Opinion
No. M2007-02491-CCA-R3-HC.
Filed April 16, 2008.
Direct Appeal from the Circuit Court for Hickman County; No. 07-5053C; Timothy L. Easter, Judge.
Judgment of the Circuit Court for Hickman County Affirmed Pursuant to Rule 20 of the Tennessee Court of Criminal Appeals.
Gabriel Ayuel, Only, Tennessee, pro se.
Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney General; and Ronald Davis, District Attorney General, for the appellee, the State of Tennessee.
Thomas T. Woodall, J., delivered the opinion of the court, in which David H. Welles and Robert W. Wedemeyer, JJ., joined.
MEMORANDUM OPINION
Petitioner, Gabrial Ayuel, filed a petition for habeas corpus relief in the Circuit Court of Hickman County, attacking his conviction in the Davidson County Criminal Court for attempted first degree murder. Judgment was entered on the conviction on September 17, 2003, following a jury trial. The habeas court summarily dismissed the petition without a hearing. Petitioner appealed and the State has filed a motion for affirmance by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee. After review of the record, we find that the State's motion should be granted. Accordingly, the judgment is affirmed.
Following a jury trial, Petitioner was convicted of attempted first degree murder. He was sentenced to serve twenty (20) years. Attempted first degree murder is a Class A felony and, at the time of the conviction, the presumptive sentence for a Range I sentence for a Class A felony conviction was twenty years.
Petitioner alleges in his application for writ of habeas corpus that the conviction should be set aside or he should be resentenced because the sentence was imposed in violation of the mandates of Blakey v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).
The State argues in its motion that Petitioner failed to comply in several aspects with requirements of Tennessee Code Annotated section 29-21-107 which mandates the procedure for filing a writ of habeas corpus. The State alleges, in particular, that Petitioner did not attach any documentation with his petition to support his claim for habeas corpus relief. In Summers v. State, 212 S.W.3d 251, 260 (Tenn. 2007), our supreme court held that the failure to include pertinent documents with the petition may result in the trial court properly dismissing the petition without appointment of counsel and without a hearing. More pertinent to this appeal, our court has held that a Blakey claim, even if it could be applied to collateral matters, would result in only a voidable and not a void judgment. Accordingly, habeas corpus relief is not appropriate, and not available, for allegedBlakey violations. Wayford Demonbreun, Jr. v. State, M2004-03037-CCA-R3-HC, 2005 WL 1541873 (Tenn.Crim.App. June 30, 2005)perm. to app. denied (Tenn. Nov. 16, 2005); Stanley Harvell v. Glenn Turner, No. W2004-02643-CCA-R3-HC, 2005 WL 839891 (Tenn.Crim.App. Apr. 12, 2005) perm. to app. denied (Tenn. Oct. 19, 2005); and Earl David Crawford v. Ricky Bell, No. M2004-02440-CCA-R3-HC, 2005 WL 354106 (Tenn.Crim.App. Feb. 15, 2005) perm. to app. denied (Tenn. July, 15, 2005). Habeas corpus relief may be sought only when the judgment is void, not merely voidable. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999).
After thorough review, we conclude that the State's motion to affirm pursuant to Rule 20 of the Court of Criminal Appeals of Tennessee should be granted.
CONCLUSION
The judgment was rendered in the trial court in a proceeding without a jury, the judgment was not a determination of guilt, and the evidence in the record does not preponderate against the finding of the trial court. No error of law requiring a reversal of the judgment is apparent on the record. Accordingly, the judgment of the trial court dismissing the petition for habeas corpus relief is affirmed pursuant to Rule 20 of the Rules of the Court of Criminal Appeals of Tennessee.