              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT NASHVILLE                 FILED
                                 MARCH 1998 SESSION
                                                                      March 31, 1998

                                                                  Cecil W. Crowson
                                                                 Appellate Court Clerk
VERNON W. NEWSOME,                             )
                                               )       NO. 01C01-9706-CR-00214
         Appellant,                            )
                                               )       DAVIDSON COUNTY
VS.                                            )
                                               )       HON. SETH NORMAN,
STATE OF TENNESSEE,                            )       JUDGE
                                               )
         Appellee.                             )       AFFIRMED - RULE 20


                                         ORDER


         Petitioner, Vernon W. Newsome, appeals the dismissal by the Davidson

County Criminal Court of his second petition for post-conviction relief. We affirm the

dismissal pursuant to Rule 20 of the Tennessee Court of Criminal Appeals.



                                               I



         Petitioner was convicted in September 1985 of robbery with a deadly weapon

and three (3) counts of aggravated rape. The convictions were affirmed by this

Court.       See State v. Newsome, 744 S.W.2d 911 (Tenn. Crim. App. 1987).

Permission to appeal was denied by the Tennessee Supreme Court in December

1987.

         Petitioner filed his first petition for post-conviction relief in March 1991. The

petition was dismissed in October 1991.1 No appeal was taken from the dismissal.

         The present petition was filed on May 4, 1996. The sole allegation in the

petition is that the “reasonable doubt” jury instruction given in the original trial is

unconstitutional. The trial court dismissed the petition without a hearing finding (1)

it was barred by the statute of limitations; (2) the jury instruction issue was waived




         1
         Although the first petition and order of dismissal are not a part of the record, it
would appear the petition was filed beyond the three-year statute of limitations then in
effect. See Tenn. Code Ann. § 40-30-102 (repealed 1995 Pub. Acts, Chapter 207).
since it was not raised in the prior petition; and (3) the reasonable doubt jury

instruction containing the words “moral certainty” was not unconstitutional.



                                          II



       This matter is governed by the Post-Conviction Procedure Act of 1995 since

it was filed after May 10, 1995. See Tenn. Code Ann. § 40-30-201 Compiler’s

Notes. Nevertheless, the statute of limitations expired in December 1990, three

years after the Tennessee Supreme Court denied permission to appeal the original

convictions. The statute was not revived by the Post-Conviction Procedure Act of

1995. See Carter v. State, 952 S.W.2d 417, 420 (Tenn. 1997).

       The Post-Conviction Procedure Act contemplates the filing of only one

petition for post-conviction relief. Tenn. Code Ann. § 40-30-202 (c). Ordinarily, a

second or subsequent petition is to be summarily dismissed. Id. A petitioner may

file a motion to reopen a prior post-conviction proceeding under limited

circumstances as set out in Tenn. Code Ann. § 40-30-217 (a). None of these

circumstances applies to the present petition. Furthermore, a petitioner only has ten

(10) days to file an application in this Court “seeking permission to appeal” the

denial of the motion. Tenn. Code Ann. § 40-30-217 (c). This procedure was not

followed in this case.

       We also agree with the trial court’s determination that the “moral certainty”

jury instruction is constitutional. See Carter v. State, ___ S.W.2d ___ (Tenn. 1997)

(filed October 20, 1997, at Knoxville). Likewise, the trial court was correct in ruling

that this issue was waived by the failure to present it in the first petition for post-

conviction relief. See Tenn. Code Ann. § 40-30-206 (g); House v. State, 911

S.W.2d 705, 714 (Tenn. 1995).



       It is, therefore, ORDERED that the judgment of the trial court is affirmed in

accordance with Rule 20, Rules of the Tennessee Court of Criminal Appeals. Costs

shall be assessed against the state since petitioner is indigent.


                                          2
                                   _________________________________
                                   JOE G. RILEY, JUDGE




CONCUR:


________________________________
JOSEPH M. TIPTON, JUDGE



________________________________
DAVID H. WELLES, JUDGE




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