IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON

MARVIN A

NTHONY MA

THEWS, )

) Petitioner, ) C. C. A. NO. 02C01-9701-CC-00024 ) vs. ) LAUDERDALE C OUNTY ) STATE OF TENN ESSEE, ) No. 4863 ) Respondent. )

O R D E R
This matter is before the Court upon the state’s mo tion, pursuant to Rule 20, Rules of the Court of Criminal Appeals, to aff irm the judgment of the trial court in this case by order ra

ther than formal opinion. The above -captioned case represents an appeal from the trial court’s denial of the petitioner’s peti tion for writ of habeas corpu s. The record was filed on Januar y 17, 1997, and the petitioner filed his brief on March 27, 1997. The petitioner is curr ently serving a life sentence, having been found t o be a habitual criminal, pursuant to T.C.A. § 39-1-806 (repeale d 1989), in 1988. The petitioner contends that this statute violates his constitutional right to due pro cess. He also contends that the reasonable doubt instruction used during trial is unconstitutional.

Having review

ed the state’s motion in lig ht of the petitioner’s brief and the record as a whole, w

e conclude that the motion is w ell-taken and should be gr anted. In denying the petition, the trial court recogni zed that this state’s habi tual criminal act has been declared to be constitutio nal in several cases. See e.g. State ex re l. Ves v. Bomar , 376 S.W.2d 446 (Tenn. 1964); Glasscock v. State , 570 S.W.2d 354 (Tenn. Crim. App. 1978).

The trial court also found that the petitioner had failed to show “upon the face of the judgment or the record that the proce edings upon which the judgment [was] rendered that [the] convic ting court was w

ithout jurisdiction or

authority to sentence [the2

petitioner] or that [the petitioner’s] sentence of impriso nment or other restraint has expired.” See State v. Archer , 851 S.W.2d 157 (Tenn. 1993). We agree. The convicting court i n this case had jurisdic tion over both the subject matter and person, and nothing in the record befor e us demonstrates that the conv icting court’s acti ons were unauthorized. As noted above, the courts of this state have upheld the constitutionality of the statute at issue. Neither has the petitione r shown that his sentence has expired. The co urt below therefore corr ectly denied the petitioner the reques ted habea

s corpu s relie

f.
The petitioner also argues for the first time on appea l that the reasonable doubt instruction provided during his trial was constitutionally infirm. Since, however, the petitioner failed to raise the issue below, this Court is precluded from con sidering it on appeal. See T.R.A.P. 36(a). Nonetheless, the courts of this state have consisten tly held that the instruction on r easonable doubt at issue here is constitutionally v

alid. See e.g. State v. Nichols , 877 S.W.2d 722, 73 4 (Tenn. 1994).

Accordingly, having reviewed the entire record in light of the petitioner’s claims, we cannot find any error committed by the trial court in denying the petition. It is therefore ORDERED that the st ate’s motion is granted. P u r suant t o R u l e 20 of

t h e R u l es of t he C our t of C r i m i nal A ppeal s , w

e af f i r m t he t r i a l cour t ’ s deni a l of

t h e pet i t i oner ’ s pet i t i on f o r w r i t of habeas c

o r pus. Costs of this appeal shall be assessed against the petitioner.

Enter, this the ___ day of May , 1997.

___________________________ PAUL G. SUMMERS, JUD GE

___________________________ DAVID G. HAYES, JUDG E3 ___________________________ JOE G. RILEY, JUDGE