# FILED
July 30, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE JUNE 1997 SES SION
ERNEST LAWSON, ) ) Appellant, ) No. 03C01-9608- CR-00295

) ) McMinn C ounty v. ) ) Honorable M ayo L. Mash burn, Judge ) STATE OF TENNESSEE, ) (Post-Conv iction) ) Appellee. ) For the Appell ant : For the Appell ee : Ernest Law son, Pro Se Charles W. Burson No. 131676 Attorney Gen eral of Tennessee W.T .H.S.F., P.O. Box 1050 and Henning, TN 3 8041 Janis L. Turner Assistant Att orney Gener al of Tennessee 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Jerry N . Estes Distric t Attorney General 203 E. Madison A

venue P.O. Box 647 Athens, TN 37371

OPINION FILE D:____________________
AFFIRMED Joseph M. Tipton Judge1 A com parison of the petiti on and the direct appe al opinion of thi s court reflects that all of the cla im s w er e, in fac t, de ter m ine d in tha t ap pe al. 2 O P I N I O N
The petitioner, E rnest Laws on, has appealed the McMinn Cou nty Cri minal Court denial of his motion to r eopen his post- convicti on case relati ve to his 1990 convicti on for facilitati on to commit first degree murder . The trial c ourt denied the motion because it

was untimel y, the gr

ound raised had bee n waiv ed, and the gro und was not enti tled to reli ef. The petitioner c ontends that his motion was t imely, that he was entitl ed to the appointment o f counsel, and that hi s claim of an impr oper reasonable doubt instruct ion has merit under Rickman v . Dutton , 864 F. Supp. 686 (M.D. Tenn. 1994) . We affirm the trial court.

The defendant’s orig inal convi ction became final after his dire ct appeal. See State v. Hicks , 835 S.W.2d 32 (Tenn. Crim. App. 1992 ), app. denied (June 8, 1992). He filed a petition for w rit of habeas cor pus on May 26, 1995, that was treated as one for post-c onviction relief. The tri al court dis missed the petit ion in Februar y 1996 without a he aring, or

the appointment of couns el on the basis that each clai m for relief had been previously determined in the direct appeal. 1

On April 2, 1996, the petitione r filed the instant motion to reopen in which he alleged that the jury instructi on relating to reasonable do ubt was unco nstitutional. Howeve r, he does not ex plain why he did not bri ng this same claim in his former case. This constitute s a waiver. See T.C.A. § 40-30-202(e) (Supp. 1996). In any event, his substantiv e complaint is without mer it. He compl ains that the reasonable doubt instruction in his caseincluded the te rm “moral cer tainty” i n such a way

as to vio late due process, a conclusion reached by the feder al distri ct court in Rickman . However, the instructi on used in the peti tioner’s ca se is essenti ally the s ame one held to be3

proper by our supreme cour t and this cour

t. See State v. Nichols , 877 S.W.2d 722, 734 (Tenn. 1994); Pettyjohn v . State , 885 S.W .2d 364, 365-66 (Te nn. Crim. App. 1994).

Thus, there is n o merit to the pet itioner’s claim. The judg ment of the trial court is affirmed.

________________________________ Joseph M. Tipto n, Judge CONCUR:

____________________________ John H. P eay, Judge

____________________________ Curwood W itt, Jud ge