             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                            APRIL 1997 SESSION
                                                    FILED
                                                    November 5, 1997

                                                    Cecil Crowson, Jr.
MICHAEL JOE BOYD,              )                    Appellate C ourt Clerk
now known as MIKAEEL           )
ABDULLAH ABDUS-SAMAD           )    No. 02C01-9512-CR-00392
                               )
             Appellant,        )    Shelby County
v.                             )
                               )    Honorable Chris Craft, Judge
                               )
STATE OF TENNESSEE,            )    (Capital Post-Conviction)
                               )
             Appellee.         )


For the Appellant:                  For the Appellee:

Paul Bottei                         Charles W. Burson
John Oliva                          Attorney General of Tennessee
704 18th Avenue, South                     and
Nashville, TN 37203                 John P. Cauley
  (AT TRIAL)                        Assistant Attorney General of Tennessee
                                    450 James Robertson Parkway
Paul J. Morrow, Jr.                 Nashville, TN 37243-0493
1320 Andrew Jackson Bldg.
500 Deaderick Street                John W. Pierotti, Jr.
Nashville, TN 37243                 District Attorney General
   (ON APPEAL)                              and
                                    James C. Beasley, Jr.
                                    Assistant District Attorney General
                                    201 Poplar Avenue
                                    Memphis, TN 38103




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                              OPINION



              The petitioner, Michael Joe Boyd, now known as Mikaeel Abdullah Abdus-

Samad, appeals as of right from the Shelby County Criminal Court’s dismissing his

second petition for post-conviction relief without conducting an evidentiary hearing. The

petitioner raises the following issues on appeal1:

              (1) the state withheld exculpatory evidence under Brady v.
              Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), and presented
              misleading testimony;

              (2) African-American jurors were challenged in violation of
              Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986);

              (3) the lineup was unduly and unconstitutionally suggestive;

              (4) the jury instructions on reasonable doubt were
              unconstitutional;

              (5) the jury was not instructed on the essential element of
              “malice” and thus did not render a constitutional verdict for first
              degree murder;

              (6) the jury instruction on the presumption of malice
              unconstitutionally shifted the burden of proof to the petitioner;

              (7) the trial court unconstitutionally failed to inform jurors that
              the petitioner was ineligible for parole for a minimum of thirty
              years, which could be increased to a minimum of sixty years or
              ninety years by the trial court because of the life sentences
              imposed for armed robbery;

              (8) the prosecutor’s closing argument diminished the jury’s
              responsibility in violation of Caldwell v. Mississippi, 472 U.S.
              320, 105 S. Ct. 2633 (1985);

              (9) the prosecutor introduced and argued a non-statutory
              aggravating circumstance that the petitioner was on parole at
              the time of the offense;

              (10) the death sentence unconstitutionally infringed upon the
              petitioner’s fundamental right to life;

              (11) the jury was subjected to extraneous influences which the
              petitioner was unable to investigate and present;

              (12) counsel at the first post-conviction proceeding was
              ineffective by willfully refusing to investigate and present


              1
                  The issues are not listed in the same order as by the petitioner in his statement of
issues .

                                                     2
              relevant claims and by failing to investigate and present claims
              when it was the petitioner’s first opportunity to raise them;

              (13) the petitioner should be resentenced because of the
              invalidation of the felony murder aggravating circumstance
              pursuant to State v. Middlebrooks, 840 S.W.2d 317 (Tenn.
              1992); and

              (14) this post-conviction proceeding was fundamentally
              skewed so that the petitioner was unable to investigate his
              claims and was unable to make a proper record for review.

We disagree with the petitioner’s contentions and affirm the judgment of the trial court.



              In 1986, the petitioner was convicted of the first degree murder of William

Price and received the death penalty. The conviction and sentence were affirmed on

direct appeal. State v. Boyd, 797 S.W.2d 589 (Tenn. 1990), cert. denied, 498 U.S.

1074, 111 S. Ct. 800 (1991). On April 1, 1991, the petitioner filed his first petition for

post-conviction relief, and the petition was amended on January 21, 1994. The trial

court denied the petition, which was affirmed on appeal to this court, but the case is

currently pending before the supreme court on a limited appeal. Michael J. Boyd v.

State, No. 02C01-9406-CR-00131, Shelby County (Tenn. Crim. App. Feb. 21, 1996),

limited app. granted (Tenn. Nov. 25, 1996) (appeal granted solely on Middlebrooks

issue).



              While the petitioner’s first petition was on appeal, he filed a second

petition for post-conviction relief on April 20, 1995. The trial court dismissed the second

petition without conducting an evidentiary hearing. In dismissing the petition, the trial

court held that each of the petitioner’s claims with the exception of the Middlebrooks

and ineffective assistance of post-conviction counsel issues were barred by the statute

of limitations. It concluded that it lacked jurisdiction to decide the Middlebrooks issue

because the issue was pending before this court on the appeal of the denial of the first

petition for post-conviction relief. With respect to the petitioner’s claim of ineffective

assistance of post-conviction counsel, the trial court determined that the issue was not



                                              3
a proper ground for post-conviction relief. The trial court further decided that many of

the petitioner’s claims were also either waived, previously determined or lacked merit.



                                   I. STATUTE OF LIMITATIONS

                We will first address the statute of limitations because it determines the

outcome of most of the case. Pursuant to T.C.A. § 40-30-102 (1990) (repealed 1995)2,

a petitioner must petition for post-conviction relief within three years of the date of the

final action of the highest state appellate court to which an appeal is taken. In Burford

v. State, 845 S.W.2d 204 (Tenn. 1992), our supreme court held that although the three-

year statute of limitations period in T.C.A. § 40-30-102 provides petitioners with a

reasonable opportunity to present post-conviction claims and thus usually does not

violate due process, application of the statute may violate due process if it bars a claim

that is based on grounds for relief that did not exist when the limitations period began to

run. Id. at 208. Later, in Sands v. State, 903 S.W.2d 297 (Tenn. 1995), the court

articulated the following three-step analysis to determine whether Burford tolls the

limitations period:

                (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.

Id. at 301.

                      A. BRADY, BATSON AND SUGGESTIVE LINEUP

                The petitioner argues that his Brady, Batson and suggestive lineup claims

should not be procedurally barred because the evidence to support the claims only

became available through the requests made by the Capital Case Resource Center in


                2
                  For petitions filed after May 10, 1995, a one-year statute of limitations applies pursuant
to T.C.A. § 40-30-202. 1995 Tenn. Pub. Acts, ch. 207, § 3.

                                                      4
January 1995 pursuant to the Tennessee Public Records Act under Capital Case

Resource Center v. Woodall, No. 01A01-9104-CH-00150, Davidson County (Tenn.

App. Jan. 29, 1992). Regarding his failure to present the claims within three years of

Capital Case Resource Center, the petitioner asserts that he did not personally,

knowingly and understandingly fail to present the claims in earlier proceedings,

including post-conviction proceedings. Rather, he contends that he relied upon counsel

who provided ineffective assistance, and he claims that the ineffectiveness is

attributable to the state. The petitioner also argues that attorney error constituting

ineffective assistance of counsel can be cause for avoiding a procedural bar of his

Brady claim because the ineffectiveness is an error “imputed to the state.” We agree

with the trial court’s conclusion that the claims are barred by the statute of limitations.



              Applying the test set forth in Sands, the statute of limitations would

normally have begun to run on September 24, 1990, when the direct appeal was

decided by the Tennessee Supreme Court. See State v. Boyd, 797 S.W.2d 589 (Tenn.

1990), cert. denied, 498 U.S. 1074, 111 S. Ct. 800 (1991). Though we cannot conclude

that the petitioner should have known that he had a Brady, Batson, or suggestive lineup

claim until the decision of Capital Case Resource Center on January 29, 1992, see

State v. Caldwell, 917 S.W.2d 662, 666 n.4 (Tenn. 1996), cert. denied, 117 S. Ct. 148

(1996), the petitioner failed to raise the issues 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 petitioner did not raise the issues in

his amended petition to his first petition for post-conviction relief filed on January 21,

1994. Rather, he raised the issues in his second petition for post-conviction relief filed

on April 20, 1995, more than three years from the time that he argues his claims were

available to him. We hold that the petitioner had a reasonable opportunity to present

the Brady, Batson and suggestive lineup claims but failed to do so in a timely manner.




                                              5
              As for the petitioner’s assertions that he did not personally, knowingly and

voluntarily fail to present the Brady claim, the petitioner is bound by the action or

inaction of his attorney. See House v. State, 911 S.W.2d 705, 714 (Tenn. 1995).

Waiver for post-conviction purposes is determined by an objective standard. Id.

Moreover, the petitioner is not constitutionally or statutorily entitled to the effective

assistance of post-conviction counsel. Id. at 712. Therefore, the petitioner is bound by

his post-conviction counsel’s failure to raise the claims either in the first post-conviction

proceeding or within three years of Capital Case Resource Center. The petitioner’s

Brady, Batson and suggestive lineup claims are barred by the statute of limitations.



                        B. REASONABLE DOUBT INSTRUCTION

              The petitioner contends that his claim that the reasonable doubt jury

instruction was unconstitutional should not be barred by the statute of limitations. He

cites Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239 (1994), to argue that the claim

relates to a fundamental error which should be applied retroactively. However, he fails

to recognize that the jury instructions given in Victor were held to be constitutional by

the Supreme Court. Id. at 1251. Moreover, the argument relating to the use of the term

“moral certainty” within a reasonable doubt jury instruction was analyzed under the

Supreme Court’s earlier ruling in Cage v. Louisiana, 498 U.S. 39, 111 S. Ct. 328 (1990).

Therefore, the petitioner’s reliance on Victor for the creation of a new constitutional rule

is misplaced. The petitioner also cites Cage and Rickman v. Dutton, 864 F. Supp. 686

(M.D. Tenn. 1994), for his claim that the reasonable doubt jury instruction was

unconstitutional. We hold that the trial court properly applied T.C.A. § 40-30-102

(1990) to bar the claim for post-conviction relief.

              The petitioner filed the present petition approximately 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, 905

S.W.2d at 953 (petition untimely when filed more than three years after ground for relief



                                               6
arose). Also, we believe that Rickman did not create a new constitutional rule that

would justify allowing the petitioner’s claim at the present time. Therefore, the claim is

barred by the statute of limitations. 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, 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).



                C. FAILURE TO INSTRUCT ON ELEMENT OF MALICE

              The petitioner asserts that the jury did not render a constitutional jury

verdict for first degree murder because the trial court failed to instruct the jury that

“malice” was an essential element of felony murder and instead instructed the jury that

it was not required to find malice if the other elements of felony murder were

established beyond a reasonable doubt. The petitioner does not cite a case

establishing a new rule of constitutional law for purposes of tolling the statute of

limitations. Instead, he argues that this court should recognize the claim because it

constitutes a new rule of law which must be applied retroactively as it represents a

fundamental error. However, Tennessee courts have determined that the state need

not prove a separate element of malice for a felony murder conviction, it being

necessarily implied as a matter of law from the killing during the perpetration of one of

the listed felonies. See Middlebrooks, 840 S.W.2d at 336. State v. Norris, 684 S.W.2d

650, 652 (Tenn. Crim. App. 1984). Therefore, a new rule of constitutional law was not

created, and the claim is barred by the statute of limitations.



                  D. INSTRUCTION ON PRESUMPTION OF MALICE




                                              7
                  The petitioner contends that the trial court’s instructions to the jury that a

rebuttable presumption3 of malice arose if the state established beyond a reasonable

doubt that a killing occurred unconstitutionally shifted the burden of proof to the

petitioner. The petitioner does not cite a case establishing a new rule of constitutional

law for purposes of allowing his claims. Instead, he asserts that the recognition of this

claim would establish a new rule of law which should be applied retroactively.



                  We note that the petitioner’s contentions relate to errors recognized in

Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450 (1979), and in State v. Bolin, 678

S.W.2d 40 (Tenn. 1984). Therefore, the petitioner should have been aware of the claim

at the time of his trial, on appeal, and during his first post-conviction proceeding; yet he

failed to raise the claim. Under these circumstances, the claim is barred by the statute

of limitations.



                                               E. OTHER CLAIMS

                  The petitioner also alleges that he is entitled to post-conviction relief

because (1) the trial court failed to instruct the jury regarding the petitioner’s ineligibility

for parole, (2) the prosecutor’s closing argument diminished the jury’s responsibility

under Caldwell, (3) the prosecution argued and introduced a nonstatutory aggravating

circumstance that the petitioner was on parole at the time of the offense, (4) the death

sentence unconstitutionally infringed upon the petitioner’s fundamental right to life, and

(5) the jury was subjected to extraneous influences. However, he does not state why

the statute of limitations should not bar the claims. The petitioner’s grounds for relief

existed at the time the statute of limitations began to run. Therefore, Burford’s tolling




                  3
                     The petitioner incorrectly refers to the instruction as given by the trial court as creating a
“pre sum ption .” Th oug h the jury ins truct ions are n ot co ntain ed in th e rec ord, th e pet itione r sum ma rizes in
his brief the relevant portion of the jury instruction: “‘If the state has proven beyond a reasonable doubt
that a killing occ urre d, the n you m ay infer that the killing was done maliciously, but this inference may be
rebutted by either direct or circumstantial evidence, or by both, regardless of whether the same be offered
the defendant, or exists in the evidence of the state.’” (Emphasis add ed).

                                                            8
provisions do not apply. The trial court correctly determined that the claims are barred

by the statute of limitations.



         II. INEFFECTIVE ASSISTANCE OF POST-CONVICTION COUNSEL

              The petitioner contends that counsel for his first post-conviction

proceeding provided ineffective assistance of counsel by refusing to investigate and

present relevant claims and by failing to investigate and present claims when it was the

petitioner’s first opportunity to raise them. However, this court is bound by our supreme

court’s decision in House v. State, 911 S.W.2d 705 (Tenn. 1995), that there is neither a

constitutional nor a statutory right to the effective assistance of post-conviction counsel.

We agree with the trial court’s decision that the claim of ineffective assistance of post-

conviction counsel is not a proper ground for post-conviction relief.



                                  III. MIDDLEBROOKS

              The petitioner asserts that he is entitled to resentencing due to the

invalidation of the felony murder aggravating circumstance pursuant to State v.

Middlebrooks, 840 S.W.2d 317 (Tenn. 1992). However, he does not present any

argument in support of his claim because the exact issue is pending before our

supreme court on appeal from the denial of his first petition for post-conviction relief.

See Michael J. Boyd v. State, No. 02C01-9406-CR-00131, Shelby County (Tenn. Crim.

App. Feb. 21, 1996), limited app. granted (Tenn. Nov. 25, 1996) (appeal granted solely

on Middlebrooks issue). Rather, the petitioner “respectfully reserves the right to submit

a supplemental brief on this issue at a later time for this Court’s consideration in the

unlikely event that any questions concerning the application of . . . Middlebrooks . . . to

this case remain after the Tennessee Supreme Court renders its opinion.” However, no

such right exists. Pursuant to Tenn. Ct. Crim. App. R. 10(b), the failure to support

issues with argument constitutes a waiver of the issue. Moreover, this court has




                                             9
previously decided the Middlebrooks issue, and, thus, the issue is previously

determined under T.C.A. § 40-30-112 (1990). See House, 911 S.W.2d at 711.



                 IV. POST-CONVICTION PROCEEDING PROCEDURES

               The petitioner raises several claims with regard to the procedure used by

the trial court in conducting the post-conviction proceedings. He complains that the

post-conviction proceeding was fundamentally skewed so that he was unable to

investigate his claims and unable to make a proper record for review. The petitioner

contends that the trial court erred in the following ways: (1) by failing to grant the

petitioner’s motion to proceed ex parte to make a showing of need for funds under

Owens v. State, 908 S.W.2d 923 (Tenn. 1995), and by failing to grant funds; (2) by

failing to grant the petitioner’s motion for a transcript of the severed codefendant’s trial;

(3) by failing to grant the petitioner’s motion to produce all physical and forensic

evidence; (4) by failing to grant the petitioner’s motion for the disclosure of exculpatory

evidence; and (5) by failing to require the state to produce the entire record for the

petitioner’s counsel to review, (6) by ruling on the petition without reviewing the entire

record, and (7) by failing to ensure the petitioner’s presence at the hearing. We

disagree with each of the petitioner’s contentions. The trial court properly dismissed the

petition summarily without ruling on the motions. The petitioner’s grounds for post-

conviction relief were either barred by the statute of limitations, previously determined,

or did not state a proper claim for post-conviction relief. These preliminary conclusions

foreclosed any need for further trial court action in this case.



               In consideration of the foregoing and the record as a whole, we affirm the

trial court’s dismissal of the petition.



                                                  _____________________________
                                                  Joseph M. Tipton, Judge




                                             10
CONCUR:



___________________________
David G. Hayes, Judge



___________________________
William M. Barker, Judge


.




                              11
