         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs April 14, 2009

                   ALBERT F. KELLY v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Shelby County
                          No. 01-11190   James C. Beasley, Jr., Judge



                      No. W2008-02236-CCA-R3-PC - Filed June 12, 2009


The petitioner, Albert F. Kelly, proceeding pro se, presents a Rule 3 appeal from the Shelby County
Criminal Court’s summary denial of his motion to reopen his post-conviction petition. In his motion
to reopen, the petitioner asserted a new rule of constitutional law and relied upon Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000); Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531
(2004); Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856 (2007); and State v. Gomez, 239
S.W.3d 733 (2007) (“Gomez II”), to support his argument that he is entitled to have his sentence
reduced to the minimum within the range, as the trial court, not the jury, found applicable
enhancement factors. The post-conviction court summarily denied the petition, finding that the
petitioner had failed to assert a valid statutory basis for a motion to reopen a post-conviction petition.
Following the denial, the petitioner filed a Rule 3 notice of appeal in the Shelby County Criminal
Court. Because the petitioner has failed to comply with the statutory requirements for appealing the
denial of a motion to reopen, this court is without jurisdiction to review the merits of the issue
presented. Accordingly, the appeal is dismissed.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C.
MCLIN , JJ., joined.

Albert F. Kelley, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; William
L. Gibbons, District Attorney General; and Reginald Henderson, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                               OPINION

                                         Procedural History

     The petitioner was indicted on one count of rape, a Class B felony, and a jury trial was
commenced. Albert Frank Kelly v. State, No. W2004-01580-CCA-R3-PC (Tenn. Crim. App., at
Jackson, Mar. 4, 2005). Following the testimony of the victim, the petitioner chose to change his
plea and entered an open plea of guilty. Id. Following a sentencing hearing, he was sentenced to
twenty years as a Range II offender. Id. Although no direct appeal was taken, the petitioner did file
a petition for post-conviction relief, the denial of which was affirmed by a panel of this court on
appeal. Id.

         The petitioner subsequently filed a motion to reopen his post-conviction petition on a
standardized form entitled “petition for post-conviction relief.” However, a reading of the petition
reveals that it was the petitioner’s intent to file a motion to reopen a petition for post-conviction
relief, as the petition is accompanied by a “memorandum of law in support of petition to reopen post-
conviction petition.” Within the motion, the petitioner asserts a newly announced constitutional rule
of law as grounds to reopen his post-conviction petition, specifically citing to Gomez II, Blakely,
and Apprendi. Subsequently, the trial court summarily denied the motion in an order entitled “order
denying post-conviction relief.” However, within the body of the order, the court specifically found
that “the Motion to Re-Open the Post Conviction Petition filed in this matter is not well taken and
should be Denied,” because the claim was not cognizable in a motion to reopen a post-conviction
petition. The petitioner then filed a standardized Rule 3 notice of appeal form in the Shelby County
Criminal Court.

                                                Analysis

         On appeal, the petitioner contends that the trial court erred in summarily denying his petition.
Specifically, he contends that his argument did not rely upon Gomez II but, rather, that “the crux of
[his] petition to the trial court was Apprendi.” He asserts that he should not be penalized for not
pursuing his rights under the Apprendi decision as he did not have the benefit of the Blakely decision
at the time he was sentenced. He further asserts that retroactive application of Apprendi should
apply.

         As an initial matter, the State contends that this court is without jurisdiction to hear this
appeal as the petitioner failed to properly file an application for permission to appeal and also
contends that the appeal should be dismissed. 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. T.C.A. § 40-30-117(c) (2006)
(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. T.C.A.
§ 40-30-117(c) (emphasis added); see also Tenn. Sup. Ct. R. 28 § 10(B). In the present case, the
petitioner has failed to comply with the statutory requirements for seeking appellate review.
Although timely filed, the petitioner filed his application in the wrong court and failed to attach to
his notice of appeal the documents filed by the parties in the trial court and the order of the trial court
denying the motion. Moreover, nothing in the notice of appeal document reflects the nature of the
grounds that he alleged in his motion to reopen his post-conviction petition. Relevant information,
including the challenged order, is before this court only because a record was transmitted as if this
were an appeal as of right rather than an application for discretionary review. Nothing in the notice


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of appeal document indicates that it could be effectively treated as an application for permission to
appeal. See Graham v. State, 90 S.W.3d 687, 691 (Tenn. 2002).

        In order to obtain appellate review of the trial court’s order, a petitioner must comply with
the statutory requirements contained in Tennessee Code Annotated section 40-30-117(c). See John
Harold Williams, Jr. v. State, No. W1999-01731-CCA-R3-PC (Tenn. Crim. App., at Jackson, Mar.
23, 2000); 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 matters. 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.

          The petitioner argues in his reply brief that he should not be penalized because the trial
court’s order was ambiguous as it was identified as an order which denied post-conviction relief.
He acknowledges, however, that within the body of the order the trial court specifically stated that
the “motion to reopen the petition for post-conviction relief” was denied. We must, however, reject
the petitioner’s argument. He clearly knew that the motion he filed was a motion to reopen a petition
for post-conviction relief, as he had previously filed his post-conviction petition. His memorandum
of law was so styled, and his argument contained therein was clearly made to support a petition to
reopen. Moreover, by his own admission, he had filed a previous petition to reopen his petition for
post-conviction relief. As such, we must conclude that the petitioner has failed to comply with the
statutory requirements, thereby depriving this court of jurisdiction.

        Notwithstanding, even had this court been vested with jurisdiction, we agree with the trial
court that the motion fails to assert a claim upon which a motion to reopen a petition for post-
conviction relief may be granted. As noted, the argument asserted by the petitioner is that his
sentence exceeds the statutory minimum in violation of his Sixth Amendment right to a trial by jury
in violation of Gomez II, Blakely, and Cunningham. As relevant in this case, in order to reopen his
petition, the petitioner would be required to establish that there had been a final appellate court
ruling that established a constitutional right which was not recognized as existing at the time of trial
and that retroactive application of that right was required. T.C.A. §§ 40-30-102(b)(1), 40-30-
117(a)(1) (2006). As correctly pointed out by the State, it has repeatedly been held that the decisions
in Gomez II, Blakely, and Cunningham did not announce a new rule of law and merely applied the
rule previously set forth in Apprendi. See State v. Gomez, 163 S.W.3d 632, 648-51 (Tenn. 2005).
Moreover, it has also repeatedly been held that the line of cases relied upon by the petitioner are not
to be applied retroactively on collateral appeal. Schriro v. Summerlin, 124 S. Ct. 2519 (2004); Billy
Merle Meeks v. Ricky J. Bell, Warden, No. M2005-00626-CCA-R3-HC (Tenn. Crim. App., at
Nashville, Nov. 13, 2007); Timothy R. Bowles v. State, No. M2006-01685-CCA-R3-HC (Tenn.
Crim. App., at Nashville, May 1, 2007).



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         Contrary to the assertions in his motion and memorandum, the petitioner contends in his
reply brief that his argument “rested solely on Apprendi” and that “some court, at some point, is
going to have to make a logical legal determination as to the retroactivity of Apprendi.” We would
agree with the petitioner that Apprendi is the controlling law of his case based upon the timing of
his convictions, and we would further agree with his assertions that, in Apprendi, the Supreme Court
announced a new constitutional rule of criminal procedure by holding that “[o]ther than the fact of
a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to the jury, and proved beyond a reasonable doubt.” In re Clemmons,
259 F.3d 489, 491 (6th Cir. 2001)(quoting Apprendi, 530 U.S. at 491, 120 S. Ct. at 2362-63); see
also United States v. Sanders, 247 F.3d 139, 147 (4th Cir. 2001) (holding that “Apprendi is certainly
a new rule of criminal procedure”); United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001)
(holding that “Apprendi is obviously a ‘new rule’”). However, contrary to the petitioner’s assertions,
it has repeatedly been held that “Apprendi is not the type of watershed rule of criminal procedure
that qualifies for retroactive application.” Dukes v. United States, 255 F.3d 912, 913 (8th Cir. 2001)
(holding that “Apprendi presents a new rule of constitutional law that is not of ‘watershed’
magnitude and, consequently, petitioners may not raise Apprendi claims on collateral review”);
Sanders, 247 F.3d at 151 (holding that “the new rule announced in Apprendi does not rise to the
level of a watershed rule of criminal procedure which ‘alter[s] our understanding of the bedrock
elements essential to the fairness of a proceeding’”); McCoy v. United States, 266 F.3d 1245, 1257
(11th Cir. 2001) (agreeing with the other circuits that “Apprendi is not sufficiently fundamental to
fall within Teague’s second exception”). Thus, the petitioner has failed to put forth a claim which
would entitle him to reopen his petition for post-conviction relief.

                                           CONCLUSION

        Because the petitioner failed to comply with the statutory requirements of appealing the
denial of a motion to reopen a petition for post-conviction relief, this court is deprived of jurisdiction
to hear his appeal. Accordingly, the appeal is dismissed.




                                                         ___________________________________
                                                          JOHN EVERETT WILLIAMS, JUDGE




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