Laraiel Winton v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

November 15, 2011 Session

LARAIEL WINTON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 78126 Bob R. McGee, Judge

No. E2011-00762-CCA-R3-PC - Filed January 31, 2012

The petitioner, Laraiel Winton, aggrieved by his Knox County Criminal Court jury

convictions of especially aggravated kidnapping and attempted aggravated robbery, filed a

petition for post-conviction relief alleging ineffective assistance of counsel and prosecutorial

misconduct. Following the appointment of counsel and an evidentiary hearing, the post-

conviction court denied relief. In this appeal, the petitioner contends that successor counsel

committed ineffective assistance, that the State committed prosecutorial misconduct during

argument, and that trial counsel committed ineffective assistance in several instances not

previously raised on direct appeal. Determining that the allegations concerning trial

counsel’s performance were previously determined, that the prosecutorial misconduct claim

is waived, and that the petitioner failed to establish prejudice concerning successor counsel’s

ineffective assistance, we affirm the judgment of the post-conviction court.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which D. K ELLY

T HOMAS, J R., and C AMILLE R. M CM ULLEN, JJ., joined.

Stephen Ross Johnson and Brian J. Wanamaker, Knoxville, Tennessee, for the appellant,

Laraiel Winton.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; Randall E. Nichols, District Attorney General; and Leon Franks, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

A Knox County grand jury charged the petitioner and his co-defendant, Carlos

Montes Waters, with four counts of aggravated robbery and five counts of especially

aggravated kidnapping. Mr. Waters was also charged with two counts of attempted first

degree murder. Following a joint trial, the jury convicted the petitioner and the co-defendant

of the especially aggravated kidnapping and attempted aggravated robbery of one victim,

Mark St. Cloud. The jury acquitted the petitioner and the co-defendant of all other charges.

The trial court sentenced the petitioner to an effective sentence of 25 years’ incarceration.

The petitioner’s convictions arose from these facts succinctly stated by this

court on direct appeal:

In the early morning hours of October 21, 1996,

Hubert Ewing entertained guests at his girlfriend’s apartment in

Knoxville. The guests were Ken Almon, Aconio “Qualo”

McFerson, and Mark St. Cloud. Ewing’s girlfriend, Tanesha

Fitzgerald, was asleep in a back bedroom. Ewing responded to

a knock on the door by looking through the peephole. He saw

the defendants, Carlos Montes Waters (Hi-C) and Laraiel J.

Winton, knew them both, and opened the door. The defendants

entered wearing masks or hose for concealment, and each

carried a weapon. Waters had a small handgun, and Winton had

a sawed-off .22 rifle.

The defendants ordered Ewing and his three

guests down on the floor and demanded their jewelry and

money. St. Cloud, seeking a change of surroundings, suggested

there was money at his house. The defendants then ordered the

four victims outside, still at gunpoint. All six of the party got

into St. Cloud’s Cadillac, and he drove them to his house. All

disembarked there. St. Cloud’s barking Rottweiler greeted the

group. St. Cloud seized the opportunity to run, and Waters fired

two or three shots. The other victims bolted and ran, and a

general clamor arose in the neighborhood. During this period of

confusion, the defendants scattered and left the vicinity of St.

Cloud’s home.

The police responded promptly, and the victims

furnished the names of the defendants. After the defendants’

arrest, Winton admitted to being a participant but claimed that

the entire episode was a conspiracy against St. Cloud, the only

intended victim of the robbery and the only victim not

previously aware of the plan. According to Winton’s testimony,

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St. Cloud was a large scale drug dealer who was believed to

have in his possession a large quantity of cocaine, the actual

objective of the robbery.

State v. Carlos Montes Waters and Laraiel J. Winton, No. E2001-00882-CCA-R3-CD, slip

op. at 2 (Tenn. Crim. App., Knoxville, Mar. 6, 2003), perm. app. denied (Tenn. July 21,

2003).

Following the jury verdict and sentencing, trial counsel withdrew from

representation, and the trial court appointed successor counsel to represent the petitioner

through the motion for new trial and appeal. In their joint direct appeal, the petitioner and

his co-defendant claimed that the evidence was insufficient to support their convictions of

especially aggravated kidnapping, that the kidnapping statute was unconstitutional, that they

were denied their right to a speedy trial, that their sentences were excessive, and, significant

to our analysis in the present case, that their trial counsel committed ineffective assistance.

Carlos Montes Waters and Laraiel J. Winton, slip op. at 1. Relative to the petitioner’s

ineffective assistance of counsel claim on direct appeal, the petitioner’s “primary complaint

[was] the attorneys’ failure to convey to the trial court on the day of trial that [the petitioner]

had ‘accepted’ a plea offer. . . . [and that] there was no independent investigation made” by

a hired investigator.1 Id. This court affirmed the petitioner’s convictions on direct appeal

and, in doing so, concluded that the petitioner failed to establish “deficient performance on

the part of trial counsel.” Id. It is with this procedural backdrop in mind that we now

examine the petitioner’s claims in the present case.

On September 10, 2003, the pro se petitioner filed a timely petition for post-

conviction relief. We note at the outset, lest there is any further confusion regarding the

characterization of this action, that this post-conviction action is the first and only post-

conviction attack on the petitioner’s convictions in this case. The petitioner’s raising a claim

of ineffective assistance of counsel in his motion for new trial and on direct appeal did not,

per se, preclude the filing of a post-conviction petition via Tennessee Code Annotated § 40-

30-101.

The petitioner’s September 10, 2003 post-conviction petition alleged additional

claims of trial counsel’s ineffective assistance not previously raised on direct appeal. On that

same day, the pro se petitioner filed a supplement to the petition alleging that successor

1

Successor counsel, who was ultimately the petitioner’s counsel on direct appeal, presented some

evidence at the motion for new trial hearing concerning the ineffective assistance of counsel claims. Because

successor counsel entered the case after the verdict and before proceeding on the motion for new trial, we

refer to him as “successor” counsel and to his predecessor as “trial counsel.”

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counsel committed ineffective assistance of counsel by failing to present specific allegations

against trial counsel as part of his claim of ineffective assistance in the motion for new trial

and on direct appeal. The post-conviction court dismissed the petition without a hearing on

July 15, 2004, ruling that the claim of ineffective assistance of counsel had been previously

determined on direct appeal and stated, “[T]hat’s the end of it.”

On appeal from the post-conviction court’s summary dismissal, the State

moved for a remand of the case for the consideration of the issue of the ineffective assistance

of successor counsel. This court granted the State’s motion and ordered the case remanded

for an evidentiary hearing on the issue of successor counsel’s representation. State v. Laraiel

Winton, E2004-01786-CCA-R3-PC (Tenn. Crim. App., Knoxville, June 15, 2005) (Order).

This court’s order directed that because “the petitioner has had no previous opportunity to

raise the issue of ineffective assistance of [successor] counsel, he is entitled to a

consideration of the merits of this claim.” Id.

On May 18 and 24, 2006, the post-conviction court held evidentiary hearings

and denied relief via written order on October 6, 2006. On appeal of the October 6 post-

conviction order denying relief, the pro se petitioner argued that the post-conviction court

erroneously denied relief and that it failed to make sufficient findings. This court agreed and

reversed and remanded the case for further evidentiary hearings. Laraiel Winton v. State, No.

E2006-02392-CCA-R3-PC (Tenn. Crim. App., Knoxville, Aug. 29, 2007). Additionally, this

court expressed “serious concerns regarding the conduct at the evidentiary hearing” and

concluded that “the [post-conviction] court operated under some misapprehension of the

law” leading to the “erroneous[] belie[f] that the petitioner was foreclosed from presenting

proof related to the deficient performance of [successor] counsel.” Laraiel Winton, slip op.

at 3-4. This court further concluded that the post-conviction court’s error resulted in “the

improper limitation of proof concerning the allegations of the petition” in violation of the

petitioner’s right to a full and fair hearing. Id., slip op. at 4. Accordingly, we remanded the

case and directed the post-conviction court “to afford the petitioner a full evidentiary hearing

regarding all claims of ineffective assistance of [successor] counsel.” Id. In so doing, this

court noted that “the petitioner must be allowed to present evidence relevant to the

effectiveness of his trial counsel” in order have any opportunity of “establish[ing] that

[successor] counsel’s failures affected the ultimate outcome of the appeal.” Id. Thus, on

remand, evidence of trial counsel’s alleged ineffectiveness was necessary to establish

prejudice from successor counsel’s failure to raise specific allegations of trial counsel’s

ineffectiveness.

After the second remand in 2007, the petitioner filed a second amendment to

the pro se petition adding an allegation of successor counsel’s ineffective assistance relative

to the trial court’s imposition of sentence, citing to Apprendi v. New Jersey, 530 U.S. 466

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(2000). On November 27, 2007, the trial court appointed post-conviction counsel, who filed

an amended petition for post-conviction relief on March 30, 2010. The counsel-filed

amendment incorporated by reference the pro se pleadings and added the additional claims

that successor counsel performed ineffectively by failing to raise trial counsel’s failure to

pursue a severance of defendants for trial and trial counsel’s failure to pursue cross-

examination of the co-defendant after the trial court removed him from the witness stand.

See Michael O. Brown v. State, No. M2001-00917-CCA-MR3-CD, slip op. at 7 (Tenn. Crim.

App., Nashville, Aug. 8, 2002) (noting that “[t]he Post-Conviction Procedures Act

contemplates the filing of only one petition . . . . [and] appointed counsel may well file

additional allegations without changing the original allegations”),perm. app. denied (Tenn.

Dec. 2, 2002). On May 12, 2010, the petitioner filed a pro se amendment to the petition that

was stricken by the post-conviction court in light of the petitioner’s representation by

counsel.

Following several hearings, the post-conviction court denied relief on March

24, 2011. The post-conviction court found that the petitioner failed to present clear and

convincing proof of successor counsel’s ineffective assistance because (1) he failed to

establish prejudice concerning the severance issue and (2) trial counsel did not perform

deficiently by failing to pursue cross-examination of the unresponsive co-defendant at trial.

The court also ruled that the petitioner’s Apprendi claim did not merit relief. The post-

conviction court made no findings relative the claims raised in the pro se pleadings filed prior

to the appointment of counsel.

The petitioner filed a timely notice of appeal to this court. On appeal, he

contends that the post-conviction court erroneously denied relief based upon the ineffective

assistance of successor counsel evidenced by successor counsel’s failing to present on direct

appeal the claim of trial counsel’s deficient performance regarding severance and Apprendi

error. Additionally, the petitioner alleges that he is entitled to post-conviction relief based

upon the allegations raised in his pro se pleadings. He further argues that the cumulative

effect of these errors entitle him to post-conviction relief. The State argues that the petitioner

failed to establish entitlement to post-conviction relief.

The post-conviction petitioner bears the burden of proving his allegations by

clear and convincing evidence. See T.C.A. § 40-30-110(f) (2006). On appeal, the appellate

court accords to the post-conviction court’s findings of fact the weight of a jury verdict, and

these findings are conclusive on appeal unless the evidence preponderates against them.

Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631

(Tenn. Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive

no deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453

(Tenn. 2001).

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To establish entitlement to post-conviction relief via a claim of ineffective

assistance of counsel, the post-conviction petitioner must affirmatively establish first that

“the advice given, or the services rendered by the attorney, are [not] within the range of

competence demanded of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930,

936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an

adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other

words, the petitioner “must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

Should the petitioner fail to establish either deficient performance or prejudice, he is not

entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn.1996). Indeed, “[i]f

it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

When reviewing a claim of ineffective assistance of counsel, we will not grant

the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or

provide relief on the basis of a sound, but unsuccessful, tactical decision made during the

course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).

Such deference to the tactical decisions of counsel, however, applies only if the choices are

made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.

Crim. App. 1992).

Claims of ineffective assistance of counsel are mixed questions of law and fact.

State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6, S.W.3d 453, 461

(Tenn. 1999). When reviewing the application of law to the post-conviction court’s factual

findings, our review is de novo, and the post-conviction court’s conclusions of law are given

no presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State v. England, 19

S.W.3d 762, 766 (Tenn. 2000).

Successor Counsel’s Failure to Allege Trial Counsel’s Failure to Raise Severance

as an Allegation of Ineffective Assistance of Counsel

at Motion for New Trial and On Direct Appeal

The petitioner argues that he is entitled to post-conviction relief based upon the

ineffective assistance of successor counsel, claiming that successor counsel performed

deficiently by failing to include in his motion for new trial or on appeal a claim that trial

counsel performed deficiently by failing to seek and obtain a severance of his trial from his

co-defendant. He contends that a severance was necessary to a fair determination of guilt

because the joint trial admitted evidence that was inadmissible against the petitioner, that

joinder forced the defendant to trial with “an antagonistic co-defendant,” and that the co-

defendant’s “antics poisoned the trial.” The State contends that the petitioner failed to

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establish this claim by clear and convincing evidence. Following our review, we agree with

the State.

Subsequent to the second remand of this post-conviction case, the post-

conviction court held two “evidentiary” hearings. On May 20, 2010, the first hearing, the

petitioner submitted copies of transcripts of the trial record, the direct appeal record, and the

post-conviction record as exhibits for the post-conviction court’s consideration. Transcripts

of the May 2006 evidentiary hearings, which were the subject of this court’s previous ruling

that the post-conviction court had erroneously restricted the presentation of proof resulting

in a denial of a full and fair hearing, were included in the items exhibited to the May 2010

hearing. At a second hearing on January 5, 2011, the petitioner relied upon the items

exhibited in the May 2010 hearing and stated that “the [post-conviction court] now has

before it what the Court of Criminal Appeals wanted [it] to have before it in considering

these issues.” The petitioner presented no additional testimony from either trial or successor

counsel in support of his allegations for relief. Following the arguments of counsel, the post-

conviction court ruled that the petitioner failed to establish ineffective assistance of trial

counsel and hence, ineffective assistance of successor counsel relative to the severance issue.

We note that the petitioner presented no additional evidence at the January

2011 hearing and instead chose to rely upon the prior hearings held in this case, despite this

court’s ruling that these hearings failed to provide the petitioner a full and fair hearing. The

2006 evidentiary hearings contained absolutely no testimony from trial counsel, successor

counsel, or the petitioner regarding the severance issue. Consequently, no testimony

addresses trial counsel’s knowledge of the severance issue and his strategic decisions, if any,

concerning severance. The petitioner was obliged to present evidence to establish his claim

of successor counsel’s ineffective assistance. See Gdongalay P. Berry v. State, No. M2010-

01136-CCA-R3-PD, slip op. at 6 (Tenn. Crim. App., Nashville, Nov. 4, 2011) (ruling that

“[t]he petitioner’s failure to present any proof at the evidentiary hearing . . . necessarily

means that the petitioner failed to prove any of these grounds by clear and convincing

evidence”). In our view, by relying solely upon the previous hearings, which this court had

already deemed inadequate, the petitioner failed to present evidence to establish his claim

regarding severance and, in turn, to establish two “layers” of ineffective assistance.

That being said, we also determine that, even had some proof regarding

severance been presented, the petitioner cannot establish prejudice. Before trial, the

petitioner confessed his complicity in the offenses committed against Mr. St. Cloud. He

testified at trial that the other alleged victims were aware of the plan to rob Mr. St. Cloud.

As reflected by the jury’s acquitting the petitioner of all charges unrelated to Mr. St. Cloud,

it appears that the jury accredited much of the petitioner’s testimony. The outcome of the

trial belies the petitioner’s claim that his co-defendant’s “antics” somehow prejudiced him

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at trial. Accordingly, we conclude that the petitioner failed to establish that he was

prejudiced by successor counsel’s failure to raise the ineffective assistance of trial counsel

relative to the severance issue.

Successor Counsel’s Failure to Raise Apprendi Claim

The petitioner also alleges that successor counsel committed ineffective

assistance of counsel by failing to challenge his sentence via Apprendi. The State

acknowledges that Apprendi was decided while the petitioner’s motion for new trial was

pending and, therefore, could have been raised in the motion for new trial or on direct appeal.

The State, however, argues that the failure to raise an Apprendi claim is not ipso facto

deficient performance and that the petitioner failed to present any proof to establish either

deficient performance or prejudice.

Once again, our analysis of this issue is restricted by the petitioner’s failure

to present any testimony concerning successor counsel’s knowledge, preparation, or decision-

making concerning this issue. See also Johnny Lee Lewis v. State, No. M2009-01471-CCA-

R3-PC, slip op. at 13 (Tenn. Crim. App., Nashville, Nov. 12, 2010) (noting, in an

ineffectiveness of trial counsel allegation, that “the [p]etitioner presented no evidence

regarding trial counsel’s alleged deficiency during the post-conviction hearing, nor was [t]rial

[c]ounsel asked to explain his understanding of Apprendi at the time of the [p]etitioner’s

sentencing”). Thus, once again, the petitioner has failed to present proof concerning the

allegation.

Furthermore, although we note that successor counsel clearly could have raised

the Apprendi issue on direct appeal, the application of Apprendi to Tennessee’s sentencing

scheme was not resolved until the release of our supreme court’s opinion in State v. Gomez,

239 S.W.3d 733 (Tenn. 2007) (Gomez II) (holding that provisions of the pre-2005 Tennessee

sentencing law violated Gomez’ right to trial by jury and overruled the position the court had

taken in Gomez I that the application of the pre-2005 law did not equate to plain error).

After the petitioner’s direct appeal, on June 24, 2004, in Blakely v. Washington,

542 U.S. 296 (2004), the United States Supreme Court again signaled that some judge-

sentencing regimes conflicted with criminal defendants’ rights to have juries participate in

certain sentencing determinations. Blakely held that “‘[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” Id. at 301

(quoting Apprendi v. New Jersey, 530 U.S. 466 (2000)). The “statutory maximum” to which

a trial court may sentence a defendant is not the maximum sentence after application of

appropriate enhancement factors, other than the fact of a prior conviction, but the “maximum

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sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or

admitted by the defendant.” Id. at 303. Under Blakely, the “statutory maximum” sentence

that may be imposed is the presumptive sentence applicable to his or her offense. See id.

The presumptive sentence may be exceeded without the participation of a jury only when the

defendant has a prior conviction and/or when an otherwise applicable enhancement factor

was reflected in the jury’s verdict or was admitted by the defendant. Nevertheless, our

supreme court continued to hold that our sentencing code did not violate a defendant’s Sixth

Amendment rights. See State v. Gomez, 163 S.W.3d 632 (Tenn. 2005) (Gomez I).

On January 22, 2007, the United States Supreme Court released its decision in

Cunningham v. California, 549 U.S. 270 (2007), holding that California’s sentencing scheme

did not survive Sixth Amendment scrutiny under Blakely. On the heels of Cunningham, on

February 20, 2007, the United States Supreme Court vacated Gomez I and remanded that case

for reconsideration in light of Cunningham, see Gomez v. Tennessee, 549 U.S. 1190 (2007).

In Gomez II, the supreme court held that provisions of the pre-2005 Tennessee sentencing

law violated Gomez’ right to trial by jury and overruled the position the court had taken in

Gomez I that the application of the pre-2005 law did not equate to plain error.

Until Gomez II, our courts had consistently ruled that our sentencing act did

not violate a defendant’s Sixth Amendment rights. Indeed, in Graham v. State, 90 S.W.3d

687, 688-89 (Tenn. 2002), decided prior to the defendant’s direct appeal, our supreme court

examined whether a judge-enhanced sentence violated Apprendi and held that because

Graham “received a sentence within the statutory maximum for each crime[,] . . . the trial

court was well within its constitutional and statutory authority to consider enhancing factors

for the purpose of sentencing without the assistance of the jury.” Id. at 692 (emphasis in

original). Therefore, it is apparent that even had successor counsel raised the Apprendi claim

on direct appeal, the issue would have not availed the petitioner any relief at the time of his

direct appeal in 2003. As noted by this court in Johnny Lee Lewis, “[g]iven that, before

Blakely and Cunningham, the Tennessee Supreme Court interpreted Apprendi in such a way

that preclude[d] a finding that the [p]etitioner’s trial counsel was deficient in failing to raise

the issue, we conclude that the [p]etitioner is not entitled to relief on this issue.” Johnny Lee

Lewis, slip op. at 14. Accordingly, the petitioner cannot establish that he is entitled to relief

based upon successor counsel’s failure to raise an Apprendi claim in the motion for new trial

or on direct appeal.2

2

We also note that any freestanding Blakely claim would not garner any relief in either post-

conviction or habeas corpus proceedings. See David Earl Palmer v. State, No. W2005-01421-CCA-R3-PC,

slip op. at 9 (Tenn. Crim. App., Jackson, Nov. 3, 2006) (noting that “Blakely did not announce a new rule

and . . . even if Blakely had announced a new rule, relief [can] be granted only in ‘pipeline’ cases”).

(continued...)

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Pro Se Pleadings

The petitioner’s pro se pleadings alleged that trial counsel was ineffective for

failing to seek suppression of the defendant’s statement to the police, failing to conduct an

adequate pretrial investigation, failing to prepare adequately for the presentation of a defense

witness, and advising the petitioner to testify in the absence of adequate preparation. The pro

se pleadings also alleged prosecutorial misconduct relative to the State’s alleged vouching

for witnesses during argument and that successor counsel was ineffective for failing to

provide a transcript of the jury instructions on direct appeal in support of the petitioner’s

attack on the constitutionality of the kidnapping statutes.

This court has observed that “raising the issue [of ineffective assistance of

counsel] in the direct appeal could result not only in losing on appeal, but also in barring the

claimant from raising the issue later in the post-conviction arena.” State v. Kristie M. Smith,

No. E2010-00549-CCA-R3-CD, slip op. at 16 (Tenn. Crim. App., Knoxville, Nov. 14 , 2011)

(citing T.C.A. §§ 40-30-106(f), (h)). “A post-conviction claim will be dismissed where that

claim has previously been determined by another court.” Id. (citing T.C.A. § 40-30-106(f)).

“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. § 40-30-106(h). “A full and fair hearing

has occurred where the petitioner is afforded the opportunity to call witnesses and otherwise

present evidence, regardless of whether the petitioner actually introduced any evidence.” Id.

§ 40-30-106(h). For this reason, ineffective assistance of counsel claims should normally be

raised by a petition for post-conviction relief inasmuch as a petition based on ineffective

assistance of counsel is a single ground for relief, and all factual allegations must be

presented in one claim. See id. § 40-30-206(d).

Turning to the allegations contained in the pro se pleadings, we conclude that

the claim of ineffective assistance of trial counsel was previously determined in the motion

for new trial proceeding and on direct appeal “even though the petitioner may not have made

the same allegations on direct appeal that he now makes in his post-conviction petition.” See

Nelson Troglin v. State, No. E2010-01838-CCA-R3-PC, slip op. at 20-21 (Tenn. Crim. App.,

Knoxville, Oct.11, 2011) (citing Ronald Yates v. State, No. W2008-02067-CCA-R3-PC

(Tenn. Crim. App., Jackson, Dec. 3, 2009); Jay Homer Chambers v. State, No. E2004-01862-

CCA-R3-PC (Tenn. Crim. App., Knoxville, Sept. 26, 2005); John Earl Scales v. State, No.

M2003-01753-CCA-R3-PC (Tenn. Crim. App., Nashville, July 13, 2004), perm. app. denied

(Tenn. Nov. 8, 2004); Russell Lane Overby v. State, No. W2001-01247-CCA-R3-PC (Tenn.

2

(...continued)

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Crim. App., Jackson, Apr. 26, 2002), perm. app. denied (Tenn. 2002)). As such, the claims

based upon the actions or omissions of trial counsel cannot be litigated at this juncture.

Additionally, the petitioner failed to present any evidence regarding his specific claims, and

the post-conviction court did not make any findings concerning them. Accordingly, we

conclude that the petitioner failed to establish entitlement to post-conviction relief.

Likewise, the petitioner’s allegation of prosecutorial misconduct is waived for

failure to present it on direct appeal. “In order to raise a claim of prosecutorial misconduct,

the issue must have been raised in the trial court. Absent contemporaneous objection, the

issue is waived.” State v. Robert Douglas Treadway, No. W1999-01152-CCA-R3-CD, slip

op. at 6 (Tenn. Crim. App., Jackson, Dec. 1, 2000) (citing State v. Sutton, 562 S.W.2d 820,

825 (Tenn. 1972); State v. Farmer, 927 S.W.2d 582, 591 (Tenn. Crim. App. 1996)). The

petitioner could have raised the prosecutorial misconduct issue on direct appeal. A ground

for post-conviction relief is waived “if the petitioner personally or through an attorney failed

to present it for determination in any proceeding before a court of competent jurisdiction in

which the ground could have been presented.” T.C.A. § 40-30-106(g).

In his pro se pleadings, the petitioner also alleged that successor counsel

rendered ineffective assistance by failing to include a transcript of the jury instructions in the

record on appeal. At the May 2006 evidentiary hearing, successor counsel testified that he

reviewed the jury instructions and deemed them to be proper. He also testified that he made

a “tactical decision” not to challenge the jury instructions based upon his conclusion.

Inasmuch as the instructions related to the constitutional challenge to the kidnapping statute

raised on direct appeal, the petitioner cannot establish prejudice because this court deemed

the statutes constitutional on direct appeal. Carlos Montes Waters and Laraiel J. Winton, slip

op. at 5. Accordingly, the petitioner failed to establish entitlement to relief on this claim.

Cumulative Error

Having considered each of the petitioner’s allegations for post-conviction relief

and concluded that the petitioner is not entitled to relief for any of the allegations, we need

not consider the cumulative effect of the alleged errors. State v. Hester, 324 S.W.3d 1, 77

(Tenn. 2010) (“To warrant assessment under the cumulative error doctrine, there must have

been more than one error committed.”). Accordingly, the judgment of the post-conviction

court denying relief is affirmed.

_________________________________

JAMES CURWOOD WITT, JR., JUDGE

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