             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLE             FILED
                          OCTOBER 1997 SESSION
                                                       February 18, 1998

                                                      Cecil W. Crowson
MAURICE DONALDSON                 )                  Appellate Court Clerk
                                  )    NO. 01C01-9611-CR-00463
             Appellant,           )
                                  )    DAVIDSON COUNTY
v.                                )
                                  )    Hon. Thomas H. Shriver
STATE OF TENNESSEE                )
                                  )    (Post-Conviction)
             Appellee             )
                                  )



For the Appellant                      For the Appellee

Henry R. Allison, III                  John Knox Walkup
500 Church Street                      Attorney General & Reporter
Fifth Floor
Nashville, TN. 37219                   Daryl J. Brand
                                       Assistant Attorney General
                                       2nd Floor Cordell Hull Building
                                       425 Fifth Avenue North
                                       Nashville, TN. 37243-0493

                                       Victor S. Johnson, III
                                       District Attorney General

                                       Thomas B. Thurman
                                       Deputy District Attorney General
                                       Washington Square, Ste 500
                                       222 Second Avenue North
                                       Nashville, TN. 37201-1649




OPINION FILED:___________________

AFFIRMED PURSUANT TO RULE 20

WILLIAM M. BARKER, JUDGE
                                                 OPINION

        The appellant, Maurice Donaldson, appeals the Davidson County Criminal

Court’s denial of his motion to reopen his post-conviction petition. He treats this

appeal as one of right and he asks this Court to remand his case to the trial court for

an evidentiary hearing. We find that the trial court did not abuse its discretion in

denying appellant’s motion to reopen and we dismiss the appeal pursuant to Rule 20

of the Tennessee Court of Criminal Appeals.

        The appellant is currently serving three concurrent life sentences as a habitual

criminal following convictions in 1988 of armed robbery and two counts of assault with

intent to commit first degree murder. His convictions and sentences were affirmed by

this Court on direct appeal. See State v. James Larry Polk and Maurice Donaldson,

No. 88-262-111 (Tenn. Crim. App. at Nashville, Nov. 22, 1989), per. app. denied

(Tenn. 1990).

        In 1990, the appellant filed a petition for post-conviction relief alleging

ineffective assistance of counsel. The trial court dismissed his petition and we upheld

that decision on appeal. See Maurice Donaldson v. State, No. 01C01-9304-CR-00129

(Tenn. Crim. App. at Nashville, Mar. 10, 1995), per. app. denied (Tenn. 1995). The

appellant filed a motion to reopen his post-conviction petition on January 8, 1996,

challenging the reasonable doubt jury instruction and the ineffective assistance of his

trial counsel.1 The trial court denied the motion upon finding that the appellant’s claim

was without merit and barred by the statute of limitations.

        The appellant contends that the trial court erred by dismissing the motion and

failing to grant an evidentiary hearing.

        This issue is without merit.



        1
         The S tate petitione d the trial cou rt to treat app ellant’s m otion as a secon d petition for p ost-
conviction relief. We note that any post-conviction petition filed by the appellant on January 6, 1996,
would ha ve been time-ba rred by the th ree year s tatute of lim itations. See Tenn. Code Ann. § 40-30-102
(Repl. 1995). The limitations period began March 5, 1990, when the supreme court denied permission
to appeal from this Court’s decision in Donaldson, No. 88-262-111 (Ten n. Crim. App. at Nashville, Nov.
22, 1989 ).

                                                       2
        Initially, we will address the State’s contention that the appellant did not follow

the proper procedure for appealing the trial court’s order. The appellant filed his

motion to reopen the post-conviction petition under the Post Conviction Procedure Act

of 1995.2 Tennessee Code Annotated section 40-30-217 (Supp. 1995) governs that

motion and sets forth the appellate procedure as follows:

        (c) If the motion is denied, the petitioner shall have ten (10) days to file
        an application in the court of criminal appeals seeking permission to
        appeal. The application shall be accompanied by copies of all the
        documents filed by both parties in the trial court and the order denying
        the motion. The state shall have ten (10) days to respond. The court of
        criminal appeals shall not grant the application unless it appears that the
        trial court abused its discretion in denying the motion. If it determines
        that the trial court abused its discretion, the court of criminal appeals
        shall remand the matter to the trial court for further proceedings.

        Under that provision, the appellant was required to file an application in this

Court seeking permission to appeal. 3 The appellant instead filed a notice of appeal

and has treated this proceeding as an appeal of right. Although we find that appellant

failed to comply with the procedure set forth in section 40-30-217(c), we will

nevertheless review the case to determine whether the trial court abused its discretion

in denying appellant’s motion.

        Under Tennessee Code Annotated section 40-30-217(a), a petitioner may file a

motion to reopen his first post-conviction petition only if the following applies:

        (1) The claim in the motion 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. Such motion must be filed within one (1) hear of the ruling of
        the highest state appellate court or the United States supreme court
        establishing a constitutional right that was no recognized as existing at
        the time of trial; or

        (2) The claim in the motion is based upon new scientific evidence
        establishing that such petitioner is actually innocent of the offense or


        2
          See Tenn. Pub. Act 207, § 3 (1995) (providing that the Act shall govern “any motions which
may be filed after this date to reopen petitions for post-conviction relief which were concluded prior to the
effective d ate of this a ct).

        3
         This Court has previously held that the application for permission to appeal under section 40-
30-217 (c) close ly parallels the pr ocess under R ule 10 of th e Ten nesse e Rules of Appe llate Proce dure.
See Georg e McG hee v. Sta te, No. 02-C-01-9607-CR-00213 (Tenn. Crim. App. at Jackson, Sept. 30,
1996), per. app. denied (Tenn . 1997).

                                                       3
       offenses for which the petitioner was convicted; or

       (3) The claim asserted in the motion seeks relief from a sentence that
       was enhanced because of a previous conviction and such conviction in
       the case in which the claim is asserted was not a guilty plea with an
       agreed sentence, and the previous conviction has subsequently been
       held to be invalid, in which case the motion must be filed within one (1)
       year of the finality of the ruling holding the previous conviction to be
       invalid; and

       (4) It appears that the facts underlying the claim, if true, would establish
       by clear and convincing evidence that the petitioner is entitled to have
       the conviction set aside or the sentence reduced.

       We find that the appellant’s motion to reopen his post-conviction petition did not

state a cognizable claim under Tennessee Code Annotated section 40-30-217(a).

The substance of his motion is to challenge the “reasonable doubt” jury instruction and

the alleged ineffective assistance of his trial counsel.

       This Court has previously determined that a challenge to the reasonable doubt

jury instruction is not a basis for reopening a prior post-conviction petition. See

Thomas Hebron v. State, No. 01C01-9512-CC-00416 (Tenn. Crim. App. at Nashville,

Oct. 17, 1996), per. app. denied (Tenn. 1997). Moreover, the appellant’s contention

that his trial counsel was ineffective is simply not recognized under section 40-30-217.

       We conclude that the trial court did not abuse its discretion in denying the

appellant’s motion to reopen his post-conviction petition. The appellant’s appeal is

denied and dismissed pursuant to Rule 20 of the Tennessee Court of Criminal

Appeals.


                                           ____________________________
                                           WILLIAM M. BARKER, JUDGE


CONCUR:


___________________________
JOE B. JONES, Presiding Judge


___________________________
JOE G. RILEY, JUDGE


                                             4
