Sentence on Appeal. State v. Benjamin Moss, No. 02C01-9404-Cr-00072 (Tenn. Crim. ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
BENJAMIN MOSS, )
)
Petitioner, ) C. C. A. NO. 02C01-9802-CR-00044
)
vs. ) SHELBY COUNTY
STATE OF TENNESSEE,
)
) No. P-19164
FILED
)
Respondent. ) May 7, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
ORDER
This matter is before the Court upon the state’s motion to affirm the
judgment of the trial court in accordance with Rule 20, Rules of the Court of Criminal
Appeals. The petitioner was originally convicted of second degree murder and
sentenced to forty years imprisonment. This Court affirmed the conviction and
sentence on appeal. State v. Benjamin Moss, No. 02C01-9404-CR-00072 (Tenn. Crim.
App., Nov. 2, 1994). In 1995, the petitioner filed a petition for post-conviction relief,
which was denied by the trial court after an evidentiary hearing. On appeal, finding that
the petitioner was denied his right to file an application for permission to appeal to the
Supreme Court, this Court vacated and reinstated its opinion on the direct appeal.
Benjamin Moss v. State, No. 02C01-9602-CR-00064 (Tenn. Crim. App., Feb. 18, 1997).
However, the petitioner never filed an application for permission to appeal. 1
In November 1997, the petitioner filed a second petition for post-
conviction relief claiming ineffective assistance of counsel and errors of the trial court.
The trial court dismissed the petition finding: 1) the petitioner had previously filed a
petition which was resolved on the merits by a court of competent jurisdiction; 2) the
petitioner waived his claim of ineffective assistance of counsel; and 3) the petitioner’s
claim of trial court errors had been previously determined. On appeal, the petitioner is
1
The Sup rem e Co urt de nied t he pe titione r’s m otion for an exte nsio n of tim e in wh ich to file his
application.
again claiming he was denied his right to file an application for permission to appeal to
the Supreme Court.2
T.C.A. § 40-30-202(c) provides that no more than one petition for post-
conviction relief may be filed attacking a single judgment, and mandates that the trial
court shall summarily dismiss any second or subsequent petition if a prior petition was
filed and resolved on the merits by a court of competent jurisdiction. Since the
petitioner previously filed a petition that was resolved on the merits by the trial court and
by this Court on appeal, the petitioner's present petition was properly dismissed.
Additionally, after reviewing the entire record on appeal, we find that the petitioner’s
claim does not fall within one of the limited circumstances under which a prior petition
may be re-opened. See T.C.A. § 40-30-217. Moreover, as properly found by the post-
conviction court, the issues raised in the present petition have either been waived or
previously determined. See T.C.A. § 40-30-206.
For the reasons stated above, we conclude that the trial court did not err
in dismissing the petitioner’s petition for post-conviction relief. Accordingly, it is hereby
ORDERED that the judgment of the trial court is affirmed in accordance with Rule 20,
Rules of the Court of Criminal Appeals.
2
The petitioner also claims that his court appointed counsel did not meet the requirements of
Rule 14, Rules of the Supreme Court, following this Court’s opinion in February 1997. Contrary to the
petitio ner’s claim , how ever , this C ourt, findin g tha t cou nse l fully co mp lied wit h the requ irem ents of Ru le
14, g rante d cou nse l’s m otion to with draw from furth er rep rese ntatio n of th e pet itione r in this ma tter. T his
claim is w ithout m erit.
2
Enter, this the ___ day of May, 1998.
__________________________________
PAUL G. SUMMERS, JUDGE
__________________________________
DAVID G. HAYES, JUDGE
__________________________________
JOE G. RILEY, JUDGE
3