           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                       AT KNOXVILLE           FILED
                              AUGUST 1998 SESSION               October 6, 1998

                                                              Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk
BILLY JOE LINTICUM,                         )      C.C.A. NO. 03C01-9710-CR-00458
                                             )
       Appellant,                            )     HAMILTON COUNTY NO. 210653
                                             )
VS.                                          )     HON. STEPHEN M. BEVIL,
                                             )     JUDGE
STATE OF TENNESSEE,                          )
                                             )     AFFIRMED - RULE 20
       Appellee.                             )



                                          ORDER



       The petitioner was convicted by a jury of first degree murder in 1975 and

sentenced to death. This Court affirmed the conviction, but the sentence was

commuted to life imprisonment by executive action. Hamilton v. State, 555 S.W.2d

724 (Tenn. Crim. App. 1977).

       The petitioner filed a pro-se petition for post-conviction relief on May 9, 1996,

alleging that the "reasonable doubt" jury instruction given at his trial violated his

constitutional rights. Counsel was appointed, and an amended petition was filed.

After a hearing, the trial court dismissed the petition finding the jury instruction did

not violate the petitioner's rights.

       First, the petitioner's claims are barred by the statute of limitations. The

petitioner's claims fall under the purview of the former Post-Conviction Procedure

Act. Tenn. Code Ann. § 40-30-102 (repealed 1995). The prior act provided a three-

year statute of limitation commencing on July 1, 1986, for offenses which had

received final action from the highest state appellate court to which an appeal was

taken prior to that date. Tenn. Code Ann. § 40-30-102 (repealed 1995). As the

Tennessee Supreme Court denied certiorari on the petitioner's direct appeal August

1, 1977, the statute of limitations for the petitioner expired July 1, 1989.

       Were the petition not time barred, the petitioner's argument is without merit.

The "moral certainty" language complained of has withstood constitutional
challenges. See Carter v. State, 958 S.W.2d 620, 626 (Tenn. 1997); State v.

Nichols, 877 S.W.2d 722, 734 (Tenn. 1994).

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

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

to the state as the petitioner is indigent.




                                                 _________________________
                                                 JOE G. RILEY, JUDGE

CONCUR:



___________________________
JOSEPH M. TIPTON, JUDGE



___________________________
THOMAS T. WOODALL, JUDGE
