# FILED
May 14, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MAY 1996 SE SSION

JONAS ROME COLE, ) ) Appellant, ) No. 01C01-9509-CC-00294

) ) Davidson County v. ) ) Honorable Walter C. Kurtz, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. ) For the Appellant : For the Appellee : Richard McGee Charles W. Burson Washington Square Two, Suite 417 Attorney General of Tennessee 222 Second Avenue, North and Nashville, TN 37201 Karen M. Ya cuzzo Assistant Attorney Gener al of Tennessee 450 James Robertson Parkwa y Nashville, TN 37243-0493 Victor S. Johnson, III District Attorney General and D. Paul DeWitt Assistant District A

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

OPINION FILED:____________________
AFFIRMED Joseph M. Tipton Judge2 O P I N I O N
The petitioner, Jonas Rome Cole, appeals as of right from the Dav idson County Circuit Cour

t’s dismissal of his petit ion for post-conviction relief after an evidentiary hearing . The trial court dismiss ed the petition, holding that it was barred by the applicable statute of limitations and that th e issues raised in the petition were without merit. The petiti oner contends that the petition i s not barred by the statute of limitations. He argues

that he is entitled to post-conviction relief because he received the ineffective assistance of couns el at trial and on appeal, hi s equal protection rig hts were violated by

the state’s discriminator y exercise of its per

emptory challenges, and the reasonable doubt jury i nstruction that was g iven at his trial al lowed the jury to
co nv ic t h im ba se d o n a

lo we r s ta nd ar d of p ro of

th an is co nsti tu ti on al ly

re qu ir ed . We affirm the judgment of the trial cour t.
In 1988, the petitioner was convicted of first degree murder and employing a firear m during the commi ssion of

a felony . He rec

eived c onsecut ive sentences o f life imprisonment and five year s, respectively. This court affirmed his convi ctions. State v. Jonis Rome Cole , No. 88-311-III, Davidson County (Tenn. Crim. App. Nov. 7, 1989), app . denied (Tenn. Mar. 5, 1990). In 1991, the petitioner filed a post-co nviction petition alleging numerous gr

ounds for relief. Pursuant to an ag reed order, the petitioner w as granted a delayed appeal on a suppression issue, w

hile the remaining gr

ounds of the petition were dismiss

ed as having been wai

ved or previously

determined. Subsequently, this cour t held that the petitioner w as not entitled to relief on the suppression issue. Jonis Rome “Mack” Col e v. State , No. 01-C-01-9203-CR- 00113, Davidson County (Tenn. Crim. App. Feb. 18, 1993), app . denied (Tenn. June 7, 1993).

The present petition for post-conv iction relief was filed on January 5, 1995. The petition alleges that the petitioner receiv

ed the ineffective assistance of3

counsel at trial and on appeal, that the state violated hi s equal protection rig hts by exercising its pe remptory challenges i n a discriminatory manner, and that the reasonable doubt jury instruction given at the petitioner’s trial allowed the jury to convict him based on a lower standard of proof than is constitutio nally required. The trial court addressed the substance of the petiti oner’s claims and held that t he petitioner was not entitled to relief on any of the grounds raised. The court also held that the petition is barred by the applicable statute of limitations, T.C.A. § 40-30-102 (repealed 1995), and noted th at the pe

titione r may ha

ve wai ved his ground s for rel ief.

I. STATUTE OF LIMITATIONS Initially, the petiti oner contends that the trial c ourt erred by concludi ng that the petition was barred by the applicable statute of l imitations, T.C.A. § 40-30-102 (repealed 1995), because the peti tion was filed withi n three years of the time that t he supreme court denied revi ew of his delayed appeal. The state asserts that the postconviction statute of limitations began to run on March 5, 1990, when the sup reme court denied review of the petitioner’s direct appeal. The state argues that because a delayed appeal is merely a post-conviction remedy and is not an appeal as of rig ht as contemplated under Rule 3, T.R.A.P. , the granting of a delay ed appeal does not toll the statute of limitations.

Although we agree w

ith the state that a delayed a ppeal is a postconviction remedy, w

e also note that a delayed appeal granted through post-c onviction relief is the equival ent of that which should hav e occurred in a direct appe al from the convicting case. The Post-Conviction Procedure Act only authorizes delayed appeals in instances in whic

h a “petitioner was deni ed his right to an appeal from his original conviction in viol ation of the Constitution of the United States or the Constituti on of Tennessee . . . .” T.C.A. § 40-30- 120 (repealed 1995); see also T.C.A. § 40-30-213.4

In this vein, a delay

ed appeal takes the place of a direc t appeal, and the same rights attach to a delayed appeal as those that attach to a direct ap peal.

Under T.C.A. § 40-30-102 (r epealed 1995), a petitioner may petition for post-conviction relief “within three (3) years of the date of the final action of the highest state appellate court to w hich an appeal is taken.” Bec ause we view a del ayed appeal as being the equivalent of a direct appeal, we believe that the petitioner had three years from the final action on the delayed appeal to file a post-conviction petition. However, we also recogniz

e that the scope of a post-convi ction hearing only ex tends to grounds for relief that have not been w aived or previousl

y determined. T.C.A. § 40-30- 111 (repealed 1995); House v. State , 911 S.W.2d 705 (Tenn. 1995). Thus, in practice, t he petitioner is limited to post-conviction claims that arose out of the dela yed appeal.

II. PEREMPTORY CHA LLENGES The petitioner contends that he is entitled to post-convi ction relief because his equal protecti ons rights were v iolated during voir

dire when the state exercised three peremptor y challenges to ex

clude black potential jur ors from the jury. See Batson v. Kentucky , 476 U.S. 79, 106 S. Ct. 1712 (1 986). The petitioner argues that this issue has not been pr eviously determined bec ause he has not had a full and fair hearing on it. We disagree.

“A ground for relief is ‘ previously determin ed’ if a court of competent jurisdiction has ruled

on the merits after a full and fair h earing.” T.C.A. § 40-30- 112 (repealed 1995). In House v. State , 911 S.W.2d 705 (Te nn. 1995), our supreme court determined that a full and fair heari ng is provided w hen a petitioner is giv

en an opportunity

to present his or her cons titutional claims at a meaning ful time and in a meaningful manner, that is, w ithout undue restriction of the scope of the hearing or undue limitation on the introduc tion or presentation of evid ence. Id . at 711.5 At trial, the petitioner’s counsel objected to the state’s use of peremptory challenges and moved for a mis trial. The trial court denied the motion as being premature. During the peti tioner’s direct appeal, t his court upheld the trial court’s ruling and stated, “In addition, the facts as stated in this case do not present a prima facie case of a racially disc riminatory purpose, r equiring the State to pr ove a neutral explanation for its peremptory challenges.” State v. Jonis Rome Cole , No. 88-311-III, Davidson County, sl ip op. at 2 (Tenn. Crim. App. N ov. 7, 1989). The petitioner raised the issue again in his fir st post-conviction peti

tion but later agreed to the dismissal of the petition because all of the g rounds raised were w aived or previousl

y determined. The issue has been previousl y determined. See T.C.A. § 40-30-112(a) (re pealed 1995); House , 911 S.W.2d at 711.

III. INEFFECTIVE A

SSISTANCE OF C

OUNSEL Next, the petitioner cont ends that he is entitled to post -conviction relief because he received the ineffective assistance of cou nsel at trial, during his first direct appeal, and during his firs t post-conviction acti on and delayed appeal. Specifica lly, the petitioner contends that his attorney was ineffectiv e for failing to properly

preserve the Batson issue.
Initially, we note that the petitioner waiv ed his ineffective assistanc e of trial and direct appeal counsel cl aims by failing to incl ude them in his first post-conv iction petition. See T.C.A. § 40-30-112(b)(1) (repealed 1995); House , 911 S.W.2d at 714. Also, insofar as the petitioner contends that his counsel w as ineffective for agreeing to the dismissal of the prior pos t-conviction petition , he is arguing that he received the ineffective assistance of post-c onviction counsel. There is no constitutional ri ght to the effective assistance of post-conv iction counsel. House , 911 S.W.2d at 712.1 For post-conviction petitions filed after May 10, 1995, petiti oners have the burden o f

proving factual all egations by clear and convincing evidence. T.C.A. § 40-30 -210(f). 6 We also disagree with the petitioner ’s contention that counsel w as ineffective for failing to raise the peremptory challenge issue during his delayed app eal. The burden was on the petitioner in the trial court to prove his allegations that would entitle him to relief by a preponderance of the evidence. 1 Brooks v. State , 756 S.W.2d 288, 289 (Ten n. Crim. App. 19 88). On appeal, we are bound by the t rial court’s find ings unless we conclude that th e evidence preponderates ag ainst those findings. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In thi s respect, the petitioner ha s the burden of illustrating how the evidence preponder ates against the judgment entered. Id

.
To prevail on his ineffectiv e assistance of appellate counsel claim, the petitioner had the burden of demonstrat ing (1) that counsel's performance was deficient and (2) that the deficiency was prejudicial in terms of rendering a reasonabl e probability that the result of the trial w as unreliable or the procee dings fundamentally unfair. See Evitts v. Lucey , 469 U.S. 387, 105 S. Ct. 830 (1 985); Campbell v. State , 904 S.W.2d 594, 596 (Tenn. 1 995). Als o, we note that the approac h to the is sue of th e ineff ective assistance of counsel does not hav e to start with an analy sis of an attorney's conduct

. If prejudice is not shown, we need not seek to determine the validity of the all egations about deficient performance. Strickland v. Washington , 466 U.S. 668, 697, 104 S. Ct. 2052, 2069 (1984).

In this case, the petitioner failed to demonstrate that his del ayed appeal counsel was deficient or that he was prejudiced by his counsel’s failure to r aise the peremptory challenge issue during his delayed appeal. As previously discussed, this court determined that the issue was without merit during the petitioner’s direct appeal. Thus, the petitioner’s delay ed appeal counsel was not deficient for failing to raise the7

issue, and the petitioner has suffered no prejudice from his counsel ’s decision not to raise the issue.

IV. REASONA BLE DOUBT INSTRUC TION Finally, the petitioner

contends that he is entitled t o post-conviction rel ief because the use of the term “moral c ertainty” in the reas

onable doubt jury instru ction given at his trial

allowed the jury t

o convict him based on a low er standard of proof than is constitutionally required. The petitioner cites Victor v. Nebraska , 511 U.S. 1, 114 S. Ct. 1239 (1994) and Rickman v. Dutton , 864 F.Supp. 686 (M.D. Tenn. 1994) , aff’d sub
nom . Rickman v. Bell , 131 F.3d 1150 (6th Cir. 1997) , petition for cert

. filed , 6 6 U .S .L .W. 3604 (U.S. Mar. 2, 1998), i n support of his argument. The stat e counters that the petitioner has waiv

ed the issue by failing to raise it at trial, on direct appeal, or in the first post-conviction petition. The state also contends that the reasonable doubt instruct ion given a t the pet itioner’ s trial was a proper st atemen t of the l aw.

The petitioner has offered no explanati on for his failure to raise the
reasona ble doub t jury instr uction is sue in any o f his prio r proceed ings. Alth ough we recognize that Victor

and Rickman were decided after the petitioner’s trial, direct appeal, and first post-convi ction case, these cases did not announce a new rule of constitutional law. See Charles Michael Gentry v. State , No. 01C01-9704-CR-00119, Davidson County (Tenn. Crim. App. Feb. 23, 1998). Moreover, the Supreme Court analyzed the constituti onal sufficiency of a reasonable doub t jury instruction in Cage v. Louisiana , 498 U.S. 39, 111 S. Ct. 328 (19 90), before the petitioner filed hi s first petition for post-conviction rel ief. Therefore, the petitioner had the opportunity to raise the issue during his first post-conviction action and fail ed to do so. This constitutes a waiver. See T.C.A. § 40-30-112 (repealed 19 95); House , 911 S.W.2d at 714.8 In any event, the courts of this state have repeatedly upheld the use of the phrase “moral certainty ” in the context of the reason able doubt jury instruc tion given at the petitioner’s trial. See 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); see also Austin v. Bell , 126 F.3d 843, 846-47 (6th Cir. 1997). The issue is without merit.
In consideration of the foregoing and the record as a whole , we affirm the dismissal of the petitioner’ s post-conviction peti tion.
Joseph M. Tipton, Judge
CONCUR:

Gary R. Wade, Judge

William M. Barker, Judge