          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT JACKSON                   FILED
                          FEBRUARY 1999 SESSION                 March 15, 1999

                                                              Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk
WILLIE EDWARD THORNTON,                  )
                                         )       NO. 02C01-9809-CC-00260
      Appellant,                         )
                                         )       FAYETTE COUNTY
VS.                                      )
                                         )       HON. JON KERRY BLACKWOOD,
STATE OF TENNESSEE,                      )       JUDGE
                                         )
      Appellee.                          )       (AFFIRMED - Rule 20)



                                    ORDER


      Appellant, Willie Edward Thornton, appeals the summary dismissal of his

petition for post-conviction relief. We affirm the dismissal pursuant to Rule 20,

Tennessee Court of Criminal Appeals.



                                         I



      On April 4, 1988, appellant was convicted by a Fayette County jury of first

degree murder and use of a firearm in commission of a felony. He was sentenced

to life imprisonment plus five years. The convictions and sentences were affirmed

by this Court. State v. Willie Edward Thornton, C.C.A. No. 3, Fayette County (Tenn.

Crim. App. filed June 7, 1989, at Jackson). Permission to appeal was denied by the

Tennessee Supreme Court. State v. Willie Edward Thornton, C.C.A. No. 3, Fayette

County (Tenn. filed August 7, 1989, at Jackson).

      On January 5, 1990, he filed his first petition for post-conviction relief. The

petition was denied after an evidentiary hearing by order entered December 14,

1990. The dismissal was affirmed by this Court. Willie Edward Thornton v. State,

C.C.A. No. 02C01-9102-CC-00001, Fayette County (Tenn. Crim. App. filed May 20,

1992, at Jackson).    Application for permission to appeal was denied by the

Tennessee Supreme Court. Willie Edward Thornton v. State, C.C.A. No. 02C01-

9102-CC-00001, Fayette County (Tenn. filed July 27, 1992, at Jackson).
       Appellant sought habeas corpus relief in 1993. The petition was dismissed

by the trial court, and the dismissal was affirmed by this Court. Willie Edward

Thornton v. Fred Raney, Warden, C.C.A. No. 02C01-9302-CC-00025, Lauderdale

County (Tenn. Crim. App. filed January 26, 1994, at Jackson). Application for

permission to appeal was denied by the Tennessee Supreme Court. Willie Edward

Thornton v. Fred Raney, Warden, C.C.A. No. 02C01-9302-CC-00025, Lauderdale

County (Tenn. filed May 23, 1994, at Jackson).

       The present petition for post-conviction relief was filed on June 15, 1998.

Appellant alleged he was improperly sentenced by the trial judge rather than the

jury; the "reasonable doubt" jury instruction was unconstitutional; the record fails to

show that the jury reached a unanimous decision; and the trial judge failed to poll

the jury. The trial court dismissed the petition as being barred by the statute of

limitations. We conclude the trial court acted properly in dismissing the petition.




                                           II

       The petition is barred by the one-year statute of limitations, and none of the

statutory exceptions apply.        See Tenn. Code Ann. § 40-30-202(a), (b).

Furthermore, since a prior petition was filed and resolved on the merits, the present

petition was properly dismissed. See Tenn. Code Ann. § 40-30-202(c). Although

a motion to reopen may be filed to reopen a prior post-conviction petition, none of

the grounds authorizing such relief apply in this case; nor has appellant followed the

proper procedure. See Tenn. Code Ann. § 40-30-217(a), (c). In addition, the

grounds for relief alleged in the present petition are waived due to appellant’s failure

to present them in the prior petition. See Tenn. Code Ann. § 40-30-206(g).

       IT IS, THEREFORE, ORDERED that the judgment of the trial court be

affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals. It appearing

that appellant is indigent, costs are taxed to the state.




                                           2
                                       ___________________________
                                       JOE G. RILEY, JUDGE



CONCUR:



____________________________________
JOHN H. PEAY, JUDGE



____________________________________
JAMES C. BEASLEY, SR., SPECIAL JUDGE




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