1 Although the fir st petition and orde

r of dismissal are

not a part of the r

ecord, it would appear the

petition was filed

beyond the t

hree-yea r statute of limitat

ions then in effect. See Tenn. Code Ann. § 40-30-102 (repealed 1995 Pub. Acts, Chapter 207).



# FILED
March 31, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE MARCH 1998 SESS ION
VERNON W. NEWSOME, ) ) NO. 01C01-9706-CR-00214 Appellant, ) ) DAVIDSON COUNTY VS. ) ) HON. SETH NORMAN, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) AFFIRMED - RULE 20
O R D E R Petitioner, Vernon W. N ewsome, appeals the dismissal by the Davidson County Criminal Court of his second petition for po st -c on vi ct io n r

el ief. We affirm the dismissal pursuant to Rul e 20 of the Tennessee Court of Criminal Appeals.

I

Petitioner

was convicted

in September 1985 of robbery with a deadly weapon and three (3) counts

of a ggravated rape. The convictions were affirmed by this Court. See St ate v. News ome , 744 S.W.2d 911 (Te nn. Crim. App. 1987). Permission to

appeal was denied by the Tennessee Supreme Court in December 1987. Petitioner

filed his first petition for post-conviction relief in M arch 1991. The petition was dismissed in Oct ober 1991. 1 No appeal was takenfrom the dismissal. The present petition was fil ed on May 4, 1996. The sole all egati on in the peti tion is tha t the “reasonable doubt” jury instruction given in the original trial is unconstitutional. The trial court dismissed the petition w ithout a hearing finding (1) it was barred by the s

tatute of limitations; (2) the j ury instruction is sue was waived2

since it was not raised in the prior petition; and (3 ) the reasonable dou b t jury instruction containing the words “moral cert ainty” was not uncons

titutional.

II

This matter is governed by the Post-Conviction Procedure A ct of 1995 since it was filed afterMay 10, 1995. See Tenn. Code Ann. § 40-30-201 Compiler’s Notes. Nev e rtheless, the statute of limit ations expired in December 1990, three years after

the Tennessee Supreme Court denied per mission to appeal the original convictions. The statute was not rev ived by the Post-Conv

iction Procedure Act of 1995. See Carter v. State , 952 S.W.2d 417, 42 0 (Tenn. 1997). The Post-Convict ion Proc edure Ac

t contem plates t he filin g of o nly o ne petition forpost-conviction rel ief. Tenn. Code Ann. § 40-30-202 (c). Ordinar ily, a second or

subsequent petition is to be summarily dismissed. Id . A petitioner may file a m otion to reopen a prior post-conviction proceeding under limite d circumstances

as set out in T enn. Code Ann. § 40-30-217 (a). None of these circumstances

applies to thepresent petition. Further more, a petitioner only has ten (10) days to fil e an application in this C ourt “seeking permissi on to appeal” the denial of the motion. Tenn. Code Ann. § 40-30-2 17 (c). Thi s procedure was not followed in this case. We also agree with the trial court’s determ i nation t hat the “m oral certa inty” juryinstruction is constitutional. See Carter v. State , ___ S.W.2d ___ (Tenn. 1997) (filed October

20, 1997, at Knoxville) . Likewise, the tri al court was correc t in ruling that this issue was wa ived by th e failure to present it in thefirst petition for postconviction relief. See

Tenn. Code Ann. § 40-30-206 (g) ; House v. State , 911 S.W.2d 705, 714 (Tenn. 1995).
It is, therefore, ORDERED that the judgment of the trial court is affirmed in accordance with Rule 20, Rules of the Tennessee Court of Criminal Appe als. Costs shall be assessed against the state since petitioner is indigent.3 _________

________________

_______ _ JOE G. RILEY, JUDGE

CONCUR:

________________________________ JOSEPH M. TIPTON, JUDG E

________________________________ DAVID H. WELL ES, JUDGE