                                                  FILED
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT NASHVILLE
                                                   October 23, 1998
                        SEPTEMBER 1998 SESSION
                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
JEROME WILLIAMS,                  )
                                  )
           Appellant,             )    C.C.A. No. 01C01-9709-CR-00441
                                  )
vs.                               )    Davidson County
                                  )
STATE OF TENNESSEE,               )    Hon. J. Randall Wyatt, Jr., Judge
                                  )
           Appellee.              )    (Post-Conviction)




FOR THE APPELLANT:                     FOR THE APPELLEE:

JEROME WILLIAMS                        JOHN KNOX WALKUP
Pro Se                                 Attorney General & Reporter
CCA/SCCC
P.O. Box 279                           GEORGIA BLYTHE FELNER
Clifton, TN 38425                      Counsel for the State
                                       425 Fifth Ave. N., 2d Floor
                                       Nashville, TN 37243-0493

                                       VICTOR S. JOHNSON, III
                                       District Attorney General

                                       KATY NOVAK MILLER
                                       Asst. District Attorney General
                                       Washington Square, Suite 500
                                       222 Second Ave. North
                                       Nashville, TN 37201-1649



OPINION FILED:________________

AFFIRMED

CURWOOD WITT, JUDGE
                                     OPINION

              The petitioner, Jerome Williams, appeals the Davidson County

Criminal Court's summary dismissal of his petition for post-conviction relief. The

petitioner is currently serving an effective 55 year sentence for his convictions of

armed robbery and aggravated rape. State v. Jerome Williams, No. 86-86-III (Tenn.

Crim. App., Nashville, Feb. 12, 1987). He filed an unsuccessful post-conviction

petition challenging his convictions. See Jerome Williams v. State, No. 01C01-

9105-CR-00152 (Tenn. Crim. App., Nashville, Nov. 14, 1991), perm. app. denied

(Tenn. 1992). In the present action, he seeks to reopen his previous post-conviction

action by alleging that a jury instruction given at his trial equating moral certainty

with reasonable doubt violated his constitutional rights. Following a review of the

record and the briefs of the parties, we affirm the trial court's dismissal of the

defendant's petition.



              A petitioner is entitled to bring only one post-conviction action

attacking a given judgment. Tenn. Code Ann. § 40-30-202(c) (1997). However, a

petitioner may seek to reopen a previously determined post-conviction action if his

new claim is based upon an appellate decision establishing a new constitutional

right which had not been recognized at the time of trial, provided the right is to be

applied retrospectively. Tenn. Code Ann. § 40-30-217(a)(1) (1997).



              In his pro se petition, Williams asserts that unconstitutional jury

instructions were given regarding reasonable doubt and moral certainty which

"allowed the conviction on less than what is required by the Due Process Clause to

the United States Constitution." Furthermore, the petition sought "the application

of the principles announced in [ ] Rickman v. Dutton, 864 F. Supp. 686 (M.D. Tenn.

1994)." Although not clearly stated in the petition, we glean that Williams' complaint

is that the jury was improperly instructed on an ambiguous definition of reasonable

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doubt which impermissibly lowered the state's burden of proof via usage of the

phrases "moral certainty" and "let the mind rest easily."1 See Rickman v. Dutton,

864 F. Supp. 686, 708-09 (M.D. Tenn. 1994), aff'd on other grounds, 131 F.3d 1150

(6th Cir. 1997), cert. denied, --- U.S. ---, 118 S. Ct. 1826, 1827 (1998).



              This court and the Tennessee Supreme Court have consistently

rejected challenges to jury instructions using phraseology similar to that which we

infer is the basis of Williams' complaint. See, e.g., State v. Bush, 942 S.W.2d 489,

520-21 (Tenn.1997) (appendix), cert. denied, --- U.S. ---, 118 S. Ct. 376 (1997);

State v. Nichols, 877 S.W.2d 722 (Tenn. 1994); State v. Sexton, 917 S.W.2d 263

(Tenn. Crim. App. 1995); accord Victor v. Nebraska, 511 U.S. 1, 114 S. Ct. 1239

(1994) (moral certainty instructions may pass constitutional scrutiny if used with

further modifying instructions that lend meaning to the phrase). Additionally, the

Sixth Circuit has cast grave doubt on the viability of the district court's ruling in

Rickman by upholding the constitutionality of the reasonable doubt/moral certainty

instruction given at a Tennessee death-row inmate's trial in Austin v. Bell, 126 F.3d

843, 846-47 (6th Cir. 1997), cert. denied, --- U.S. ---, 118 S. Ct. 1526, 1547 (1998).



              In any event, Rickman is of no precedential value. This court is bound

by the previous rulings of the Tennessee Supreme Court despite the adverse

holdings of the federal district court. See, e.g., Sexton, 917 S.W.2d at 266. As an

inferior appellate court we are bound to follow the precedent of our state's highest



       1
        The jury instructions do not appear in the record, although the petitioner
alleged he did not have access to the record of his direct appeal. He filed a
motion that the transcript of trial be provided to him, but the motion was never
ruled upon. In light of these unique facts, we elect to excuse Williams from his
Tennessee Rule of Appellate Procedure 24(g) burden of preparing a complete
record which allows this court to review the issues. See Tenn. R. App. P. 2
(suspension of rules for good cause). We are able to do this because even if the
instruction given at the petitioner's trial was identical to the one given in Rickman,
no basis for relief has been stated.

                                          3
court. See Barger v. Brock, 535 S.W.2d 337, 341 (Tenn. 1976).



              As a result, Williams has not established a new constitutional right

which is to be retroactively applied. Therefore, he is not entitled to reopen his post-

conviction claim, and this appeal must fail. See Tenn. Code Ann. § 40-30-217(a)(1)

(1997).



              Accordingly, we affirm the trial court's dismissal of the petitioner's

claim.



                                           _______________________________
                                           CURWOOD WITT, JUDGE


CONCUR:


_____________________________
GARY R. WADE, JUDGE


_____________________________
THOMAS T. WOODALL, JUDGE




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