# FILED
October 20, 1997 Cecil Crowson, Jr. Appe llate Court C lerk 

### IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE

FOR PUBLICATION JAMES DAVID CARTER, ) Filed: October 20, 1997 ) Appellant, ) Hon. James E. Beckner ) Judge Vs. ) ) GREENE COUNTY STATE OF TENNESSEE, ) ) Supreme Court Appellee. ) No. 03-S01-9612-CR-00119 )

APPELLANT FOR APPELLEE: Gary C. Shockley, Esq. John Knox Walkup Baker, Donelson, Bearman & Caldwell Attorney General & Reporter Nashville, Tennessee Michael E. Moore Solicitor General Kathy Morante Deputy Attorney General John P. Cauley 450 James Robertson Pkwy. Nashville, Tennessee C. Berkeley Bell District Attorney Gener al Eric Christiansen Assistant District Attorney General



## O P I N I O N

TRIAL COURT AND COURT OF CRIMINAL APPEALS AFFIRMED AS MODIFIED. DROWOTA, J.-2- We granted the petitioner, J ames David Carter, per mission to appeal to consider whether the lower courts erred by dismi ssing Carter’s petiti on for postconviction relief upon the grounds that his claims alleging violations of State v. Middlebrooks 840 S.W.2d 317 (Tenn. 1992) (D rowota, J. and O’Brien, J ., dissenting), and Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.E d.2d 215 (1963), have been previously determined by the federal district court, and that his claim challenging the cons titutionality of the reason able doubt instruction given at his trial, is without

merit.
We agree with the lower courts that the reasonable doubt jury instruction given at Carter’s tri al did not violate Cage v. Louisiana , 489 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) and its p rogeny and that the Brady claim was previously determined by the federal district co urt. Moreover, even though Carter’s Middlebrooks claim was not previous ly determined since the fe deral district court was not

a “court of competent jur isdiction” to resolve the state law issue, we hold that in the c ontext of this case, Middlebrooks does not preclude reliance upon the felony mur der aggravating circums tance as a basis for imposition of the death penalty . Accordingly, the judgm ent of the Court of Criminal Appeals upholding the trial court’s dismissal of Carter’s petition is affirmed as modified.

BACKGROUND The petitioner, James Dav id Carter, was tried on a one count indictment charging both premeditated and f elony first degree murder. The jury returned a1 The murder was committed fo r the purpose of avoiding, interf

ering wit h or preventi ng a lawful arrest or prose cution of the defendant

and was committed whil e the defendant was engaged in comm itting larceny and kidn aping. Te nn. Cod e Ann. § 39-2-20 3(i) (6) & (7) (1982 R epl.) (repeale d), now codified at T enn. Co de Ann . § 39-13 -204(I)(6 ) & (7) (19 91 Re pl. & 1996 Supp.).

2 The 1982 statute required on ly a showing t hat there were no mitigating cir

cumstances suffici ently subst

antialto outweigh the aggravati ng circumstances. Tenn. Code Ann. § 39-2- 203(g)(2) ( 1982 Repl.) The st atute now requi res that aggr avating ci rcumstances outweigh mitigat ing cir

cumstances beyond a reasonabl e doubt. Tenn. Code Ann. § 39-13-204( f) & (g) ( 1991 Repl). -3- general verdict of firs

t degree murder and sentenced C arter to death by electrocution upon finding that there were two statutor y aggravating circumstances, 1 and no mitigating circumstances sufficiently subs tantial to call for leniency. 2 On direct appeal, the conviction and sentence were affirmed by this Court. State v. Carter , 714 S.W.2d 241 (Tenn. 1986), cert

. denied 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987).Carter then filed his first post-conviction petition, which was unsucc essful. James David Carter , No. 304 Greene County, (Tenn. Crim. App., Knoxv ille, filed Sept. 14, 1989).Following a second unsuccessful petition for post-conviction relief , Carter v. State , 802 S.W.2d 223 (Tenn. Crim. App. 1990), perm . app . denied (Tenn. 1991), this Court granted the State’s motion to set an execution date and designated April 3, 1991.

Thereafter, on March 13, 1991,Carter filed his ori ginal petition seeking a writ of habeas corpus in the federal district court of middle Tennessee. That court issued a stay of execution, ap pointed counsel, and subsequently transferred the case to the federal distri ct court in east Tennessee. After the transfer, the peti tion for habeas corpus was amended.In the federal action Cart er claimed that when a defendant has been convicted of felo ny murder, the use of the fel ony murder aggravating circumstance to support the sentence of death is unconstitutional.3 Certiorari was granted i n Tennessee v. Middle brooks , 507 U.S. 1028, 113 S.Ct. 1840, 123 L.Ed.2d 466 (19 93), and a motion to dismiss on the ba sis that ad equate and inde pende nt state ground s supp orted this C ourt’s dec ision was denied. Tennessee v. Middle brooks , 510 U.S. 805,114 S.Ct. 48, 126 L.Ed. 2d 19 (1993). The case was argued and subsequentl y, before the United Stat

es Supreme Court had render ed its deci sion, t his Court’ s opinion i n How ell was release d. There after, certiora ri was dis misse d as imp roviden tly granted

. Tennessee v. Middlebrooks , 510 U.S. 124, 114 S.Ct. 651, 126 L.Ed.2d 5 55 (1993). -4- When the habeas corpus petition was filed in 1991, Middlebrooks had not been rendered. In that case, a maj ority of this Court spec ifically held that “w

hen the defendant is convicted of fir st degree murder solely on the basis of felony murder,” use of the felony murder aggravating circumstance is not permissible because it “does not narrow the class of death-eligible murder ers sufficiently under the Eighth Amendment to the U.S. Constitution, and Article I, § 16 of the Tennessee Constitution because it duplicates the elements of the offe nse.” Id ., 840 S.W.2d at 346. The decision in Middlebrooks was considered to be based on f ederal constitutional law 3 until this Court’s s ubsequent decision in State v. Howell , 868 S.W.2d 238, 259, n. 7 (Tenn. 1993) , clarified that the Middlebrooks holding was independently based on Article 1, § 16 of the Tennessee Constitution.
Despite the independent state constitutional ba sis for the decision in Middlebrooks , the federal district c ourt considered the claim in the habeas corpus action while ruling on the State’s motion for summary judgment. By orders entered in November and Dec ember of 1994, the district court concluded that since the jury returned a general verdict of firs t degree murder, Middlebrooks does not apply to Carter’s cas e because he was not convicted “ solely on the basis of felony murder.” The feder al district court als

o granted the State’s motion fo r summary judgment on Car ter’s alleged Brady

violations.4 Tenn. Code Ann. § 40-30- 112(a) (1990 & Supp. 1994)(Repealed) . By a law ef fective May 10, 1995 , the Pos t-Conv iction Proc edure A ct was comp letely rewr itten. 1995 P ublic Cha pter 207 , § 1. Th e pet ition fo r pos t-con victio n relie f whic h is th e sub ject o f this a ppe al wa s dism isse d on A pril 12, 1995, prior to the ef fective date of t he law as amended. However, the new law also provides that “[a] ground for

relief is previously determi ned if a cour t of competent

jurisd icti on has ruled on the merits after a f ull and f air heari ng.” Tenn. Code Ann. § 40-30-206(h) (1996 Supp.). Therefore,

-5- Following this disposi

tion in federal court, Car ter filed his third peti

tion for post-conviction relief

in state court on January 30,1995. As grounds for reli ef, Carter alleged that the tri al court instructions on reasonable doubt at his tri al violated Cage v. Louisiana , 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (19 90), that the State failed to discl ose exculpatory evidence in violation of Brady

and that his sentence of death violated Middlebrooks . The trial court dismissed Carter’s post-conviction petition,finding that the asserted vi olations of Middlebrooks and Brady had been previously determ ined by the federal distri ct court and that the alleged error in the reas onable doubt jury instructi ons was without merit. The Court of Criminal Appe als affirmed the trial

court’s dismissal,and also found, as did the federal district

court, that Middlebrooks does not apply unless the defendant is convicted of fir st degree murder “solel y on the basis of felony murder.” Id ., 840 S.W.2d at 346. Thereafter, we granted Carter’s appl ication for permission to appeal and now affirm the decision of the Court of Criminal Appeals.

PREVIOUSLY DETERMINED A. Court of Competent Jurisdiction - Middlebrooks The statutory provision r elevant to the defense of previou s determination provides that “[a] ground for relief is ‘previous ly determined’ if a cour t of competent jurisdiction has ruled

on the merits after a ful l and fair hearing.” 4 In this Court,our holding in this case applies with equal force to the new law since the statutory provisions are ident ical. -6- Carter argues that the jur isdiction of federal dis

trict courts in habeas c orpus proceedings does not extend to questions of state law. Since the federal district court was not a “court of competent jurisdiction,” to consider his Middlebrooks claim, Carter argues

that the trial court and the Court of Criminal Appe als erred by concluding that the claim was previously determ ined. The State responds that the federal district cour t necessarily and appropri ately considered the state constitutional issue when it decided the federal consti tutional question. In addition, the State says that Carter chose to assert his Middlebrooks claim in the federal forum and should be bound by that court’s decision on th e claim.

It is well-settled that

federal courts have the power under Article III of the United States Constitution to exercise pendent jurisd iction over state law claims. United Mine Workers o f America v. Gibbs , 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). Howev er, Gibbs delineated only the constitutional boundaries of federal judicial power. The jurisdiction of federal courts over a particular controversy

may be limited by feder al statutes. Aldinger v. Howard , 427 U.S. 1, 13-14, 96 S.Ct. 2413, 24 19-20, 49 L.Ed.2d 276 (1976). Indeed,the United States Supreme Court described the jurisdictional hierarchy as follows:

It is apparent that Gibbs delineated the constitutional limits of federal judicial power. . . . Constitutional power is merely the first hurdle that must be overcom e in determining that a feder al court has jurisdiction over a par

ticular controversy. For the jurisdiction of federal courts is lim ited not only by the provis ions of Art. III . . . but also by Acts of Congress. Owen Equipment & Erection C o. v. Kroger , 437 U.S. 365, 371-72, 98 S.Ct. 2396,