Hunt v. State ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JANUARY 1997 SESSION
April 30, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
EANOS E. HUNT, JR., * C.C.A. # 03C01-9603-CC-00126
*
Appellant, * HAMBLEN COUNTY
VS. *
* Hon. James E. Beckner, Judge
STATE OF TENNESSEE, *
* (Post-Conviction)
Appellee. *
*
For Appellant: For Appellee:
Eanos Earl Hunt, Jr., Pro Se Charles W. Burson
Northeast Correctional Center Attorney General & Reporter
Mountain City, TN 37683-5000
Eugene J. Honea
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
OPINION FILED:
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The petitioner, Eanos Earl Hunt, Jr., appeals from the trial court’s
summary dismissal of his application for post-conviction relief. The single issue
presented on review is whether the trial court erred by finding that the grounds for
relief asserted by the petitioner had been previously determined or waived and that
the statute of limitations had expired.
We affirm the judgment of the trial court.
In 1983, the petitioner was found guilty of first degree murder and
sentenced to life in prison. This court affirmed the conviction in State v. Eanos Earl
Hunt, No. 181 (Tenn. Crim. App., at Knoxville, Mar. 18, 1985), appeal denied, June
3, 1985. On June 29, 1995, the petitioner filed this petition alleging violations of
newly recognized constitutional rights regarding certain jury instructions.
This is the petitioner's fourth petition for post-conviction relief.1 Under
the 1995 Post-Conviction Act (the act in force at the time the petition was filed),
once a petition has been "resolved on the merits by a court of competent
jurisdiction, any second or subsequent petition shall be summarily dismissed."
Tenn. Code Ann. § 40-30-202(c) (1996 Supp.). The petitioner does not meet any of
the limited circumstances in Tenn. Code Ann. § 40-30-217 (1996 Supp.) which
would entitle him to reopen his past post-conviction proceeding; therefore, we hold
that the trial court properly dismissed the petition.
We also point out that the petitioner claims his issues have never been
1
Eanos Earl Hun t v. State , No. 03C01-9308-CR-00266 (Tenn. Crim. App., at Knoxville, Feb. 3,
1994); State v. Eanos Earl Hunt, No. 308 (Tenn . Crim. A pp., at Kno xville, May 15 , 1990); Eanos Earl
Hunt v. S tate, No. 255 (Tenn. Crim . App., at Knoxville, Feb. 2, 1988).
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brought before a court. This is untrue. His claims, based upon the holdings in
State v. Brown, 836 S.W.2d 530 (Tenn. 1992), Sandstrom v. Montana, 442 U.S. 510(1979), and Sullivan v. Louisiana, 113 S. Ct. 2079 (1993), already have been
considered and rejected by this court. See Hunt, Feb. 3, 1994, slip op. at 4, 5.
The petitioner makes allegations of improper jury instructions
regarding the definition of "malice" and "deliberate" and the definition of reasonable
doubt. He argues that there were erroneous instructions on the difference between
evidence and argument and jurors as "the exclusive judges of the law." "A ground
for relief is waived if the petitioner personally or through an attorney failed to present
it for determination in a proceeding before a court of competent jurisdiction in which
the ground could have been presented ...." Tenn. Code Ann. § 40-30-206(g) (1996
Supp.). "[W]aiver is to be determined by an objective standard under which a
petitioner is bound by the action or inaction of his attorney." House v. State, 911
S.W.2d 705, 714 (Tenn. 1995). "[T]he rebuttable presumption of waiver is not
overcome by an allegation that the petitioner did not personally and therefore,
'knowingly and understandingly,' waive a ground for relief." Id. Thus, the doctrine of
waiver also bars relief.
The petitioner acknowledges that the statute of limitations on his post-
conviction claims has expired. The petitioner insists, however, that this court should
address the issues for two reasons. First, the petitioner claims that he is entitled to
raise his issues because they fall under the Burford2 exception. We disagree; the
petitioner attempts to use the exception to revive claims in existence at the time of
his 1994 appeal. Burford applies to give a petitioner a "reasonable opportunity" to
2
Burford v. State , 845 S.W.2d 204, 208 (Tenn. 1992) (holding that "it is possible that under the
circumstances of a particular case, application of the statute [of limitations] may not afford a
reasonable opportunity [for the petitioner] to have the claimed issue heard and decided").
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have his issues "heard and decided." It does not provide a second chance on a
claim that has already been previously determined or waived. Second, the
petitioner purports that his claim has been revived by the Post-Conviction Procedure
Act of 19953. He cites to section 3 of Chapter 207 in the Tennessee Public Acts of
1995 to support his proposition. Compare State v. Arnold Carter, No. 03C01-9509-
CC-00270 (Tenn. Crim. App., at Knoxville, July 11, 1996), appeal granted, Dec. 12,
1996, with Wallace Butler v. State, No. 02C01-9510-CC-00297 (Tenn. Crim. App., at
Jackson, Nov. 19, 1996). Even if that section offered a new opportunity to file an
otherwise barred claim under the statute of limitations, all grounds alleged have
been either previously determined or waived.
Accordingly, the judgment is affirmed.
Gary R. Wade, Judge
CONCUR:
William M. Barker, Judge
Curwood Witt, Judge
3
Notwithstanding any other provision of this act to the contrary, any person having a ground
for relief rec ognized u nder this a ct shall hav e at least on e (1) year fro m the effective d ate of this a ct to
file a petition or a motion to reope n a petition u nder this a ct. Public A cts 199 5, Chap ter No. 20 7, § 3.
4