State v. Lynn Person ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
LYNN BRUCE PERSON, )
FILED
) July 23, 1998
Petitioner, ) C. C. A. NO. 02C01-9712-CC-00470
) Cecil Crowson, Jr.
vs. ) MADISON COUNTY Appellate C ourt Clerk
)
STATE OF TENNESSEE, ) No. C-97-96
)
Respondent. )
ORDER
This matter is before the Court upon the state’s motion to affirm the trial
court judgment pursuant to Rule 20, Rules of the Court of Criminal Appeals. The
record and the petitioner’s brief have been filed in this case. The petitioner has also
filed a response to the state’s motion.
The petitioner is challenging the indictment and reasonable doubt jury
instruction pertaining to his 1979 conviction and life sentence for felony murder. The
record indicates that the petitioner previously filed two petitions for post-conviction
relief. The first, which was filed in 1980, was dismissed after an evidentiary hearing.
No appeal was taken. The second was summarily dismissed and that dismissal was
affirmed by this Court on appeal. Lynn Bruce Person v. State, No. 02C01-9104-CC-
00063 (Tenn. Crim. App., Nov. 27, 1991). The instant petition is the petitioner’s third.
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 at least one petition that was resolved on the merits by the
trial court, the petitioner's present petition was properly dismissed. Additionally, after
reviewing the entire record on appeal, we find that the petitioner’s claims do not fall
within one of the limited circumstances under which a prior petition may be re-opened.
See T.C.A. § 40-30-217 (the petitioner fails to cite a recent “ruling of the highest state
appellate court or the United States supreme court establishing a constitutional right
that was not recognized as existing at the time of trial”).
Accordingly, we conclude that the trial court did not err in summarily
dismissing the petitioner’s third petition for post-conviction relief. It is, therefore,
ORDERED that the state’s motion is granted and the judgment of the trial court is
hereby affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals. It
appearing the petitioner is indigent, costs of this appeal shall be taxed to the state.
_____________________________
PAUL G. SUMMERS, JUDGE
_____________________________
DAVID G. HAYES, JUDGE
_____________________________
JOE G. RILEY, JUDGE
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