# FILED
July 29, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF

CRIMINA L A PPEA LS OF TENN ESSEE AT JAC KSON JULY 1997 SES SION

BILLY KILBURN, ) ) C.C.A . No. 02C01-9608-CC-00251 Appellant, ) ) OBION COUNTY VS. ) ) HON. C. CREE D McGINLEY, ) JUDGE STA TE OF TENN ESSEE, ) ) (Post-Conv iction) Appellee. )
FOR THE APPELLANT : FOR THE APPELLEE : THOMAS T. WOODA LL JOHN KNOX WALKUP (a pp ea l o nl y) Attorney Gen eral & Repor ter 203 Murrell St. P.O. Box 1075 DEBORA H A . TULLIS Dickson, Tennes see 37056-1075 Assistant Attorney Gener al 450 James Roberts on Parkway JOSEPH P. A

TNIP Nashvil le, Tennessee 37243- 0493 (at hearing& of cou nsel on appeal) Distric t Public Defender TH OM AS A. TH OM AS 111 Main Street Distric t Attorney General P.O. Box 734 Dresden, Tennessee38225 JAM ES T. CA NNON Assistant D istrict A

ttorney Gener

al JAMES D. KENDA LL P.O. Box 218 (at hearing) Union City , Tennessee 38261-0218 Assistant D istrict P ublic Defender 407 Perkins St

. Union City , Tennessee 38261

OPINION FIL ED: __________________

AF FIRMED

JOE G. RI LEY, JUDGE OPINION2 The appellant, Bil ly Kilb urn, appeals the denial of post-co nviction relief. On August 8, 1990, the appellant was convic ted of murder in the first degree . The conviction was affirmed on direct app eal. On March 20, 1996, the app ellant filed his second pro se

petition for post-convic tion relief al leging 1 ) the “reas onable doubt” jury in stru ctio n given at hi s tria l was un cons titu tion al, a nd 2) he re ceive d ine ff ecti ve assistance of tr ial counsel. After appointingcounsel, but w ithout holdingan evidentiar

y hearing , the trial court dismis sed the petition . The judgment of the t rial court is AFFIRMED.

CASE HISTORY
The appellant filed hi s first petit ion for post-con viction relief on March 26, 1992, allegi ng ineffectiveassistance of counsel. The tri al court found the ap pellant received effective assistance of counsel at his trial . This Court upheld the tria l court’s deni al of the appellant’ s petition for po st-convi ction reli ef. Billy Ernest Kilburn v. State , C.C.A. No . 02C01-9403-C C-00033, Obion County (Tenn. Crim. App. fil ed August 3, 1994, at Jackson) perm. to a ppeal denied

(Tenn. 1994). Appellant subseq uently filed a second pro se peti tion for p ost- conv ict ion rel ief, the subject of the i nstant appeal. After appointing counsel, the tri al court dis missed the p etit ion f indi ng tha t 1) th e pet itio n was n ot ti mely f iled , 2) th e issu e of inef fec tive assistance of coun sel had been eithe r “wai ved or previously determined,” and 3) the jury in structions given at appellant’s t rial were constitut ionally valid.

I. Statute of Limitations
The appellant argues tha t he is entitled to a post-conviction hearing becau se the new Post- Convicti on Procedure Ac t extends the filing peri od to May 10, 1996. Under the new

Post-Conv iction Procedure Act, the statute of limitati ons for post-3

convicti on relief is r

educed to one (1) year. Tenn. C ode Ann. § 40-30-20 2 (Supp. 1996). The Act al so provid es for a one (1) year gr ace period from M ay 10, 1995, to file a petition or reopen a pe tition for post-conviction relief. However, the grace period does not a pply in th is instance because post-co nviction relief was already barred by the statute of limitat ions when the new legislation was enacted. W hen this Court affirmed pe titioner’s original conviction on August 28, 1991, petitio ner’s convicti on became final. Therefore, his clai m was in ex istence pri or to enactment of the new Post- Convicti on Procedure Ac t and expired August 28, 199 4. Tenn. Code Ann. § 40-30-102 ( repealed by 1995 Tenn. Pub. Act 207, § 1). The new Post-Conviction Procedure Act was not mean t to revive previously barred clai ms. See Jimmy Earl Lofton v. State , C.C.A. No . 02C01-9603-C R-00073, Shelby Count

y (Tenn. Cr im. App. filed Ma rch 7, 1997, at J ackson); Eric C. Pen dleton v. State , C.C.A. No . 01C01-9604-C R-00158, Dav idson County (Tenn. Crim. App. filed February

12, 1997, at Nash ville) ; Johnny L. Butl er v. Stat e , C.C.A. No . 02C01- 9509-CR-00289, Shelby Cou nty (Tenn. C rim. App. filed D ecember 2, 1996, at Jackson ). The m ajority of this Court is no longe r followin g Arnold Cart er v. Stat e , C.C.A. No. 03C01-9509-CC -00270, Monroe County (Tenn. Crim. App. fil ed July 11, 1996, at Knoxv ille). Accordingly , this iss ue is wi thout merit.

II. Ineffect ive A

ssistance of Counsel
The appellant raised th e issue of ineff ective assistance of counsel in his f irst post-conviction petition and was given a full evidentiary hearing. He specifically alle ged th at tr ial co unse l 1) di d not prop erly ad vise h im whe ther to te stif y in his own behalf, 2) unfairly

prejudiced hi s case throug h remarks made dur ing opening statement, 3) was ineffective i n examiningwitness es, 4) preju diced and alienated the jury by his actions

during the course of the tri al, and 5) was ineffective i n not perf ecti ng a n app eal to th e Ten ness ee Su prem e Co urt . Thetri al court deni ed reli ef, and this Cour

t affirmed.4 Petitioner subsequently filed the inst ant petition alleging ineffe ctive assistance of counsel. The tri al court dis missed the petit ion withou t an evidenti ary heari ng finding the issues had bee n either “waived or previously determined.” The record does not prepondera te against this finding. Moreover, a ground for relief is previousl y determined if a court of competent jurisdict ion has ruled on the merits after a full and fair hearing. Tenn. Code Ann. §40-30- 206(h)(Supp. 199 6); Hous e v. State , 911 S.W .2d 705, 711 (Tenn . 1995). Accordingly, this issue was previously determined and is

without mer it.
III. Jury Charge
The appellant arg ues the jury instructi on defining “reasonable doubt” v iolates due process by

loweri ng the burden on the state to prov e guilt. Our courts have repeatedly held that using the phrase “moral certainty” in conjunction w ith an instr uction that “r easonable doubt is

that doubt engender

ed by an investi gation of all the proof in the cas e and an inabili ty, after suc h investi gation, to let the mind r

est easily

as to the certainty of gui lt” is a v alid instr uction on reasonable doubt. Nichols v . State , 877 S.W.2d 722, 734 (Tenn. 1994); Stat e v. Sexton , 917 S.W.2d 263, 266 (Tenn. Crim App. 1995); Pettyjohn v . State , 885 S.W.2d 364, 366 (Tenn. Crim. App. 1994) ; State v. Hallock , 875 S.W.2d 285, 294 (Tenn. Crim. Ap p. 1993). The record reflects t he jury c harge was given with the above instr uction pertai ning to reas onable doubt. Furthermore, this issue h as been waiv ed. A ground for relief is w aived if the petitioner per

sonally or

through an attorney fails to raise i t for determinati on in any proc eed ing be for e a co urt o f co mpe tent juris dict ion in which t he gro und coul d have been presented. Tenn. C ode Ann. §40-30-206 (g)(Supp. 1996). The petiti oner has waived this issue by failingto include i t in his first post-conv iction petit ion. Accordingl y, this i ssue is w ithout merit.5 The judgment is AFFIRMED.

___________________________ JOE G. RILEY , JUDGE CONCUR:

______________________________ JOE B. JONES, PRESIDING JUDGE

______________________________ DAVID H. WELLES, JUDGE