IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FILED
JULY 1997 SESSION
July 29, 1997
Cecil Crowson, Jr.
BILLY KILBURN, ) Appellate C ourt Clerk
) C.C.A. No. 02C01-9608-CC-00251
Appellant, )
) OBION COUNTY
VS. )
) HON. C. CREED McGINLEY,
) JUDGE
STATE OF TENNESSEE, )
) (Post-Conviction)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
THOMAS T. WOODALL JOHN KNOX WALKUP
(appeal only) Attorney General & Reporter
203 Murrell St.
P.O. Box 1075 DEBORAH A. TULLIS
Dickson, Tennessee 37056-1075 Assistant Attorney General
450 James Robertson Parkway
JOSEPH P. ATNIP Nashville, Tennessee 37243-0493
(at hearing & of counsel on appeal)
District Public Defender THOMAS A. THOMAS
111 Main Street District Attorney General
P.O. Box 734
Dresden, Tennessee 38225 JAMES T. CANNON
Assistant District Attorney General
JAMES D. KENDALL P.O. Box 218
(at hearing) Union City, Tennessee 38261-0218
Assistant District Public Defender
407 Perkins St.
Union City, Tennessee 38261
OPINION FILED: __________________
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The appellant, Billy Kilburn, appeals the denial of post-conviction relief. On
August 8, 1990, the appellant was convicted of murder in the first degree. The
conviction was affirmed on direct appeal. On March 20, 1996, the appellant filed his
second pro se petition for post-conviction relief alleging 1) the “reasonable doubt”
jury instruction given at his trial was unconstitutional, and 2) he received ineffective
assistance of trial counsel. After appointing counsel, but without holding an
evidentiary hearing, the trial court dismissed the petition. The judgment of the trial
court is AFFIRMED.
CASE HISTORY
The appellant filed his first petition for post-conviction relief on March 26,
1992, alleging ineffective assistance of counsel. The trial court found the appellant
received effective assistance of counsel at his trial. This Court upheld the trial
court’s denial of the appellant’s petition for post-conviction relief. Billy Ernest Kilburn
v. State, C.C.A. No. 02C01-9403-CC-00033, Obion County (Tenn. Crim. App. filed
August 3, 1994, at Jackson) perm. to appeal denied (Tenn. 1994).
Appellant subsequently filed a second pro se petition for post-conviction relief,
the subject of the instant appeal. After appointing counsel, the trial court dismissed
the petition finding that 1) the petition was not timely filed, 2) the issue of ineffective
assistance of counsel had been either “waived or previously determined,” and 3) the
jury instructions given at appellant’s trial were constitutionally valid.
I. Statute of Limitations
The appellant argues that he is entitled to a post-conviction hearing because
the new Post-Conviction Procedure Act extends the filing period to May 10, 1996.
Under the new Post-Conviction Procedure Act, the statute of limitations for post-
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conviction relief is reduced to one (1) year. Tenn. Code Ann. § 40-30-202 (Supp.
1996). The Act also provides for a one (1) year grace period from May 10, 1995, to
file a petition or reopen a petition for post-conviction relief. However, the grace
period does not apply in this instance because post-conviction relief was already
barred by the statute of limitations when the new legislation was enacted. When this
Court affirmed petitioner’s original conviction on August 28, 1991, petitioner’s
conviction became final. Therefore, his claim was in existence prior to enactment of
the new Post-Conviction Procedure Act and expired August 28, 1994. Tenn. Code
Ann. § 40-30-102 (repealed by 1995 Tenn. Pub. Act 207, § 1).
The new Post-Conviction Procedure Act was not meant to revive previously
barred claims. See Jimmy Earl Lofton v. State, C.C.A. No. 02C01-9603-CR-00073,
Shelby County (Tenn. Crim. App. filed March 7, 1997, at Jackson); Eric C. Pendleton
v. State, C.C.A. No. 01C01-9604-CR-00158, Davidson County (Tenn. Crim. App.
filed February 12, 1997, at Nashville); Johnny L. Butler v. State, C.C.A. No. 02C01-
9509-CR-00289, Shelby County (Tenn. Crim. App. filed December 2, 1996, at
Jackson). The majority of this Court is no longer following Arnold Carter v. State,
C.C.A. No. 03C01-9509-CC-00270, Monroe County (Tenn. Crim. App. filed July 11,
1996, at Knoxville). Accordingly, this issue is without merit.
II. Ineffective Assistance of Counsel
The appellant raised the issue of ineffective assistance of counsel in his first
post-conviction petition and was given a full evidentiary hearing. He specifically
alleged that trial counsel 1) did not properly advise him whether to testify in his own
behalf, 2) unfairly prejudiced his case through remarks made during opening
statement, 3) was ineffective in examining witnesses, 4) prejudiced and alienated the
jury by his actions during the course of the trial, and 5) was ineffective in not
perfecting an appeal to the Tennessee Supreme Court. The trial court denied relief,
and this Court affirmed.
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Petitioner subsequently filed the instant petition alleging ineffective assistance
of counsel. The trial court dismissed the petition without an evidentiary hearing
finding the issues had been either “waived or previously determined.” The record
does not preponderate against this finding. Moreover, a ground for relief is
previously determined if a court of competent jurisdiction has ruled on the merits
after a full and fair hearing. Tenn. Code Ann. §40-30-206(h)(Supp. 1996); House v.
State, 911 S.W.2d 705, 711 (Tenn. 1995). Accordingly, this issue was previously
determined and is without merit.
III. Jury Charge
The appellant argues the jury instruction defining “reasonable doubt” violates
due process by lowering the burden on the state to prove guilt.
Our courts have repeatedly held that using the phrase “moral certainty” in
conjunction with an instruction that “reasonable doubt is that doubt engendered by
an investigation of all the proof in the case and an inability, after such investigation,
to let the mind rest easily as to the certainty of guilt” is a valid instruction on
reasonable doubt. 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); State v. Hallock, 875 S.W.2d 285, 294
(Tenn. Crim. App. 1993). The record reflects the jury charge was given with the
above instruction pertaining to reasonable doubt.
Furthermore, this issue has been waived. A ground for relief is waived if the
petitioner personally or through an attorney fails to raise it for determination in any
proceeding before a court of competent jurisdiction in which the ground could have
been presented. Tenn. Code Ann. §40-30-206 (g)(Supp. 1996). The petitioner has
waived this issue by failing to include it in his first post-conviction petition.
Accordingly, this issue is without merit.
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The judgment is AFFIRMED.
___________________________
JOE G. RILEY, JUDGE
CONCUR:
______________________________
JOE B. JONES, PRESIDING JUDGE
______________________________
DAVID H. WELLES, JUDGE
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State v. Billy Kilburn
Combined Opinion