# FILED
January 8, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE SEPTEMBER 1997 SESSION

PHILLIP W . POMEROY, * C.C.A. # 01C01-9610-CR-00424

Appellant, * DAVIDSON COUNTY VS. * Hon. Wa lter C. Kurtz, Judge STATE OF TENNESSEE, * (Post-Conviction)

Appellee. *

For Appellant : For Appellee : Samuel F. Anderson, Attorney Charles W. Burson 2016 Eighth Avenue South Attorney General and Repor ter Nashville, TN 37204 Elizabeth B. Marney Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 Tom Thurman Assistant District A

ttorney General Washington Square, Suite 500 222 Second Avenue North Nashville, TN 37201-1649 OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, JUDGE1 Tenn essee Code Annota ted § 40- 30-102 provided for a three -year statute of limitations . In State v. Masucci , 754 S.W.2d 90 (Tenn. Crim. App. 1988), the effecti ve date of t he statute , July 1, 1986, w as interpr eted to ex tend the tim e for filing of p ost-con victions claim until July 3, 1989

. Altho ugh there is no in dica tion in the re cord as to why th e 199 1 pet ition w as dis mis sed , it wou ld appea r that the pe tition would ha ve been barred u nder the three-yea r statute of limitations. 2 OPINION The petitioner, Phillip W. Pomeroy, appeal s the trial court's dismissal of his petition for post-conviction relief. The single issue presented for review is whether the petition is barred by the statute of limitations.

We find no error and affirm the judgment of the trial c ourt.

On Octob er 31, 198 5, the pe titioner , after b eing fou nd guilty of two counts of armed robbery, was determined to be a habitual criminal. T he trial court imposed two consecutive life sentences. The convictions and senten ces were affirmed on direct appeal. State v. Phillip W. Pomeroy , No. 86-55- III (Tenn. Cr im. App., at Nashville, Fe b. 12, 1987). On May 11, 1987,application for permission t o appeal was denied by the s upreme court.

In 1988, the petitioner filed and then voluntarily withdrew his first petition for post-convic

tion relief. A second petiti on, filed in 1991, was dismi ssed by the trial court. 1 On direct appeal, this court determined that guilty pleas entered in 1975 and 1977, which serv ed as the basis for credit offenses nec essary for the habitual criminality

determination, were v

alidly entered. Phillip W ayne Pome roy v. State , No. 01C01-9112-CR-00352 (Tenn. Crim. App., at Clarksville, July 17, 1992). The record indicates that a peti tion for writ of habeas corpu s, filed in the United States District Court , was dismissed on May 17, 1993.
This petition, the petitioner's third, was filed Apri l 30, 1996. The trial3 court dismissed the petiti on because it was not timel y filed.
The petitioner insists that the trial court should hav e afforded him an evidentiary hearing to determine whether the statute of limitations as applied in th is instance would have v

iolated due process. See Burford v. State , 845 S.W.2d 204 (Tenn. 1992). The petitioner has c omplained that the reasonable doubt i nstruction utilized at his tri al unconstitutionally shifted the burden of proof from the state. Cage v. Louisiana , 498 U.S. 39, 111 S.Ct. 328 (1990) (held unconstitutional an i nstruction equating reasonable doubt w ith "grave uncertaint

y" or "actual substantial doubt"). He has argued that the jury instructions requir

ing a presumption of malice v iolated his right to due process

. Sandstrom v. Montana , 442 U.S. 510, 99 S.Ct. 2450 (1979). The petitioner clai ms that the rulings in Cage and Sandstrom were not recognizable as gr

ounds for relief during the ter m of the limitations period and that his petition should not be bar red by the new one-y

ear statute of limitations. Tenn. Code Ann. § 40-30-202.

Originally, the Po

st-Conviction Proce

dure Act of 1967 did not include a statute of limitations. Effectiv e July 1, 1986, the General Assembly adopted a threeyear statute of limitations . Tenn. Code Ann. § 40-30-102 (re pealed 1995). In consequence, any petitione r whose judgment had become final before July 1, 1986, had only three years thereafter to file a petition for post -conviction relief. Abston v. State , 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988).

Here, the petitioner w

as subject to the three-y ear statute of limitations. This legislation allow

ed the petitioner three year s from "the date of the final action of the highest state appellate c ourt to which an appeal [w as] taken." Tenn. Code Ann. § 40-30-102 (repealed 1995). The 1995 Act did not enlarge the time within which4 this petiti oner could fi le as "the enabling prov ision ... i s not intende

d to reviv

e claims that were barred by the previous [three-y ear] statute of limitations." Carter v. State , 952 S.W.2d 417, 41 9 (Tenn. 1997).

In Burford v. State , 845 S.W.2d 204, 208 (Tenn. 1992),our supreme court held that in certain situations application of the statute of limitations in a postconviction proceeding

would violate due pr

ocess. In determining w hether there has been a violation of due process , the essential question is whether the time period allowed by law provides petitioner a fair and reasonable opportunity to file suit. Id. In Burford , the petitioner could not file within the three-y

ear limitation absent a determination on his prior post-conviction petition. Our supreme court ruled tha t Mr. Burford was "caught in a p rocedural trap and unable to i nitiate litigation ...despite the approach of the three-year limitation." Id. There was no such trap her e.

In Sands v. State , 903 S.W.2d 297, 301 (Tenn. 1995),our supreme court further defined how cour ts should apply the Burford test: (1) determine when the limitations period would normally have begun to run; (2) de termine whether the gr ounds for relief actually arose after the limitations period would normally have commenced; and (3) if the grounds are "later arising," determi ne if, under the facts of the case, a strict application of the limitations period would effectively deny the petitioner a reas onable opportunity to present the claim. In making this final determination, courts should carefully weigh the petitioner's liberty interest in "collaterally attack

ing constitutional v

iolations occurring during the conviction process," against the state's interest in preventing

the litigation of "stale and fraudulent claims." (citations omit ted) (quoting Burford , 845 S.W.2d at 207, 208).

By the use of these guideli nes, we have determined th at the statute of limitations for the petitioner 's convictions began to run on May 11, 1987, w hen the5 Tennessee Supreme Court declined to grant permission to appeal . In our view, the Sandstrom issue would have been a vailable during the l imitation periods and, therefore, does not qualify as "later arising." See Allen v. State , 854 S.W.2d 873, 876 (Tenn. 1993); State v. Bolin , 678 S.W.2d 40 (Tenn. 1984); Daniel Ca rl Brewer v. State , No. 1179 (Tenn. Crim. App., at Knoxville, Feb. 22, 1991). In April 1985, the instruct ion requir ed by Sandstrom was incorporated into 20.01 of the Tennessee Pattern Instructions--C riminal. See Brewer , slip op. at 4. On December 30, 1985, our supreme court rever sed a conviction based on th e erroneous burden-shifting charge precluded in Sandstrom as to the issue of malice. State v. Martin , 702 S.W.2d 560 (Tenn. 1985), overruled by State v. B rown , 836 S.W.2d 530 (Tenn. 1992). Moreover, the r easonable doubt instructions us ed in the 1980 trial of the petitio ner hav

e been uph eld as c

ompliant with

the pri nciples

of Cage v. Louisiana

. See State v. Nichols , 877 S.W.2d 722, 734 (Tenn. 1994); State v. Sexton , 917 S.W.2d 263, 266 (Tenn. Crim. App. 1995). The use of the phra se "moral certainty," standing alone, would not taint an otherwise sufficient instruction on reaso nable doubt. Nichols , 877 S.W.2d at 734. The jury instruction a t the petitioner's trial provided as follows:

By reasonable doubt is not meant that which of possibili ty may arise, but is that doubt engendered by an investigation of the w

hole proof, and an inability,after such investigation, to let the mind rest easily as to the certainty of guilt. A

bsolute certainty is not demanded by the law to convict o

f any criminal charge, but moral certainty is requi red, and this certainty is required as to every proposition of pr

oof requisite to constitute the offense and as to every grade of crime charged or included in the indictment. In our view, there w

as no due process violation.

Because the Sandstrom grounds rose well before the limitations period commenced, it would not be a v iable ground for relief. Bec ause the instructions given in the petitioner

's 1985 trial did not v

iolate the principles announc ed in Cage , a6 summary denial of relief w ould have been appropriate ev en if the statute of limitations had not barred th e action.

Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ Thomas T. W oodall, Judge

_____________________________ Curwood Witt, Judge