        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                             JULY SESSION, 1997


KENNETH CULP,                  )    C.C.A. NO. 02C01-9608-CC-00268
                               )
      Appellant,               )
                               )
                               )    LAUDERDALE COUNTY
VS.                            )
                               )    HON. JOSEPH H. WALKER
STATE OF TENNESSEE,            )    JUDGE

      Appellee.
                               )
                               )    (Post-Conviction)       FILED
                                                              July 24, 1997
               ON APPEAL FROM THE JUDGMENT OF THE
               CIRCUIT COURT OF LAUDERDALE COUNTYCecil Crowson, Jr.
                                                            Appellate C ourt Clerk


FOR THE APPELLANT:                  FOR THE APPELLEE:

KENNETH CULP, PRO SE                JOHN KNOX W ALKUP
Route 1, Box 330                    Attorney General and Reporter
Tiptonville, TN 38079-9775
                                    CLINTON J. MORGAN
                                    Assistant Attorney General
                                    450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    ELIZABETH RICE
                                    District Attorney General
                                    302 Market Street, P.O. Box 562
                                    Somerville, TN 38068



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                        OPINION

      The Petitioner, Kenneth Culp, appeals as of right pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure from the trial court’s denial of his

petition for post-conviction relief. The Petitioner filed a pro se petition for post-

conviction relief on June 6, 1996. On June 14, 1996, the trial court dismissed the

petition without conducting an evidentiary hearing, finding that it was barred by

the statute of limitations.1 W e affirm the judgment of the trial court.



      On October 21, 1992, the Petitioner was convicted by a Lauderdale County

jury of the sale of cocaine, a schedule II controlled substance. He was sentenced

as a Range III persistent offender to thirteen years imprisonment with the

Department of Correction. A panel of this Court affirmed his conviction on

February 2, 1994. See State v. Kenneth Culp, C.C.A. No. 02C01-9307-CC-

00133, Lauderdale County (Tenn. Crim. App., Jackson, Feb. 2, 1994). The

Petitioner did not file for permission to appeal to our supreme court.



      On June 6, 1996, the Petitioner filed a petition for post-conviction relief

which is the subject of the case sub judice. In the petition, he argued that his trial

counsel rendered ineffective assistance, that the trial court erred in refusing to

allow impeachment of a witness with evidence of prior criminal convictions, and

that the jury instruction on reasonable doubt was unconstitutional. The trial court

found that the petition was barred by the statute of limitations and dismissed it




      1
          See Tenn . Code A nn. § 40-30-20 2 and -206 (b) (Supp. 1996 ).

                                                  -2-
without conducting an evidentiary hearing.2 It is from the trial court’s order of

dismissal that the Petitioner appeals.



        The Petitioner contends that the trial court erred in finding that his petition

for post-conviction relief was barred by the statute of limitations. At the time the

Petitioner’s convictions became final, the statute of limitations applicable to post-

conviction proceedings was three years. Tenn. Code Ann. § 40-30-102 (repealed

1995). The three-year statute of limitations was subsequently shortened to one

year by the new Post-Conviction Procedure Act, which took effect on May 10,

1995. See Tenn. Code Ann. § 40-30-201 et seq. (Supp. 1996). At the time the

new Act took effect, the previous three-year statute of limitations had not expired

for the Petitioner.



        Of course, the new Post-Conviction Procedure Act governs this petition

and all petitions filed after May 10, 1995. See Tenn. Code Ann. § 40-30-201 et

seq. (Supp. 1996). This Act provides, in pertinent part, that “notwithstanding any

other provision of this part to the contrary, any person having ground for relief

recognized under this part shall have at least one (1) year from May 10, 1995, to

file a petition or a motion to reopen a petition under this part.” Compiler’s Notes

to Tenn. Code Ann. § 40-30-201 (Supp. 1996) (referring to Acts 1995, ch. 207,

§ 3). Because the previous three-year statute of limitations had not expired for




        2
           It appears from the order of dismissal that the trial court cited incorrect dates in determining
whether the petition for post-conviction relief was barred by the statute of limitations. The Petitioner
has several convictions other than the one challenged in this petition. The trial court cited the
applicable date s from the Petition er’s conviction for escape rather than for the sale of cocaine. It is
clear, however, that the Petitioner is challenging his cocaine conviction. Because all of the relevant
information pertaining to the cocaine conviction is contained within the record, we are able to consider
the Petition er’s appeal from the ord er of d ism issal. A ltho ugh the trial judge cited incorrect d ate s in
arriving at his decision to dismiss the petition, we conclude that his determination that the petition was
barred b y the sta tute of limitations w as n evertheless c orrect.

                                                     -3-
the Petitioner at the time the new Act took effect, his right to petition for post-

conviction relief survived under the new Act. See Betsy Jane Pendergrast v.

State, C.C.A. No. 01C01-9607-CC-00289, Rutherford County (Tenn. Crim. App.,

Nashville, May 17, 1997); cf. Doyle Carter v. State, C.C.A. No. 01C01-9511-CC-

00398, Davidson County (Tenn. Crim. App., Nashville, Feb. 12, 1997); Eric C.

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

Crim. App., Nashville, Feb. 12, 1997); W allace Butler v. Ricky Bell, Warden,

C.C.A. No. 02C01-9510-CC-00297, Fayette County (Tenn. Crim. App., Jackson,

Nov. 19, 1996); Johnny L. Butler v. State, C.C.A. No. 02C01-9509-CR-00289,

Shelby County (Tenn. Crim. App., Jackson, Dec. 2, 1996).



      As a result, the Petitioner had one year from the effective date of the new

Act, May 10, 1995, to file for post-conviction relief. See Compiler’s Notes to

Tenn. Code Ann. § 40-30-201 (Supp. 1996) (referring to Acts 1995, ch. 207, § 3);

Tenn. Code Ann. § 40-30-202(a) (Supp. 1996). He filed his petition for post-

conviction relief on June 6, 1996, shortly after the expiration of the one-year

period. Accordingly, we conclude that the trial court correctly found that the

petition was barred by the statute of limitations.



      In addition, we point out that one of the Petitioner’s contentions in his

petition for post-conviction relief, that the trial court erred in refusing to allow

impeachment of the undercover agent involved in the drug sale with evidence of

prior criminal convictions, was raised on direct appeal to this Court. See Culp,

C.C.A. No. 02C01-9307-CC-00133, slip op. at 2. That issue was fully addressed

on direct appeal and was found to be without merit. Id. at 2-3. As a result, we




                                        -4-
conclude that the Petitioner’s challenge to the trial court’s evidentiary ruling was

previously determined. See Tenn. Code Ann. § 40-30-206(h) (Supp. 1996).



        The Petitioner argues in the alternative that if his petition was barred by the

statute of limitations, his claim that the jury instruction on reasonable doubt was

unconstitutional fits within an enumerated exception to the one-year statute of

limitations. The relevant statutory provision provides an exception to the one-

year statute of limitations where the “claim in the petition is based upon a final

ruling of an appellate court establishing a constitutional right that was not

recognized as existing at the time of trial, if retrospective application of that right

is required.” Tenn. Code Ann. § 40-30-202(b)(1) (Supp. 1996). The provision

does, however, require that any petition asserting such a claim be filed within one

year of the ruling of the highest state appellate court or the United States

Suprem e Court establishing the constitutional right. Id.



        The Petitioner’s contention that the jury instructions at his trial were

unconstitutional focuses on “moral certainty” language included in the instruction

on reasonable doubt. According to the petition for post-conviction relief, the jury

was instructed as follows:

        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 upon the certainty of guilt. Reasonable doubt
        does not mean a captious, possible, or imaginary doubt. Absolute
        certainty of guilt is not demanded by the law to convict of any
        criminal charge, but moral certainty is required and this certainty is
        required as to every proposition of proof requisite to constitute the
        offense.3




        3
          W e note that the actual jury instruction is not included in the record. The quoted instruction
com es from the petition for pos t-con viction re lief and the m em oran dum filed in su ppo rt of it.

                                                   -5-
He contends that equating “moral certainty” with “beyond a reasonable doubt”

violated his due process rights by impermissibly lowering the State’s burden of

proof as to his guilt.



       The Petitioner cites several cases in support of his argument that the

reasonable doubt jury instruction was unconstitutional. Among those cases are

Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), Cage

v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990), and Rickman

v. Dutton, 864 F.Supp. 686 (M.D. Tenn. 1994). He argues that this line of cases

established a new constitutional principle that jury instructions such as the one

given in his case violate due process guarantees. As a result, he contends that

his challenge to the jury instruction fits within the exception to the statute of

limitations listed at Tennessee Code Annotated section 40-30-202(b)(1).



       It is true that the United States Supreme Court has been critical of the

continued use of the “moral certainty” language in reasonable doubt jury

instructions. See Victor, 114 S.Ct. at 1248. Yet, neither the United States

Supreme Court nor any Tennessee state court has held that a reference to

“moral certainty” within a reasonable doubt jury instruction is per se

unconstitutional. Rather, courts must look to the entire charge to determine if the

“moral certainty” language was placed in a context in which the jury would

understand that the phrase meant certainty with respect to human affairs. See

State v. Nichols, 877 S.W .2d 722, 734 (Tenn. 1994), cert. denied, 513 U.S. 1114,

115 S.Ct. 909, 130 L.Ed.2d 791 (1995); Pettyjohn v. State, 885 S.W .2d 364, 365-

66 (Tenn. Crim. App. 1994). We therefore do not believe that the Cage and

Victor line of cases establishes a new constitutional rule for purposes of

                                        -6-
Tennessee Code Annotated section 40-30-202(b)(1).            See Charles W alton

W right v. State, C.C.A. No. 01C01-9506-CR-00211, Davidson County (Tenn.

Crim. App., Nashville, Mar. 20, 1997), slip op. at 10, perm. to appeal filed (May

20, 1997). Accordingly, the Petitioner’s challenge to the reasonable doubt jury

instruction, like the other challenges raised in his petition for post-conviction

relief, was barred by the one-year statute of limitations.



      Moreover, even if the Petitioner’s challenge to the reasonable doubt jury

instruction were considered on its merits, we do not believe he would be entitled

to post-conviction relief. In Victor, the United States Supreme Court ruled that

the phrase “moral certainty” may have lost its historical meaning and that modern

juries, unaware of the historical meaning, might understand “moral certainty” to

mean something less than the high level of determination constitutionally required

in criminal cases. Victor, 114 S.Ct. at 1246-48. While expressing criticism of the

continued use of the “moral certainty” phrase, the Court did not hold that it was

necessarily constitutionally invalid. Id. Instead, as we stated above, the Court

looked to the full jury charge to determine if the phrase was placed in such a

context that a jury would understand that it meant certainty with respect to human

affairs. Id. The Court has expressed particular concern over the use of the terms

“grave uncertainty” and “actual substantial doubt” in conjunction with “moral

certainty.” See Cage, 498 U.S. at 41, 111 S.Ct. at 329-30 (holding that the use

of the three phrases together could be interpreted by a reasonable juror to allow

a finding of guilt based on a degree of proof below that required by due process).



      In the case sub judice, it does not appear that the additional terms found

objectionable in Cage were included in the jury charge. Furthermore, considering

                                        -7-
the entire jury charge, we are satisfied that the reasonable doubt jury instruction

conveyed the proper level of evidentiary certainty to comport with the due

process guarantees of the United States and Tennessee Constitutions.

Tennessee courts have repeatedly upheld reasonable doubt jury instructions

similar to the one given in the present case. See Nichols, 877 S.W .2d at 734;

Pettyjohn, 885 S.W .2d at 366; State v. Hallock, 875 S.W .2d 285, 294 (Tenn.

Crim. App. 1993); Terry Shannon Kimery v. State, C.C.A. No. 03C01-9512-CC-

00412, Greene County (Tenn. Crim. App., Knoxville, Jan. 28, 1997), perm . to

appeal denied (Tenn. 1997). Thus, the full jury charge given in the Petitioner’s

case did not violate his due process rights under either the United States or

Tennessee Constitutions even though it contained the “moral certainty” phrase.



      W e do note that, as the Petitioner points out, a jury instruction similar to the

one given in the present case was found to be unconstitutional in Rickm an v.

Dutton, 864 F.Supp. 686, 709-10 (M.D. Tenn. 1994). The Petitioner’s reliance

on this case, however, is not well-founded. This Court is not bound by the federal

district court’s decision with regard to the constitutionality of the reasonable doubt

jury instruction.   Instead, we are required to follow only the applicable

constitutional rulings of the United States Suprem e Court. See State v. McKay,

680 S.W .2d 447, 450 (Tenn. 1984), cert. denied, 470 U.S. 1034, 105 S.Ct. 1412,

84 L.Ed.2d 795 (1985); State v. Bowers, 673 S.W .2d 887, 889 (Tenn. Crim. App.

1984).



      For the reasons set forth in the discussion above, we conclude that the trial

court did not err in summarily dismissing the petition for post-conviction relief.

W e therefore affirm the judgment of the trial court.

                                         -8-
                         ____________________________________
                         DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE



___________________________________
JOE G. RILEY, JUDGE




                              -9-
