# FILED
October 23, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE SEPTEMBER 1998 SESSION

JEROME WILLIAM S, ) ) Appellant, ) C.C.A. No. 01C01-9709-CR- 0 044 1 ) vs. ) Davidson County ) STATE OF TENN ESSEE, ) Hon. J. Randall Wyatt, Jr., Judge ) Appellee. ) (Post-Conviction)

FOR THE APPE LLANT: FOR THE APPELLEE: JEROME WILLIAMS JOHN KNOX WALKUP Pro Se Attorney General & Repor ter CCA/SCCC P.O. Box 279 GEORGIA BLY THE FELNER Clifton, TN 38425 Counsel for the State 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 VICTOR S. JOHNSON, III District Attorney General KATY NOVA

K MILLER Asst. Distr ic t Attorney General Washington Square, Suite 500 222 Second Ave. North Nashville, TN 37201-1649

OPINION FILED:________________ AFFIRMED CURWOOD WITT, JUDGE2 OPINION The petitioner, Jerome Wil liams, appeals the Davidson Count y Criminal Court's summary dismi ssal of his petition for post-conviction relief. The petitioner

is currently ser

ving an effective 55 y

ear sentence for his convi ctions of armed robbery and aggrav ated rape. State v. Jerome Williams , No. 86-86-III (Tenn. Crim. App., Nashville, Feb. 12, 1987). He filed an unsuccessful p ost-conv iction petition challenging his con victions. See Jerome Williams v. State , No. 01C01- 9105-CR-00152 (Tenn. Crim. App., Nas hville, Nov. 14, 199 1), perm. app. denied (Tenn. 1992). In the present action, he seeks to reopen his prev ious post-conviction action by alleging that a jury instruction g iven at hi s trial equating moral certainty with reasonable doubt violated hi s constitut ional rights. Followi ng a review of the record and the briefs of the parties, w e affirm the trial cour

t's dismissal of the defendant's petition.

A petitioner is entitled t o bring only one post-conviction action attacking a given judgment. Tenn. Code Ann. § 40-30-202(c) (1997). H owever, a petitioner

may seek

to reopen a previously determined post-conviction action if his
new claim is based upon an appe llate decision establish ing a new constituti onal right which had n ot been recog nized at th e timeof trial, provided the r ight is to be applied retrospectively. Tenn. Code Ann. § 40-30-217(a)(1) (1997).

In his pro se petition, Williams asserts that uncon stitutional jury instructions

were given regarding re as onable doubt and moral certainty which "allowed the conviction on less than what is required by the Due Process Clause to the United States Constitution ." Furthermore, the petition sought "the application of the principles

announced in [ ] Rickman v. Dutton , 864 F. Supp. 686 (M.D. Tenn. 1994)." Although not clearly stated in the petition, we glean that William s' complaint is that the jury was impr operly instructed

on an ambiguous definition of reasonable1 The jury instructions do not appear in the record, although the petitioner

alleged he did not have ac cess to the record of his dir ect appeal. He filed a motion that the transcript of tr ial be provided to him, but the motion was never ruled upon. In light of these unique facts, we elect to excuse W illiams from his Tennessee Rule of Appellate Procedur e 24(g) burden of preparing a complete record which allow

s this court to revi ew the issues. See Tenn. R. App. P. 2 (suspension of rules for good c ause). We are able to do this because even if the instruction given a

t the petitioner's trial

was identical to the one given in Rickman , no basis for relief has been stated. 3 doubt whi c h impermissibly low ered the state's burden of proof v ia usage of the phrases "moral certainty" and "let the mind r est easi ly." 1 See Rickman v. Dutton , 864 F. Supp. 686, 708-09 (M.D. Tenn. 1994), aff'd on other grounds , 131 F.3d 1150 (6th Cir. 1997), cert. denied , --- U.S. ---, 118 S. Ct. 1826, 1827 (1998).

This court and the Tennessee Supreme Cour t have consistently rejected challenges to j ury instructions usi ng phraseology simi lar to that which we infer is the basis of Williams' complaint. See, e.g. , State v. Bush , 942 S.W.2d 489, 520-21 (Tenn.1997) (appendix), cert. denied , --- U.S. ---, 118 S . Ct. 3 76 (1997); State v. Nichols , 877 S.W.2d 722 (Tenn. 1994); State v. Sexton , 917 S.W.2d 263 (Tenn. Crim. App. 1995); accord Victor v. Nebraska , 511 U.S. 1, 114 S . Ct. 1239 (1994) (moral certainty in structions may pass con stit utional scrutiny if used with further modifying instructions

that lend meaning to the phrase ). Additionally, the Sixth Cir cuit has cast grave d oubt on the viab ility of the distric t court's ruling i n Rickman by upholding the constitutionality of the reasonable doubt/moral certai nty instruction given at a Tennessee death-row inmate's trial in Austin v. Bell , 126 F.3d 843, 846-47 (6th Cir. 1997), cert. denied , --- U.S. ---, 118 S. Ct. 1526, 1547 (1998).

In any event, Rickman is ofno precedential value. Thi s court is bound bythe previous rulings of the Tennessee Supreme Co urt despite the adverse holdings of the federal district court. See, e.g. , Sexton , 917 S.W.2d at 266. As an inferior appellat e court we are bound to follow the prece dent of our

state's highest4

court. See Barger v. Brock , 535 S.W.2d 337, 341 (Tenn. 1976).

A s a resu lt, Williams has not established a new constitutional right which is to be retroactively app lied. Therefore, he is not entitled to reopen hi s postconviction claim, and this appeal must fail. See Tenn. Code Ann. § 40-30-217(a)(1 ) (1997).

Accordin gly, we affirm the trial court's dismissal of the petitioner's claim.

_______________________________ CURWOOD WITT, JUDGE
CONCUR:

_____________________________ GARY R. WADE, JUDGE

_____________________________ THOMAS T. WOODALL, JUDGE