         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT NASHVILLE        FILED
                      OCTOBER 1997 SESSION
                                              November 6, 1997

                                              Cecil W. Crowson
                                             Appellate Court Clerk
DONALD WAYNE EASLEY,           )
                               )    NO. 01C01-9609-CC-00407
      Appellant,               )
                               )    WILLIAMSON COUNTY
VS.                            )
                               )    HON. DONALD P. HARRIS,
STATE OF TENNESSEE,            )    JUDGE
                               )
      Appellee.                )    (Post-Conviction)



FOR THE APPELLANT:                  FOR THE APPELLEE:

DONALD WAYNE EASLEY                 JOHN KNOX WALKUP
PRO SE                              Attorney General and Reporter
#98515
Turney Center 4B                    DARYL J. BRAND
Route 1                             Assistant Attorney General
Only, TN 37140-9709                 450 James Robertson Parkway
                                    Nashville, TN 37243-0493

                                    JOSEPH D. BAUGH, JR.
                                    District Attorney General
                                    P. O. Box 937
                                    Franklin, TN 37065-0937




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                       OPINION



       Appellant, Donald Wayne Easley, appeals the denial of a motion to reopen his

prior petition for post-conviction relief. The motion alleged the “reasonable doubt”

jury instruction given at his 1986 trial was unconstitutional. He also alleged that the

state in 1990 agreed to recommend a sentence reduction to the court in exchange

for his cooperation. The trial court denied relief without a hearing, finding the motion

did not state a colorable claim for relief. We affirm the judgment of the trial court.



                              PROCEDURAL HISTORY



       Appellant was convicted of robbery with a deadly weapon in 1986 and

sentenced to life imprisonment. This Court upheld that conviction, State v. Donald

Wayne Easley, C.C.A. No. 87-75-111, Williamson County (Tenn. Crim. App. filed

May 11, 1988, at Nashville), and the Tennessee Supreme Court denied permission

to appeal in August 1988. Appellant filed his original petition for post-conviction relief

in 1990, which was heard and denied in 1991. In May 1996, appellant filed the

motion to reopen his post-conviction proceeding pursuant to Tenn. Code. Ann. § 40-

30-217. That motion was denied without a hearing.


            MOTION TO REOPEN POST-CONVICTION PROCEEDING


       Tenn. Code Ann. § 40-30-217 specifies:

       (a) A petitioner may file a motion in the trial court to reopen the 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) year of the ruling of
       the highest state appellate court or the United States supreme court
       establishing a constitutional right that was not 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
       offenses for which the petitioner was convicted; or

       (3) The claim asserted in the motion seeks relief from a sentence that

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       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.

(emphases added).

       This statute has been the source of some confusion. A careful reading will

clarify its effects and limitations. The word “only” in the opening sentence shows the

very narrow nature of this statute. Only those events set out in one of the first three

(3) subsections qualifies as a potential basis for reopening a post-conviction

proceeding. However, to ripen into a colorable claim, the ground (or grounds)

alleged must also meet the standard set out in subsection (4); namely, that the facts,

if true, would establish entitlement to relief.



                   REASONABLE DOUBT JURY INSTRUCTION



       On appeal, appellant contends the trial court erred when it dismissed his

motion to reopen without first appointing counsel and conducting an evidentiary

hearing. His motion to reopen claimed a new constitutional right not recognized at

the time of the first post-conviction proceeding, specifically, that the “reasonable

doubt” jury instruction given at his trial had since been declared unconstitutional.

       Appellant relies upon the federal district court opinion in Rickman v. Dutton,

864 F. Supp. 686 (M. D. Tenn. 1994).              Tenn. Code Ann. § 40-30-217(a)(1)

specifically sets out the only two courts that may establish new constitutional rights

cognizable in a motion to reopen: the highest state appellate court or the United

States Supreme Court. A federal district court is not included.

       Furthermore, the challenged “reasonable doubt” instruction is the same

instruction that has consistently been held to be constitutional by the appellate courts

in this State. 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); Pettyjohn v. State, 885

                                            3
S.W.2d 364, 366 (Tenn. Crim. App. 1994); State v. Hallock, 875 S.W.2d 285, 294

(Tenn. Crim. App. 1993).

       This issue is without merit.



                         NONPERFORMANCE BY STATE



       Appellant also contends that he has grounds to have his sentence set aside

pursuant to Tenn. Code Ann. § 40-30-217(a)(4). This section does not enumerate

a ground for reopening a post-conviction proceeding. This section prescribes the

burden of proof applicable to the grounds which are specified in the preceding three

(3) subsections. Appellant contends that the state, in 1990, promised to recommend

a reduction of sentence to the trial court in exchange for his cooperation. He claims

he performed his part of the bargain, but the state did not. Even if the facts were

proved by clear and convincing evidence, this is not one of the grounds enumerated

in Tenn. Code. Ann. § 40-30-217(a)(1), (2), or (3).



                                      CONCLUSION



       Appellant did not allege a cognizable ground to reopen his first petition for

post-conviction relief; therefore, we affirm the judgment of the trial court.




                                                  JOE G. RILEY, JUDGE




CONCUR:



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JOE B. JONES, PRESIDING JUDGE




WILLIAM M. BARKER, JUDGE




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