          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE

                              MAY 1997 SESSION
                                                      FILED
                                                       October 2, 1997

                                                     Cecil Crowson, Jr.
CURTIS L. WATKINS,                   )                Appellate C ourt Clerk
                                     )
             Appellant,              )     C.C.A. No. 03C01-9608-CR-00292
                                     )
vs.                                  )     Hamilton County
                                     )
DAVID NEWBERRY, WARDEN,              )     Honorable Stephen M. Bevil, Judge
AND STATE OF TENNESSEE,              )
                                     )
             Appellees.              )     (Post-Conviction & Habeas Corpus)
                                     )



FOR THE APPELLANT:                         FOR THE APPELLEE:

ARDENA GARTH                               JOHN KNOX WALKUP
District Public Defender                   Attorney General & Reporter

DONNA MILLER                               CLINTON J. MORGAN
Assistant District Public Defender         Assistant Attorney General
701 Cherry St., Ste. 300                   Criminal Justice Division
Chattanooga, TN 37402                      450 James Robertson Parkway
                                           Nashville, TN 37243-0493

                                           WILLIAM H. COX, III
                                           District Attorney General

                                           THOMAS EVANS
                                           Assistant District Attorney General
                                           600 Market St., Ste. 300
                                           City-County Courts Bldg.
                                           Chattanooga, TN 37402


OPINION FILED: ____________________


AFFIRMED

CURWOOD WITT
JUDGE
                                      OPINION



              The petitioner, Curtis L. Watkins, appeals the Hamilton County

Criminal Court's summary dismissal of his "Petition for the Writ of Habeas Corpus

or in the Alternative Petition for Post-Conviction Relief." The petitioner is currently

serving a term of life imprisonment in the Tennessee Department of Correction for

a conviction of first degree murder. In this appeal, he presents four issues for our

review:

       1.     Whether the jury instruction given regarding the definition of
              malice violated his constitutional rights by shifting the burden
              of proof to the defendant.

       2.     Whether a jury instruction equating moral certainty with
              reasonable doubt violated his constitutional rights.

       3.     Whether counsel was ineffective at trial and on appeal.

       4.     Whether Tennessee Code Annotated section 40-30-201
              provides him a one year window of opportunity to file a post-
              conviction claim.

Following a review of the record, we affirm the judgment of the lower court.



              Watkins was convicted of first degree murder in 1978. This court

affirmed his conviction on May 21, 1979. State v. Curtis Lamont Watkins, No. 637

(Tenn. Crim. App., Knoxville, May 21, 1979). No application for permission to

appeal was filed with the supreme court. Watkins thereafter filed a petition for post-

conviction relief alleging ineffective assistance of trial counsel. This court affirmed

the lower court's denial of relief in an opinion filed December 21, 1982. Curtis

Lamont Watkins v. State, No. 798 (Tenn. Crim. App., Knoxville, Dec. 21, 1982). No

application for permission to appeal was filed with the supreme court. He filed the

instant action on June 30, 1993.



              Our analysis of Watkins' petition begins by noting he is not entitled to

habeas corpus relief on the current petition. The petition was filed in Hamilton

County, the county where Watkins was convicted. At the time W atkins filed this

petition, he was incarcerated in Morgan County. The petition was filed in the proper

county for post-conviction relief but not habeas corpus relief. Compare Tenn. Code
Ann. § 40-30-204(a) (Supp. 1996) (post-conviction petition shall be filed in court

where conviction occurred) with Tenn. Code Ann. § 29-21-105 (1980) (petition for

writ of habeas corpus shall be filed in court "most convenient in point of distance"

to the petitioner unless a sufficient reason is given in the petition). Thus, our

consideration of the petition is limited to any relief which may be afforded under the

Post-Conviction Procedure Act.



                                           I

              Watkins' first issue is that his conviction is unconstitutional because

the jury instruction on malice improperly shifted the burden of proof to him in

violation of Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450 (1979). He claims,

contrary to the holding of the lower court, this action was timely filed in 1993

because Sandstrom was not adopted by the Tennessee Supreme Court until State

v. Bolin, 678 S.W.2d 40 (Tenn. 1984) was decided, and Sandstrom was not given

retroactive effect until this court's decision in Daniel Carl Brewer v. State, No. 1179

(Tenn. Crim. App., Knoxville, Feb. 22, 1991), perm. app. denied (Tenn. 1991)

(recommending against publication of Court of Criminal Appeals opinion).



              The state counters that this issue is controlled by the supreme court's

holding in Sands v. State, 903 S.W.2d 297 (Tenn. 1995), in which the court denied

post-conviction relief to a petitioner who alleged in an amended petition filed in

19911 that his 1977 convictions were the unconstitutional results of Sandstrom

error. The Sands court was unpersuaded by the petitioner's argument he was

entitled to an exception from the post-conviction statute of limitations under the

authority of Burford v. State, 845 S.W.2d 204 (Tenn. 1992)2 because Sandstrom


       1
       The original petition was filed in 1990. Robert Lee Sands v. State, No.
03C01-9207-CR-00241, slip op. at 3 (Tenn. Crim. App., Knoxville, Jan. 13,
1994), aff'd, 903 S.W.2d 297 (Tenn. 1995).
       2
         Burford held that due process prevents certain "later arising"
constitutional claims from being barred by the post-conviction statute of
limitations where the grounds for relief arise after the commencement of the
limitations period. See generally Burford, 845 S.W.2d 204. Prior to July 1, 1986,
Tennessee's Post-Conviction Procedure Act contained no statute of limitations.

                                          3
was not given retroactive effect until after Sands' statute of limitations for post-

conviction relief had already expired.3 Sands, 903 S.W.2d at 299-302. In rejecting

that argument, the supreme court noted that as early as 1982, the Sixth Circuit

granted habeas corpus relief based upon retroactive application of Sandstrom in

Phillips v. Rose, 690 F.2d 79 (6th Cir. 1982), a case filed by a Tennessee prisoner.

Sands, 903 S.W.2d at 302.



              Watkins' post-conviction statute of limitations commenced on July 1,

1986, and it did not expire until July 3, 1989. Tenn. Code Ann. § 40-30-102 (1990);

Abston v. State, 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988); see Stephen L.

Carey v. State, No. 03C01-9309-CR-00330, slip op. at 3-6 (Tenn. Crim. App.,

Knoxville, Nov. 8, 1994), perm. app. denied (Tenn. 1995). He is not entitled to post-

conviction relief after the expiration of his limitations period unless application of the

statute of limitations would deprive him of a reasonable opportunity to have the

issue heard and decided, in violation of due process, Burford, 845 S.W.2d 204, or

a new constitutional right requiring retroactive application is recognized after the

limitations period has expired. Tenn. Code Ann. § 40-30-105 (1990). According

to our supreme court's holding in Sands, Sandstrom was given retroactive effect

prior to the commencement of Watkins' limitations period in 1986.4 See Sands, 903

S.W.2d at 302 (citing Phillips, 690 F.2d 79). Thus, Watkins does not qualify for

delayed filing. The lower court correctly found this claim was barred by the statute

       3
        The Sands petitioner claimed the supreme court's opinion in Swanson v.
State, 749 S.W.2d 731 (Tenn. 1988), first gave Sandstrom retroactive effect.
The Sands court rejected that interpretation of Swanson. Sands, 903 S.W.2d at
301-02.
       4
        In Thomas E. Croscup, Jr. v. State, N. 02C01-9502-CC-00042 (Tenn.
Crim. App., Jackson, Dec. 13, 1995), perm. app. denied (Tenn. 1996), an
opinion released after Sands, a panel of this court held Sandstom was not made
retroactive until the U.S. Supreme Court’s decision in Yates v. Aiken, 484 U.S.
211, 108 S. CT. 534 (1988); however, Croscup fails to acknowledge the Sands
holding that earlier cases applied Sandstrom retroactively (Croscup cites Sands
as a second authority for the holding of Burford but does not discuss it further).
Also, Croscup does not reference an earlier reported case from this court,
Adkins v. State, 911 S.W.2D 334 (Tenn. Crim. App. 1994). Adkins says that
Yates does not address the retroactivity of Sandstrom. We merely acknowledge
the incongruent holdings of Sands and Croscup. On the facts of this case, the
result would be the same under either approach because W atkins did not file his
claim until 1993, which would be too late under the Croscup analysis.

                                            4
of limitations.



                                            II

                  Watkins next claims his conviction is constitutionally infirm because

the jury was improperly instructed that moral certainty was the equivalent of

reasonable doubt, requiring reversal of his conviction and a new trial under Cage

v. Louisiana, 498 U.S. 39, 111 S. Ct. 328 (1990). The trial court denied relief,

finding this court and the supreme court had upheld the constitutionality of similar

instructions.



                  The state urges us to find Watkins' claim barred by the statute of

limitations. Although the state cites no authority for this proposition, this court has

previously dismissed a like claim, finding Burford did not save the claim from the

statutory bar. See Rickey G. Smith v. State, No. 02C01-9511-CR-00342, slip op.

at 5-6 (Tenn. Crim. App., Jackson, Apr. 28, 1997) (also holding the issue waived by

failure to raise it in a prior proceeding); see Pettyjohn v. State, 885 S.W.2d 364

(Tenn. Crim. App. 1994).



                  In any event, Watkins' argument is doomed to fail because our

supreme court has upheld instructions using similar moral certainty phraseology.

See State v. Nichols, 877 S.W.2d 722 (Tenn. 1994).5 Additionally, the federal cases

which Watkins cites in his brief, Austin v. Bell, 938 F. Supp. 1308 (M.D. Tenn. 1996)

and Rickman v. Dutton, 864 F. Supp 686 (M.D. Tenn. 1994), which held Tennessee



       5
        Our holding is further supported by the Supreme Court's decision in
Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239 (1994). There the high court
said moral certainty instructions may pass constitutional scrutiny if used with
further modifying instructions that lend meaning to the phrase. The instruction of
which Watkins complains combined the moral certainty language with "let the
mind rest easily" language. An instruction substantially similar to the one given
Watkins' jury was upheld by our supreme court earlier this year. See State v.
Michael Dean Bush, No. 03-S01-9604-CC-00047 (Tenn., Knoxville, Apr. 7,
1997), pet. for cert. filed, (U.S., Apr. 28, 1997); see also State v. Sexton, 917
S.W.2d 263 (Tenn. Crim. App. 1995). But see Austin, 938 F. Supp. at 1318-19;
Rickman, 864 F. Supp. at 709.


                                            5
moral certainty instructions were unconstitutional, are of no precedential value in

this case. This court considers itself bound by the previous ruling of the Tennessee

Supreme Court in Nichols despite the contrary holdings of the federal district court.

See, e.g., Sexton, 917 S.W.2d at 266. As an inferior appellate court we are bound

to follow the precedent of our state's highest court. See Barger v. Brock, 535

S.W.2d 337, 341 (Tenn. 1976). This issue is both barred and substantively without

merit.



                                       III & IV

              Finally, Watkins claims he was denied the effective assistance of

counsel at trial and on direct appeal. This issue has been previously determined.

See Curtis Lamont Watkins v. State, No. 798 (Tenn. Crim. App., Knoxville, Dec. 21,

1982) (ineffective assistance of counsel claim). Moreover, it is barred by the statute

of limitations.   Tenn. Code Ann. § 40-30-102 (1990).          Contrary to W atkins'

assertion, section 40-30-201 does not provide him with a one year window of

opportunity to file a post-conviction claim. His petition was filed under the previous

Post-Conviction Procedure Act, Tennessee Code Annotated sections 40-30-101 to

-124. Section 40-30-201 did not take effect until approximately two years after

Watkins filed his petition. See Tenn. Code Ann. § 40-30-201, Compiler's Notes

(Supp. 1996) (governing all petitions filed after May 10, 1995). As such, it does not

apply to this action. In any event, a majority of this court does not interpret section

40-30-201 to revive previously expired claims. See, e.g., Benjamin Wolfenbarger,

No. 03C01-9603-CC-00124, slip op. at 3-4 (Tenn. Crim. App., Knoxville, April 1,

1997), appl. for perm. app. filed (Tenn. June 3, 1997); Johnny Tillman v. State, No.

03C01-9512-CR-00413 (Tenn. Crim. App., Knoxville, Feb. 12, 1997), appl. for perm.

app. filed (Tenn. Feb. 18, 1997); Doyle Carter v. State, No. 01C01-9511-CC-00398

(Tenn. Crim. App., Nashville, Feb. 12, 1997). But see Arnold Carter v. State, No.

03C01-9509-CC-00270 (Tenn. Crim. App., Knoxville, July 11, 1996), perm. app.

granted (Tenn., Dec. 12, 1996).




                                          6
          For these reasons, the judgment of the trial court is affirmed.



                                      _______________________________
                                      CURWOOD WITT, JUDGE




CONCUR:



_______________________________
JOSEPH B. JONES, PRESIDING JUDGE



_______________________________
JOSEPH M. TIPTON, JUDGE




                                     7
