             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE                  FILED
                           MAY 1996 SESSION
                                                              May 14, 1998

                                                          Cecil W. Crowson
JONAS ROME COLE,              )                          Appellate Court Clerk
                              )
             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. Yacuzzo
                                   Assistant Attorney General of Tennessee
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   Victor S. Johnson, III
                                   District Attorney General
                                           and
                                   D. Paul DeWitt
                                   Assistant District Attorney General
                                   Washington Square, Suite 500
                                   222 Second Avenue, North
                                   Nashville, TN 37201-1649



OPINION FILED:____________________


AFFIRMED


Joseph M. Tipton
Judge
                                          OPINION



              The petitioner, Jonas Rome Cole, appeals as of right from the Davidson

County Circuit Court’s dismissal of his petition for post-conviction relief after an

evidentiary hearing. The trial court dismissed the petition, holding that it was barred by

the applicable statute of limitations and that the issues raised in the petition were

without merit. The petitioner contends that the petition is not barred by the statute of

limitations. He argues that he is entitled to post-conviction relief because he received

the ineffective assistance of counsel at trial and on appeal, his equal protection rights

were violated by the state’s discriminatory exercise of its peremptory challenges, and

the reasonable doubt jury instruction that was given at his trial allowed the jury to

convict him based on a lower standard of proof than is constitutionally required. We

affirm the judgment of the trial court.



              In 1988, the petitioner was convicted of first degree murder and employing

a firearm during the commission of a felony. He received consecutive sentences of life

imprisonment and five years, respectively. This court affirmed his convictions. 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-conviction petition

alleging numerous grounds for relief. Pursuant to an agreed order, the petitioner was

granted a delayed appeal on a suppression issue, while the remaining grounds of the

petition were dismissed as having been waived or previously determined.

Subsequently, this court held that the petitioner was not entitled to relief on the

suppression issue. Jonis Rome “Mack” Cole 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-conviction relief was filed on January 5,

1995. The petition alleges that the petitioner received the ineffective assistance of



                                              2
counsel at trial and on appeal, that the state violated his equal protection rights by

exercising its peremptory challenges in 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 constitutionally required. The trial court

addressed the substance of the petitioner’s claims and held that the 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 that the petitioner may have waived his grounds for relief.



                              I. STATUTE OF LIMITATIONS

              Initially, the petitioner contends that the trial court erred by concluding that

the petition was barred by the applicable statute of limitations, T.C.A. § 40-30-102

(repealed 1995), because the petition was filed within three years of the time that the

supreme court denied review of his delayed appeal. The state asserts that the post-

conviction statute of limitations began to run on March 5, 1990, when the supreme 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 right as

contemplated under Rule 3, T.R.A.P., the granting of a delayed appeal does not toll the

statute of limitations.



              Although we agree with the state that a delayed appeal is a post-

conviction remedy, we also note that a delayed appeal granted through post-conviction

relief is the equivalent of that which should have occurred in a direct appeal from the

convicting case. The Post-Conviction Procedure Act only authorizes delayed appeals

in instances in which a “petitioner was denied his right to an appeal from his original

conviction in violation of the Constitution of the United States or the Constitution of

Tennessee . . . .” T.C.A. § 40-30-120 (repealed 1995); see also T.C.A. § 40-30-213.




                                              3
In this vein, a delayed appeal takes the place of a direct appeal, and the same rights

attach to a delayed appeal as those that attach to a direct appeal.



              Under T.C.A. § 40-30-102 (repealed 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 which an appeal is taken.” Because we view a delayed 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 recognize that the scope of a post-conviction hearing only extends to grounds

for relief that have not been waived or previously determined. T.C.A. § 40-30-111

(repealed 1995); House v. State, 911 S.W.2d 705 (Tenn. 1995). Thus, in practice, the

petitioner is limited to post-conviction claims that arose out of the delayed appeal.



                            II. PEREMPTORY CHALLENGES

              The petitioner contends that he is entitled to post-conviction relief

because his equal protections rights were violated during voir dire when the state

exercised three peremptory challenges to exclude black potential jurors from the jury.

See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). The petitioner argues

that this issue has not been previously determined because he has not had a full and

fair hearing on it. We disagree.



              “A ground for relief is ‘previously determined’ if a court of competent

jurisdiction has ruled on the merits after a full and fair hearing.” T.C.A. § 40-30-112

(repealed 1995). In House v. State, 911 S.W.2d 705 (Tenn. 1995), our supreme court

determined that a full and fair hearing is provided when a petitioner is given an

opportunity to present his or her constitutional claims at a meaningful time and in a

meaningful manner, that is, without undue restriction of the scope of the hearing or

undue limitation on the introduction or presentation of evidence. Id. at 711.



                                              4
              At trial, the petitioner’s counsel objected to the state’s use of peremptory

challenges and moved for a mistrial. The trial court denied the motion as being

premature. During the petitioner’s direct appeal, this 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 discriminatory purpose, requiring the State to prove a neutral

explanation for its peremptory challenges.” State v. Jonis Rome Cole, No. 88-311-III,

Davidson County, slip op. at 2 (Tenn. Crim. App. Nov. 7, 1989). The petitioner raised

the issue again in his first post-conviction petition but later agreed to the dismissal of

the petition because all of the grounds raised were waived or previously determined.

The issue has been previously determined. See T.C.A. § 40-30-112(a) (repealed

1995); House, 911 S.W.2d at 711.



                     III. INEFFECTIVE ASSISTANCE OF COUNSEL

              Next, the petitioner contends that he is entitled to post-conviction relief

because he received the ineffective assistance of counsel at trial, during his first direct

appeal, and during his first post-conviction action and delayed appeal. Specifically, the

petitioner contends that his attorney was ineffective for failing to properly preserve the

Batson issue.



              Initially, we note that the petitioner waived his ineffective assistance of trial

and direct appeal counsel claims by failing to include them in his first post-conviction

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 was ineffective for agreeing to

the dismissal of the prior post-conviction petition, he is arguing that he received the

ineffective assistance of post-conviction counsel. There is no constitutional right to the

effective assistance of post-conviction counsel. House, 911 S.W.2d at 712.




                                              5
                We also disagree with the petitioner’s contention that counsel was

ineffective for failing to raise the peremptory challenge issue during his delayed appeal.

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 (Tenn. Crim. App. 1988). On appeal, we are bound by the trial court’s findings

unless we conclude that the evidence preponderates against those findings. Black v.

State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In this respect, the petitioner has

the burden of illustrating how the evidence preponderates against the judgment

entered. Id.



                To prevail on his ineffective assistance of appellate counsel claim, the

petitioner had the burden of demonstrating (1) that counsel's performance was deficient

and (2) that the deficiency was prejudicial in terms of rendering a reasonable probability

that the result of the trial was unreliable or the proceedings fundamentally unfair. See

Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830 (1985); Campbell v. State, 904 S.W.2d

594, 596 (Tenn. 1995). Also, we note that the approach to the issue of the ineffective

assistance of counsel does not have to start with an analysis of an attorney's conduct.

If prejudice is not shown, we need not seek to determine the validity of the allegations

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 delayed appeal

counsel was deficient or that he was prejudiced by his counsel’s failure to raise 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 delayed appeal counsel was not deficient for failing to raise the




        1
           For post-conviction petitions filed after May 10, 1995, petitioners have the burden o f
proving factual allegations by clear and convincing evidence. T.C.A. § 40-30 -210(f).

                                                      6
issue, and the petitioner has suffered no prejudice from his counsel’s decision not to

raise the issue.



                        IV. REASONABLE DOUBT INSTRUCTION

              Finally, the petitioner contends that he is entitled to post-conviction relief

because the use of the term “moral certainty” in the reasonable doubt jury instruction

given at his trial allowed the jury to convict him based on a lower 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, 66 U.S.L.W.

3604 (U.S. Mar. 2, 1998), in support of his argument. The state counters that the

petitioner has waived 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

instruction given at the petitioner’s trial was a proper statement of the law.



              The petitioner has offered no explanation for his failure to raise the

reasonable doubt jury instruction issue in any of his prior proceedings. Although we

recognize that Victor and Rickman were decided after the petitioner’s trial, direct

appeal, and first post-conviction 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 constitutional sufficiency of a reasonable doubt jury instruction in Cage v.

Louisiana, 498 U.S. 39, 111 S. Ct. 328 (1990), before the petitioner filed his first petition

for post-conviction relief. Therefore, the petitioner had the opportunity to raise the issue

during his first post-conviction action and failed to do so. This constitutes a waiver.

See T.C.A. § 40-30-112 (repealed 1995); House, 911 S.W.2d at 714.




                                               7
              In any event, the courts of this state have repeatedly upheld the use of the

phrase “moral certainty” in the context of the reasonable doubt jury instruction 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 petition.



                                                              Joseph M. Tipton, Judge


CONCUR:




Gary R. Wade, Judge




William M. Barker, Judge




                                              8
