            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE            FILED
                          SEPTEMBER 1997 SESSION
                                                         January 8, 1998

                                                     Cecil W. Crowson
PHILLIP W. POMEROY,            *                    Appellate Court Clerk
                                   C.C.A. # 01C01-9610-CR-00424

             Appellant,        *   DAVIDSON COUNTY

VS.                            *   Hon. Walter C. Kurtz, Judge

STATE OF TENNESSEE,            *   (Post-Conviction)

             Appellee.         *




For Appellant:                     For Appellee:

Samuel F. Anderson, Attorney       Charles W. Burson
2016 Eighth Avenue South           Attorney General and Reporter
Nashville, TN 37204
                                   Elizabeth B. Marney
                                   Assistant Attorney General
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   Tom Thurman
                                   Assistant District Attorney General
                                   Washington Square, Suite 500
                                   222 Second Avenue North
                                   Nashville, TN 37201-1649


OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, JUDGE
                                                 OPINION

                 The petitioner, Phillip W. Pomeroy, appeals the trial court's dismissal

of his petition for post-conviction relief. The single issue presented for review is

whether the petition is barred by the statute of limitations.



                 We find no error and affirm the judgment of the trial court.



                 On October 31, 1985, the petitioner, after being found guilty of two

counts of armed robbery, was determined to be a habitual criminal. The trial court

imposed two consecutive life sentences. The convictions and sentences were

affirmed on direct appeal. State v. Phillip W. Pomeroy, No. 86-55-III (Tenn. Crim.

App., at Nashville, Feb. 12, 1987). On May 11, 1987, application for permission to

appeal was denied by the supreme court.



                 In 1988, the petitioner filed and then voluntarily withdrew his first

petition for post-conviction relief. A second petition, filed in 1991, was dismissed by

the trial court.1 On direct appeal, this court determined that guilty pleas entered in

1975 and 1977, which served as the basis for credit offenses necessary for the

habitual criminality determination, were validly entered. Phillip W ayne Pomeroy v.

State, No. 01C01-9112-CR-00352 (Tenn. Crim. App., at Clarksville, July 17, 1992).

The record indicates that a petition for writ of habeas corpus, filed in the United

States District Court, was dismissed on May 17, 1993.



                 This petition, the petitioner's third, was filed April 30, 1996. The trial



        1
          Tenn essee Code Annota ted § 40- 30-102 provided for a three -year statute of limitations . In
State v. Masucci, 754 S.W.2d 90 (Tenn. Crim. App. 1988), the effective date of the statute, July 1,
1986, w as interpr eted to ex tend the tim e for filing of p ost-con victions claim until July 3, 1989 .
Altho ugh there is no in dica tion in the re cord as to why th e 199 1 pet ition w as dis mis sed , it wou ld
appea r that the pe tition would ha ve been barred u nder the three-yea r statute of limitations.

                                                       2
court dismissed the petition because it was not timely filed.



              The petitioner insists that the trial court should have afforded him an

evidentiary hearing to determine whether the statute of limitations as applied in this

instance would have violated due process. See Burford v. State, 845 S.W.2d 204

(Tenn. 1992). The petitioner has complained that the reasonable doubt instruction

utilized at his trial unconstitutionally shifted the burden of proof from the state. Cage

v. Louisiana, 498 U.S. 39, 111 S.Ct. 328 (1990) (held unconstitutional an instruction

equating reasonable doubt with "grave uncertainty" or "actual substantial doubt").

He has argued that the jury instructions requiring a presumption of malice violated

his right to due process. Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450

(1979). The petitioner claims that the rulings in Cage and Sandstrom were not

recognizable as grounds for relief during the term of the limitations period and that

his petition should not be barred by the new one-year statute of limitations. Tenn.

Code Ann. § 40-30-202.



              Originally, the Post-Conviction Procedure Act of 1967 did not include a

statute of limitations. Effective July 1, 1986, the General Assembly adopted a three-

year statute of limitations. Tenn. Code Ann. § 40-30-102 (repealed 1995). In

consequence, any petitioner whose judgment had become final before July 1, 1986,

had only three years thereafter to file a petition for post-conviction relief. Abston v.

State, 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988).



              Here, the petitioner was subject to the three-year statute of limitations.

This legislation allowed the petitioner three years from "the date of the final action of

the highest state appellate court to which an appeal [was] taken." Tenn. Code Ann.

§ 40-30-102 (repealed 1995). The 1995 Act did not enlarge the time within which


                                            3
this petitioner could file as "the enabling provision ... is not intended to revive claims

that were barred by the previous [three-year] statute of limitations." Carter v. State,

952 S.W.2d 417, 419 (Tenn. 1997).



              In Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992), our supreme

court held that in certain situations application of the statute of limitations in a post-

conviction proceeding would violate due process. In determining whether there has

been a violation of due process, the essential question is whether the time period

allowed by law provides petitioner a fair and reasonable opportunity to file suit. Id.

In Burford, the petitioner could not file within the three-year limitation absent a

determination on his prior post-conviction petition. Our supreme court ruled that Mr.

Burford was "caught in a procedural trap and unable to initiate litigation ... despite

the approach of the three-year limitation." Id. There was no such trap here.



              In Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995), our supreme

court further defined how courts should apply the Burford test:

              (1) determine when the limitations period would normally
              have begun to run; (2) determine whether the grounds for
              relief actually arose after the limitations period would
              normally have commenced; and (3) if the grounds are
              "later arising," determine if, under the facts of the case, a
              strict application of the limitations period would effectively
              deny the petitioner a reasonable opportunity to present
              the claim. In making this final determination, courts
              should carefully weigh the petitioner's liberty interest in
              "collaterally attacking constitutional violations occurring
              during the conviction process," against the state's
              interest in preventing the litigation of "stale and
              fraudulent claims."

(citations omitted) (quoting Burford, 845 S.W.2d at 207, 208).



              By the use of these guidelines, we have determined that the statute of

limitations for the petitioner's convictions began to run on May 11, 1987, when the


                                             4
Tennessee Supreme Court declined to grant permission to appeal. In our view, the

Sandstrom issue would have been available during the limitation periods and,

therefore, does not qualify as "later arising." See Allen v. State, 854 S.W.2d 873,

876 (Tenn. 1993); State v. Bolin, 678 S.W.2d 40 (Tenn. 1984); Daniel Carl Brewer v.

State, No. 1179 (Tenn. Crim. App., at Knoxville, Feb. 22, 1991). In April 1985, the

instruction required by Sandstrom was incorporated into 20.01 of the Tennessee

Pattern Instructions--Criminal. See Brewer, slip op. at 4. On December 30, 1985,

our supreme court reversed a conviction based on the erroneous burden-shifting

charge precluded in Sandstrom as to the issue of malice. State v. Martin, 702

S.W.2d 560 (Tenn. 1985), overruled by State v. Brown, 836 S.W.2d 530 (Tenn.

1992). Moreover, the reasonable doubt instructions used in the 1980 trial of the

petitioner have been upheld as compliant with the principles of Cage v. Louisiana.

See State v. Nichols, 877 S.W.2d 722, 734 (Tenn. 1994); State v. Sexton, 917

S.W.2d 263, 266 (Tenn. Crim. App. 1995). The use of the phrase "moral certainty,"

standing alone, would not taint an otherwise sufficient instruction on reasonable

doubt. Nichols, 877 S.W.2d at 734. The jury instruction at the petitioner's trial

provided as follows:

              By reasonable doubt is not meant that which of possibility
              may arise, but is that doubt engendered by an
              investigation of the whole proof, and an inability, after
              such investigation, to let the mind rest easily as to the
              certainty of guilt. Absolute certainty 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 and as to every grade of crime charged or
              included in the indictment.

In our view, there was no due process violation.



              Because the Sandstrom grounds rose well before the limitations period

commenced, it would not be a viable ground for relief. Because the instructions

given in the petitioner's 1985 trial did not violate the principles announced in Cage, a

                                           5
summary denial of relief would have been appropriate even if the statute of

limitations had not barred the action.



              Accordingly, the judgment is affirmed.



                                         ________________________________
                                         Gary R. Wade, Judge

CONCUR:



_____________________________
Thomas T. W oodall, Judge



_____________________________
Curwood Witt, Judge




                                          6
