Michael v. Morris v. State of Tennessee ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 1, 2009
MICHAEL V. MORRIS v. STATE OF TENNESSEE
Direct Appeal from the Circuit Court for Hickman County
No. 08-5052C Robbie T. Beal, Judge
No. M2008-02113-CCA-R3-HC - Filed May 25, 2010
The Petitioner, Michael V. Morris, was convicted by a Davidson County Criminal Court jury
of aggravated robbery, a Class B felony. He was sentenced as a Range III, career offender
to thirty years at sixty percent in the Tennessee Department of Correction. He filed a pro se
petition for habeas corpus relief in the Hickman County Circuit Court, which was summarily
dismissed. On appeal, the Petitioner argues that his judgment is void because it violates
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004); because, alternatively, the trial
court improperly sentenced him under the 2005 amended sentencing act without a waiver,
which resulted in a violation of ex post facto prohibitions; and because the trial court erred
in classifying him as a career offender. Upon review, we affirm the judgment summarily
dismissing the petition for writ of habeas corpus.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D AVID H. W ELLES
and A LAN E. G LENN, JJ., joined.
Michael V. Morris, Pro Se, Only, Tennessee.
Robert E. Cooper, Jr., Attorney General and Reporter, and Deshea Dulany Faughn, Assistant
Attorney General, for the Appellee, State of Tennessee.
OPINION
Background. Following the Petitioner’s conviction for aggravated robbery on July
11, 2006, he filed an appeal as of right, contending that the evidence was insufficient to
sustain his conviction for aggravated robbery and that the statements he gave while in police
custody should be suppressed because they were involuntary. See State v. Michael V.
Morris, No. M2006-02738-CCA-R3-CD, 2008 WL 544567, at *1 (Tenn. Crim. App., at
Nashville, Feb. 25, 2008), perm. to appeal denied (Tenn. Aug. 25, 2008), reh’g denied (Tenn.
Sept. 22, 2008). This court affirmed the trial court’s judgments on direct appeal. Id.
On March 13, 2008, the Petitioner filed a pro se petition for habeas corpus relief. See
Michael V. Morris v. James Fortner, Warden, No. M2008-01022-CCA-R3-HC, 2009 WL
690304, at *1 (Tenn. Crim. App., at Nashville, Feb. 26, 2009), reh’g denied (Tenn. Crim.
App. Apr. 16, 2009). In the petition for writ of habeas corpus, the Petitioner alleged that the
trial court used prior convictions that were not “proven to be true beyond a reasonable doubt”
to improperly sentence him in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348 (2000), and its progeny, and that the trial court improperly classified him as a career
offender. In addition, the Petitioner argued on appeal, but not in his petition for habeas
corpus relief, that the trial court violated ex post facto prohibitions by sentencing him
pursuant to the 2005 amended sentencing act without a waiver. The habeas corpus court
summarily dismissed the petition, and this court affirmed the dismissal on appeal. Id.
Subsequently, on July 9, 2008, the Petitioner filed a second pro se petition for habeas
corpus relief, which is the subject of this appeal. In his petition the Petitioner argues that his
judgment for aggravated robbery is void because it violates Blakely v. Washington, 542 U.S.
296, 124 S. Ct. 2531 (2004), since the trial court used prior convictions “that had never been
authenticated for number and type.” He also contends, alternatively, that the trial court erred
in sentencing him under the 2005 amended sentencing act without a waiver, which resulted
in a violation of ex post facto prohibitions. Finally, the Petitioner argues that the trial court
erred in sentencing him as a career offender. On appeal, the Petitioner’s argument primarily
focuses on the trial court’s violation of the ex post facto prohibitions and its erroneous
classification of him as a career offender, although the Petitioner does mention Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), in passing when discussing the sentence
he believes he should have received.
The Petitioner also filed a motion for appointment of counsel on the same date that
he filed his second petition for writ of habeas corpus. On August 20, 2008, the State filed
its motion to dismiss the petition for habeas corpus relief. By written order dated August 28,
2008, the habeas corpus court summarily dismissed the petition. On September 8, 2008, the
Petitioner filed a timely notice of appeal.
ANALYSIS
“The determination of whether habeas corpus relief should be granted is a question
of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21
S.W.3d 901, 903 (Tenn. 2000)). In determining whether to grant habeas corpus relief, our
review is de novo without a presumption of correctness given to the lower court’s findings.
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Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (citing State v. Livingston, 197 S.W.3d
710, 712 (Tenn. 2006)). A prisoner is guaranteed the right to habeas corpus relief under
Article I, section 15 of the Tennessee Constitution. See also T.C.A. §§ 29-21-101 to
29-21-130. The grounds upon which a writ of habeas corpus may be issued, however, are
very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). “Habeas corpus relief is
available in Tennessee only when ‘it 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.” Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993).
“[T]he purpose of a habeas corpus petition is to contest void and not merely voidable
judgments.” Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel. Newsom v.
Henderson, 424 S.W.2d 186, 189 (Tenn. 1968)). A void judgment “is one in which the
judgment is facially invalid because the court lacked jurisdiction or authority to render the
judgment or because the defendant’s sentence has expired.” Taylor, 995 S.W.2d at 83 (citing
Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998); Archer, 851 S.W.2d at 161-64).
However, “a voidable judgment ‘is facially valid and requires the introduction of proof
beyond the face of the record or judgment to establish its invalidity.’” Hickman v. State, 153
S.W.3d 16, 24 (Tenn. 2004) (citing State v. Ritchie, 20 S.W.3d 624, 630-31 (Tenn. 2000));
see also Summers, 212 S.W.3d at 256 (citing Dykes, 978 S.W.2d at 529). Thus, “[i]n all
cases where a petitioner must introduce proof beyond the record to establish the invalidity
of his conviction, then that conviction by definition is merely voidable, and a Tennessee court
cannot issue the writ of habeas corpus under such circumstances.” Ritchie, 20 S.W.3d at
633. Moreover, it is the petitioner’s burden to demonstrate, by a preponderance of the
evidence, that the judgment is void or that the confinement is illegal. Wyatt v. State, 24
S.W.3d 319, 322 (Tenn. 2000).
If the habeas corpus court determines from the petitioner’s filings that no cognizable
claim has been stated and that the petitioner is not entitled to relief, the petition for writ of
habeas corpus may be summarily dismissed. See Hickman, 153 S.W.3d at 20. Further, the
habeas corpus court may summarily dismiss the petition without the appointment of a lawyer
and without an evidentiary hearing if there is nothing on the face of the judgment to indicate
that the convictions are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.
1994), perm. to appeal denied (Tenn. Nov. 28, 1994), superseded by statute as stated in State
v. Steven S. Newman, No. 02C01-9707-CC-00266, 1998 WL 104492, at *1 n.2 (Tenn. Crim.
App., at Jackson, Mar. 11, 1998).
In this appeal, the Petitioner argues that his judgment for aggravated robbery violates
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), since the trial court used “prior
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convictions that had never been authenticated for number and type.” He also argues,
alternatively, that the trial court sentenced him under the 2005 amended sentencing act
without a waiver, which resulted in a violation of ex post facto prohibitions. Finally, he
contends that the trial court erred in classifying him as a career offender. In response, the
State contends that the Petitioner’s claims are inappropriate for habeas corpus relief. It also
argues that the Petitioner’s sentence has not expired and the other allegations do not make
the Petitioner’s judgment void. Finally, the State contends that although the Petitioner claims
that his prior convictions were not properly authenticated, the trial court’s summary dismissal
of the petition was proper because the Petitioner failed to attach copies of the relevant
judgments to support his factual assertions. See Summers, 212 S.W.3d at 261 (concluding
that “[w]hen [pertinent] documents from the record of the underlying proceedings are not
attached to the habeas corpus petition, a trial court may properly choose to dismiss the
petition without the appointment of counsel and without a hearing”). We agree with the
State.
The Petitioner’s first argument is that the trial court illegally enhanced his sentences
in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). He specifically
contends that the trial court violated Blakely by using prior convictions that were not
properly authenticated to enhance his sentence. However, this argument does not entitle the
Petitioner to habeas corpus relief. The United States Supreme Court held in Blakely that
other than a prior conviction, any fact used to enhance a sentence must be proven to a jury
beyond a reasonable doubt. Blakely, 542 U.S. at 301, 124 S. Ct. at 2536. We initially note
that Blakely is not violated when a trial court enhances a defendant’s sentence based on his
prior convictions. See id. Additionally, a trial court’s facially valid judgment cannot be
collaterally attacked in a petition for habeas corpus relief. Archer, 851 S.W.2d at 162.
Instead, a Petitioner must challenge a facially valid judgment on constitutional grounds in
a petition for post-conviction relief. Lewis v. Metro. Gen. Sessions Court for Nashville, 949
S.W.2d 696, 699 (Tenn. Crim. App. 1996) (citing Luttrell v. State, 644 S.W.2d 408, 409
(Tenn. Crim. App. 1982)), perm. to appeal denied (Tenn. April 7, 1997); see also Fredrick
v. State, 906 S.W.2d 927, 929 (Tenn. Crim. App. 1993). Even if the Petitioner were able to
prove his constitutional violations pursuant to Blakely, this would render his judgments
voidable rather than void. Evay Markel Kelley v. Cherry Lindamood, No. M2008-02738-
CCA-R3-HC, 2009 WL 2870176, at *2 (Tenn. Crim. App., at Nashville, Sept. 4, 2009) (“We
also note that the decisions of Blakely and Cunningham relate to constitutional violations
which, even if proven true, would merely render the judgment voidable and not void.”)
(citing Billy Merle Meeks v. Ricky J. Bell, Warden, No. M2005-00626-CCA-R3-HC, 2007
WL 4116486, at *7 (Tenn. Crim. App., at Nashville, Nov. 13, 2007), perm. to appeal denied
(Tenn. Apr. 7, 2008); Timothy R. Bowles v. State, No. M2006-01685-CCA- R3-HC, 2007
WL 1266594, at *3 (Tenn. Crim. App., at Nashville, May 1, 2007); Donovan Davis v. State,
No. M2007-00409-CCA-R3-HC, 2007 WL 2350093, at *1 (Tenn. Crim. App., at Nashville,
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Aug.15, 2007), perm. to appeal denied (Tenn. Nov. 13, 2007)), perm. to appeal denied (Tenn.
Nov. 16, 2009).
Moreover, this Court has repeatedly held that Blakely does not apply retroactively to
cases on collateral appeal. See Timothy R. Bowles, 2007 WL 1266594, at *2-3; Billy Merle
Meeks, 2007 WL 4116486, at *7; James R.W. Reynolds v. State, No. M2004-02254-CCA-
R3-HC, 2005 WL 736715, at *2 (Tenn. Crim. App., at Nashville, Mar. 31, 2005), perm. to
appeal denied (Tenn. Oct. 10, 2005).
Second, the Petitioner alternatively argues that the trial court sentenced him under the
2005 amended sentencing act without a waiver, which resulted in a violation of ex post facto
prohibitions. Even assuming this allegation were true, this constitutional violation would
again render his judgment merely voidable, not void. See Luther E. Fowler v. Howard
Carlton, Warden, No. E2004-01346-CCA-R3-HC, 2005 WL 645206, at *6 (Tenn. Crim.
App., at Knoxville, June 27, 2005) (holding that the petitioner should have filed a petition
for post-conviction relief regarding his ex post facto claim and that “[a] petition for habeas
corpus relief is not a default procedure when the other apt procedures are not utilized for the
purpose of raising the constitutional issue”).
Third, the Petitioner contends that the trial court erred in classifying him as a career
offender. Even assuming this allegation were true, his erroneous classification as a career
offender would once again render his judgment voidable, not void. See Edwards v. State,
269 S.W.3d 915, 924-25 (Tenn. 2008) (stating that errors in offender classification at most,
render a judgment voidable rather than void and that “habeas corpus relief is not available
to correct errors or irregularities in offender classification” because “relief for such
non-jurisdictional errors must be obtained, if at all, in a timely filed appeal as of right or in
a timely filed petition seeking post-conviction relief”).
Finally, we note that the Petitioner’s claims were previously determined by this court
after the Petitioner appealed the denial of his first petition for habeas corpus relief. See
Michael V. Morris, 2009 WL 690304, at *2-4. The Tennessee Supreme Court has held that
pursuant to the law of the case doctrine an appellate court may not consider issues that have
been previously determined on appeal:
[U]nder the law of the case doctrine, an appellate court’s decision on an issue
of law is binding in later trials and appeals of the same case if the facts on the
second trial or appeal are substantially the same as the facts in the first trial or
appeal. The doctrine applies to issues that were actually before the appellate
court in the first appeal and to issues that were necessarily decided by
implication. The doctrine does not apply to dicta.
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Memphis Publ’g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303,
306 (Tenn. 1998) (internal citations omitted); see also Creech v. Addington, 281 S.W.3d 363,
383 (Tenn. 2009). Here, the Petitioner filed his first petition for habeas corpus relief on
March 13, 2008. See Michael V. Morris, 2009 WL 690304. In the first petition, as in this
case, the Petitioner claimed that he was entitled to habeas corpus relief because his sentence
violated Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004); because, alternatively,
the trial court sentenced him under the 2005 amended sentencing act without a waiver, which
resulted in a violation of ex post facto prohibitions; and because the trial court erred in
classifying him as a career offender. Id. at *1. The habeas corpus court summarily dismissed
the petition, and this court affirmed the judgment of the habeas corpus court. Id. In
affirming the habeas court’s summary dismissal, this court held that even if the Petitioner’s
claims regarding the Blakely violations were true, the judgments would be voidable, not void,
and that Blakely does not apply retroactively to cases on collateral appeal. Id. at *3. This
court also concluded that even if the trial court improperly sentenced him as a career
offender, this would render his judgment voidable, not void. Id. at *2. Finally, this court
concluded that even if the Petitioner was sentenced under the 2005 amended sentencing act
without a waiver, which resulted in a violation of ex post facto prohibitions, this
constitutional violation would render his judgment voidable, not void. Id. at *3. We
conclude that this court has previously determined the issues in the instant case.
The Petitioner has not established that his judgment is void or his sentence has
expired. Moreover, the Petitioner’s claims have previously been determined on appeal.
Accordingly, the habeas corpus court’s summary dismissal of the petition for habeas corpus
relief was proper.
CONCLUSION
The habeas corpus court’s summary dismissal of the petition for writ of habeas
corpus is affirmed.
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CAMILLE R. McMULLEN, JUDGE
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