             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE                 FILED
                            JUNE 1997 SESSION
                                                               July 30, 1997

                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
ERNEST LAWSON,                )
                              )
             Appellant,       )    No. 03C01-9608-CR-00295
                              )
                              )     McMinn County
v.                            )
                              )     Honorable Mayo L. Mashburn, Judge
                              )
STATE OF TENNESSEE,           )     (Post-Conviction)
                              )
             Appellee.        )


For the Appellant:                 For the Appellee:

Ernest Lawson, Pro Se              Charles W. Burson
No. 131676                         Attorney General of Tennessee
W.T.H.S.F., P.O. Box 1050                 and
Henning, TN 38041                  Janis L. Turner
                                   Assistant Attorney General of Tennessee
                                   450 James Robertson Parkway
                                   Nashville, TN 37243-0493

                                   Jerry N. Estes
                                   District Attorney General
                                   203 E. Madison Avenue
                                   P.O. Box 647
                                   Athens, TN 37371




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                                 OPINION



                 The petitioner, Ernest Lawson, has appealed the McMinn County Criminal

Court denial of his motion to reopen his post-conviction case relative to his 1990

conviction for facilitation to commit first degree murder. The trial court denied the

motion because it was untimely, the ground raised had been waived, and the ground

was not entitled to relief. The petitioner contends that his motion was timely, that he

was entitled to the appointment of counsel, and that his claim of an improper

reasonable doubt instruction has merit under Rickman v. Dutton, 864 F. Supp. 686

(M.D. Tenn. 1994). We affirm the trial court.



                 The defendant’s original conviction became final after his direct appeal.

See State v. Hicks, 835 S.W.2d 32 (Tenn. Crim. App. 1992), app. denied (June 8,

1992). He filed a petition for writ of habeas corpus on May 26, 1995, that was treated

as one for post-conviction relief. The trial court dismissed the petition in February 1996

without a hearing, or the appointment of counsel on the basis that each claim for relief

had been previously determined in the direct appeal.1



                 On April 2, 1996, the petitioner filed the instant motion to reopen in which

he alleged that the jury instruction relating to reasonable doubt was unconstitutional.

However, he does not explain why he did not bring this same claim in his former case.

This constitutes a waiver. See T.C.A. § 40-30-202(e) (Supp. 1996). In any event, his

substantive complaint is without merit. He complains that the reasonable doubt

instruction in his case included the term “moral certainty” in such a way as to violate

due process, a conclusion reached by the federal district court in Rickman. However,

the instruction used in the petitioner’s case is essentially the same one held to be




        1
            A com parison of the petition and the direct appe al opinion of this court reflects that all of
the claim s w ere, in fac t, de term ined in that appeal.

                                                         2
proper by our supreme court and this court. See State v. Nichols, 877 S.W.2d 722, 734

(Tenn. 1994); Pettyjohn v. State, 885 S.W.2d 364, 365-66 (Tenn. Crim. App. 1994).



              Thus, there is no merit to the petitioner’s claim. The judgment of the trial

court is affirmed.



                                                 ________________________________
                                                 Joseph M. Tipton, Judge

CONCUR:



____________________________
John H. Peay, Judge



____________________________
Curwood Witt, Judge




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