            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT JACKSON
                                                       FILED
                               JULY 1997 SESSION
                                                          July 29, 1997

                                                       Cecil Crowson, Jr.
BILLY KILBURN,                          )              Appellate C ourt Clerk
                                        )    C.C.A. No. 02C01-9608-CC-00251
      Appellant,                        )
                                        )    OBION COUNTY
VS.                                     )
                                        )    HON. C. CREED McGINLEY,
                                        )    JUDGE
STATE OF TENNESSEE,                     )
                                        )    (Post-Conviction)
      Appellee.                         )


FOR THE APPELLANT:                           FOR THE APPELLEE:

THOMAS T. WOODALL                            JOHN KNOX WALKUP
(appeal only)                                Attorney General & Reporter
203 Murrell St.
P.O. Box 1075                                DEBORAH A. TULLIS
Dickson, Tennessee 37056-1075                Assistant Attorney General
                                             450 James Robertson Parkway
JOSEPH P. ATNIP                              Nashville, Tennessee 37243-0493
(at hearing & of counsel on appeal)
District Public Defender                     THOMAS A. THOMAS
111 Main Street                              District Attorney General
P.O. Box 734
Dresden, Tennessee 38225                     JAMES T. CANNON
                                             Assistant District Attorney General
JAMES D. KENDALL                             P.O. Box 218
(at hearing)                                 Union City, Tennessee 38261-0218
Assistant District Public Defender
407 Perkins St.
Union City, Tennessee 38261




OPINION FILED: __________________



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION
       The appellant, Billy Kilburn, appeals the denial of post-conviction relief. On

August 8, 1990, the appellant was convicted of murder in the first degree. The

conviction was affirmed on direct appeal. On March 20, 1996, the appellant filed his

second pro se petition for post-conviction relief alleging 1) the “reasonable doubt”

jury instruction given at his trial was unconstitutional, and 2) he received ineffective

assistance of trial counsel. After appointing counsel, but without holding an

evidentiary hearing, the trial court dismissed the petition. The judgment of the trial

court is AFFIRMED.



                                     CASE HISTORY



       The appellant filed his first petition for post-conviction relief on March 26,

1992, alleging ineffective assistance of counsel. The trial court found the appellant

received effective assistance of counsel at his trial. This Court upheld the trial

court’s denial of the appellant’s petition for post-conviction relief. Billy Ernest Kilburn

v. State, C.C.A. No. 02C01-9403-CC-00033, Obion County (Tenn. Crim. App. filed

August 3, 1994, at Jackson) perm. to appeal denied (Tenn. 1994).

       Appellant subsequently filed a second pro se petition for post-conviction relief,

the subject of the instant appeal. After appointing counsel, the trial court dismissed

the petition finding that 1) the petition was not timely filed, 2) the issue of ineffective

assistance of counsel had been either “waived or previously determined,” and 3) the

jury instructions given at appellant’s trial were constitutionally valid.



                                I. Statute of Limitations



       The appellant argues that he is entitled to a post-conviction hearing because

the new Post-Conviction Procedure Act extends the filing period to May 10, 1996.

Under the new Post-Conviction Procedure Act, the statute of limitations for post-


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conviction relief is reduced to one (1) year. Tenn. Code Ann. § 40-30-202 (Supp.

1996). The Act also provides for a one (1) year grace period from May 10, 1995, to

file a petition or reopen a petition for post-conviction relief. However, the grace

period does not apply in this instance because post-conviction relief was already

barred by the statute of limitations when the new legislation was enacted. When this

Court affirmed petitioner’s original conviction on August 28, 1991, petitioner’s

conviction became final. Therefore, his claim was in existence prior to enactment of

the new Post-Conviction Procedure Act and expired August 28, 1994. Tenn. Code

Ann. § 40-30-102 (repealed by 1995 Tenn. Pub. Act 207, § 1).

       The new Post-Conviction Procedure Act was not meant to revive previously

barred claims. See Jimmy Earl Lofton v. State, C.C.A. No. 02C01-9603-CR-00073,

Shelby County (Tenn. Crim. App. filed March 7, 1997, at Jackson); Eric C. Pendleton

v. State, C.C.A. No. 01C01-9604-CR-00158, Davidson County (Tenn. Crim. App.

filed February 12, 1997, at Nashville); Johnny L. Butler v. State, C.C.A. No. 02C01-

9509-CR-00289, Shelby County (Tenn. Crim. App. filed December 2, 1996, at

Jackson). The majority of this Court is no longer following Arnold Carter v. State,

C.C.A. No. 03C01-9509-CC-00270, Monroe County (Tenn. Crim. App. filed July 11,

1996, at Knoxville). Accordingly, this issue is without merit.



                        II. Ineffective Assistance of Counsel



       The appellant raised the issue of ineffective assistance of counsel in his first

post-conviction petition and was given a full evidentiary hearing. He specifically

alleged that trial counsel 1) did not properly advise him whether to testify in his own

behalf, 2) unfairly prejudiced his case through remarks made during opening

statement, 3) was ineffective in examining witnesses, 4) prejudiced and alienated the

jury by his actions during the course of the trial, and 5) was ineffective in not

perfecting an appeal to the Tennessee Supreme Court. The trial court denied relief,

and this Court affirmed.


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       Petitioner subsequently filed the instant petition alleging ineffective assistance

of counsel. The trial court dismissed the petition without an evidentiary hearing

finding the issues had been either “waived or previously determined.” The record

does not preponderate against this finding. Moreover, a ground for relief is

previously determined if a court of competent jurisdiction has ruled on the merits

after a full and fair hearing. Tenn. Code Ann. §40-30-206(h)(Supp. 1996); House v.

State, 911 S.W.2d 705, 711 (Tenn. 1995). Accordingly, this issue was previously

determined and is without merit.



                                      III. Jury Charge



       The appellant argues the jury instruction defining “reasonable doubt” violates

due process by lowering the burden on the state to prove guilt.

       Our courts have repeatedly held that using the phrase “moral certainty” in

conjunction with an instruction that “reasonable doubt is that doubt engendered by

an investigation of all the proof in the case and an inability, after such investigation,

to let the mind rest easily as to the certainty of guilt” is a valid instruction on

reasonable doubt. 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); State v. Hallock, 875 S.W.2d 285, 294

(Tenn. Crim. App. 1993). The record reflects the jury charge was given with the

above instruction pertaining to reasonable doubt.

       Furthermore, this issue has been waived. A ground for relief is waived if the

petitioner personally or through an attorney fails to raise it for determination in any

proceeding before a court of competent jurisdiction in which the ground could have

been presented. Tenn. Code Ann. §40-30-206 (g)(Supp. 1996). The petitioner has

waived this issue by failing to include it in his first post-conviction petition.

Accordingly, this issue is without merit.




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     The judgment is AFFIRMED.



                                     ___________________________
                                     JOE G. RILEY, JUDGE

CONCUR:



______________________________
JOE B. JONES, PRESIDING JUDGE



______________________________
DAVID H. WELLES, JUDGE




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