does not state a
cognizable claim. See Summers, 212 S.W.3d at 260; Hickman v. State, 153 S.W.3d 16, 20 (Tenn.
2004).



         2
           The petitioner also relies on Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856 (2007). Blakely held
that any fact other than that of a prior conviction used to enhance a defendant’s sentence must be proven to a jury
beyond a reasonable doubt. 542 U.S. at 30. Cunningham applied the holding in Blakely and invalidated California’s
determinate sentencing law because it allowed a trial court to enhance a defendant’s sentence based on facts found by
the judge by a preponderance of the evidence. 549 U.S. at 288-89, 127 S.Ct. at 868.



                                                         2
                                             III. Analysis

         The state initially argues that the petitioner’s appeal of the circuit court’s dismissal of his
habeas corpus petition is untimely. A notice of appeal must be filed within thirty (30) days after the
date of entry of the judgment from which the petitioner is appealing. Tenn. R. App. P. 4(a). Thus,
the petitioner had thirty days from the entry of the June 11, 2008 order in which to file notice of
appeal. As the petitioner’s notice of appeal was not filed until August 7, 2008, fifty-seven days later,
it was untimely. However, the untimely filing of a notice of appeal is not always fatal to an appeal.
As stated in Rule 4(a), “in all criminal cases the ‘notice of appeal’ document is not jurisdictional and
the filing of such document may be waived in the interest of justice.” Tenn. R. App. P. 4(a). “In
determining whether waiver is appropriate, this court will consider the nature of the issues presented
for review, the reasons for and the length of the delay in seeking relief, and any other relevant factors
presented in the particular case.” State v. Markettus L. Broyld, No. M2005-00299-CCA-R3-CO,
2005 WL 3543415, at *1 (Tenn. Crim. App. at Nashville, Dec. 27, 2005). Waiver should only occur
when “the interest of justice” mandates waiver. See State v. Scales, 767 S.W.2d 157 (Tenn. 1989).

        After a review of the record, we conclude that waiver is not required “in the interest of
justice.” The petitioner has not offered an explanation for the untimely filing of his appeal.
Moreover, as noted by the state in their argument and found by the habeas corpus court, the claims
raised by the petitioner in his petition do not entitle him to relief. The record shows that the
petitioner’s sentence was the product of a knowing and voluntary guilty plea. “[A] knowing and
voluntary guilty plea waives any irregularity as to offender classification or release eligibility.”
Hoover v. State, 215 S.W.3d 776, 780 (Tenn. 2007). Offender classification and release eligibility
are non-jurisdictional and legitimate bargaining tools in plea negotiations under both the 1982 and
1989 Sentencing Acts. Id. at 779-80. Also, the petitioner’s Blakely claim is not cognizable in a
habeas corpus case because the claim, even if proven, would render the judgment voidable, not void.
See, e.g., Billy Merle Meeks v. Ricky J. Bell, Warden, No. M2005-00626-CCA-R3-HC, 2007 WL
4116486 (Tenn. Crim. App., at Nashville, Nov. 13, 2007), perm. app. denied (Tenn. April 7, 2008).
Furthermore, this court has repeatedly held that Blakely violations do not apply retroactively to cases
on collateral appeal. Id.; see also Ulysses Richardson v. State, No. W2006-01856-CCA-R3-PC,
2007 WL 1515162 (Tenn. Crim. App. May 24, 2007), perm. app. denied (Tenn. Sept. 17, 2007)
(“Apprendi/Blakely type issues regarding allocating fact-finding authority to judges during
sentencing are not in the narrow class of procedural rules that apply retroactively.”). Accordingly,
no jurisdictional infirmities are found on the face of the judgment or in the underlying record
presented.

                                           III. Conclusion

       Based upon the foregoing, because the petitioner’s notice of appeal was not timely filed and
because “the interest of justice” does not require waiver of the rule, the appeal is dismissed.



                                                         ___________________________________
                                                        J.C. McLIN, JUDGE

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