Perry Miller v. State ( 1997 )


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  •              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT NASHVILLE                  FILED
    MARCH 1997 SESSION
    October 24, 1997
    Cecil W. Crowson
    PERRY T. MILLER,            )                          Appellate Court Clerk
    )
    Appellant,     )    No. 01C01-9606-CC-00239
    )
    )    Lincoln County
    v.                          )
    )    Honorable Charles Lee, Judge
    )
    STATE OF TENNESSEE,         )    (Post-Conviction)
    )
    Appellee.      )
    For the Appellant:               For the Appellee:
    Perry T. Miller, Pro Se          Charles W. Burson
    #87879                           Attorney General of Tennessee
    CCA/SCCF, P.O. Box 279                  and
    Clifton, TN 38425-0279           Eugene J. Honea
    Assistant Attorney General of Tennessee
    450 James Robertson Parkway
    Nashville, TN 37243-0493
    W. Michael McCown
    District Attorney General
    P.O. Box 904
    Fayetteville, TN 37334
    OPINION FILED:____________________
    AFFIRMED
    Joseph M. Tipton
    Judge
    OPINION
    The petitioner, Perry T. Miller, appeals as of right from the Lincoln County
    Circuit Court’s summary dismissal of his petition for post-conviction relief. The trial
    court dismissed the petition, concluding that the petition was barred by the statute of
    limitations and that the grounds alleged in the petition had been waived or previously
    determined. We affirm the judgment of the trial court.
    The petitioner collaterally challenges his 1978 convictions for second
    degree murder and criminal sexual assault, for which he received consecutive
    sentences of ninety-nine years. This court affirmed his convictions, see State v. Perry
    Tyrone Miller, No. 80-82-III, Lincoln County (Tenn. Crim. App. Feb. 3, 1981), and also
    affirmed the denial of the petitioner’s first petition for post-conviction relief. Perry
    Tyrone Miller v. State, No. 85-267-III, Lincoln County (Tenn. Crim. App. Apr. 7, 1987).
    The petitioner filed the present petition on January 5, 1996, alleging that the reasonable
    doubt instruction given at his trial is unconstitutional under Cage v. Louisiana, 
    498 U.S. 39
    , 
    111 S. Ct. 328
     (1990).
    Because the petitioner’s conviction became final before the enactment of
    T.C.A. § 40-30-102 (repealed 1995), the petitioner had three years from July 1, 1986, to
    file a post-conviction petition. Sands v. State, 
    903 S.W.2d 297
    , 301 (Tenn. 1995);
    Abston v. State, 
    749 S.W.2d 487
    , 488 (Tenn. Crim. App. 1988). The petitioner cites
    Rickman v. Dutton, 
    864 F. Supp. 686
     (M.D. Tenn. 1994), to argue that he could not
    have challenged the reasonable doubt instruction given at his trial during this period
    because the ground for relief was not established. However, Rickman did not create a
    new constitutional rule that would justify the tolling of the petitioner’s statute of
    limitations, and Rickman is not binding on this court.
    2
    The petitioner filed the present petition more than five years after the
    decision in Cage v. Louisiana. Thus, even if it created a new rule of constitutional law,
    the petitioner has failed to raise the issue in a timely manner. See O’Donnell v. State,
    
    905 S.W.2d 951
    , 953 (Tenn. Crim. App. 1993) (petition untimely when filed more than
    three years after ground for relief arose).
    The 1995 Post-Conviction Act did not reinstate a filing period for post-
    conviction cases relative to convictions for which the former three-year post-conviction
    statute of limitations had already run. Arnold Carter v. State, No. 03-S-01-9612-CR-
    00117, Monroe County (Tenn. Sept. 8, 1997) (for publication). The petitioner had a
    reasonable opportunity to bring his post-conviction claim before the enactment of the
    1995 Post-Conviction Act, but he failed to do so. The trial court properly dismissed the
    present petition as being untimely filed.
    Moreover, the courts of this state have repeatedly upheld the use of the
    phrase moral certainty in the context of the reasonable doubt instruction given at the
    petitioner’s trial. See, e.g., Nichols v. State, 
    877 S.W.2d 722
    , 734 (Tenn. 1994); State
    v. Sexton, 
    917 S.W.2d 263
    , 266 (Tenn. Crim. App. 1995); Pettyjohn v. State, 
    885 S.W.2d 364
    , 366 (Tenn. Crim. App. 1994). In consideration of the foregoing and the
    record as a whole, the judgment of the trial court is affirmed.
    Joseph M. Tipton, Judge
    CONCUR:
    Joe G. Riley, Judge
    Thomas T. Woodall, Judge
    3