Hunt v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 30, 1997
• Docket: 03C01-9603-CC-00126
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED JANUARY 1997 SESSION April 30, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk EANOS E. HUNT, JR., * C.C.A. # 03C01-9603-CC-00126 * Appellant, * HAMBLEN COUNTY VS. * * Hon. James E. Beckner, Judge STATE OF TENNESSEE, * * (Post-Conviction) Appellee. * *

For Appellant: For Appellee:

Eanos Earl Hunt, Jr., Pro Se Charles W. Burson Northeast Correctional Center Attorney General & Reporter Mountain City, TN 37683-5000 Eugene J. Honea Assistant Attorney General Criminal Justice Division 450 James Robertson Parkway Nashville, TN 37243-0493

OPINION FILED:

AFFIRMED

GARY R. WADE, JUDGE OPINION

The petitioner, Eanos Earl Hunt, Jr., appeals from the trial court’s

summary dismissal of his application for post-conviction relief. The single issue

presented on review is whether the trial court erred by finding that the grounds for

relief asserted by the petitioner had been previously determined or waived and that

the statute of limitations had expired.

We affirm the judgment of the trial court.

In 1983, the petitioner was found guilty of first degree murder and

sentenced to life in prison. This court affirmed the conviction in State v. Eanos Earl

Hunt, No. 181 (Tenn. Crim. App., at Knoxville, Mar. 18, 1985), appeal denied, June

3, 1985. On June 29, 1995, the petitioner filed this petition alleging violations of

newly recognized constitutional rights regarding certain jury instructions.

This is the petitioner's fourth petition for post-conviction relief.1 Under

the 1995 Post-Conviction Act (the act in force at the time the petition was filed),

once a petition has been "resolved on the merits by a court of competent

jurisdiction, any second or subsequent petition shall be summarily dismissed."

Tenn. Code Ann. § 40-30-202(c) (1996 Supp.). The petitioner does not meet any of

the limited circumstances in Tenn. Code Ann. § 40-30-217 (1996 Supp.) which

would entitle him to reopen his past post-conviction proceeding; therefore, we hold

that the trial court properly dismissed the petition.

We also point out that the petitioner claims his issues have never been

1 Eanos Earl Hun t v. State , No. 03C01-9308-CR-00266 (Tenn. Crim. App., at Knoxville, Feb. 3, 1994); State v. Eanos Earl Hunt, No. 308 (Tenn . Crim. A pp., at Kno xville, May 15 , 1990); Eanos Earl Hunt v. S tate, No. 255 (Tenn. Crim . App., at Knoxville, Feb. 2, 1988).

2 brought before a court. This is untrue. His claims, based upon the holdings in

State v. Brown, 836 S.W.2d 530 (Tenn. 1992), Sandstrom v. Montana, 442 U.S. 510

(1979), and Sullivan v. Louisiana, 113 S. Ct. 2079 (1993), already have been

considered and rejected by this court. See Hunt, Feb. 3, 1994, slip op. at 4, 5.

The petitioner makes allegations of improper jury instructions

regarding the definition of "malice" and "deliberate" and the definition of reasonable

doubt. He argues that there were erroneous instructions on the difference between

evidence and argument and jurors as "the exclusive judges of the law." "A ground

for relief is waived if the petitioner personally or through an attorney failed to present

it for determination in a proceeding before a court of competent jurisdiction in which

the ground could have been presented ...." Tenn. Code Ann. § 40-30-206(g) (1996

Supp.). "[W]aiver is to be determined by an objective standard under which a

petitioner is bound by the action or inaction of his attorney." House v. State, 911

S.W.2d 705, 714 (Tenn. 1995). "[T]he rebuttable presumption of waiver is not

overcome by an allegation that the petitioner did not personally and therefore,

'knowingly and understandingly,' waive a ground for relief." Id. Thus, the doctrine of

waiver also bars relief.

The petitioner acknowledges that the statute of limitations on his post-

conviction claims has expired. The petitioner insists, however, that this court should

address the issues for two reasons. First, the petitioner claims that he is entitled to

raise his issues because they fall under the Burford2 exception. We disagree; the

petitioner attempts to use the exception to revive claims in existence at the time of

his 1994 appeal. Burford applies to give a petitioner a "reasonable opportunity" to

2 Burford v. State , 845 S.W.2d 204, 208 (Tenn. 1992) (holding that "it is possible that under the circumstances of a particular case, application of the statute [of limitations] may not afford a reasonable opportunity [for the petitioner] to have the claimed issue heard and decided").

3 have his issues "heard and decided." It does not provide a second chance on a

claim that has already been previously determined or waived. Second, the

petitioner purports that his claim has been revived by the Post-Conviction Procedure

Act of 19953. He cites to section 3 of Chapter 207 in the Tennessee Public Acts of

1995 to support his proposition. Compare State v. Arnold Carter, No. 03C01-9509-

CC-00270 (Tenn. Crim. App., at Knoxville, July 11, 1996), appeal granted, Dec. 12,

1996, with Wallace Butler v. State, No. 02C01-9510-CC-00297 (Tenn. Crim. App., at

Jackson, Nov. 19, 1996). Even if that section offered a new opportunity to file an

otherwise barred claim under the statute of limitations, all grounds alleged have

been either previously determined or waived.

Accordingly, the judgment is affirmed.

Gary R. Wade, Judge

CONCUR:

William M. Barker, Judge

Curwood Witt, Judge

3 Notwithstanding any other provision of this act to the contrary, any person having a ground for relief rec ognized u nder this a ct shall hav e at least on e (1) year fro m the effective d ate of this a ct to file a petition or a motion to reope n a petition u nder this a ct. Public A cts 199 5, Chap ter No. 20 7, § 3.