Lawson v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: July 30, 1997
• Docket: 03C01-9608-CR-00295
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED JUNE 1997 SESSION July 30, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk ERNEST LAWSON, ) ) Appellant, ) No. 03C01-9608-CR-00295 ) ) McMinn County v. ) ) Honorable Mayo L. Mashburn, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )

For the Appellant: For the Appellee:

Ernest Lawson, Pro Se Charles W. Burson No. 131676 Attorney General of Tennessee W.T.H.S.F., P.O. Box 1050 and Henning, TN 38041 Janis L. Turner Assistant Attorney General of Tennessee 450 James Robertson Parkway Nashville, TN 37243-0493

Jerry N. Estes District Attorney General 203 E. Madison Avenue P.O. Box 647 Athens, TN 37371

OPINION FILED:____________________

AFFIRMED

Joseph M. Tipton Judge OPINION

The petitioner, Ernest Lawson, has appealed the McMinn County Criminal

Court denial of his motion to reopen his post-conviction case relative to his 1990

conviction for facilitation to commit first degree murder. The trial court denied the

motion because it was untimely, the ground raised had been waived, and the ground

was not entitled to relief. The petitioner contends that his motion was timely, that he

was entitled to the appointment of counsel, and that his claim of an improper

reasonable doubt instruction has merit under Rickman v. Dutton, 864 F. Supp. 686

(M.D. Tenn. 1994). We affirm the trial court.

The defendant’s original conviction became final after his direct appeal.

See State v. Hicks, 835 S.W.2d 32 (Tenn. Crim. App. 1992), app. denied (June 8,

1992). He filed a petition for writ of habeas corpus on May 26, 1995, that was treated

as one for post-conviction relief. The trial court dismissed the petition in February 1996

without a hearing, or the appointment of counsel on the basis that each claim for relief

had been previously determined in the direct appeal.1

On April 2, 1996, the petitioner filed the instant motion to reopen in which

he alleged that the jury instruction relating to reasonable doubt was unconstitutional.

However, he does not explain why he did not bring this same claim in his former case.

This constitutes a waiver. See T.C.A. § 40-30-202(e) (Supp. 1996). In any event, his

substantive complaint is without merit. He complains that the reasonable doubt

instruction in his case included the term “moral certainty” in such a way as to violate

due process, a conclusion reached by the federal district court in Rickman. However,

the instruction used in the petitioner’s case is essentially the same one held to be

1 A com parison of the petition and the direct appe al opinion of this court reflects that all of the claim s w ere, in fac t, de term ined in that appeal.

2 proper by our supreme court and this court. See State v. Nichols, 877 S.W.2d 722, 734

(Tenn. 1994); Pettyjohn v. State, 885 S.W.2d 364, 365-66 (Tenn. Crim. App. 1994).

Thus, there is no merit to the petitioner’s claim. The judgment of the trial

court is affirmed.

________________________________ Joseph M. Tipton, Judge

CONCUR:

____________________________ John H. Peay, Judge

____________________________ Curwood Witt, Judge