Mack A. O'Baner v. State of Tennessee

The petitioner, Mack A. O’Baner, was convicted by a Shelby County jury of the offense of first degree murder. He was sentenced to life imprisonment. On direct appeal this Court affirmed the convictions. See State v. Mack A. O’Baner, No. W2001-00815-CCA-R3-CD, Shelby County, (filed March 15, 2002, at Jackson). On February 6, 2003, the petitioner filed a post-conviction petition alleging that his due process rights were violated by a jury instruction on second degree murder which failed to specify that second degree murder committed through a “knowing killing of another” was strictly a “result-of-conduct offense.” See State v. Page, 81 S.W.3d 781, 790 (Tenn. Crim. App. 2002). The petition also alleged that his trial and appellate counsel were ineffective in failing to challenge the jury instructions given as being violative of the holding in Page. The trial court summarily dismissed the petition finding inter alia that, because he was convicted of first degree murder the petitioner could not establish prejudice as a result of his claims. After a review of the record and the applicable authorities we affirm the judgment of the trial court.