# FILED
July 25, 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

DAVID PALMER , ) ) Appellant, ) No. 03C01-9608- CR-00311

) ) Loudon County v. ) ) Honorable E. Eugene Eblen, J udge ) STATE OF TENNESSEE, ) (Post-Conv iction) ) Appellee. ) For the Appell ant : For the Appell ee : A. W ayne Henry Charles W. Burson 322 Grove St reet Attorney Gen eral of Tennessee P.O. Box 366 and Loudon, TN 37774-0366 Clinton J. M organ Assistant Att orney Gener al of Tennessee 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Char les Ha wk Distric t Attorney General and Roger Delp Assistant D istrict A

ttorney Gener

al P.O. Box 703 Kingston, TN 37763-0703

OPINION FILE D:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner, David Palmer, app eals as of right from the trial court’s summary dismissal of his second pe tition for post-conviction relief. Th e trial court dismissed the petition on various grounds, includ ing the petition’s failure to state a claim for relief that had not been waiv ed or prev iously det ermined. The sole issue for our review is whether the trial court erred by dismissing the petition. We conclude that it did not.
In 1987, the petiti oner was convicted of ag gravated rape and joy riding. As a Range II, es pecially

aggrav ated offender, he receiv ed concurrent sentences of forty and two y ears, respec

tively . On May 11, 1990, the petiti oner filed his first petitio n for post-convi ction reli ef alleging that he receiv ed ineffective ass istance of tria l counsel. The trial cour

t granted the petitioner a de layed appeal but concluded that the petitioner failed to demonstrat e that his couns el was oth erwise ineffective. This court affirmed the petitioner’s

convicti ons on the delayed appeal and also affirmed the denial of postconvicti on relief. State v. Da vid Palmer , Nos. 03C01-9303-CR-00076, 03 C01-9303-CR00077, Loudon County (Tenn. Crim. App. Apr. 7, 1994) ; David Pal mer v. State , No. 03C01-9303-CR -00079, Loudon County (Tenn. Crim. App. May 20, 1994), app . denied (Tenn. Sept. 12, 1994)

.

The petitioner fil ed the present peti tion on July 6, 1995. The petiti on alleges that

trial couns el was i neffective and that t he petitioner’ s convic tions vi olate due process becaus e the jury was gi ven an instr uction equati ng moral cer tainty w ith reasonable doubt. T he trial court concluded that the issue concerning the effe ctiveness of trial counsel was prev iously det ermined, see T.C.A. § 40-30- 206(g), and that the petitioner’s challenge to the jury instruction was waived because he failed to present it1 W e a lso no te th at w e h av e re pe ate dly u ph eld the co ns titut ion ality o f th e re as on ab le dou bt instru ction th at the petitione r cha llenge s. See Stat e v. Sexton , 917 S.W .2d a t 266 ; Pettyjohn v. State , 885 S.W .2d 3 64, 3 66 (T enn . Crim . App .); Stat e v. Hall ock , 875 S. W .2d 285, 294 (Tenn. Crim. App. 199 3); see also Nic hols v. State , 877 S.W .2d 722, 734 (T enn. 1994). 3 in his first

post-conv iction petit ion, see T.C.A. § 40-30- 206(g). We agree with the tri al court’s conclusions. 1

In considerati on of the foregoing and the record as a whole, the judgment of the trial is

affirmed.

Joseph M. Tipton, Judge

CONCUR:

John H. Peay , Judge

Curwood Witt, Judge