IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1997 SESSION
JAMES E. DELBRIDGE, * C.C.A. # 02C01-9605-CR-00142
Appellant, * SHELBY COUNTY
VS. * Hon. L. T. Lafferty, Judge
STATE OF TENNESSEE,
Appellee.
*
*
(Post-Conviction)
FILED
For Appellant: For Appellee:
August 27, 1997
James E. Delbridge, pro se Charles W. Burson
Cold Creek Correctional Facility Attorney General & Reporter
Route 2, Box 1000
Henning, TN 38041-1000 Deborah A. Tullis
Cecil Crowson, Jr.
Assistant Attorney General
450 James Robertson Parkway ourt Clerk
Appellate C
Nashville, TN 37243-0493
Karen Cook
Assistant District Attorney General
Criminal Justice Complex
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED:_____________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The petitioner, James E. Delbridge, appeals the trial court's denial of
his petition for post-conviction relief. The dispositive issue is whether the trial court
correctly dismissed the petition without an evidentiary hearing on the basis that it
was barred by the statute of limitations. We affirm the judgment of dismissal.
On May 9, 1981, the petitioner was convicted of second degree
murder and sentenced to a term of forty-five years. This court affirmed on direct
appeal, State v. Delbridge, 630 S.W.2d 626 (Tenn. Crim. App. 1981), and
application for permission to appeal was denied by the supreme court on December
28, 1981. Thereafter, the petitioner made other attacks upon his conviction. In an
order filed December 21, 1987, the supreme court, while dismissing the petitioner's
third post-conviction petition, made the following observation about his first two
applications for post-judgment relief: "[The] [d]efendant filed a post-conviction
petition in 1982 and a writ of error coram nobis in 1984, both of which were
dismissed in the trial court and the dismissals affirmed by the Court of Criminal
Appeals." Delbridge v. State, 742 S.W.2d 266, 266 (Tenn. 1987).
In this November 14, 1995, petition, the petitioner primarily alleged that
he had been denied due process by the jury instruction on reasonable doubt. See
Cage v. Louisiana, 498 U.S. 39 (1991). The petitioner also argued that his counsel
was ineffective for having failed to argue that the reasonable doubt instruction was
unconstitutional. The trial court dismissed the petition without an evidentiary hearing
and without the appointment of counsel for three reasons:
(1) the petition was not timely filed;
(2) the issue had been waived for the failure to present it
in a prior proceeding; and
(3) that, as to the claim of ineffective assistance of
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counsel, the ground had been previously determined.
See Tenn. Code Ann. § 40-30-206 (1996 Supp.). The trial court considered and
rejected the merits of the petitioner's claim that the reference to moral certainty in
the jury instructions violated due process. We concur in the observations by the trial
court. Even without considering the procedural bars, 1 the due process claim lacks
merit as does the allegation of ineffective assistance of counsel for failure to assert
the ground.
In Cage v. Louisiana, the United State Supreme Court held that the
terms, "actual substantial doubt" and "grave" uncertainty in determining whether the
doubt was sufficient for acquittal, lowered the necessary burden of proof required for
conviction; when those phrases were considered along with the term "moral
certainty," a reasonable juror could have interpreted the instruction to allow finding
of guilt based on a degree of proof below that required by the due process clause.
498 U.S. at 41. In Sullivan v. Louisiana, 508 U.S. 275 (1993), it was determined
that a deficient reasonable doubt instruction is never harmless error.
Here, the petitioner relies upon recent decisions by the United States
Supreme Court by attacking the use of the term "moral certainty" in conjunction with
the reasonable doubt standard. This very terminology, however, has been
approved by this court as long as not used in connection with other qualifying
phrases such as "substantial" or "grave." See, e.g., State v. Hallock, 875 S.W.2d
285 (Tenn. Crim. App. 1993); Eanos Earl Hunt v. State, No. 03C01-9308-CR-00266
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A majority of this panel adheres to the view that the 1995 amendm ent to the Post-Conviction
Procedure Act did not create an opportunity to file a post-conviction claim within one year after May
10, 1995 , for tho se p etitioners who h ad b een barred b y the form er thre e-year statu te of lim itations.
See Te nn. C ode Ann . § 40-30-102 (repealed 19 95); T enn . Code A nn. § 40-3 0-20 2 (19 96 S upp .).
Also , the statutory defe nse of wa iver would likely bar this claim . See Ho use v. State , 911 S.W .2d 705
(Tenn. 1995). The presumption of waiver is not overcome by an allegation that the petitioner was not
personally aware of a ground for relief. W aiver is to be determined by an objective standard and the
petitioner is boun d by the action or inac tion of his co uns el. Id.
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(Tenn. Crim. App., at Knoxville, Feb. 3, 1994); State v. Gary Lee Blank, No. 01C01-
9105-CC-00139 (Tenn. Crim. App., at Nashville, Feb. 29, 1992). Here, the
petitioner offers no proof that the reference to moral certainty lowered the degree of
proof in violation of the due process clause. The trial court found favorably for the
state on this issue. Because there was no error in the instructions, counsel for the
petitioner cannot be deemed ineffective for having failed to allege the ground as a
means of relief.
Accordingly, the judgment is affirmed.
__________________________________
Gary R. Wade, Judge
CONCUR:
______________________________
John H. Peay, Judge
_______________________________
Thomas T. Woodall, Judge
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