         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


  GEORGE H. ROSS, III v. GLEN TURNER (WARDEN) AND STATE OF
                           TENNESSEE

                 Direct Appeal from the Circuit Court for Hardeman County
                            No. 9752 Joe H. Walker, III, Judge



                      No. W2005-01832-CCA-R3-HC - Filed May 8, 2006




         The Petitioner, George H. Ross, III, appeals the trial court's denial of his petition for habeas
corpus 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. Petitioner has failed to allege
any ground that would render the judgments of conviction void. Accordingly, we grant the State's
motion and affirm the judgment of the lower court.

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

J.C. MCLIN , J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT
WILLIAMS, JJ., joined.

George H. Ross, III, pro se.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General,
for the appellee, the State of Tennessee.


                                   MEMORANDUM OPINION


         On January 31, 2003, the Petitioner, George H. Ross, III, entered guilty pleas to one count
of facilitation of aggravated arson, a class B felony; one count of assault, a class A misdemeanor;
one count of driving while declared a habitual motor vehicle offender, a class E felony; and one
count of escape, a class E felony. For these offenses, the Petitioner received an effective twenty year


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sentence in the Department of Correction. The Petitioner is currently confined at the Hardeman
County Correctional Facility.

         On September 10, 2004, the Petitioner filed an application for writ of habeas corpus relief.
As grounds for relief, the Petitioner alleged that the trial court lacked jurisdiction to enter the
judgments against him because the trial court failed to advise the Petitioner of the nature of the
offense of facilitation of aggravated arson and that his guilty pleas were unintelligently and
involuntarily entered. Petitioner also claimed that the sentences imposed by the trial court were
unconstitutional because they were not imposed by a jury and were rendered illegal pursuant to the
new rule of law announced in the United States Supreme Court decision of Blakely v. Washington.
By order entered May 3, 2005, the lower court denied habeas corpus relief, finding that the
Petitioner’s sentences had not expired and that the criminal court had jurisdiction to sentence the
Petitioner to the sentences he received. The trial court further found that it was without jurisdiction
to treat the petition as one for post-conviction relief. On August 2, 2005, the Petitioner filed a notice
of appeal document in the Hardeman County Circuit Court.1

        The right to seek habeas corpus relief is guaranteed by article I, section 15 of the Tennessee
Constitution. Hickman v. State,153 S.W.3d 16, 19 (Tenn. 2004). However, the grounds upon which
habeas corpus relief will be granted are narrow. Id. at 20 (citations omitted). Relief will only 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.” Id.
(quoting State v. Ritchie, 20 S.W.3d 624, 630 (Tenn. 2000) (citations omitted)). Unlike the post-
conviction petition, the purpose of the habeas corpus petition is to contest a void, not merely
voidable, judgment. State ex rel. Newsome v. Henderson, 221 Tenn. 24, 424 S.W.2d 186, 189
(1968).


         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). If the petitioner carries this burden, he is entitled to immediate release. Id. However, if the
habeas corpus petition fails to demonstrate that the judgment is void or that the confinement is
illegal, neither appointment of counsel nor an evidentiary hearing are required and the trial court may
properly dismiss the petition. Hickman, 153 S.W.3d at 20 (citing T.C.A. § 29-21-109 (2000); Dixon
v. Holland, 70 S.W.3d 33, 36 (Tenn. 2002)); Passarella, 891 S.W.2d at 619.




         1
         The August 2, 2005, filing date of the notice of appeal document would presumably render the notice of
appeal document late. However, a review of the record reveals that the certificate of service attached to the notice of
appeal document was signed on May 18, 2005, and was delivered to delivered to the correctional facility’s mailroom
on May 18, 2005. See Tenn. R. Crim. P. 49(c). Accordingly, the notice of appeal was timely filed.

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         The State has filed a motion requesting affirmance of the lower court’s dismissal pursuant
to Rule 20, Rules of the Tennessee Court of Criminal Appeals. The State argues that the Petitioner
fails to state a cognizable claim for habeas corpus relief.


        In the present case, the trial court found that the petition failed to allege any ground
demonstrating that the judgment was void. We agree. First, the Petitioner's assertion that his guilty
plea was unknowing and involuntary and that the trial court failed to properly advise the Petitioner
regarding the nature of the offenses are not cognizable in a habeas corpus action because even if true
the judgments would be rendered voidable, not void. See Bryan Pearson v. State, No. E2003-02597-
CCA-R3-CD, 2004 WL 1606982, at *2 (Tenn. Crim. App., at Knoxville, Jul. 16, 2004), perm. to
appeal denied, (Tenn. Nov. 8, 2004). Additionally, the Petitioner’s claim that his convictions or
sentences are void as he was sentenced in violation of Blakely v. Washington fails as, even if such
a violation had occurred, the violation would only render the judgment voidable, not void.2 See Earl
David Crawford v. Ricky Bell, No. M2004-02440-CCA-R3-HC, 2005 WL 354106, *1 (Tenn. Crim.
App., at Nashville, Feb. 15, 2005). Thus, the Petitioner’s 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, the trial court may properly dismiss the petition without a
hearing. McLaney, 59 S.W.3d at 93.


        Upon consideration of the record, the pleadings and the applicable law, this Court concludes
that the Petitioner has failed to establish that he is entitled to habeas corpus relief. He has neither
established that his effective sentence has expired nor has he established that the trial court was
without jurisdiction or authority to enter the sentences imposed. The trial court properly determined
that the Petitioner had failed to establish his entitlement to habeas corpus relief. When an opinion
would have no precedential value, the Court of Criminal Appeals may affirm the judgment or action
of the trial court by memorandum opinion when the judgment is rendered or the action taken in a
proceeding without a jury and such judgment or action is not a determination of guilt, and the
evidence does not preponderate against the finding of the trial judge. See Tenn. R. Ct. Crim. App.
20. We conclude that this case satisfies the criteria of Rule 20. 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.



          2

Regarding Petitioner’s Blakely claim, we acknowledge that, while a claim alleging a constitutional violation may be
raised in a petition for post-conviction relief, see T.C.A. § 40-30-103, the Petitioner is statutorily time-barred from
seeking such relief in the instant case. See T.C.A. § 40-30-102(a). Although certain circumstances, including a final
ruling of an appellate court establishing a new constitutional right, permit the tolling of the statute of limitations, see, e.g.,
T.C.A. § 40-30-102(b)(1), the United States Supreme Court’s holding in Blakley v. Washington fails to afford the
Petitioner a ground for post-conviction relief as the Blakley decision is not to be given retroactive application. See State
v. Gomez, 163 S.W .3d 632 (Tenn.), reh’g denied, (2005); Earl David Crawford v. State, No. M2004-02440-CCA-R3-
HC, 2005 W L 354106, *1; see also Isaac Herron v. State, No. W 2004-02533-CCA-R28-PC (Tenn. Crim. App., at
Jackson, Nov. 22, 2004) (order).

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___________________________________
J.C. MCLIN, JUDGE




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