             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON              FILED
                           NOVEMBER 1996 SESSION
                                                           April 28, 1997

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

RICKEY G. SMITH,                   )   No. 02C01-9511-CR-00342
                                   )
      Appellant                    )
                                   )   SHELBY COUNTY
V.                                 )
                                   )   HON. JOHN P. COLTON, JR.,
STATE OF TENNESSEE,                )   JUDGE
                                   )
      Appellee.                    )   (Post-Conviction)
                                   )
                                   )


For the Appellant:                     For the Appellee:

David C. Stebbins                      John Knox Walkup
330 South High Street                  Attorney General and Reporter
Columbus, OH 43215
                                       Merrilyn Feirman
John G. Oliva                          Assistant Attorney General
222 Second Avenue North, 417           450 James Robertson Parkway
Nashville, TN 37201                    Nashville, TN 37243-0493


                                       John W. Pierrotti
                                       District Attorney General

                                       James M. Lammey, Jr.
                                       Jennifer S. Nichols
                                       Assistant District Attorneys
                                       201 Poplar - Third Floor
                                       Criminal Justice Complex
                                       Memphis, TN 38103



OPINION FILED: ___________________


AFFIRMED


William M. Barker, Judge
                                                       OPINION

         The appellant, Rickey G. Smith,1 appeals as of right the denial in the Shelby

County Criminal Court of his fourth petition for post-conviction relief. Finding no error

in the trial court’s order, we affirm the denial of relief.

         A protracted procedural history surrounds appellant’s petition for post-

conviction relief and this appeal. He was convicted by a jury of first degree felony

murder for the 1982 shooting death of Walter Allen occurring during the course of a

robbery. Appellant was sentenced to death. The only aggravating circumstance

found by the jury was that the murder was committed during the perpetration of a

robbery. Tenn. Code Ann. §39-2-203(i)(7) (1982). Appellant’s conviction and

sentence were affirmed on direct appeal. See State v. Smith, 695 S.W.2d 954 (Tenn.

1985).

         Appellant filed his first post-conviction petition on August 26, 1986 alleging

ineffective assistance of counsel, constitutional errors during voir dire, erroneous jury

instructions, and the unconstitutionality of the Tennessee Death Penalty Act. After an

evidentiary hearing, the trial court denied relief and this Court affirmed on direct

appeal. See Ricky Goldie Smith v. State, No. 69 (Tenn. Crim. App. at Jackson,

October 19, 1988). The supreme court denied appellant’s application for permission

to appeal on January 3, 1989.

         On February 8, 1989, appellant filed his second petition for post-conviction

relief. This petition again alleged the ineffective assistance of counsel at trial and on

appeal and set forth ten specific instances of conduct. The petition also alleged

prosecutorial misconduct at both the guilt and sentencing phases of the trial, as well

as error in the trial court’s exclusion for cause of certain jurors. Six months later,

appellant filed a third pro se post-conviction petition, raising seven issues which

         1
          For p urpo ses of cla rifica tion, w e not e tha t in var ious portio ns of the re cord , app ellant ’s nam e is
“Ric ky Sm ith,” w hile in o thers , app ellant is refe rred to as “Ric key G . Sm ith.” Pr eviou s opin ions from this
Court and the supreme court involving this appellant caption his name as Ricky Smith. However, the
petition and the briefs of the parties here spell the name including the “e.” As such, we will maintain the
spelling used in the current petition.

                                                            2
included thirty-six sub-issues. It was subsequently consolidated with the second

petition in the trial court. The trial court denied both petitions after hearing the

argument of counsel and this Court again affirmed on direct appeal. See State v.

Ricky Goldie Smith, No. 11 (Tenn. Crim. App. at Jackson, June 5, 1991). The

supreme court denied his application for permission to appeal on September

23, 1991.

       In 1993, the State petitioned the supreme court for an execution date in

appellant’s case. The supreme court denied the petition and granted appellant’s

opposing motion. It ordered that an attorney be appointed to assist appellant in filing

a post-conviction petition raising the impermissible application of the felony-murder

aggravating circumstance. See State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992).

After the appointment of counsel, a lengthy petition was filed in the trial court on

January 26, 1994. Thereafter, upon appellant’s motion for partial summary judgment,

the trial court vacated appellant’s death sentence and imposed a life sentence

premised upon the Middlebrooks error. Appellant then filed an amended petition,

reiterating all claims in the original petition which did not pertain to his death sentence.

The trial court summarily denied appellant’s petition without conducting an evidentiary

hearing. In its findings of fact and conclusions of law, the trial court found that all

grounds were barred by the statute of limitations, and also that some of appellant’s

grounds were waived or previously determined.

       On appeal, the appellant argues that:

       (1)   the definition of reasonable doubt provided to the jury
       impermissibly relieved the state of its burden of proof;

       (2)   the indictment failed to provide appellant notice of the elements of
       the underlying felony with which he was charged and the jury instructions
       served as a constructive amendment to the indictment;

       (3)  the jury instructions were inadequate and improper as to the
       mandatory presumptions on the element of malice in first degree murder;

       (4)    appellant was denied the effective assistance of counsel at trial;



                                             3
       (5)     appellant was denied the effective assistance of appellate counsel
       for failure to raise and preserve significant issues;

       (6)   appellant was denied the effective assistance of counsel in his
       previous post-conviction petitions;

       (7)    appellant was denied a fair and impartial jury because the State
       exercised peremptory challenges in a manner to exclude members of
       appellant’s race;

       (8)   appellant was denied a fair and impartial jury because jurors were
       excused for cause based upon their opposition to the death penalty;

       (9)     appellant’s rights against self-incrimination were violated by the
       court’s limitations on the presentation of evidence concerning the
       reliability of the confession offered in evidence against appellant;

       (10) appellant’s constitutional rights were violated by counsel’s failure
       to obtain the expert and investigative assistance necessary to prepare
       an adequate defense and by post-conviction counsel’s failure to obtain
       these services to provide effective representation on post-conviction
       relief;

       (11) appellant was denied his right to a fair trial due to the
       prosecution's failure to disclose favorable evidence;

       (12) appellant was denied a fair trial by the prosecution’s failure to
       reveal any promises or benefits bestowed upon witnesses; and

       (13) the State failed to comply with its statutory mandate to file the
       record in the trial court.

Finding no merit to any of appellant’s issues, we affirm the trial court’s denial of post-

conviction relief.

       Under Tennessee Code Annotated section 40-30-102, a three year statute of

limitations applied to appellant’s post-conviction claims. Due to prospective

application of this limitation period, it did not expire until July 1, 1989. See e.g. Smith

v. State, 757 S.W.2d 683, 685 (Tenn. Crim. App. 1988); State v. Masucci, 754 S.W.2d

90, 91 (Tenn. Crim. App. 1988); and Abston v. State, 749 S.W.2d 487, 488 (Tenn.

Crim. App. 1988). Appellant’s petition, filed almost five years after expiration of the

statute, is clearly time-barred.

       We recognize that in limited circumstances due process will prevent the strict

application of the statute of limitations in post-conviction cases. The statutory

limitations period on post-conviction suits violates due process only if it denies the

                                             4
petitioner “a reasonable opportunity to have the claimed issue heard and decided.”

Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992). Our supreme court has recently

clarified and explained the parameters of the Burford rule. See Caldwell v. State, 917

S.W.2d 662 (Tenn. 1996), cert. denied ___ U.S. ___, 117 S.Ct. 148, 136 L.Ed.2d 94

(1996) and Sands v. State, 903 S.W.2d 297 (Tenn. 1995). In determining whether a

petitioner should be excepted from the post-conviction statute of limitations, a three-

step analysis is necessary: (1) determine when the limitations period would normally

have begun to run; (2) determine whether the ground for relief actually arose after the

limitations period would normally have commenced; and (3) if the grounds are “later-

arising,” determine if, under the facts of the case, a strict application of the limitations

period would effectively deny the petitioner a reasonable opportunity to present the

claim. Sands, 903 S.W.2d at 301. Each circumstance must be satisfied in order to

obtain relief from the statute of limitations. With this in mind, we now turn to

appellant’s claims.

       Appellant first argues that the jury instructions given on reasonable doubt

violated due process by impermissibly relieving the State of its burden of proof. He

asserts that this claim is not barred by the statute of limitations because it is premised

on United States Supreme Court authority decided in 1994 cautioning against the

“moral certainty” language used in the reasonable doubt instruction at his trial. See

Victor v. Nebraska and Sandoval v. California, 511 U.S. 1, 114 S.Ct. 1239, 127

L.Ed.2d 583 (1994). He claims that this ground arose after the limitations period

expired. This identical issue has been previously addressed by this Court and

rejected. This Court has found that instructions almost identical to those in appellant’s

case were not violative of due process and further that this claim provides no ground

for relief from the post-conviction statute of limitations. Pettyjohn v. State, 885 S.W.2d

364, 365 (Tenn. Crim. App. 1994). See also Charles Walton Wright v. State, No.

01C01-9506-CR-00211 (Tenn. Crim. App. at Nashville, March 20, 1997); Michael

Eugene Sample and Larry McKay v. State, No. 02C01-9505-CR-00129 (Tenn. Crim.

                                              5
App. at Jackson, September 30, 1996), perm. to appeal denied (Tenn. 1997); James

David Carter v. State, No. 03C01-9605-CC-00179 (Tenn. Crim. App. at Knoxville, July

15, 1996), perm. to appeal granted (Tenn., Dec. 9, 1996) (finding that post-conviction

claims premised on Victor and Sandoval were insufficient to create exception to

statute of limitations where instructions did not violate due process). Appellant is

unable to demonstrate an exception to the statute of limitations. This claim is time-

barred.2

        Moreover, we note, as did the trial court, that this ground for relief is waived for

failure to present it in an earlier proceeding. Tenn. Code Ann. §40-30-112(b)

(repealed 1995). This ground was not raised on direct appeal, nor in any of the three

earlier post-conviction petitions filed on behalf of appellant. This gives rise to a

presumption of waiver. Id. The supreme court has directed us to evaluate waiver

using an objective standard under which a petitioner is bound by the action or inaction

of his attorney. House v. State, 911 S.W.2d 705, 714 (Tenn. 1995), cert. denied ___

U.S. ___, 116 S.Ct. 1685, 134 L.Ed.2d 787 (1996). Appellant’s mere assertions that

he did not personally, knowingly, and understandingly fail to raise a ground for relief is

insufficient to overcome the rebuttable presumption of waiver. Id. Moreover, a

petitioner’s allegations of ineffective assistance of post-conviction counsel will not

rebut the presumption of waiver. Id. Therefore, we must consider the issue waived

for failure of appellant’s counsel to raise this issue in a prior proceeding.

        Appellant next contends that the indictment charging him was defective in that it

did not include the elements of the underlying felony of robbery and that the jury

        2
           Appellant also relies on Rickman v. Dutton, 864 F.Supp. 686 (M.D. Tenn. 1994) as support for
the unconstitionality of these instructions. Although the federal court in Rickman found the instructions
violated du e proce ss, our s uprem e court c ontinues to uphold substa ntially similar instru ctions. See State
v. Nic hols , 877 S.W .2d 722, 7 34 (Te nn. 1994 ), cert. denied ___ U.S. ___, 115 S.Ct. 909, 130 L.Ed.2d
791 (19 95). As a n inferior ap pellate cou rt, we m ust abide by the dec isions of o ur supre me c ourt. Barger
v. Brock, 535 S.W .2d 337, 3 41 (Te nn. 1976 ). See also State v. Da vis, 654 S.W.2d 688, 690 (Tenn.
Crim. App. 1983) (the sup reme cou rt’s determination on an issue is conclusive and binding on this Court
and all othe r inferior co urts of this s tate); Presley v. S tate, 528 S.W.2d 52, 54 (Tenn. Crim. App. 1975)
(we may not ignore the prior decisions of our supreme court and we are bound by them). At least one
other panel of this Court has declined to follow Rickman on this issu e for the s ame reason . See
Raym ond L. C ovington v. State , No. 01C01-9606-CC-00250 (Tenn. Crim. App. at Nashville, September
30, 1996).

                                                       6
instructions defining robbery acted as a constructive amendment to the indictment in

violation of his constitutional rights. Appellant provides no justification for his tardiness

in raising this claim in a post-conviction petition. This ground did not arise after the

limitations period had begun to run as required by Sands. Therefore, it is barred by

the statute of limitations.

       In addition to being barred by the statute of limitations, we must also consider

this ground waived for failure to include it in an earlier petition. Tenn. Code Ann. §40-

30-112(b)(1) (repealed 1995). The trial court found that although this ground for relief

existed, it was not raised on direct appeal nor in any of the three earlier post-

conviction petitions filed on behalf of appellant. This gives rise to a presumption of

waiver and we affirm the trial court’s determination. Id.

       Appellant’s issues three through eleven are presented as a comprehensive list

in his brief without citation to case authority. Appellant alleges that he is at least

entitled to a hearing on these claims and that they are not barred by the statute of

limitations. According to appellant, these claims are not time-barred because

appellant’s interest in life outweighs any possible state interest in denying his

constitutional claims; counsel appointed by the State was not effective; appellant had

no opportunity to choose his attorney nor was he able to investigate and litigate these

claims on his own behalf because he is incarcerated and indigent and has been

indigent throughout the course of all prior proceedings; and he lacked the legal and

factual knowledge necessary to raise such claims earlier. These reasons are not valid

ones for obviating the application of the statute of limitations. See Sands, 903 S.W.2d

at 301. Appellant goes on to state that these claims fall within an exception to the

statute of limitations, but fails to explain what exception. He merely asserts that due

process of law permits him to avoid application of the statute of limitations. We find

that appellant is not entitled to relief from the statute of limitations on any of these

claims.



                                              7
        Enumerated issues three, four, five, seven, eight, nine, and ten are barred by

the statute of limitations and fall within no exception. These alleged grounds for relief

are not later-arising and fail to satisfy the test set forth in Sands.3 Additionally, we find

that these very issues were raised in prior petitions and must be considered previously

determined.4 Tenn. Code Ann. §40-30-112(b) (repealed 1995). Issue six pertaining to

the effectiveness of post-conviction counsel is also without merit. We agree with the

trial court that appellant has no constitutional right to post-conviction counsel and may

not assert a claim based on the ineffective assistance of post-conviction counsel.

House v. State, 911 S.W.2d 705, 712 (Tenn. 1995), cert. denied ___ U.S. ___, 116

S.Ct. 1685,134 L.Ed.2d 787 (1996). See also Davis v. State, 912 S.W.2d 689, 696

(Tenn. 1995).

        Finally, appellant’s issues eleven and twelve pertaining to exculpatory evidence

and promises made to witnesses do not entitle appellant to relief. As with all other

claims, these are barred by the limitations period. Appellant presented these issues in

his third petition, which was filed prior to the expiration of the statute of limitations.

Therefore, these grounds are not “later-arising” as required for an exception to the

running of the statute of limitations. Sands v. State, 903 S.W.2d 297, 301 (Tenn.



        3
          Appellant argues that he did not become aware of many of these grounds for relief until he had
access to police investigative files under Cap ital Ca se R eso urce Cen ter of Ten nes see , Inc. v . W ood all,
No. 01A01-9104-CH-00150 (Tenn. App. at Nashville, January 29, 1992). This assertion is not supported
by the reco rd. All of thes e claim s for relief w ere raise d in appe llant’s 1989 post-co nviction pe tition.
Thus, appellant was aware of these claims and they did exist prior to expiration of the statute of
limitations.

        4
           In order for a ground for relief to be previously determined, the appellant must have been
acc orde d a fu ll and f air he aring . Ten n. Co de A nn. § 40-3 0-11 2(a) (repe aled 1 995 ). A fu ll and f air
hearing occurs when a petitioner is given an opportunity to present constitutional claims at a meaningful
time and in a meaningful manner, i.e. without undue restriction on the scope of the hearing or undue
limitation on the introdu ction or pre sentation of eviden ce. Hous e v. State , 911 S.W.2d 705, 711 (Tenn.
1995), cert. denied ___ U.S. ___, 116 S.Ct. 1685,134 L.Ed.2d 787 (1996). We note that although the
trial court did not accord appellant an evidentiary hearing on his second and third petitions, it did hold a
hearing on the Sta te’s “m otion to dism iss withou t an eviden tiary hearing” in which it hea rd the arg ume nts
of counsel. Dismissal of the petition followed. These grounds were included in appellant’s subsequent
appeal to this Court, in which we affirmed the trial court’s action, and also included in his application for
permission to appeal to the supreme court, which was denied. As such, we believe appellant was
accord ed a full and fair hearing on these issues to perm it a finding of p revious d eterm ination. See
Donn ie E. John son v. Sta te, No. 02C01-9111-CR-00237 (Tenn. Crim. App. at Jackson, March 27, 1997)
(finding tha t when a n issue is raised on appea l to this Cou rt and in an application for perm ission to
appeal to the suprem e court and ruled upon, it may be considered previously determined).

                                                        8
1995). Because they were raised in appellant’s third petition, we must also consider

them previously determined. Tenn. Code Ann. §40-30-112(b) (repealed 1995).5

       Lastly, appellant argues that the State erred by failing to file in the trial court the

necessary portions of the record as required by statute. The Post-Conviction Act

requires that if the petition does not include parts of the records or transcripts that are

material to the questions raised, the district attorney is empowered to obtain them at

the expense of the State and file them with the responsive pleading or within a

reasonable time thereafter. Tenn. Code Ann. §40-30-114(b) (repealed 1995). Due to

the exemplary work of appellant’s counsel, an extremely thorough and detailed

petition for relief was filed in the trial court. This petition included an itemized list of

issues previously raised in other petitions and appeals. In addition, the trial court had

access to the files containing appellant’s previous petitions and the decisions of this

Court and apparently relied on that information. The trial court’s order refers to

appellant’s previous petitions and provides a comprehensive list of the issues raised in

each one.

       Because the trial court’s decisions were based upon procedural defenses to the

claims, we do not find that there were other records or transcripts material to the

questions raised. The trial court had before it sufficient information to determine the

questions of the statute of limitations, waiver and previous determination. Although

we encourage all parties to act in conformity with the statutory mandate, we do not

find that the State violated its statutory duty in appellant’s case.

       In sum, appellant has presented no claim deserving of post-conviction relief.

Every claim presented is barred by the statute of limitations. Appellant has failed to

demonstrate that any claim is later-arising or that he has been precluded a reasonable

opportunity to present it in a state forum. Moreover, as we have specified, some

claims have been waived for failure to present them in an earlier petition and many

have been previously determined. Appellant has had numerous opportunities to


       5
           See Footnote four above.

                                               9
present his claims before the trial court and this Court. As a result of this petition, the

trial court vacated his death sentence and imposed a sentence of life imprisonment.

We believe that appellant’s rights to due process have been respected and preserved

by the courts of this State. The judgment of the trial court denying post-conviction

relief is affirmed.



                                                  _______________________________
                                                  William M. Barker, Judge



____________________________
Gary R. Wade, Judge



____________________________
David G. Hayes, Judge




                                            10
