             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE                 FILED
                          JUNE 1997 SESSION
                                                            July 25, 1997

                                                         Cecil Crowson, Jr.
                                                         Appellate C ourt Clerk
DAVID PALMER,               )
                            )
             Appellant,     )    No. 03C01-9608-CR-00311
                            )
                            )     Loudon County
v.                          )
                            )     Honorable E. Eugene Eblen, Judge
                            )
STATE OF TENNESSEE,         )     (Post-Conviction)
                            )
             Appellee.      )


For the Appellant:               For the Appellee:

A. Wayne Henry                   Charles W. Burson
322 Grove Street                 Attorney General of Tennessee
P.O. Box 366                            and
Loudon, TN 37774-0366            Clinton J. Morgan
                                 Assistant Attorney General of Tennessee
                                 450 James Robertson Parkway
                                 Nashville, TN 37243-0493

                                 Charles Hawk
                                 District Attorney General
                                         and
                                 Roger Delp
                                 Assistant District Attorney General
                                 P.O. Box 703
                                 Kingston, TN 37763-0703




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                       OPINION



              The petitioner, David Palmer, appeals as of right from the trial court’s

summary dismissal of his second petition for post-conviction relief. The trial court

dismissed the petition on various grounds, including the petition’s failure to state a claim

for relief that had not been waived or previously determined. The sole issue for our

review is whether the trial court erred by dismissing the petition. We conclude that it did

not.



              In 1987, the petitioner was convicted of aggravated rape and joyriding. As

a Range II, especially aggravated offender, he received concurrent sentences of forty

and two years, respectively. On May 11, 1990, the petitioner filed his first petition for

post-conviction relief alleging that he received ineffective assistance of trial counsel.

The trial court granted the petitioner a delayed appeal but concluded that the petitioner

failed to demonstrate that his counsel was otherwise ineffective. This court affirmed the

petitioner’s convictions on the delayed appeal and also affirmed the denial of post-

conviction relief. State v. David Palmer, Nos. 03C01-9303-CR-00076, 03C01-9303-CR-

00077, Loudon County (Tenn. Crim. App. Apr. 7, 1994); David Palmer v. State, No.

03C01-9303-CR-00079, Loudon County (Tenn. Crim. App. May 20, 1994), app. denied

(Tenn. Sept. 12, 1994).



              The petitioner filed the present petition on July 6, 1995. The petition

alleges that trial counsel was ineffective and that the petitioner’s convictions violate due

process because the jury was given an instruction equating moral certainty with

reasonable doubt. The trial court concluded that the issue concerning the effectiveness

of trial counsel was previously determined, see T.C.A. § 40-30-206(g), and that the

petitioner’s challenge to the jury instruction was waived because he failed to present it




                                             2
in his first post-conviction petition, see T.C.A. § 40-30-206(g). We agree with the trial

court’s conclusions.1



                 In consideration of the foregoing and the record as a whole, the judgment

of the trial is affirmed.




                                                           Joseph M. Tipton, Judge



CONCUR:




John H. Peay, Judge




Curwood Witt, Judge




                 1
                     W e also note th at w e have re peate dly upheld the constitutionality of the re asonable
dou bt instru ction th at the petitione r cha llenges. See State v. Sexton, 917 S.W .2d at 266; Pettyjohn v.
State , 885 S.W .2d 364, 366 (T enn . Crim . App .); State v. Hallock, 875 S.W .2d 285, 294 (Tenn. Crim. App.
199 3); see also Nichols v. State , 877 S.W .2d 722, 734 (T enn. 1994).

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