        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                             FILED
                              AT KNOXVILLE                   March 31, 2000

                                                           Cecil Crowson, Jr.
                         DECEMB ER SESSION, 1999          Appellate Court Clerk




FRED EDMOND DEAN,             )    E1998-00135-CCA-R3-PC
a/k/a O MAW ALI ASH ANTI      )
SHABAZZ                       )
                              )
      Appellant,              )
                              )    SULLIVAN COUNTY
VS.                           )
                              )
STATE OF TENNESSEE,           )    HON. R. JERRY BECK,
                              )    JUDGE
      Appellee.               )
                              )    (Post-Conviction)




FOR THE APPELLANT:                      FOR THE APPELLEE:

KENNETH D . HALE                        PAUL G. SUMMERS
P.O. Box 274                            Attorney General and Reporter
Bristol, TN 37621-0274
                                        MARK E. DAVIDSON
                                        Assistant Attorney General
                                        425 Fifth Avenu e North
                                        Nashville, TN 37243

                                        GREELEY W ELLS
                                        District Attorney General

                                        BARRY STAUBUS
                                        Assistant District Attorney General
                                        Blountville, TN 37617

OPINION FILED ________________

REVERSED IN PART; POST-CONVICTION RELIEF GRANTED IN PART

DAVID H. WELLES, JUDGE
                                 OPINION

      The Petitioner, Fred Edmond Dean, also known a s Om awali As hanti

Shabazz, appe als as of rig ht from the trial c ourt’s denial of post-conviction relief

after an evide ntiary hea ring. The Petitioner was originally indicted for first degree

murder and attem pted first degree m urder. He was tried b efore a jury on Janua ry

24-26, 1995 , and w as fou nd gu ilty of the le sser in cluded offenses of second

degree murde r and atte mpted secon d degre e murd er. The trial court sentenced

him to thirty ye ars inc arcera tion as a Ran ge II m ultiple offende r for the second

degree murder conviction and to fifteen years as a Range II multiple offender for

the attempted second degree murder conviction. The sentences were ordered

to be served consecutively. The Petitioner then appealed his convictions and

sentences to this Court, and we affirmed the judgment of the trial court. See

State v. Fred Edmond Dean, C.C.A. No. 03C01-9508-CC-00251, 1997 WL 7550

(Tenn. Crim. App., Knoxville, Jan. 10, 1997).           The supreme court denied

permis sion to ap peal.



      On July 10, 1997, the Petitioner filed a pro se petition for post-conviction

relief. The post-conviction court appointed counsel, who filed a supplemental

petition. An evidentiary hearing on the petition was held on October 30, 1998.

The post-conviction judge subsequently entered a written order in which he made

extensive and thorough findings of fact and denied post-conviction relief. On

appeal from that denial, the Petitioner raises the following issues:

      I. Whether the post-conviction court erred in failing to find that the
      trial court en gaged in judicial m iscondu ct.




                                          -2-
      II. Wh ether the post-co nviction court erred in failing to find that the
      erroneo us sen tencing in struction e ntitled the P etitioner to re lief.

      III. Wh ether the post-co nviction court erred in failing to find that the
      lost rent receipt constituted a Brady violation, entitling the Petitioner
      to relief.

      IV. Wh ether the post-con viction cou rt erred in failing to find that the
      erroneous discovery response concerning a statement made by
      Freda M ichelle Lu beke e ntitled the P etitioner to re lief.

      V. Wh ether the post-con viction cou rt erred in failing to find that the
      “mora l certainty” ch arge to th e jury entitled the Petition er to relief.

      VI. Whether the post-c onvictio n cou rt erred in failing to rule u pon a ll
      issues raised b y the Petitioner.

W e partially reverse the judgment of the post-conviction court and grant the

Petitioner post-conv iction relief with respect to his attempted second degree

murder conviction.



      Relief under our Post-Conviction Procedure Act will be granted only when

the conviction or sentence is void or voidable because of the abridgement of any

right guaranteed by either the Tennessee Constitution or the United States

Constitution. Tenn. Code Ann. § 40-30-203. At a post-conviction hearing, the

petitioner has the burden of proving the allegations of fact by clear and

convincing evidenc e. Id. § 40-30 -210(f). T he finding s of fact made b y the trial

court are conclusive on appeal unless the evidence preponderates otherwise.

Tidw ell v. State, 922 S.W .2d 497 , 500 (T enn. 19 96); Coop er v. State , 849 S.W.2d

744, 74 6 (Ten n. 1993 ).



      To be considered, a petition for post-conviction relief must show that the

claims for relief have not been waived or prev iously determ ined. See Tenn. Code

Ann. § 40-30 -206(f). A ground for relief is waived if the petitioner failed to present



                                          -3-
it for determination in any proceeding before a court of competent jurisdic tion in

which the grou nd cou ld have b een pre sented . Id. § 40-30-206 (g). There is a

rebutta ble presumption that a ground for relief not raised before a court of

competent jurisdiction in which the ground could have been presented is waived.

Id. § 40-30-210(f). The rebuttable presumption of waiver is not overcome by

allegations that the petitioner did no t personally waive the g round fo r relief.

Waiver is to be determined by an objective standard, under which the petitioner

is bound by the ac tion or inac tion of his atto rney. House v. State, 911 S.W .2d

705, 70 6 (Ten n. 1995 ).



      The Petitioner first argues that the post-conviction court erred in failing to

find that the trial court engaged in judicial misconduct. This is an issue which

could have be en raised at the trial cou rt level and o n direct ap peal.         The

Petitioner did not se t forth in his petition for post-conviction relief any reason why

this issue was not previously raised. Although the State’s response to the

petition asserted that the issue was waived for failure to present it at a prior

proceeding, the Petitioner never responded with an explanation of why it was not

previo usly raised. The post-conviction court considered the issue on the merits,

and after making thorough findings of fact, determined that the trial judge did not

engage in judicial misconduct and that, even if he did, such conduct was

harmless. We conclude that the evidence does not preponderate against these

findings, but we also find that the Petitioner failed to rebut the presumption that

the issue wa s waived . Conse quently, any a lleged jud icial misco nduct is n ot a

cogn izable ground for relief in this po st-convictio n proce eding. See id.; Tenn.

Code A nn. § 40-30-2 06(f), (g).




                                         -4-
       The Petitioner next claims that the post-conviction court erred in failing to

find that the erroneous sentencing instruction entitled him to relief. Both parties

agreed that the trial court erred in instructing the jury that the sentence range for

attempted second degree murder was three to ten years, when the actual

sentence range for the offense was eight to th irty years. See Tenn Code Ann.

§ 40-35-111(b)(2). Because the Petitioner was a Range II offender, his actual

sentence range w as twelve to twenty ye ars. See id. § 40-35-112(b)(2). Although

the sente ncing instruction was incorrect, the Petitioner failed to object to the

instruction at trial, failed to challenge the instruction in the motion for a new trial,

and failed to challenge the instruc tion on direct a ppea l. Beca use th is issue could

have been presented at a prior proceeding and be cause the Petition er failed to

rebut the presu mptio n of wa iver, we find tha t this issue is waived. Moreover, the

failure to give a correct jury instruction on the se ntence range is a violation of a

statutory right, not a c onstitution al right. State v. Cook, 816 S.W .2d 322, 326

(Tenn. 1991); State v. Meyer, 994 S .W .2d 12 9, 131 (Ten n. 199 9). As s uch, it is

not a proper g round fo r post-co nviction relief. See Tenn. Code Ann. § 40-30-203.



       Notwithstanding, the Petitioner also alleges that he was denied the

effective assistance of counsel due to his trial counsel’s failure to challenge the

erroneous jury instruction in the motion for a new trial and his ap pellate coun sel’s

failure to raise the issue on direct appeal. In Gideon v. Wainwright, 372 U.S. 335

(1963), the Suprem e Court held that the Sixth Amendment right to counsel was

“‘so fundamental and essential to a fair trial . . . that it is made obligatory upon the

States by the Fourtee nth Ame ndmen t.’” Id. at 340 (quoting Betts v. Brady, 316

U.S. 455, 465 (1942)). This right to trial counsel includ es the right to effective

trial couns el. Strickland v. Washington, 466 U.S. 668, 686 (1984). In Douglas

                                          -5-
v. Califo rnia, 372 U.S. 35 3 (1963), the Supre me C ourt held that the Fo urteenth

Amendment guarantees a defendant the right to counsel throug h the firs t appe al.

Id. at 357-5 8. Reco gnizing th at ineffective represe ntation is no better than no

counsel at all, the right to c ouns el was held to nece ssarily encompass the

constitutional right to effective assistan ce of cou nsel on a ppeal. Evitts v. Lucey,

469 U .S. 387, 3 96 (198 5).



      The sam e princ iples a pply in determining the effectiveness of both trial and

appellate couns el. Cam pbell v. State , 904 S.W.2d 594, 596 (Tenn. 1995). To

determine whether counsel provided effective assistance, the court must decide

whether coun sel’s perfor man ce wa s within the range of competence demanded

of attorneys in crimina l cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.

1975). To succeed on a claim th at coun sel was in effective, a petitioner bears the

burden of showing that counsel made errors so serious that he or she was not

functioning as counsel as guaranteed under the Sixth Amendment and that the

deficient representation prejudiced the petitioner, resulting in a failure to produce

a reliable res ult. Strickland, 466 U.S. at 687; Cooper v. State, 849 S.W.2d 744,

747 (Tenn. 1993); Butler v. Sta te, 789 S.W .2d 898 , 899 (T enn. 19 90). To satisfy

the second prong, the petitioner must show th at “there is a reason able pro bability

that, but for counsel’s unprofessional errors, the result o f the pro ceed ing wo uld

have been different.” Strickland, 466 U.S. at 694. This rea sonab le proba bility

must be “sufficient to undermine confidence in the outcome .” Harris v. S tate, 875

S.W .2d 662, 665 (Tenn. 199 4).



      When review ing co unse l’s action s, this Court should not use the benefit of

hindsight to second-guess trial strategy and criticize counsel’s tactics. Hellard v.

                                         -6-
State, 629 S.W .2d 4, 9 (Tenn . 1982). Counsel’s alleged errors should be judged

at the time they we re made in light of all facts and circums tances . Strickland, 466

U.S. at 6 90; see Cooper 849 S.W.2d at 746.



       The Petitioner here alleg es that trial counsel was ine ffective for failing to

challenge the erro neou s jury ins truction on the range of punishment for attempted

second degree murder in the motion for a new trial and that appellate counsel

was ineffective for failing to cha llenge the jury in structio n on d irect ap peal. The

post-conviction court recogn ized that the trial court gave an erroneo us jury

instruction, but determined that the issue could not be reached through an

ineffective assistance of counsel claim because of the supreme court’s decision

in Overton v. State, 874 S.W .2d 6 (T enn. 19 94).



       In Overton, the defendant was indicted for and convicted of multiple c ounts

of aggra vated rap e, rape, a ggravate d sexua l battery, and sexual ba ttery. Id. at

8. The trial court erro neous ly omitted th e elem ents of “forc e” and “re sistance ,”

from its jury instruction on the law of aggravated rape although these ele ments

were required by law at the time of the offense. Id. at 11. This could have been

prejudicial becau se the S tate did not sub mit any p roof of force at trial. Id. at 9.

The defendant filed a petition for post-conviction relief alleging, among other

things, that counsel w as ineffective for failing to object to the erron eous jury

instruction. Id. at 8. The supreme court acknowledged that the jury instruction

was erroneous and stated that “the erroneous instruction could have been

instrumental in securing the defendan t’s conviction.” Id. at 11. However, the

court then proclaimed,




                                          -7-
       Although this instruc tion m ay well h ave co nstitute d reve rsible error
       in this case , we agre e with the C ourt of Criminal Ap peals that it is
       not a cognizable ground for relief in a post-conviction petition. Relief
       may be gra nted o n a po st-con viction petition only when the
       sentence or conviction is void or voidable because it contravenes a
       state or federal constitutional right o f the defen dant. Mo reover, to
       allow every error com mitted by the trial court to be reca st in a pos t-
       conviction petition as an ineffective assistance of counsel allegation
       would be to subvert the limited purposes of the post-conviction
       procedure.

Id. at 11-12 .



       Our researc h has re vealed tw o distinct line s of cases addressing the

ineffective assistance of counsel issue since Overton. In some cases in which

a petitioner alleged ineffec tive assistance of co unsel beca use of failure to

challenge errone ous ju ry instru ctions , this Co urt has simp ly cited Overton for the

proposition that jury instructions cannot be considered in the posture of

ineffective assistan ce of cou nsel, and we have denied relief acco rdingly. See

Ricky Harris v. S tate, C.C.A. No. 03C01-9611-CR-00410, 1998 WL 191441

(Tenn. Crim. App., Knoxville, Ap r. 23, 199 8); State v. Edwin E. Jesperson, C.C.A.

No. 03C01-9602-CC-00058, 1997 WL 39501 (Tenn. Crim. App., Knoxville, Jan.

28, 1997); Phillip Rex Spight v. S tate, C.C.A. No. 02-C-01-9502-CR-00034, 1995

W L 686118 (Tenn. Crim. App., Jackso n, Nov. 15, 199 5). In other cases , we have

recognized that de fenda nts in cr imina l cases have a co nstitutiona l right to

effective assistance of counsel, and we have addressed the claim on the merits.

See David A . Scott, III v. State , C.C.A. No. 01C01-9709-CR-00400, 1999 WL

233643 (Tenn. Crim. A pp., Nas hville, Apr. 20 , 1999); Ricky J. Sum mers v. S tate,

C.C.A. No. 01C01-9708-CC-00323, 1999 WL 173977 (Tenn. Crim . App.,

Nashville, Mar. 30, 1 999); Gregory Morga n v. State, C.C.A. No. 03C01-9611-CR-

00404, 1999 WL 76108 (Tenn. Crim. App., Knoxville, Jan. 15, 1999). W e have



                                          -8-
also found one s uprem e cou rt case in whic h the petitioner alleged that his trial

counsel was ineffective, and he testified at the post-conviction hearing that one

of the reas ons co unsel w as ineffective was failure to reques t special jury

instructions. Although the supreme court did not specifically address this issue

on the merits, it did not say that it could not consider the ineffectiveness of

counsel with respect to jury instructions. Instead, it found that “there is nothing

in this record to establish that [the petitioner] was not effe ctively assisted by trial

counsel in the course of his conviction p roceedings .” Porterfield v. State, 897

S.W .2d 672 , 678 (T enn. 19 95).



       Although we ac know ledge som e con fusion in this ar ea of th e law, we

conclude that the post-conviction court erred in determ ining that Overton

precluded cons ideratio n of ine ffective a ssista nce o f coun sel in this instance. The

supreme court in Overton determined that the underlying claim, concerning the

trial court's erro neous jury instruction s, was no t a constitutional error and

therefore was no t a prope r ground for post-co nviction relief. See Overton, 874

S.W.2d at 11-12. We generally agree with this conclusion. However, the right

to effective assistance of counsel is itself a constitutional issue. See Strickland,

466 U.S. at 68 6; Goad v. State, 938 S.W .2d 363 , 369 (T enn. 19 96); Baxter, 523

S.W.2d at 936. The abridgement of that constitutional right is not dependant

upon the underlying act or omission of counsel involving the violation of another

constitutional right. For example, in Strickland the Supreme Court indicated that

in some circumstances the failure to investigate may resu lt in ineffective

assistance of couns el. Strickland, 466 U.S. at 69 1. In Goad, our suprem e court

found trial counsel to be ineffec tive for failing to investigate, explore, an d prepare

expert proof on post-traumatic stress disorder as a mitigating circumstance in a

                                          -9-
murder case. Goad, 938 S.W.2d at 371. We find nothing which indicates that

criminal defendants have a constitutional right to these service s apa rt from their

right to effec tive assista nce of co unsel.



       W e believe the supreme court’s statem ent in Overton, that “to allow every

error comm itted by the trial court to be recast in a post-conviction petition as an

ineffective assistance of counsel allegation would be to subvert the limited

purposes of the pos t-conviction proced ure,” ack nowled ges tha t ineffective

assistance of counsel can be a groun d for pos t-conviction relief, apart from the

underlying error at the trial or appellate court level. See Overton, 874 S.W.2d at

12.   From this statement, we conclude that the supreme court was merely

cautioning against the use of ineffective assistance of counsel as a mechanism

for bringing otherwise impro per issue s before the post-c onviction c ourts. W e

reject the conclusion that the supreme court was carving out a “failure to object

to jury instructions” exception to ineffective assistance of counsel claims. If

counsel performed in a manner below the standard of compe tence of attorneys

in this state, and that performance prejudiced the defendant, it should not matter

whether the insufficiency was due to failure to properly investigate a case or

failure to challenge erro neous jury instru ctions. Eith er action c ould sup port a

finding of ine ffective ass istance w hich wo uld warra nt post-co nviction relief.



       Having found that this is a proper issue for post-conviction consideration,

we now turn to the case at hand and a ddres s the m erits of th e Petitio ner’s claim

of ineffective assistance of counsel. In State v. Cook, 816 S.W.2d 322 (Tenn.

1991), our supreme court held that former Tennessee Code Annotated § 40-35-

201(b) gives a defendant a statutory right to have the jury know the range of

                                          -10-
punishment applicab le to the ch arges b efore de ciding gu ilt or innocen se. Id. at

326.1 In so holding, the court stated,

       It is widely perceived by those who observed the operations of our
       trial courts in previous times, when juries had the additional
       respon sibility of setting punishment, that often they seemed to find
       guilt of a crime not n ecessarily most strongly suggested by the
       evidence, but one the p unishme nt for which suited their sense of
       justice for the case. Apparently the Legislatu re desire d to give those
       charged with crime s the o ption o f mak ing ce rtain that the jury knew
       the punitive consequences of guilty verdicts in the cases under
       consideration, and this court respects the right of the Legislature to
       do so.

Id. at 326-2 7.



       The defendant in Cook was charged and subsequently convicted of

multip le counts of aggravated rape and aggravated sexual battery. The jury was

instructed that the “pos sible pun ishme nt” for aggra vated rap e was tw enty to forty

years and that the “possible punishment” for aggravated sexual battery was five

to twenty years. These were the Range I penalties. The Range II penalties were

forty years to life fo r aggravated rape and twenty to thirty-five years for

aggravated sexual ba ttery.          See Tenn. Code Ann. §§ 39-2-603, 39-2-606

(repealed 1989). Both parties appealed, and this Court affirmed the convictions

but remanded for a new sentencing he aring b ecau se the trial cou rt erred in

sentencing the defen dant as a Ran ge I offend er. See Cook, 816 S.W.2d at 323.

The defendant then appealed to the supreme court, which remanded the case for

a new trial becaus e the jury was not instructed as to the possible penalties under

Rang e II. Id. at 327. The supreme court held that


1
    Prior to 1998, this statute required the trial court to instruct the jury on the applicable
range of punishment for the crimes charged and lesser included offenses, upon the request
of either party. See Tenn. Code Ann. § 40-35-201(b) (1997). In 1998, this provision was
repealed. Now, the trial court is not permitted to instruct the jury on possible penalties for
the crimes charged and lesser included offenses. See Tenn. Code Ann. § 40-35-201(b)
(Supp. 1999).

                                              -11-
      whatever rights or benefits the Legislature had in mind for the
      defendant when it passed T.C.A. 40-35-201(d) would be lost if the
      defendant were to be sentenced to punishments greater than what
      the jury finding guilt was instructed would be imposed.
             The Legislature, in its wisdom , certainly has the right and
      power to direct the judicial process. They have said that where a
      defendant wants his trial ju ry to kno w the ra nge o f poss ible
      punishme nts resulting from co nvictions that he is en titled to have
      that information conveyed to the jury. To deny this defendant that
      statutory right constitutes prejudice to the judicial process, rendering
      the error reversible under Rule 36(b) T.R.A.P.
             W e , therefore, find the error to be prejudicial, reverse the
      convictions and rem and the charge s to the trial court for a new trial.

Id.



      Cook, decided in 1991, was a published supreme court decision when the

Petitioner was tried by jury in 1995. It is clear from Cook that when a jury

convic ts a defendant of an offense, after being erroneously informed that the

possible pen alties for that offense are lower th an the y really are, the conviction

for that offense m ust be reversed and the case remanded for a new trial. To

sentence a defendant to a punishment not known or contemplated by the

convicting jurors would deprive the defendant of the statutory right granted by the

Legislature.   See Cook, 816 S.W.2d at 326.          The Petitioner’s trial counsel

testified at the post-conviction hearing that he was u naware tha t the trial court

gave an erroneous instruction on the range of punishment and that he was not

familiar with the Cook case . As su ch, he did no t raise it as an issue in the motion

for a new tria l. Althou gh the Petition er’s appellate counsel did not testify at the

post-conviction hearing, it appears from our decision on the Petitioner’s direct

appeal that the issue was not raised on direct app eal. See Dean, 1997 WL 7550,

at *1. The State does not dispute that the issue was not raised on direct appe al.

Because Cook was decided four years p rior to the Petitioner’s trial, we believe

that it was below the range of competence of attorneys in this state for trial

                                        -12-
counsel to be una ware of Cook as the current state of the law and to fail to assert

the Petitioner’s rights un der Cook in the motion for a new trial. Likewise, it was

below the range of co mpeten ce of attorneys in this state fo r appellate couns el to

fail to assert the Petitioner’s rights u nder Cook on dire ct app eal.



      Having found that both trial and appellate counsel we re defic ient in th eir

representation, we now turn to whether that deficiency prejudiced the Petitioner.

W e believe that prejudice is obvious in this instance. Had counsel asserted the

Petition er’s rights under Cook, he would have been granted a new trial. He was

convicted of attempted s econd de gree mu rder after the jury was e rroneously

instructed that the range of punishment was three to ten years. The entire range

of punishment was actually eight to thirty years, and the range applicable to the

Petitioner was twe lve to twen ty years. It is possible, albeit unlikely, that had the

jury known the correct range of punishment, it would have convicted the

Petitioner of a lesser included offense.        Regardless, the holding in Cook

mandates a new trial based on the statutory right to a correct charge on the

range o f punishm ent.



      The holding in Cook was most recently emphasized in State v. Meyer, 994

S.W.2d 129 (Tenn. 1999), in which the jury was instructed that if the defendant

was convicted of rape of a child, his sentence would range from twenty-five to

forty years for e ach co unt. Id. at 130. While this was a correct statement, the

jury was then erroneously instructed that the defendant would have to serve 5.73

years before h is earliest rele ase eligib ility date, whe n in fact he would h ave to

serve the entire sentence undiminished by any senten ce redu ction cred its. Id.

The defendant was convicted of two counts of rape of a child, and he appealed.

                                         -13-
Id. This Court found the instruction to be error, but determined that the error was

harmless due to “subs tantial” evidence in s upport o f the conv iction. Id. The

supreme court granted review and remanded for a new trial based on the holding

in Cook. Id. at 131. The supreme court stated,

       In light of our holding in Cook, we agree with the Defendant and the
       State that the Defendant was prejud iced b y the tria l court’s
       erroneous instruction. It is conceivable that the D efend ant wo uld
       have been convicted of a lesser offense had the jury known that the
       Defen dant wo uld not be eligible for ea rly release.

Id. at 132.2



       Based on Cook and Meyer, we co nclud e that “th ere is a reaso nable

probab ility that but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,

694 (1984). Had the erroneou s jury instruction been challenged either at the trial

court level or o n app eal, the Petition er wou ld have likely be en gra nted a new tria l.

According ly, we ho ld that the Petitioner was deprived of the effective assistance

of counsel at trial and on appe al, and we grant the Petitioner post-conviction relief

with resp ect to his a ttempte d seco nd deg ree mu rder con viction.



       In his next two issues, the Petitioner contends that the post-conviction

court erred in failing to find that a lost rent receipt constituted a Brady violation

which entitled him to relief and that the post-conviction co urt erred in failing to find

that the erroneou s discovery response concerning a statem ent m ade b y a Sta te’s

witness, Freda Mich elle Lubeke, e ntitled him to relief. The P etitioner did not

present these issues at any previous proceeding in which they could have been



2
    Once Meyer reached the supreme court, the State conceded that the erroneous jury
instruction constituted reversible error. Meyer, 994 S.W.2d at 131.

                                           -14-
raised, and he did not set forth any reasons to explain why he failed to present

these issues. Accordingly, we find that he waived consideration of these issues.

See Tenn. C ode Ann . § 40-30-206 (f), (g).



       Similarly, in his next issue, the Petitioner contends that the post-conviction

court erred in failing to find that the “moral cert ainty” charge to the jury entitled

him to relief. Like the previous issues, this issue is waived for failure to rebut the

presumption of waiver. See id. The Pe titioner did allege in his pro se petition

that he did not waive the issue because he did not “personally” waive a challenge

to the reasonable doubt jury instruction which was given at trial. Howe ver, a

petitioner is bound by the actions of his attorney. The p resum ption o f waiver is

not overcome by an allegation tha t the petitioner did not pe rsonally, knowing ly,

and understandingly fail to raise a ground for relief. House, 911 S.W.2d at 714.

W e also note that similar reasonable doub t instructions, which have contained

the phrase “moral certainty,” have been consistently upheld in the cou rts. See

State v. Nich ols, 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, 365-66

(Tenn. C rim. App. 199 4).



       Finally, the Petition er asse rts that the post-conviction court erred in failing

to rule upon all the issues he raised. Spec ifically, he allege s that th e cou rt shou ld

have grante d him relief be caus e the tria l court e rrone ously e xcluded th e

testimony of his expert witness on the issue of premeditation and because the

trial court failed to properly respond to the jury on the issue of whether the

victim’s family would receive any of the fines assessed by the jury. These issues

were not rais ed in a ny prio r proce eding , and w e can find nothing in the reco rd

                                          -15-
whic h would indica te that th e Petitio ner reb utted th e pres ump tion of w aiver.

Accord ingly, the issu es are w aived. See Tenn. Code A nn. § 40-30-2 06(f), (g).



       In conclusion, we hold that the Petitioner was denied the effective

assistance of counsel du e to his trial counsel’s failure to challenge the range of

punishment jury instruction for attempted second degree murder in the motion for

a new trial, and he was denied the effective assistance of counsel due to his

appe llate co unse l’s failure to challenge the jury instruction on appeal. All other

issues raised by the Petitioner have been waived. We therefore reverse the

judgment of the post-conviction cou rt in part and grant the Petitioner p ost-

conviction relief with respect to his attempted second degree murder conviction.

That conviction is vacated , and the case is remande d for further proceedings

consiste nt with this op inion.




                                        ______________________________
                                        DAVID H. WELLES, JUDGE



CONCUR:



________________________________
JOSEPH M. TIPTON, JUDGE



________________________________
JERRY L. SMITH, JUDGE




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