         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                        SEPTEMBER 1998 SESSION
                                                    FILED
                                                    November 9, 1998

                                                    Cecil Crowson, Jr.
RICHARD CALDWELL,                 )                 Appellate C ourt Clerk
                                  )    NO. 02C01-9711-CC-00446
      Appellant,                  )
                                  )    HENDERSON COUNTY
VS.                               )
                                  )    HON. WHIT LAFON,
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
                                       MARVIN E. CLEMENTS, JR.
JOHN G. OLIVA                          Assistant Attorney General
601 Woodland Street                    Cordell Hull Building, 2nd Floor
Nashville, TN 37206                    425 Fifth Avenue North
                                       Nashville, TN 37243-0493

                                       JAMES G. WOODALL
                                       District Attorney General

                                       ALFRED L. EARLS
                                       Assistant District Attorney General
                                       225 Martin Luther King Dr.
                                       P.O. Box 2825
                                       Jackson, TN 38302-2825




OPINION FILED:



AFFIRMED



JOE G. RILEY,
JUDGE
                                      OPINION



       The petitioner, Richard Caldwell, appeals the trial court's dismissal of his

second petition for post-conviction relief. The post-conviction court dismissed

the petition without an evidentiary hearing, finding the petition barred by the

statute of limitations and the issues either previously determined or waived. For

reasons outlined below, the judgment of the trial court is AFFIRMED.



                             PROCEDURAL HISTORY



       The petitioner was initially convicted in 1981 of the first degree murder of

Carl Lipford and sentenced to life imprisonment. This Court affirmed the

conviction. State v. Caldwell, 656 S.W.2d 894 (Tenn. Crim. App. 1983).

Permission to appeal was denied by the Tennessee Supreme Court. That

conviction is the subject of the present petition.



       Subsequent to the conviction in the Lipford murder, the petitioner was

convicted of the first degree murder of Larry Climer and sentenced to death.

The petitioner's conviction and sentence in the Climer murder were ultimately

upheld by the Tennessee Supreme Court. State v. Caldwell, 871 S.W.2d 459

(Tenn. 1984).



       The petitioner subsequently filed for post-conviction relief on the Lipford

conviction. This court ultimately upheld the trial court's dismissal of that petition.

State v. Richard Caldwell Jr., C.C.A. No. 3, Henderson County (Tenn. Crim. App.

filed March 28, 1990, at Jackson). Permission to appeal was denied by the

Tennessee Supreme Court.



       The petitioner filed two (2) petitions for post-conviction relief on the Climer

conviction which were denied by the trial court and consolidated for appeal. This



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Court affirmed the denial of relief. Richard Caldwell v. State, C.C.A. No. 9,

Madison County (Tenn. Crim. App. filed March 21, 1990, at Jackson).

Permission to appeal was denied by the Tennessee Supreme Court. In January

1993, the petitioner filed a third petition attacking the Climer conviction. The

petitioner alleged his initial arrest for public intoxication which led to the

convictions in both murder cases was a pretext, the sole purpose of which was to

gather information on the Lipford murder. The denial of that petition was

eventually affirmed by the Tennessee Supreme Court. Caldwell v. State, 917

S.W.2d 662 (Tenn. 1996).



       The petitioner filed the instant petition in January 1995,1 while the petition

attacking the Climer conviction was pending. The petitioner attacked his Lipford

conviction alleging the following grounds:


               (1)    pretextual arrest leading to inadmissible
                      evidence;
               (2)    erroneous admission of his statements to
                      authorities;
               (3)    improper search leading to inadmissible
                      evidence;
               (4)    erroneous “reasonable doubt” jury instruction;
               (5)    improper closing argument by the state;
               (6)    ineffective assistance of counsel;
               (7)    state’s withholding of exculpatory evidence;
               (8)    prosecutorial misconduct;
               (9)    jury misconduct;
              (10)    state’s delay in advising petitioner of certain
                       exculpatory evidence;
              (11)    improper administration of drugs to petitioner;
              (12)    erroneous “malice” jury instruction;
              (13)    insufficient evidence and erroneous
                       “premeditation” and “deliberation” jury
                     instruction;
              (14)    denial of complete trial transcript; and
              (15)    cumulative effect of errors leading to denial of
                      a fair trial.


The trial court found all issues to be either time-barred, previously determined or

waived.




       1
         Because the subject petition was filed prior to May 10, 1995, it is
controlled by the prior Post-Conviction Procedure Act. See Tenn. Code Ann. §
40-30-101 et seq (1990).

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                                           I.



       The petitioner claims in his first issue that the trial court's dismissal of the

petition as barred by the statute of limitations violates due process. The

petitioner bases this claim upon an unreported case which enabled him for the

first time to review police records which allegedly revealed his initial arrest was

pretextual. See Capital Case Resource Center v. Woodall, C.A. No. 01A01-

9104-CH-00150, Davidson County (Tenn. App. filed January 29, 1992, at

Nashville). Because he was not able to obtain allegedly exculpatory police radio

logs until after that decision, the petitioner claims the statute of limitations for

post-conviction actions did not begin to run until after the Woodall opinion was

filed. See Burford v. State, 845 S.W.2d 204 (Tenn. 1992); Sands v. State, 903

S.W.2d 297 (Tenn. 1995).



       Initially, we must note the petitioner raised the identical pretextual arrest

issue in his second petition for post-conviction relief on the Climer conviction.

The Tennessee Supreme Court affirmed the dismissal of the petition. The

Supreme Court stated:


              As we did in Burford, we must carefully weigh the
              interests of both parties to determine if due process
              requires the suspension of the limitations period so
              as to afford the petitioner a reasonable opportunity to
              litigate the claim.


Caldwell, 917 S.W.2d at 666. However, after balancing the state’s interests of

precluding stale litigation and avoiding excessive costs with the petitioner's

interest in litigating this particular claim, the Court concluded the state's interests

were “weightier.” Id. at 668.



       We adopt the Court's reasoning in the instant petition. All issues are




                                           4
barred by the statute of limitations. See Tenn. Code Ann. § 40-30-102

(repealed 1995).



       This issue is without merit.



                                          II.



       The second issue presented for review is whether the trial court's finding

that the petitioner's claim of ineffective assistance of counsel had been

“previously determined” violates his right to due process.



       The petitioner alleged trial counsel was ineffective for failing to: (1)

properly investigate the facts, (2) properly voir dire the jury, (3) develop a

defense based upon petitioner’s mental condition, (4) seek expert assistance, (5)

make a proper closing argument, and (6) object to the “reasonable doubt” jury

instruction. The trial court found the issue of ineffective assistance of counsel

had “already been raised and litigated” in the petitioner’s first post-conviction

proceeding.



       If an issue has been “previously determined,” it may not be litigated in a

subsequent post-conviction petition. Tenn. Code Ann. § 40-30-112(a)(repealed

1995); Caruthers v. State, 814 S.W.2d 64, 69-70 (Tenn. Crim. App. 1991). The

issue of ineffective assistance of counsel was determined in the first petition for

post-conviction relief. See State v. Richard Caldwell, Jr., C.C.A. No. 3,

Henderson County, supra. The petitioner claims that limiting a petitioner to a

single challenge of effective assistance of counsel is a "novel proposition not

previously found in Tennessee law." We disagree. Ineffective assistance of

counsel is a "single 'ground for relief'" as contemplated by statute. See Cone v.

State, 927 S.W.2d 579, 581-82 (Tenn. Crim. App. 1995). A petitioner may not

relitigate a “previously determined” issue by presenting additional factual


                                           5
allegations in a subsequent petition. Cone, 927 S.W.2d at 582.



       The petitioner contends some of the grounds for ineffective assistance of

counsel were not discovered until after the filing of the first petition. However, we

find nothing in the petition that would justify further litigation on this issue.



       Additionally, the petitioner claims that counsel who filed his first petition for

post-conviction relief was ineffective. However, it is settled law that a petitioner

is not entitled to effective assistance of counsel in the post-conviction setting.

House v. State, 911 S.W .2d 705, 712 (Tenn. 1995). Thus, the issue of effective

assistance of counsel has been “previously determined.”



       This issue is without merit.



                                           III.



       The petitioner has alleged fifteen grounds for relief in this, his second

petition for post-conviction relief. The issues relating to sufficiency of the

evidence, the admission of petitioner’s statements to authorities and improper

closing argument by the state were previously determined on direct appeal.

Caldwell, 656 S.W.2d at 896-97. The issues of ineffective assistance of counsel

and the malice jury instruction were previously determined on appeal of the

denial of the first petition for post-conviction relief. Caldwell, C.C.A. No. 3,

Henderson County, supra. All other issues raised in the present petition are

waived for failure to present them either on direct appeal or in the first petition for

post-conviction relief. See Tenn. Code Ann. § 40-30-112(b)(repealed 1995);

House, 911 S.W.2d at 714.




                                           IV.


                                            6
       The petitioner's final issue asserts he was denied due process as the trial

court dismissed his petition without having a complete record of previous

proceedings. See Allen v. State, 854 S.W.2d 873, 875 (Tenn. 1993)(holding it is

the role of the state to file parts of record material to petition). The trial court

dismissed the petition as time-barred with the issues having been previously

determined or waived. The record of previous proceedings was not necessary

for the trial court to properly make its ruling.



       This issue is without merit.



                                    CONCLUSION



       For the reasons stated above, we find the petitioner's arguments without

merit and AFFIRM the judgment of the trial court.




                                                    _________________________
                                                    JOE G. RILEY, JUDGE


CONCUR:




_________________________
PAUL G. SUMMERS, JUDGE




_________________________
DAVID H. WELLES, JUDGE




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