# FILED

April 28, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON NOVEMBER 1996 SESSION

RICKEY G. SMITH, ) No. 02C01-9511-CR-00342 ) Appellant ) ) SHELBY COU NTY V. ) ) HON. JOHN P. COLTON, J R., STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction) ) )

For the Appellant: For the Appellee: David C. Stebbins John Knox Walkup 330 South High Street Attorney General and Repor ter Columbus, OH 43215 Merrilyn Feirman John G. Ol iva Assistant Attorney Gener al 222 Second Avenue North, 417 450 James Robertson Parkwa y Nashville, TN 37201 Nashville, TN 37243-0493

John W. Pierrotti District Attorney General James M. Lammey, Jr. Jennifer S. Nichols Assistan t District Attorneys 201 Poplar - Third Floor Criminal Justice Comple x Memphis, TN 38103

OPINION FILED: ___________________

AFFIRMED

William M. Barker, Judge1 For p urpo ses of cla rifica tion, w e not e tha t in var ious portio ns of the re cord , app ellant ’s nam e is “Ric ky Sm ith,” w hile in o thers , app ellant is refe rred to as “Ric key G . Sm ith.” Pr eviou s opin ions from this Court and the supr

eme court invol ving thi s appellant caption hi s name as Ricky Smith. However, the petition and the bri efs of the par ties here spell t he name including the “e.” As such, we wil l maintai n the spelli ng used in the current pet iti on. 2 OPINION The appellant, Rickey G. S mith, 1 appeals as of right the denial in the Shelby County Criminal Cour

t of his fourth petition for post-c onviction relief. Fin ding no error in the tr ial cou rt’s or

der, we affirm th e denial

of relie f. A protracted procedural hi story surrounds appell ant’s petition for postconviction relief and thi s appeal. He was conv icted by a jury of firs

t degree felony murder fo r the 198

2 shooti ng death

of Walter Al len occu rring during the cour se of a robbery. Appellant was sentenced to death. The only aggravating circumstance found by the jur y was that the

murder w

as committed dur

ing the perpetr ation of a robbery. Tenn. Code Ann. §39-2 -203(i)(7) (1982). A ppellant’s conviction and sentence were affirmed on direct appeal. See State v. Smith , 695 S.W.2d 954 (Tenn. 1985). Appellant filed his first post -conviction petition on August 26, 1986 alleging ineffective assistance of counsel, constitution al errors during voir dire, erroneous jury instructions, and the unconstitutionality of the Tennessee Death Penalty Act. After an evidentiary hearing, the trial court denied relief and this Court affirmed on d irect appeal. See Ricky Goldie Smith v. State , No. 69 (Tenn. Crim. App. at J ackson, October 19, 1988). The supreme cour t denied appellant’s application for permission to appeal on January 3, 1989. On February 8, 1989, appell ant filed his second petition for post-conviction relief. This petition agai n alleged the ineffective ass istance of counsel at trial a nd on appeal and set forth ten specific i nstances of conduct. The petition al so alleged prosecutorial misconduct at both the guilt and sentencing phases o f the trial, as well as error in the trial court’s exclusion for cause of certain jurors. Six months later, appellant filed a third pro se post-conviction petition, raising seven issues which3

included thirty-si

x sub-issues. It w

as subsequently consol idated with the second petition in the trial cour t. The trial court denied both petitions after hearing the argument of counsel and this Cour t again affirmed on direct appeal. See State v. Ricky Goldie Smith , No. 11 (Tenn. Crim. App. at J ackson, June 5, 1991). The supreme court denied his appli cation for permission to appeal on September 23, 1991. In 1993, the State petitioned the supreme court for an execution date in appellant’s case. The supreme court denied the pe tition and granted appellant’s opposing motion. It ordered that an attorney be appointed to assist appellant in filing a post-conviction petition raising the impermis sible application of the felony -murder aggravating ci rcumstance. See State v. Middlebrooks , 840 S.W.2d 317 (Tenn. 1992). After the appointment of counsel, a leng thy petition was filed

in the trial court on January 26, 1994. Thereafter, upon ap pellant’s motion for partial summary judgment, the trial court vacated appellant’s death sentence and impo sed a life sentence premised upon the Middlebrooks error. Appellant then filed an amended petition, reiterating all cl aims in the original petition which did not per tain to his death sentence. The trial court summarily denied appellant’s petition without conducting an evidentia ry hearing. In its findings of fact and conclusions of law, the trial court fo und that all grounds were barred by the statute of limitations, and also that some of appellant’s grounds were wai

ved or previously

determined. On appeal, the appellant argues that: (1) the definition of reasonable doubt p rovided to the jury impermissibly reli eved the state of its burden of proo f; (2) the indictment failed to provi de appellant notice of the elements of the underlying felony with which he w as charged and the jury instructions served as a constructi

ve amendment to the indictment; (3) the jury instruction s were inadequate and impr oper as to the mandatory presumptions on the element of malice in first degree murder; (4) appellant was denied the effective assistance of cou nsel at trial;4 (5) appellant was denied the effectiv e assistance of appellate counsel for failure to raise and preserve significant issues; (6) appellant was denied the effective assistance of cou nsel in his previous post-conviction petitions; (7) appellant was denied a fair a nd impartial jury becau se the State exercised peremptory

challenges in a manner to ex clude members of appellant’s race; (8) appellant was denied a fair and impartial jury because jurors were excused for cause based upon thei r opposition to the death penalty; (9) appellant’s rights against self-incrimination were violated by the court’s limitations on the presentation of evidence conc erning the reliability of the confessi on offered in evidence against appellant; (10) appellant’s constitutional rights were violated by counsel’s failure to obtain the expert and investigative assistance necessary to prepare an adequate defense and by post-conviction counsel’s fa ilure to obtain these services to prov

ide effective representation on post-conviction relief; (11) appellant was denied his r ight to a fair trial due t

o the prosecution's failure to di sclose favorable eviden ce; (12) appellant was denied a fair t rial by the prosecuti on’s failure to reveal any promises or benefits bestowed upon witnesses; and (13) the State failed to comply w ith its statutory mandate to file the record in the trial cour

t. Finding no merit to any of appellant’s issues, w e affirm the trial court’s deni al of postconvic tion re lief. Under Tennessee Code Annotated secti on 40-30-102, a three year s tatute of limitati ons appl ied to ap pellant ’s post-co nviction c laims. Du e to prosp ective application of this limitati on period, it did not expi re until July 1, 1989. See e.g. Smith v. State , 757 S.W.2d 683, 685 (Tenn. Crim. App. 1988); State v. Masucci , 754 S.W.2d 90, 91 (Tenn. Crim. App. 1988); and Abston v. State , 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988). Appellant’ s petition, filed almost five years after expirati on of the statute, is clearly time-barred. We recognize that in limited circumstances due process will prevent the strict application of the statute of limitations in po st-conviction cases. The statutory limitations period on post-conviction suits v iolates due process only if it denies the5

petitioner “a reasonable opportunity to have the claimed issue heard an d decided.” Burford v. State , 845 S.W.2d 204, 20 8 (Tenn. 1992). Our supreme court has recently clarified and explained the parameters of the Burford rule. See Caldwell v. State , 917 S.W.2d 662 (Tenn. 1996), cert. denied ___ U.S. ___, 117 S.Ct. 148, 136 L.E d.2d 94 (1996) and Sands v. State , 903 S.W.2d 297 (Te nn. 1995). In determining whether a petitioner should be except ed from the post-conviction statute of limitations, a threestep analysis is necessary: (1) determine when the limitations period would normally have begun to run; (2) de termine whether the gr ound for relief actually ar ose after thelimitations period would normally have commenced; and (3) if the grounds are “laterarising,” determine if, under the facts of the case, a stric t application of the limitation s period would effectively deny the petitioner a reas onable opportunity to present the claim. Sands , 903 S.W.2d at 301. Each circumstance must be sati sfied in order to obtain relief from the statute of limitations. With this in mind, we now turn to appellant’s claims. Appellant first argues that the jury instructi ons given on reasonable d oubt violated due process by impermissibly relieving the State of its burden of proof. He asserts that this claim i s not barred by the statute of limitations because it is premised on United States Supreme Court authority decided in 1994 c autioning against the “moral certainty” l anguage used in the reasonabl e doubt instruction at his t rial. See Victor v. Nebraska and Sandoval v. California , 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). He claims that this ground arose after the limitations period expired. This identical

issue has been previousl y addressed by this C

ourt and rejected. This Court has found that instructions almost ide ntical to those in appellant’s case were not viola

tive of due process and further that this claim provid es no ground for relief from the post-convic tion statute of limitations. Pettyjohn v. State , 885 S.W.2d 364, 365 (Tenn. Crim. App. 1994). See also Charles Walton Wright v. State , No. 01C01-9506-CR-00211 (Tenn. Cr im. App. at Nashville, March 20, 1997); Michael Eugene Sample and Larry McKay v. State , No. 02C01-9505-CR-00 129 (Tenn. Cr im.2 Appellant also rel ies on Rickman v. Dutton , 864 F.Supp. 6 86 (M.D. Tenn. 1994) as support for the unconsti tional ity

of these i nstructi ons. Alt hough the federal court in Rickman found the i nstructi ons violated du e proce ss, our s uprem e court c ontinues to uphold substa ntially similar instru ctions. See State v. Nic hols , 877 S.W .2d 722, 7 34 (Te nn. 1994 ), cert. denied ___ U.S. ___, 115 S.Ct. 909, 130 L.Ed.2d 791 (19 95). As a n inferior ap pellate cou rt, we m ust abide by the dec isions of o ur supre me c ourt. Barger v. Brock , 535 S.W .2d 337, 3 41 (Te nn. 1976 ). See also State v. Da vis , 654 S.W.2d 688, 690 (Tenn. Crim. App. 1983) (the sup reme cou rt’s determination on an issue is conclusive and binding on this Court and all othe r inferior co urts of this s tate); Presley v. S tate , 528 S.W.2d 52, 54 (Tenn. Cri m. App. 1975) (we may not ignor

e the pri or decisi ons of our supreme court an d we are bound by them). At least one other pa nel of this Court has decli ned to fo llow Rickman on this issu e for the s ame reason

. See Raym ond L. C ovington v. State , No. 01C01-9606-CC-00250 ( Tenn. Crim. App. at

Nashvill e, September 30, 1996). 6 App. at Jackson, September 30, 1996) , perm. to appeal denied (Tenn. 1997); James David Carter v. State , No. 03C01-9605-CC-00179 (Tenn. Crim. App. at Knoxville, July 15, 1996), perm

. to appeal granted (Tenn., Dec. 9, 1996) (finding that post-conviction claims premised on Victor and Sandoval were insufficient to creat e exception to statute of limitations where instructions did not violate due process). Appellant is unable to demonstrate an excepti on to the statute of limitations. This claim is timebarred. 2 Moreover, we note, as

did the trial court, that

this ground for relief is waived for failure to present it in an ear lier proceeding. Tenn. C ode Ann. §40-30-112(b) (repealed 1995). This gr ound was not raised on dir ect appeal, nor in any of the thr ee earlier post-convic

tion petitions filed on behalf of appell ant. This gives ris e to a presumption of waiver. Id. The supreme court has direct ed us to evaluate waiv

er using an objective st

andard under which a petitioner is bound by the acti on or inaction of his attorney. House v. State , 911 S.W.2d 705, 714 (Tenn. 1995), cert. denied

___ U.S. ___, 116 S.Ct. 1685, 134 L.Ed.2d 787 (1996). Appellant’s mere assertions that he did not personally, knowingly, and understandingly fail to raise a ground for relief is insufficient to overcome the re buttable presumption of waiv er. Id. Moreover, a petitioner’s allegati ons of ineffective assistance of post-conviction counsel w ill not rebut the presumption of waiv er. Id. Therefore, we must consider the issue waived for failure of appellant’s counsel to raise this issue in a prior proceeding. Appellant next contends that the indictment charging him was defective in that it did not include the elements of the underlying felony of robbery and that the jury7

instructions defining robbery acted as a constructive amendment to the indictment in violation of his constitutional rights. Appellant provides no justification for his tardine ss in raising this cl aim in a post-convicti on petition. This ground di d not arise after the limitati ons perio d had begu n to run as required b y Sands . Therefore, it is barred by the statute of limitations. In addition to being barred by the statute of limitations , we must also consider this ground waiv

ed for failure to include it i n an earlier petition. Tenn. C ode Ann. §40- 30-112(b)(1) (repealed 1995). The trial court found that al though this ground for rel ief existed, it was not raised on direct appeal nor in any of the three earlierpostconviction petitions fil ed on behalf of appellant. This giv es rise to a presumption of waiver and we affirm the trial court’s determi nation. Id. Appellant’s issues three through eleven are presented as a comprehen sive list in his brief without citation to case authority. Appellant alleges that he is at least entitled to a hearing on thes e claims and that they are n ot barred by the statute of limitations. According to appellant, these claims are not time-barred beca use appellant’s interest in life outweighs any possible state interest in denying his constitutional claims; co unsel appointed by the State w as not effective; appellant had no opportunity to choose his attorney nor was he able to investigate and litigate these claims on his own behalf beca use he is incarcerated and i ndigent and has been indigent throughout the cou rse of all prior proceedi ngs; and he lacked the leg al and factual knowledge necessary to raise such claims earlier. These reasons are not valid ones for obviating the appl ication of the statute of limitatio ns. See Sands , 903 S.W.2d at 301. Appellant goes on to s tate that these claims fall w ithin an exception to the statute of limitations, but fails to explain what ex

ception. He merely asse rts that due process of law permits hi m to avoid application of the s tatute of limitations. We find that appellant is not entitled to relief from the sta tute of limitations on any of these claims.3 Appellant argues that he did not beco me aware of many of these grounds f or reli ef until

he had access to police investigative files under Cap ital Ca se R eso urce Cen ter of Ten nes see , Inc. v . W ood all , No. 01A01-9104-CH-00150 (Tenn. App. at Nashvi lle, January 29, 1992). This asser tion i s not supported by the reco rd. All of thes e claim s for relief w ere raise d in appe llant’s 1989 post-co nviction pe tition. Thus, appell ant was aware of t hese claims and they did exist

prior t o expirati on of the statute of limitations.

4 In order fo r a ground for relief to be previ ously det

ermined, the appel lant must have been acc orde d a fu ll and f air he aring . Ten n. Co de A nn. § 40-3 0-11 2(a) (repe aled 1 995 ). A fu ll and f air hearing occurs when a petit ioner i s given an oppor tunity to present co nstitutional cl aims at a meaningful time and in a meaningf ul manner, i. e. witho ut undue restr icti on on the scope of the hearing or undue limitation on the introdu ction or pre sentation of eviden ce. Hous e v. State , 911 S.W.2d 705, 711 (Tenn. 1995), cert. denied ___ U.S. ___, 116 S.Ct. 1685, 134 L.Ed.2d 787 ( 1996). We note that although the trial court didnot accord appel lant an evidentiary hearing on hi s second and thir d petit ions, i t did hol d a hearing on the Sta te’s “m otion to dism iss withou t an eviden tiary hearing” in which it hea rd the arg ume nts of counsel. Dismissal of t he petit ion fol lowed. These grounds were incl uded in appel lant’ s subsequent appeal to t his Court, in which we af firmed the tr

ial cour t’s act ion, and al so included i n his appli cation for permission to app eal to t he supreme court, whi ch was denied. As such,we believ e appellant

was accord ed a full and fair hearing on these issues to perm it a finding of p revious d eterm ination. See Donn ie E. John son v. Sta te , No. 02C01-9111-CR-00237 ( Tenn. Crim. App. at

Jackson, March 27, 1997) (finding tha t when a n issue is raised on appea l to this Cou rt and in an application for perm ission to appeal to the suprem e court and ruled upon, it may be considered previously determined). 8 Enumerated issues three, four, fiv e, seven, eight, nine, and ten are barred by the statute of limitations and fall within no exception. These alleged grounds for r elief are not later-arising

and fail to satisfy the test s et forth in Sands

. 3 Additionally, we find that these very issues were raised in prior petitions and must be considered previously determined. 4 Tenn. Code Ann. §40-30-112(b) ( repealed 1995). Issue six pertaining to the effectiveness of post-convi ction counsel is also w ithout merit. We agree with the trial court that appellant has no constitutional rig ht to post-conviction c ounsel and may not assert a claim based on the ineffective assistance of post-c onviction counsel. House v. State , 911 S.W.2d 705, 712 (Tenn. 1995), cert. denied ___ U.S. ___, 116 S.Ct. 1685,134 L.Ed.2d 787 (1996). See also Davis v. State , 912 S.W.2d 689, 696 (Tenn. 1995). Finally, appellant’s issues eleven and twelve pertaining to exculpatory evidence and promises made to witness es do not entitle appellant to r elief. As with all other claims, these are barred by the limitations period. Appellant presented these issues in his third petition, w

hich was filed prior t

o the expiration of the statute of limitations. Therefore, these grounds are not “later-arising” as required for an excepti on to the running of the statute of limitati ons. Sands v. State , 903 S.W.2d 297, 301 (Tenn.5 See Footnote four above. 9 1995). Because they wer e raised in appellant’s thi rd petition, we must als o consider them previously determined. Tenn. Code Ann. §40-30-112 (b) (repealed 1995). 5 Lastly, appellant arg ues that the State erred by fai ling to file in the tri al court the necessary portions of the record as required by statute. The Post-Conviction Act requires that if the petition does not include parts of the reco rds or transcripts that are material to the questions r aised, the district attor

ney is empowered to obtai n them at the expense of the State and file them w ith the responsive pleadi ng or within a reasonable time thereafter. Tenn. Co de Ann. §40-30-114(b) (repeal ed 1995). Due to the exemplary wor

k of appellant’s counsel, an ex tremely thorough and detai led petition for relief was fil ed in the trial court. Thi s petition included an itemiz ed list of issues previously

raised in other petitions and appeals. In addition, the tr ial court had access to the files containing appellant’s previous petitions and the de cisions of this Court and apparently rel ied on that information. The trial court’s order refers to appellant’s previous petitions and provides a comprehensive list of the issues raised in each one. Because the trial court’s decisions were based upo n procedural defenses to the claims, we do not find that the re were other records or transcripts materia l to the questions raised. The tri al court had before it sufficient i nformation to determine the questions of th e statute of li mitations, waiver a nd previous dete rmination. Alth ough we encourage all parties to act in conformity w ith the statutory mandate, w e do not find that the State violated it s statutory duty in appellant’s case. In sum, appellant has presented no c laim deserving of post-conviction relief. Every claim present

ed is barred by the statut e of limitations. Appellant has failed to demonstrate that any claim is later-arising or that he has been precluded a reason able opportunity

to present it in a state fo rum. Moreov er, as we h ave specifi ed, some claims have been waiv ed for failure to present them in an e arlier petition and many have been previously

determined. Appellant has had numer ous opportunities to10

present his claims before the t rial court and this Cour t. As a result of this petition, the trial court vacated hi s death sentence and imposed a sentence of life imprisonment. We believe that appellant’s rights to due process have been res pected and preserved by the courts of this State. The judgment of the trial court denying post-convi ction relief is affirmed.

_______________________________ William M. Barker, Judge

____________________________ Gary R. Wad e, Judge

____________________________ David G. Hayes, Judge