           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT JACKSON

                           DECEMBER SESSION, 1996


KENNETH WAYNE O’GUINN,           )      C.C.A. NO. 02C01-9510-CC-00302
                                 )
      Appellant,                 )
                                 )                                    FILED
                                 )      MADISON COUNTY
VS.                              )                                      April 29, 1997
                                 )      HON. WHIT LAFON
STATE OF TENNESSEE,              )      JUDGE                         Cecil Crowson, Jr.
                                 )                                    Appellate C ourt Clerk
      Appellee.                  )      (Post-Conviction Relief)




FOR THE APPELLANT:                      FOR THE APPELLEE:

CHRISTOPHER M. MINTON                   CHARLES W. BURSON
MICHAEL J. PASSINO                      Attorney General and Reporter
Lassiter, Tidwell & Hildebrand
213 Fifth Avenue North                  DARIAN B. TAYLOR
Nashville, TN 37219                     Assistant Attorney General
                                        450 James Robertson Parkway
                                        Nashville, TN 37243

                                        JERRY WOODALL
                                        District Attorney General

                                        AL EARLS
                                        Assistant District Attorney
                                        P. O. Box 2825
                                        Jackson, TN 38302



OPINION FILED ________________________

REVERSED AND REMANDED

JERRY L. SMITH, JUDGE
                                      OPINION


       Appellant Kenneth Wayne O’Guinn was convicted of first degree murder

and aggravated rape. He received a death sentence for the murder conviction

and life imprisonment for the rape conviction. In this appeal, Appellant

challeng es the trial co urt’s dism issal of his p etition for po st-convictio n relief,

prese nting th e follow ing issu es for re view: (1 ) wheth er the tr ial cou rt erred in

finding that his exculpatory evidence claim was previously determined; and (2)

whether the trial court erred in finding that his sufficiency claim was waived.



       After a review of the record, we remand to the trial court for

consideration of Appellant’s first claim in a manner consistent with this opinion.



                            I. FACTUAL BACKGROUND

       The record revea ls that, o n Jan uary 2 2, 198 5, a Ma dison Coun ty Circu it

Court jury convicted Appellant of the first degree murder and aggravated rape

of Sheila Cupples. The trial court imposed respective sentences of death and

life imprisonment. On direct appeal, the Tennessee Supreme Court affirmed

both the conviction s and the senten ces. See State v. O’Guinn, 709 S.W.2d

561 (T enn.), cert. denied, 479 U.S. 87 1 (1986).



       Following the dismissal of two post-conviction petitions, Appellant filed a

habe as co rpus p etition in the Un ited Sta tes Dis trict Co urt for th e Midd le

District of T ennes see. He alleg ed the follo wing gro unds fo r relief:

       (1) adm ission of his confess ion violated his Fifth
       Amendment right against self-incrimination;


                                       -2-
       (2) his trial counsel provided ineffective assistance;
       (3) the evidence supporting his first degree murder
       conviction was insu fficient;
       (4) the State elicited perjured testimony from Dianna
       King;
       (5) the State employed surprise testimony regarding the
       victim’s vaginal wounds;
       (6) the State withheld exculpatory evidence; and
       (7) the T ennes see de ath pen alty is unco nstitutiona l.

The district court found only the first two grounds meritorious and granted a

writ. See O’Guinn v. Dutton, 870 F. Supp. 779 (M.D. Tenn. 1993). On

appeal, a three-judge panel of the Sixth Circuit Court of Appeals reversed the

judgm ent of the d istrict court an d dism issed the writ. On re-h earing, the Sixth

Circuit, sitting en banc, affirmed the dismissal of the writ, thereby vacating the

judgm ent of the d istrict court. See O’Guinn v. Dutton, 88 F.3d 140 9 (6th Cir.

1996), cert. denied, 117 S. Ct. 742 (1997).



       On A pril 18, 1 995, A ppella nt filed a third po st-con viction p etition. T his

petition asse rted tw o claim s. First, A ppella nt argu ed tha t the Sta te withh eld

the following exculpatory evidence: (a) evidence that Joanie Cupples, the

victim’s cous in, was involve d in the murd er; (b) e videnc e that J oanie Cupp le’s

associates and mother were involved in the murder; (c) evidence that former

Jackson Police Officer Richard Harper was involved in the murder; (d)

evidence that the victim was killed because she provided information to the

police regarding drug trafficking; and (e) evidence that Appellant’s brother was

first indicted for the murder based upon eyewitness testimony. Second,

Appe llant argue d that the e vidence presen ted at trial wa s legally insu fficient to

support a conviction for first degree murder. The trial court dismissed the

petition withou t a hea ring, find ing tha t the first c laim w as pre viously




                                            -3-
determined and that the second claim was waived. Appellant appeals from

this dism issal.



                        II. POST-CONVICTION RELIEF

       In challenging the dismissal of his petition, Appellant alleges that the

trial court erred both in finding that his exculpatory evidence claim was

previously determined and that his sufficiency claim was waived.



       In post-conviction proceedings, the defendant has the burden of proving

the claim s raised in the petition by a prep ondera nce of the evidenc e. Tidwell v.

State, 922 S.W .2d 497 , 500 (T enn. 19 96); Wa de v. State , 914 S.W.2d 97, 101

(Tenn. C rim. App. 199 5). Findings of fact m ade by the trial court are

conclusive on appeal unless the evidence preponderates against the

judgm ent. Coop er v. State, 849 S.W .2d 744 , 746 (T enn. 19 93); Butler v.

State, 789 S.W.2d 898, 899 (Tenn.1990). Thus, we are bound to affirm the

judgment unless the evidence in the record preponderates against the trial

court's find ings. Black v. S tate, 794 S.W .2d 752, 755 (Tenn. Crim . App. 1990 ).



       Accord ing the P ost-Co nviction P rocedu re Act, the scope of a post-

conviction hearing extends to all grounds of the petitioner, except for those

grounds which have been previously determined or waived. Tenn. Code Ann.

§ 40-30-111. A ground for relief is previously determined “if a court of

compe tent jurisdiction has ruled on the me rits after a full and fair hearing.” Id.

§ 40-30-112(a). A ground for relief is waived “if the petitioner knowingly and

understand ingly failed to present it for determ ination in any proce eding before




                                         -4-
a court of competent jurisdiction in which the ground could have been

presented.” Id. § 40-30 -112(b)( 1).



      Furtherm ore, a pe titioner mu st seek re lief within three years of the date

of the final action of the highest state appellate court to which an appeal has

been ta ken. Id. § 40-30-102. However, in Burford v. State, 845 S.W.2d 204

(Tenn. 1992), and Sand s v. State, 903 S.W.2d 297 (Tenn. 1995), the

Tennessee Supreme C ourt created an exception to this statute of limitations,

commenting as follows:

      [I]n certain circumstances, due process prohibits the
      strict application of the post-conviction statute of
      limitations to bar a petitioner’s claim when the grounds
      for relief, whether legal or factual, arise after the “final
      action of the highest state appellate court to which
      appeal is taken” -- or, in other words, when the grounds
      arise a fter the p oint at w hich th e limita tions p eriod w ould
      normally have begun to run.

Sands, 903 S.W.2d at 301. The Supreme Court then established the following

three-step inquiry for analyzing specific factual situations.

      (1) the court should determine when the limitations
      period would normally have begun to run;
      (2) the court should determine whether the ground for
      relief aro se afte r the lim itations period would norm ally
      have commenced; and
      (3) if the ground for relief is later-arising, the court
      should determine whether a strict application of the
      limitations period wo uld effectively deny the p etitioner a
      reasonable opportunity to present his claim by weighing
      the petitioner’s liberty interest in collaterally attacking a
      cons titutiona l violation again st the S tate’s in terest in
      preventing the litigation of stale and fraudulent claims.

Id.




                         A. EXCULPATORY EVIDENCE

                                           -5-
         Appe llant first a lleges that the trial cou rt erred in findin g that h is

exculpatory evidence claim was previously determined. In making this finding,

the trial court relied upon a district court judgment that found the claim without

merit. See O’Guinn v. Dutton, 870 F. Supp. 779 (M.D. Tenn. 1993). On

appeal, however, the district court decision was reversed and vacated by the

Sixth Circu it. See O’Guinn v. Dutton, 88 F.3d 1409 (6 th Cir. 199 6), cert.

denied, 117 S . Ct. 74 2 (199 7). By virt ue of th e fact th at the S ixth Circ uit

vacated the d istrict court’s decision and the United S tates Suprem e Court

denie d certio rari, the trial cou rt’s findin g that A ppella nt’s claim was p reviou sly

determined is erroneous. Therefore, as the State concedes, we must remand

to the trial court for consideration of this claim on the merits.



                             B. SUFFICIENCY OF THE EVIDENCE

         Appe llant ne xt allege s that th e trial co urt erre d in find ing tha t his

sufficiency claim was waived. Appellant argues that he could not have waived

this claim because of the holding in State v. Brown, 836 S.W.2d 530 (Tenn.

1992); involving the sufficiency of evidence with respect to “deliberation”, an

eleme nt of first deg ree mu rder. Brown was decided after Appellant’s direct

appea l. Howeve r, this Cou rt has pre viously he ld that Brown did not create a

new constitutional rule relative to the sufficiency of the evidence in a first

degree murde r case. See Miller v. State , No. 03C01-9409-CR-00336, 1995

WL 39584 2, at *3 (T enn. C rim. App . July 6, 199 5).

There fore, App ellant cou ld have b rought th is sufficienc y claim in h is first post-

conviction petition. Because he failed to do so, this claim is waived.1


1
  App ellant argu es th at the reco rd is in suff icient to sh ow th at he pers ona lly waive d the claim . This
point, whether accurate or not, is irrelevant. “Waiver in the post-conviction context is to be
determined by an objective standard under which a petitioner is bound by the action or inaction of

                                                        -6-
        Accordingly, this case is reversed and remanded to the trial court for

consideration of Appellant’s first claim in a manner consistent with this opinion.




                                           ____________________________________
                                           JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
JOSEPH M. TIPTON, JUDGE




his attorney.” Hous e v. State , 911 S.W .2d 705, 7 11 (Te nn. 1995 ). W hile it is true that House was
not issued until three months after the trial court’s dismissal of Appellant’s claim, the concept of an
objective waiver sta ndard w as well-es tablished prior to that ru ling. See, e.g., Caruth ers v. State ,
814 S.W .2d 64 (T enn. Cr im. Ap p. 1991) ; State v. Bishop, 731 S.W.2d 552 (Tenn. Crim. App.
1986).

                                                     -7-
