Perry Miller v. State

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T.C.A. § 40-30-102 (repealed 1995), the petitioner had three years from July 1, 1986, to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.
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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
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