             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE                  FILED
                          MARCH 1997 SESSION
                                                             October 24, 1997

                                                        Cecil W. Crowson
PERRY T. MILLER,            )                          Appellate Court Clerk
                            )
             Appellant,     )    No. 01C01-9606-CC-00239
                            )
                            )    Lincoln County
v.                          )
                            )    Honorable Charles Lee, Judge
                            )
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 279                  and
Clifton, TN 38425-0279           Eugene J. Honea
                                 Assistant Attorney General of Tennessee
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                 W. Michael McCown
                                 District Attorney General
                                 P.O. Box 904
                                 Fayetteville, TN 37334




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                        OPINION



              The petitioner, Perry T. Miller, appeals as of right from the Lincoln County

Circuit Court’s summary dismissal of his petition for post-conviction relief. The trial

court dismissed the petition, concluding that the petition was barred by the statute of

limitations and that the grounds alleged in the petition had been waived or previously

determined. We affirm the judgment of the trial court.



              The petitioner collaterally challenges his 1978 convictions for second

degree murder and criminal sexual assault, for which he received consecutive

sentences of ninety-nine years. This court affirmed his convictions, 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-conviction relief. Perry

Tyrone Miller v. State, No. 85-267-III, Lincoln County (Tenn. Crim. App. Apr. 7, 1987).

The petitioner filed the present petition on January 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 conviction became final before the enactment of

T.C.A. § 40-30-102 (repealed 1995), the petitioner had three years from July 1, 1986, to

file a post-conviction petition. Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995);

Abston v. State, 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988). The petitioner cites

Rickman v. Dutton, 864 F. Supp. 686 (M.D. Tenn. 1994), to argue that he could not

have challenged the reasonable doubt instruction given at his trial during this period

because the ground for relief was not established. However, Rickman did not create a

new constitutional rule that would justify the tolling of the petitioner’s statute of

limitations, and Rickman is not binding on this court.




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              The petitioner filed the present petition more than five years after the

decision in Cage v. Louisiana. Thus, even if it created a new rule of constitutional law,

the petitioner has failed to raise the issue in a timely manner. See O’Donnell v. State,

905 S.W.2d 951, 953 (Tenn. Crim. App. 1993) (petition untimely when filed more than

three years after ground for relief arose).



              The 1995 Post-Conviction Act did not reinstate a filing period for post-

conviction cases relative to convictions for which the former three-year post-conviction

statute of limitations had already run. Arnold Carter v. State, No. 03-S-01-9612-CR-

00117, Monroe County (Tenn. Sept. 8, 1997) (for publication). The petitioner had a

reasonable opportunity to bring his post-conviction claim before the enactment of the

1995 Post-Conviction Act, but he failed to do so. The trial court properly dismissed the

present petition as being untimely filed.



              Moreover, the courts of this state have repeatedly upheld the use of the

phrase moral certainty in the context of the reasonable doubt instruction given 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 consideration of the foregoing and the

record as a whole, the judgment of the trial court is affirmed.




                                                        Joseph M. Tipton, Judge

CONCUR:




Joe G. Riley, Judge




Thomas T. Woodall, Judge


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