         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON
                                                   FILED
                         FEBRUARY 1997 SESSION     March 26, 2008

                                                   Cecil Crowson, Jr.
ROBERT GLEN COE,                   )                Appellate Court Clerk
                                   )    C.C.A. NO. 02C01-9606-CR-00200
            Appellant,             )
                                   )    SHELBY COUNTY
VS                                 )
                                   )    JOHN P. COLTON,
STATE OF TENNESSEE                 )    JUDGE
                                   )
            Appellee.              )    (Post Conviction - Death Penalty)



FOR THE APPELLANT:                      FOR THE APPELLEE;

ROBERT C. IRBY                          CHARLES W. BURSON
4345 Mallory Avenue East                Attorney General and Reporter
Memphis, TN 38111
                                        JOHN P. CAULEY
                                        Assistant Attorney General
                                        450 James Robertson Parkway
                                        Nashville, TN 37243-0493

                                        JOHN W. PIEROTTI
                                        District Attorney General

                                        JOHN CAMPBELL
                                        Assistant District Attorney General
                                        201 Poplar Avenue, 3rd Floor
                                        Memphis, TN 38103




OPINION FILED:



AFFIRMED - RULE 20 ORDER



JOE G. RILEY,
JUDGE
                               ORDER
       Appellant, Robert Glen Coe, appeals from the dismissal of his third post-

conviction relief petition. He has been convicted of first degree murder, aggravated

rape, and aggravated kidnaping. He was sentenced to death for first degree murder

and received two sentences of life imprisonment for the other charges. Coe

contends the trial court erred in dismissing his petition and presents to this Court the

following issues for review:

               (1) whether the state withheld exculpatory evidence and
               presented misleading testimony;

               (2) whether the use of the felony-murder aggravating
               circumstance rendered the death penalty unconstitutional;

               (3) whether the jury instruction defining “reasonable doubt”
               was unconstitutional;

               (4) whether the jury instruction on first degree murder
               omitted an essential element of the offense;

               (5) whether he was denied the fundamental right to
               a unanimous jury verdict;

               (6) whether the jury instruction on expert testimony was
               unconstitutional;

               (7) whether the jury was unconstitutionally instructed on
               the effect of a verdict of not guilty by reason of insanity;

               (8) whether the jury instructions precluded full consideration
               of the defense of insanity;

               (9) whether the failure to instruct the jury about eligibility
               for parole was unconstitutional;

              (10) whether the jury instructions erroneously omitted
               information about the effect of a non-unanimous verdict;

              (11) whether he was denied effective review of
               the death sentence;

              (12) whether he was denied effective assistance of
              counsel at trial and on appeal, including the denial of
              entitlement to investigative funds;

              (13) whether electrocution constitutes cruel and
              unusual punishment;

              (14) whether he was unconstitutionally precluded
              from consulting with counsel during trial;

              (15) whether the death sentence unconstitutionally
              infringes upon his fundamental right to life; and

              (16) whether he was arrested without probable cause.

                                           2
We affirm the dismissal of the petition.



                             PROCEDURAL HISTORY



       Coe was found guilty of first degree murder, aggravated rape and aggravated

kidnaping in 1981. The Tennessee Supreme Court affirmed the convictions and

sentences in 1983. A petition for writ of certiorari to the United States Supreme

Court was denied in 1984.

       His first petition for post-conviction relief was filed in 1984. The dismissal of

that petition was affirmed by this Court in 1986. In 1987 Coe filed a petition for writ

of habeas corpus in the United States District Court for the Middle District of

Tennessee. That petition was dismissed without prejudice in March 1989 for failure

to exhaust state remedies.

       In May 1989 Coe filed a second petition for post-conviction relief which was

denied by the trial court in November 1989. The denial was affirmed by this Court

in January 1991. The Tennessee Supreme Court denied permission to appeal in

November 1991.

       In February 1992 Coe filed his second federal petition for writ of habeas

corpus in the United States District Court for the Middle District of Tennessee.

While the federal writ of habeas corpus was pending, Coe filed this, his third petition

for post-conviction relief, on February 21, 1995. On January 2, 1996, the trial court

dismissed the subject petition for post-conviction relief finding that all claims were

time-barred or waived. It is this dismissal that is the subject of the current appeal.

       On November 27, 1996, the United States District Court vacated all of Coe’s

convictions and sentences.1 The state was allowed 120 days from the entry of that

order to afford Coe a new trial; otherwise, the writ of habeas corpus will issue.



                                   DISPOSITION



       1
        Robert Glen Coe v. Ricky Bell, No. 3:92-0180 (M. D. Tenn. filed November 27,
1996, at Nashville).

                                           3
       In order to be successful in this appeal, Coe must overcome at least two

statutory limitations. Firstly, the present petition must have been timely filed. See

T.C.A. § 40-30-102 (1990). Secondly, the grounds for relief must not have been

“previously determined” by a court of competent jurisdiction nor “waived” by the

failure to present them in prior proceedings. See T.C.A. § 40-30-112(a), (b)(1)

(1990).

       Issues 1, 2, 3, 4, 6, 8, 9, 10, 11, 12, 13, and 17 have been previously

determined by the United States District Court for the Middle District of Tennessee.

In fact, Coe was successful in vacating his convictions and sentences based upon

some of these issues. Regardless, they have been previously determined.

       As to Issue 1 concerning exculpatory evidence, this claim is also time-

barred.2

       As to Issue 2, State v. Middlebrooks3 does not apply. There was adequate

proof of premeditation beyond a reasonable doubt to sustain a conviction for

common law murder. State v. Coe, 655 S.W.2d 903, 912 (Tenn. 1983). There was

no double counting. See Schad v. Arizona, 501 U. S. 624 (1991).

       As to Issues 3 through 10, all of these issues have either been waived,

previously determined on direct appeal and/or time-barred. Furthermore, our review

of these issues indicates each to be without merit.

       As to Issue 11 relating to the alleged denial of an effective review of the

death sentence, the issue has been waived, previously determined on direct appeal

by the Tennessee Supreme Court4 and is time-barred.

       As to Issue 12, Coe’s claims of ineffective assistance of counsel have been

waived and are time-barred. With regard to the request for funds for investigative




       2
         This claim is not a “later arising” claim under Burford v. State, 845 S.W.2d 204
(Tenn. 1992). See Sands v. State, 903 S.W.2d 297 (Tenn. 1995). This court in Freeman v.
Jeffcoat, C.C.A. No. 01A01-9103-CV-00086 (Tenn. Crim. App. filed August 30, 1991, at
Nashville) authorized access to police records pursuant to the public records act. This
petition was filed more than three (3) years after this opinion.
       3
           840 S.W.2d 317 (Tenn. 1992).
       4
           State v. Coe, 655 S.W.2d at 913.


                                              4
purposes, Coe has not made a proper threshold showing of the need for such

funds. See Owens v. State, 908 S.W.2d 923 (Tenn. 1995).

       As to Issue 13 alleging that electrocution constitutes cruel and unusual

punishment, this issue has been waived, previously determined on direct appeal by

the Tennessee Supreme Court5 and is time-barred. Furthermore, the allegation is

without merit.

       As to Issue 14 relating to the alleged denial of access to counsel during trial,

this issue has been waived and is time-barred.

       As to Issue 15 alleging the death penalty deprives Coe of his fundamental

right to life, this issue has been waived and is time-barred. This issue is also

without merit.

       As to Issue 16 alleging Coe’s original arrest was unlawful, this issue has

been waived and is time-barred.

       As to Issue 17 which is a broad allegation that the cumulative effect of errors

rendered the trial fundamentally unfair, this issue has been waived and is time-

barred.

       The judgment of the trial court is AFFIRMED pursuant to Rule 20, Tennessee

Court of Criminal Appeals.6




                                               JOE G. RILEY, JUDGE


CONCUR:



JOE B. JONES, PRESIDING JUDGE



JOHN H. PEAY, JUDGE




        5
            State v. Coe, 655 S.W.2d at 913.
       6
         Since Coe was successful in the United States District Court in having all of his
convictions and sentences vacated, it is certainly arguable that this entire appeal is now moot.
We do not reach this issue, however, since the appeal is without merit for the other reasons
set forth in this order.

                                               5
