Nabeeh Jameel Mateen v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 1, 2011 at Jackson

NABEEH JAMEEL MATEEN v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2005-A-650 Steve R. Dozier, Judge

No. M2010-00423-CCA-R3-PC - Filed May 5, 2011

The petitioner, Nabeeh Jameel Mateen, appeals the denial of his petition for post-conviction

relief from his especially aggravated robbery conviction, arguing that he received the

ineffective assistance of counsel. Following our review, we affirm the denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J ERRY L. S MITH and N ORMA

M CG EE O GLE, JJ., joined.

Nathaniel Colburn (on appeal) and George Duzane (at hearing), Nashville, Tennessee, for

the appellant, Nabeeh Jameel Mateen.

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

General; Victor S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant

District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

The petitioner was convicted of especially aggravated robbery by a Davidson County

Criminal Court jury and sentenced to forty years at 100% in the Tennessee Department of

Correction. This court affirmed his conviction and sentence on direct appeal, and the

Tennessee Supreme Court denied permission to appeal. See State v. Nabeeh Jameel Mateen,

No. M2006-02295-CCA-R3-CD, 2008 WL 1904250 (Tenn. Crim. App. May 1, 2008),

perm. to appeal denied (Tenn. Dec. 8, 2008).

Our direct appeal opinion reveals that the petitioner’s conviction arose out of his

involvement in the robbery, shooting, and running over of Rachel Browning, the victim, the

morning of February 7, 2004. Id. at *1-2. Neighbors of the victim, who observed various

portions of the incident, described that the assailant was wearing a “poofy jacket,” a hooded

sweatshirt with the hood pulled up, gloves, and “bag-sag” jeans. Id. Approximately a week

prior to the incident, the defendant, with whom the victim had a business and romantic

relationship, asked the victim for $1000 which the victim refused to give him. Id. at *3.

The next time the victim saw the defendant was the night before the shooting when she was

working at the nightclub she owned, and the defendant arranged to meet her at her home

after she closed the club. When the victim arrived home around dawn and was removing

her belongings from her car, she saw a gray, hooded sweatshirt, heard a loud noise, and

remembered nothing thereafter until she woke up in the hospital. The victim could not

identify the person who shot her. Id.

The State’s primary witnesses against the defendant was Michael Scott, a friend of

the defendant, who testified that he was with the defendant sometime after the shooting

when the defendant told Scott that he had set up the victim to be robbed by telling some

other people to follow her after she left the club and that those people had shot her. Scott

testified that the defendant later told him over the telephone that someone named “Jazz” shot

the victim. Id. at *5. The victim’s and the defendant’s cell phone records were introduced

at the trial. The records showed a number of calls between the victim and the defendant

between 4:23 a.m. and 6:08 a.m. the morning of the shooting, as well as calls from the

victim to a Styles Camp. The defendant’s records showed, among other things, calls to and

from a Jermaine Hyler around the same time period. The location of the telephone towers

used during the calls reflected that a 6:06 a.m. call by Hyler was received at a tower in the

part of town where the victim lived. Id. at *6.

The petitioner filed a timely pro se petition for post-conviction relief, and after the

appointment of counsel, an amended petition was filed. The petitioner requested that his

attorney be relieved, and new counsel was appointed and filed another amended petition.

In his petitions, the petitioner raised various allegations of ineffective assistance of counsel.

The post-conviction court conducted an evidentiary hearing, at which the petitioner

testified that his trial counsel only met with him approximately seven times for a total of two

hours in preparation for trial. He and counsel “discussed some small issues” but did not talk

about possible defenses. The petitioner said that there was a preliminary hearing in his case

at which he was represented by another attorney. At that hearing, Michael Scott, who was

the State’s key witness at trial, testified that the petitioner had made a confession to him

while they were in a vehicle together, but Scott could not remember whose car they were in,

where they had been, where they were going, or what they were wearing. However, at trial,

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Scott remembered who had been driving in addition to “a lot of other stories that had

changed from the story that he stated in the preliminary hearing.” The petitioner stated that

he asked counsel to obtain a transcript of the preliminary hearing.

The petitioner testified that, at the preliminary hearing, Scott also stated that he

“wanted [the petitioner] to take a charge, a dope charge that he claimed that [the petitioner]

supposedly left some drugs . . . in his car[.]” Scott said that, in addition, he wanted the

petitioner to pay to get his car out of impound and pay for his attorney. Scott stated at the

hearing that he was presently mad at the petitioner. The petitioner testified, however, that

none of those things came out at trial.

The petitioner testified that Scott also testified at the preliminary hearing that the

petitioner had made another confession over the jailhouse phone. The petitioner said that

he did not get a copy of that phone conversation, and he could not recall whether he brought

the matter to counsel’s attention. The petitioner further alleged that Crystal Parnam was his

alibi witness, which he informed counsel “[n]umerous times” and asked to have her

subpoenaed, but Parnam did not testify at trial.

The petitioner testified that he was not in possession of his cell phone the morning

of the incident, and he asked counsel to investigate the whereabouts of his phone through

the use of a private investigator, but counsel told him that “a private investigator is going

to cost a lot of money. You can barely afford me right now.” The petitioner testified that

counsel represented him on direct appeal, and he alleged that counsel never met with him

to discuss the issues he wished to raise.

On cross-examination, the petitioner denied having a conversation with the victim

shortly before the incident in person at the nightclub or on the phone. He admitted that he

had sexual relations with the victim on several occasions but stated that he did not know the

victim’s voice over the phone. The petitioner denied that he was supposed to meet the

victim for sexual relations the morning of the incident.

The petitioner acknowledged that Crystal Parnam was his girlfriend at the time of the

incident, and she met with counsel on several occasions and made partial payments toward

his attorney’s fees. However, a few weeks prior to trial, Parnam disappeared, and counsel

was unable to locate her. The petitioner denied that he possessed his cell phone around the

time of the incident, claiming that he told counsel that his friend, Mervin Harvell, had his

phone at the time.

Counsel testified that he was retained by the petitioner to represent him at trial.

Counsel discussed the elements of the charged offenses with the petitioner, as well as the

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possible defenses he might have. He met with the petitioner six or seven times at the jail

during the pendency of the case and whenever the petitioner came to the courthouse on his

court dates. He said that some of their conversations could have been as short as fifteen

minutes and others more than thirty minutes, but their meetings were “way more than an

hour any time that [they] met within two weeks of trial.”

Counsel testified that he obtained a copy of the preliminary hearing tape within one

month from the time he was retained by the petitioner. Counsel listened to the tape and

made notes, but he did not see any reason to have it transcribed. Counsel learned from

listening to the tape that the State was prolonging a hearing on a probation violation on

Michael Scott until after Scott testified at the petitioner’s trial and learned that Scott had a

felony drug charge pending.

Counsel testified that he talked to the petitioner about Scott’s allegation that the

petitioner had confessed to the crime while they were in a vehicle, but neither the petitioner

nor Scott could remember whose vehicle they were in when the conversation took place.

Counsel said that Scott’s testimony at trial was different than that at the preliminary hearing

“[i]n some minor ways,” but there was nothing from the hearing that counsel could use to

cross-examine Scott because it was not “vastly different.” Counsel said that he cross-

examined Scott regarding any “material” inconsistencies in his testimony, and he believed

that his cross-examination was “thorough.”

Counsel testified that he learned about some jailhouse telephone calls between the

petitioner and Scott that had taken place, but he did not file a motion to obtain a transcript

of the telephone calls because “after just a few months those calls are erased. And by the

time [he] was retained . . ., that time had long passed. . . . They were not going to be

obtainable.” Counsel said that he was “sure” he discussed with the prosecutors whether they

had a transcription of the jailhouse calls, “but neither of them had a transcript of it.”

However, counsel did not make a request in writing or go to the jail to investigate whether

the sheriff’s department still had the tapes of the conversation. In addition, counsel

attempted to talk to Michael Scott before the trial, but he “was not given access to [Scott]

by his attorney.”

Counsel stated that he met with Crystal Parnam once or twice a month for a total of

six to eight times. He interviewed her and she said there was an alibi, but counsel did not

“know whether there was one or not.” The petitioner asked counsel to file a notice of alibi

witness, but he did not do so “because [the alibi witness, Parnam,] disappeared a few weeks

before the trial,” and he did not know how to locate her. Counsel attempted to locate

Parnam by calling her, but he discovered that her number was longer valid. He also drove

by an address where she said she had lived for a period of time, but no one was home. The

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petitioner was unable to give him any additional contact information that counsel did not

have already. Counsel recalled that the petitioner told him that Parnam had “found a new

boyfriend and had moved on from their relationship.”

Counsel testified that he did not visit with the petitioner in preparation of the appeal,

but he sent letters to the petitioner throughout the appellate process. However, counsel and

the petitioner discussed issues in preparation for the motion for new trial, and the petitioner

did not mention any additional issues that he wanted to raise. The petitioner never wrote

counsel to say that he thought of additional issues he wanted to include on appeal. Counsel

said that he would have included other issues in the appellate brief if he thought they had

merit.

In denying the petitioner post-conviction relief, the court accredited the testimony of

counsel that he met with the petitioner on several occasions to discuss trial strategy and had

thoroughly investigated the petitioner’s case by meeting with witnesses. The court observed

that Crystal Parnam was not called as a witness at the evidentiary hearing, nor was there any

showing of the validity of the claimed alibi. Therefore, the petitioner failed to prove that

counsel was ineffective for not calling Parnam to testify at trial. The court noted the phone

usage of the various actors was very incriminating at trial, but at the evidentiary hearing,

there was “no proof . . . submitted as to who possessed the petitioner’s phone during the

critical time of these events.” The court found, therefore, that counsel could not “be blamed

for not presenting proof to the contrary if it did not exist.”

ANALYSIS

The petitioner argues on appeal that counsel rendered ineffective assistance because

he failed to adequately investigate the petitioner’s alibi defense and subpoena his alibi

witness; failed to investigate who possessed the petitioner’s phone at the time of the

incident; failed to obtain a transcript of Michael Scott’s testimony at the preliminary hearing

to use “for impeachment and substantive evidence”; failed to adequately confer with him

prior to trial; and failed to meet with him in preparation of or raise sufficient challenges on

appeal.

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

and convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). When an

evidentiary hearing is held in the post-conviction setting, the findings of fact made by the

court are conclusive on appeal unless the evidence preponderates against them. See Tidwell

v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual

issues, the appellate court should not reweigh or reevaluate the evidence. See Henley v.

State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s application of

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the law to the facts of the case is de novo, with no presumption of correctness. See Ruff v.

State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel,

which presents mixed questions of fact and law, is reviewed de novo, with a presumption

of correctness given only to the post-conviction court’s findings of fact. See Fields v. State,

40 S.W.3d 450, 458 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the burden

to show both that trial counsel’s performance was deficient and that counsel’s deficient

performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.

668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting

that same standard for determining ineffective assistance of counsel that is applied in federal

cases also applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is

reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).

The reviewing court must indulge a strong presumption that the conduct of counsel falls

within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and

may not second-guess the tactical and strategic choices made by trial counsel unless those

choices were uninformed because of inadequate preparation. See Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a

reasonable probability, i.e., a “probability sufficient to undermine confidence in the

outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694.

With regard to the petitioner’s claim that counsel was ineffective for failing to

adequately investigate his alibi defense and subpoena his alibi witness, the petitioner has

failed to prove how he was prejudiced by any alleged deficiency. As noted by the post-

conviction court, the petitioner failed to offer any evidence as to the validity of his alibi or

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call Crystal Parnam to testify at the evidentiary hearing as to what her testimony would have

been at trial regarding the petitioner’s alibi. To satisfy the prejudice requirement of

Strickland when alleging that counsel was ineffective for failing to offer testimony from a

favorable witness, the post-conviction petitioner must “(1) produce the witness at his

post-conviction hearing; (2) show that through reasonable investigation, trial counsel could

have located the witness; and (3) elicit both favorable and material testimony from the

witness.” Denton v. State, 945 S.W.2d 793, 802-03 (Tenn. Crim. App. 1996) (citing Black

v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)). The petitioner failed to make this

showing.

With regard to the petitioner’s claim that counsel was ineffective for failing to

investigate who possessed his phone at the time of the incident, the petitioner has, again,

failed to prove how he was prejudiced by any alleged deficiency. Although the petitioner

maintained at the evidentiary hearing that Mervin Harvell had his phone at the time of the

offense, the petitioner put on no proof that Harvell, or someone else, indeed had the

petitioner’s phone. As observed by the post-conviction court, counsel “cannot be blamed

for not presenting proof to the contrary if it did not exist.”

With regard to the petitioner’s claim that counsel failed to obtain a transcript of

Michael Scott’s testimony at the preliminary hearing to use “for impeachment and

substantive evidence,” counsel testified that he obtained an audiotape copy of the

preliminary hearing within one month from the time he was retained by the petitioner.

Counsel listened to the tape and from it learned that the State was prolonging a hearing on

Michael Scott’s probation violation until after Scott testified at the petitioner’s trial.

Counsel also learned that Scott had a pending felony drug charge. Counsel testified that

after he listened to the tape, he did not see any reason to have the hearing transcribed or he

would have done so. Counsel did not think that Scott’s testimony at trial was “vastly

different” from his preliminary hearing testimony, consisting only of “minor” discrepancies.

In any event, counsel believed that his cross-examination of Scott was thorough. We, as did

the post-conviction court, have reviewed the transcript of the preliminary hearing provided

by the petitioner. We fail to see how the petitioner received ineffective assistance due to

counsel’s not obtaining a transcript of the preliminary hearing with which to cross-examine

Scott regarding the minor discrepancies pointed out by the petitioner, when Scott’s extensive

criminal history, his several month delay in informing the authorities of the petitioner’s

statements, and his hopes of receiving favorable consideration by the prosecution with

regard to his own cases were brought before the jury.

With regard to the petitioner’s claim that counsel failed to adequately confer with him

prior to trial, counsel testified that he met with the petitioner six or seven times at the jail in

addition to the times the petitioner was at the courthouse for various appearances. Counsel

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said that their conversations ranged from fifteen to more than thirty minutes, with their

meetings in the two weeks leading up to trial being more than an hour. Counsel stated that,

at these meetings, he discussed the elements of the charged offenses with the petitioner, as

well as the possible defenses the petitioner might have. The post-conviction court accredited

counsel’s testimony at the evidentiary hearing; therefore, the petitioner has failed to prove

that counsel rendered deficient performance.

The petitioner’s final claim is that counsel provided ineffective assistance with regard

to his handling of the appeal. Specifically, he argues that counsel failed to meet with him

in preparation or raise challenges that a robbery occurred, a deadly weapon was used, or that

the offense was a carjacking as opposed to an aggravated robbery. Counsel testified that he

and the petitioner discussed issues in preparation for the motion for new trial, and the

petitioner did not ask counsel to include any additional issues. Counsel said that the

petitioner never wrote him to say that he thought of additional issues he wanted to include

on appeal. Counsel stated that he would have included other issues in the appellate brief if

he thought they had merit, but he was ethically precluded from raising issues that were not

meritorious. The petitioner has failed to prove that there would have been any merit to the

challenges he now claims counsel should have made. Moreover, we fail to see any

deficiency in counsel’s performance. Even though counsel did not meet with the petitioner

specifically in preparation of the appeal, they discussed issues in preparation for the motion

for new trial, and counsel kept in correspondence with the petitioner during the appellate

process.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the post-conviction

court’s denial of the petition.

_________________________________

ALAN E. GLENN, JUDGE

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