# FILED
October 24, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MARCH 19 97 SESSION

PERRY T. MILLER, ) ) Appellant, ) No. 01C01-9606-CC-00239

) ) Lincoln County v. ) ) Honorable Charles Lee, Judg e ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. ) For the Appellant : For the Appellee : Perry T. Miller, Pro Se Charles W. Burson #87879 Attorney General of Tennessee CCA/SCCF, P.O. Box 27 9 and Clifton, TN 38425-0279 Eugene J. Honea Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 W. Mic hael McCo wn District Attorney General P.O. Box 904 Fayetteville, TN 37334

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner, Perry T. M iller, appeals as of rig ht from the Lincoln County Circuit Court’s summar y dismissal of his petit ion for post-conviction relief. The trial court dismissed the petiti on, concluding that the petit ion was barred by th e statute of limitations and that the grounds alleged in the petition had bee n waived or previously determined. We affirm the judgment of the trial court.

The petitioner collaterall y challenges his 1978 convictions for second degree mu rder and c riminal se xual assau lt, for whi ch he rece ived conse cutive sentences of ninety-nine y ears. This court affirmed his co nvictions, see State v. Perry Tyrone Miller , No. 80-82-III, Lincoln County (Tenn. Crim. App. Feb. 3, 1981), and also affirmed the denial of the petitioner’s first petition for post-conv iction relief. Perry Tyrone Miller v. State , No. 85-267-III, Lincoln C ounty (Tenn. Crim. App. Apr . 7, 1987). The petitioner filed the present petition on Jan uary 5, 1996, alleging that the reasonable doubt instruction given at his trial is unconstitutional under Cage v. Louisiana , 498 U.S. 39, 111 S. Ct. 328 (1990).

Because the petitioner’s conv iction became final before the enactment of T.C.A. § 40-30-102 (repealed 1995) , the petitioner had three y ears from July 1, 1986, to file a post-conviction pe tition. Sands v. State , 903 S.W.2d 297, 30 1 (Tenn. 1995); Abston v. State , 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988). The petit ioner cites Rickman v. Dutton , 864 F. Supp. 686 (M.D. Tenn. 1994) , to argue that he could not have challenged the reaso nable doubt instruction gi ven at his trial duri ng this period because the ground for relief w as not established. How ever, Rickman did not create a new constitutional rul e that would justify the tolling of the petitioner’ s statute of limitations, and Rickman is not binding on this c ourt.3 The petitioner filed the present pet ition more than five year s after the decision in Cage v. Louisiana . Thus, even if it created a ne w rule of constitutional law, the petitioner has failed to rai se the issue in a timely manner. See O’Donnell v. State , 905 S.W.2d 951, 953 (Tenn. Crim. App. 1993) (petiti on untimely when filed more than three years after ground for relief arose).

The 1995 Post-Conviction Ac t did not reinstate a filingperiod for postconviction cases rel ative to convictions for which the former three- year post-convicti on statute of limitations had alrea dy run. Arnold Carter v. Stat e , No. 03-S-01-9612-CR00117, Monroe County (Tenn. Sept . 8, 1997) (for publication) . The petitioner had a reasonable opportunity to br ing his post-convi ction claim before the enactment of the 1995 Post-Conviction Ac t, but he failed to do so. The trial court properly dismi ssed the present petition as being u ntimely filed.

Moreover, the courts o

f this state have repeatedly upheld the use of the phrase moral certainty in the context of the reasonable doubt instruction giv en at the petitioner’s trial. See , e.g. , Nichols v. State , 877 S.W.2d 722, 734 (Tenn. 1994) ; State 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). In consid eration of the foregoing and the record as a whole, the j udgment of the trial court is affirmed.

Joseph M. Tipton, Judge CONCUR:

Joe G. Riley, Judge

Thomas T. Woodall, Judge