IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MAY 1996 SESSION
May 14, 1998
Cecil W. Crowson
JONAS ROME COLE, ) Appellate Court Clerk
)
Appellant, ) No. 01C01-9509-CC-00294
)
) Davidson County
v. )
) Honorable Walter C. Kurtz, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
For the Appellant: For the Appellee:
Richard McGee Charles W. Burson
Washington Square Two, Suite 417 Attorney General of Tennessee
222 Second Avenue, North and
Nashville, TN 37201 Karen M. Yacuzzo
Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
Victor S. Johnson, III
District Attorney General
and
D. Paul DeWitt
Assistant District Attorney General
Washington Square, Suite 500
222 Second Avenue, North
Nashville, TN 37201-1649
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The petitioner, Jonas Rome Cole, appeals as of right from the Davidson
County Circuit Court’s dismissal of his petition for post-conviction relief after an
evidentiary hearing. The trial court dismissed the petition, holding that it was barred by
the applicable statute of limitations and that the issues raised in the petition were
without merit. The petitioner contends that the petition is not barred by the statute of
limitations. He argues that he is entitled to post-conviction relief because he received
the ineffective assistance of counsel at trial and on appeal, his equal protection rights
were violated by the state’s discriminatory exercise of its peremptory challenges, and
the reasonable doubt jury instruction that was given at his trial allowed the jury to
convict him based on a lower standard of proof than is constitutionally required. We
affirm the judgment of the trial court.
In 1988, the petitioner was convicted of first degree murder and employing
a firearm during the commission of a felony. He received consecutive sentences of life
imprisonment and five years, respectively. This court affirmed his convictions. State v.
Jonis Rome Cole, No. 88-311-III, Davidson County (Tenn. Crim. App. Nov. 7, 1989),
app. denied (Tenn. Mar. 5, 1990). In 1991, the petitioner filed a post-conviction petition
alleging numerous grounds for relief. Pursuant to an agreed order, the petitioner was
granted a delayed appeal on a suppression issue, while the remaining grounds of the
petition were dismissed as having been waived or previously determined.
Subsequently, this court held that the petitioner was not entitled to relief on the
suppression issue. Jonis Rome “Mack” Cole v. State, No. 01-C-01-9203-CR-00113,
Davidson County (Tenn. Crim. App. Feb. 18, 1993), app. denied (Tenn. June 7, 1993).
The present petition for post-conviction relief was filed on January 5,
1995. The petition alleges that the petitioner received the ineffective assistance of
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counsel at trial and on appeal, that the state violated his equal protection rights by
exercising its peremptory challenges in a discriminatory manner, and that the
reasonable doubt jury instruction given at the petitioner’s trial allowed the jury to convict
him based on a lower standard of proof than is constitutionally required. The trial court
addressed the substance of the petitioner’s claims and held that the petitioner was not
entitled to relief on any of the grounds raised. The court also held that the petition is
barred by the applicable statute of limitations, T.C.A. § 40-30-102 (repealed 1995), and
noted that the petitioner may have waived his grounds for relief.
I. STATUTE OF LIMITATIONS
Initially, the petitioner contends that the trial court erred by concluding that
the petition was barred by the applicable statute of limitations, T.C.A. § 40-30-102
(repealed 1995), because the petition was filed within three years of the time that the
supreme court denied review of his delayed appeal. The state asserts that the post-
conviction statute of limitations began to run on March 5, 1990, when the supreme court
denied review of the petitioner’s direct appeal. The state argues that because a
delayed appeal is merely a post-conviction remedy and is not an appeal as of right as
contemplated under Rule 3, T.R.A.P., the granting of a delayed appeal does not toll the
statute of limitations.
Although we agree with the state that a delayed appeal is a post-
conviction remedy, we also note that a delayed appeal granted through post-conviction
relief is the equivalent of that which should have occurred in a direct appeal from the
convicting case. The Post-Conviction Procedure Act only authorizes delayed appeals
in instances in which a “petitioner was denied his right to an appeal from his original
conviction in violation of the Constitution of the United States or the Constitution of
Tennessee . . . .” T.C.A. § 40-30-120 (repealed 1995); see also T.C.A. § 40-30-213.
3
In this vein, a delayed appeal takes the place of a direct appeal, and the same rights
attach to a delayed appeal as those that attach to a direct appeal.
Under T.C.A. § 40-30-102 (repealed 1995), a petitioner may petition for
post-conviction relief “within three (3) years of the date of the final action of the highest
state appellate court to which an appeal is taken.” Because we view a delayed appeal
as being the equivalent of a direct appeal, we believe that the petitioner had three years
from the final action on the delayed appeal to file a post-conviction petition. However,
we also recognize that the scope of a post-conviction hearing only extends to grounds
for relief that have not been waived or previously determined. T.C.A. § 40-30-111
(repealed 1995); House v. State, 911 S.W.2d 705 (Tenn. 1995). Thus, in practice, the
petitioner is limited to post-conviction claims that arose out of the delayed appeal.
II. PEREMPTORY CHALLENGES
The petitioner contends that he is entitled to post-conviction relief
because his equal protections rights were violated during voir dire when the state
exercised three peremptory challenges to exclude black potential jurors from the jury.
See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). The petitioner argues
that this issue has not been previously determined because he has not had a full and
fair hearing on it. We disagree.
“A ground for relief is ‘previously determined’ if a court of competent
jurisdiction has ruled on the merits after a full and fair hearing.” T.C.A. § 40-30-112
(repealed 1995). In House v. State, 911 S.W.2d 705 (Tenn. 1995), our supreme court
determined that a full and fair hearing is provided when a petitioner is given an
opportunity to present his or her constitutional claims at a meaningful time and in a
meaningful manner, that is, without undue restriction of the scope of the hearing or
undue limitation on the introduction or presentation of evidence. Id. at 711.
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At trial, the petitioner’s counsel objected to the state’s use of peremptory
challenges and moved for a mistrial. The trial court denied the motion as being
premature. During the petitioner’s direct appeal, this court upheld the trial court’s ruling
and stated, “In addition, the facts as stated in this case do not present a prima facie
case of a racially discriminatory purpose, requiring the State to prove a neutral
explanation for its peremptory challenges.” State v. Jonis Rome Cole, No. 88-311-III,
Davidson County, slip op. at 2 (Tenn. Crim. App. Nov. 7, 1989). The petitioner raised
the issue again in his first post-conviction petition but later agreed to the dismissal of
the petition because all of the grounds raised were waived or previously determined.
The issue has been previously determined. See T.C.A. § 40-30-112(a) (repealed
1995); House, 911 S.W.2d at 711.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
Next, the petitioner contends that he is entitled to post-conviction relief
because he received the ineffective assistance of counsel at trial, during his first direct
appeal, and during his first post-conviction action and delayed appeal. Specifically, the
petitioner contends that his attorney was ineffective for failing to properly preserve the
Batson issue.
Initially, we note that the petitioner waived his ineffective assistance of trial
and direct appeal counsel claims by failing to include them in his first post-conviction
petition. See T.C.A. § 40-30-112(b)(1) (repealed 1995); House, 911 S.W.2d at 714.
Also, insofar as the petitioner contends that his counsel was ineffective for agreeing to
the dismissal of the prior post-conviction petition, he is arguing that he received the
ineffective assistance of post-conviction counsel. There is no constitutional right to the
effective assistance of post-conviction counsel. House, 911 S.W.2d at 712.
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We also disagree with the petitioner’s contention that counsel was
ineffective for failing to raise the peremptory challenge issue during his delayed appeal.
The burden was on the petitioner in the trial court to prove his allegations that would
entitle him to relief by a preponderance of the evidence.1 Brooks v. State, 756 S.W.2d
288, 289 (Tenn. Crim. App. 1988). On appeal, we are bound by the trial court’s findings
unless we conclude that the evidence preponderates against those findings. Black v.
State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). In this respect, the petitioner has
the burden of illustrating how the evidence preponderates against the judgment
entered. Id.
To prevail on his ineffective assistance of appellate counsel claim, the
petitioner had the burden of demonstrating (1) that counsel's performance was deficient
and (2) that the deficiency was prejudicial in terms of rendering a reasonable probability
that the result of the trial was unreliable or the proceedings fundamentally unfair. See
Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830 (1985); Campbell v. State, 904 S.W.2d
594, 596 (Tenn. 1995). Also, we note that the approach to the issue of the ineffective
assistance of counsel does not have to start with an analysis of an attorney's conduct.
If prejudice is not shown, we need not seek to determine the validity of the allegations
about deficient performance. Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct.
2052, 2069 (1984).
In this case, the petitioner failed to demonstrate that his delayed appeal
counsel was deficient or that he was prejudiced by his counsel’s failure to raise the
peremptory challenge issue during his delayed appeal. As previously discussed, this
court determined that the issue was without merit during the petitioner’s direct appeal.
Thus, the petitioner’s delayed appeal counsel was not deficient for failing to raise the
1
For post-conviction petitions filed after May 10, 1995, petitioners have the burden o f
proving factual allegations by clear and convincing evidence. T.C.A. § 40-30 -210(f).
6
issue, and the petitioner has suffered no prejudice from his counsel’s decision not to
raise the issue.
IV. REASONABLE DOUBT INSTRUCTION
Finally, the petitioner contends that he is entitled to post-conviction relief
because the use of the term “moral certainty” in the reasonable doubt jury instruction
given at his trial allowed the jury to convict him based on a lower standard of proof than
is constitutionally required. The petitioner cites Victor v. Nebraska, 511 U.S. 1, 114 S.
Ct. 1239 (1994) and Rickman v. Dutton, 864 F.Supp. 686 (M.D. Tenn. 1994), aff’d sub
nom. Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997), petition for cert. filed, 66 U.S.L.W.
3604 (U.S. Mar. 2, 1998), in support of his argument. The state counters that the
petitioner has waived the issue by failing to raise it at trial, on direct appeal, or in the
first post-conviction petition. The state also contends that the reasonable doubt
instruction given at the petitioner’s trial was a proper statement of the law.
The petitioner has offered no explanation for his failure to raise the
reasonable doubt jury instruction issue in any of his prior proceedings. Although we
recognize that Victor and Rickman were decided after the petitioner’s trial, direct
appeal, and first post-conviction case, these cases did not announce a new rule of
constitutional law. See Charles Michael Gentry v. State, No. 01C01-9704-CR-00119,
Davidson County (Tenn. Crim. App. Feb. 23, 1998). Moreover, the Supreme Court
analyzed the constitutional sufficiency of a reasonable doubt jury instruction in Cage v.
Louisiana, 498 U.S. 39, 111 S. Ct. 328 (1990), before the petitioner filed his first petition
for post-conviction relief. Therefore, the petitioner had the opportunity to raise the issue
during his first post-conviction action and failed to do so. This constitutes a waiver.
See T.C.A. § 40-30-112 (repealed 1995); House, 911 S.W.2d at 714.
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In any event, the courts of this state have repeatedly upheld the use of the
phrase “moral certainty” in the context of the reasonable doubt jury instruction given at
the petitioner’s trial. See Nichols v. State, 877 S.W.2d 722, 734 (Tenn. 1994); State v.
Sexton, 917 S.W.2d 263, 266 (Tenn. Crim. App. 1995); Pettyjohn v. State, 885 S.W.2d
364, 366 (Tenn. Crim. App. 1994); see also Austin v. Bell, 126 F.3d 843, 846-47 (6th
Cir. 1997). The issue is without merit.
In consideration of the foregoing and the record as a whole, we affirm the
dismissal of the petitioner’s post-conviction petition.
Joseph M. Tipton, Judge
CONCUR:
Gary R. Wade, Judge
William M. Barker, Judge
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