Raymond Mitchell v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 9, 2004

RAYMOND MITCHELL v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 95-B-1222 Seth Norman, Judge

No. M2003-02063-CCA-R3-PC - Filed September 17, 2004

The petitioner, Raymond Mitchell, was convicted in 1996 of two counts of rape and one count of

attempted rape. He pled nolo contendere to a third rape charge, which was reduced to sexual battery.

He received a total effective sentence of fifteen years as a Range I, standard offender, and his

convictions were affirmed on direct appeal. Subsequently, he filed a petition for declaratory

judgment in the Chancery Court for Davidson County, alleging he was entitled to earn sentence

reduction credits and challenging his classification as a “multiple rapist.” The trial court dismissed

the petition and he appealed. The Court of Appeals held that the Department of Correction (“DOC”)

did not err by classifying the petitioner as a multiple rapist and determining he was not eligible for

sentence reduction credits. The petitioner then filed a petition for post-conviction relief, alleging

ineffective assistance of counsel, prosecutorial misconduct, improper jury instructions, double

jeopardy violations, and again challenging the sentence enforcement by the DOC. Following a

hearing, the post-conviction court denied the petition, and this appeal followed. We affirm the order

of the post-conviction court denying the petition but remand for entry of corrected judgments in

Counts 2 and 3 to reflect that the petitioner is a “multiple rapist,” and his sentences are to be served

as such.

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

Remanded for Entry of Corrected Judgments

ALAN E. GLENN , J., delivered the opinion of the court, in which JERRY L. SMITH and JOE G. RILEY ,

JJ., joined.

Jack Davis, Nashville, Tennessee, for the appellant, Raymond Mitchell.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;

Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

FACTS

The facts of this case were set out in the opinion of this court on direct appeal, affirming the

petitioner’s convictions:

The [petitioner] was indicted on three counts of rape accomplished by

fraud and one count of attempted rape by fraud. Before trial, one of

the rape charges was severed by the prosecution and set to be

adjudicated separately. The remaining two counts of rape by fraud

and the count of attempted rape by fraud were tried together.

The [petitioner] was tried by a jury in the joint proceeding and

was convicted as charged on the two counts of rape and the single

count of attempted rape. The trial court sentenced him as a Range I

standard offender to ten years for each conviction of rape and to five

years for the conviction of attempted rape. The ten-year sentences

were ordered to run concurrently to each other and consecutively to

the five-year sentence, for a total effective sentence of fifteen years.

On the severed count of rape by fraud, the [petitioner] entered

a plea of nolo contendere to the lesser offense of sexual battery. The

trial court sentenced the [petitioner] to two years on that conviction,

to run concurrently to the above fifteen-year sentence. The

[petitioner] reserved a certified issue for appeal from the plea

agreement. His appeal in that case has been consolidated with his

direct appeal from the jury trial.

State v. Raymond Mitchell, III, No. M1996-00008-CCA-R3-CD, 1999 WL 559930, at *1 (Tenn.

Crim. App. July 30, 1999), perm. to appeal denied (Tenn. Jan. 31, 2000). Subsequently, the

petitioner filed a petition for declaratory judgment in the Chancery Court for Davidson County and

was denied relief. He appealed. The appellate opinion set forth the following relevant facts:

This appeal involves a dispute between a prisoner and the

Tennessee Department of Correction regarding the Department's

decision to classify the prisoner as a multiple rapist under Tenn. Code

Ann. § 39-13-523(b) (2000). After the Commissioner of Correction

denied his petition for a declaratory order, the prisoner filed a petition

for a declaratory judgment in the Chancery Court for Davidson

County claiming that the Department had misclassified him and, if it

had not, that he was still entitled to earn sentence reduction credits

because he was a Range I standard offender. The trial court

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dismissed the petition, and the prisoner has appealed. We have

determined that the Department properly classified the prisoner as a

multiple rapist and that the prisoner is not otherwise entitled to earn

sentence reduction credits. Accordingly, we affirm the trial court's

judgment.

Mitchell v. Campbell, 88 S.W.3d 561, 563 (Tenn. Ct. App.), perm. to appeal denied (Tenn. 2002).

The petitioner filed a pro se petition for post-conviction relief on April 4, 2001. Counsel was

appointed, and an amended petition was filed on August 9, 2001. Counsel was relieved and new

counsel was retained on April 24, 2002. A second amended petition was filed on October 3, 2002,

and hearings were held on December 17, 2002, and May 2, 2003.

As we will explain, we have had substantial difficulty in determining what claims were

presented to the court at the post-conviction hearing and which of the numerous claims raised on

appeal are, in fact, properly before this court. The pro se petition for post-conviction relief presented

thirteen claims for relief, some of which were closely related. The first amended petition, which was

filed by counsel, continued to argue all thirteen of these claims. The second amended petition, filed

by new counsel, presented arguments only as to claims 1, 2, 5, 12, and 13. At the post-conviction

hearing, counsel for the petitioner, who did not testify, did not specifically identify the issues on

which they were proceeding, but it appears, from the witnesses presented and the nature of the

questioning, that they pursued only original petition issues 5 (the prosecutor failed to disclose the

identity of an exculpatory witness), 12 (trial counsel was ineffective in not obtaining the testimony

of this witness at trial), and 13 (the DOC was illegally requiring that the petitioner’s sentences be

served at 100%, rather than 30% as provided by the judgments.) In its findings of fact and

conclusions of law, the post-conviction court ruled adversely to the petitioner on issues 1, 3, and 13

and, as to the other claims raised in the petition, determined they were without merit because “no

proof was offered at the evidentiary hearing in support of such.” Since the petitioner neither testified

at the evidentiary hearing nor presented any favorable witnesses, the proof consisted solely of

witnesses, as we will explain, who denied the allegations of the petition. We now will consider the

issues on appeal.

Roberta Anderson, a sentence manager with the DOC, testified that the petitioner had

“finished” his five-year sentence, reduced by sentence credits, and was serving his two concurrent

ten-year sentences, which were at 100%, although the judgments for these sentences state they are

to be served at 30%.

The petitioner’s trial counsel testified that he had practiced law for twenty-five years and,

along with another attorney, had represented the petitioner at his trial. He said they had filed motions

claiming that the indictment was unconstitutional, to dismiss the indictment, and for a bill of

particulars. In the analysis section of this opinion, we will review counsel’s testimony regarding the

specific claims as to ineffective assistance of counsel.

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The assistant district attorney general in the petitioner’s original trial testified as to witness

information provided to defense counsel, denying that he had withheld exculpatory information. We

will review the specifics of his testimony in the analysis section of this opinion.

Gail S. Barbee, the Director of Board Operations for the Tennessee Board of Probation and

Parole, testified that although the petitioner had met with the parole board, by statute he was required

to serve 100% of his rape sentences.

As we have stated, the petitioner did not testify at the hearing.

ANALYSIS

I. Post-Conviction Standard of Review

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

convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003). 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 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 issues of deficient

performance of counsel and possible prejudice to the defense are mixed questions of law and fact

and, thus, subject to de novo review by the appellate court. See State v. Burns, 6 S.W.3d 453, 461

(Tenn. 1999).

II. Statute of Limitations

First, we will consider the State’s argument that the petitioner’s appeal should be dismissed

for lack of jurisdiction because his petition was not timely filed.

By statute, a person in custody must file a petition for post-conviction relief within one year

“of the date of the final action of the highest state appellate court to which an appeal is taken . . . or

consideration of such petition shall be barred.” Tenn. Code Ann. § 40-30-102(a) (2003). Further,

“[t]ime is of the essence of the right to file a petition for post-conviction relief . . . and the one-year

limitations period is an element of the right to file such an action and is a condition upon its

exercise.” Id. Also, due process may, in limited circumstances, require tolling of the post-conviction

statute of limitations. See Seals v. State, 23 S.W.3d 272, 278-79 (Tenn. 2000); Burford v. State, 845

S.W.2d 204, 208 (Tenn. 1992).

From our review of the record, it is clear that this petition was untimely. Our supreme court

denied the petitioner’s application for permission to appeal on January 31, 2000. Although the

petitioner signed and dated his original petition for post-conviction relief on April 2, 2001, more than

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two months after the expiration of the one-year period, he failed to explain why he did not file his

petition within the one year or why the one-year statute of limitations should not bar his claim.

However, the State did not raise this issue in its response to the petition or at the post-conviction

hearing, but instead did so for the first time on this appeal.1

“Given the post-conviction statute’s language conferring jurisdictional import to the timely

filing of a petition, it is essential that the question of timeliness be resolved before any adjudication

on the merits of the petitioner’s claims may properly occur.” Antonio L. Saulsberry v. State, No.

W2002-02538-CCA-R3-PC, 2004 WL 239767, at *1 (Tenn. Crim. App. Feb. 9, 2004), perm. to

appeal denied (Tenn. June 1, 2004) (citing Tenn. Code Ann. § 40-30-102(b) (2003)).

“In many cases that have come before the appellate courts in which the petitioner’s

compliance with the statute of limitations is an issue, the appellate courts have remanded for

evidentiary hearings.” Id. at *2 (citing Butler v. State, 92 S.W.3d 387, 390 (Tenn. 2002)). In

Saulsberry, the petitioner admitted that his filing was untimely, and thus there was no question of

fact as to whether the petition had been timely filed. Id. (stating that in the “typical case . . . there

is a question whether the petitioner has actually complied with the statute of limitations or has

conformed to the prison mailbox rules”). In the present case, there are none of the typical disputes,

for example, illegibility of the stamped filing date or whether the petition was timely filed and then

lost in the prison “mail” system. Instead, the petitioner admits in his original petition that the

Tennessee Supreme Court denied his application for permission to appeal on January 31, 2000, and

he signed and dated the petition on April 2, 2001. Therefore, his petition was subject to summary

dismissal. See id. (citing Tenn. Code Ann. § 40-30-106(b) (2003) [“If it plainly appears from the

face of the petition, . . . that the petition was not filed . . . within the time set forth in the statute of

limitations, . . . the judge shall enter an order dismissing the petition.”]; State v. Nix, 40 S.W.3d 459,

464 (Tenn. 2001) (compliance with statute of limitations is element of right to file petition for post-

conviction relief; incumbent upon petitioner to allege either compliance with or tolling of limitations

period)). In the present case, just as in Saulsberry, “[t]he fact that the lower court did not take that

action does not allow the petitioner, at this juncture, to avoid operation of the statute of limitations.

As such, his appeal must be dismissed due to the untimeliness of the underlying petition. This court

lacks jurisdiction to adjudicate the case.” 2004 WL 239767, at *2. Additionally, the petitioner’s

claims do not fall within any of the three exceptions set forth in Tennessee Code Annotated section

40-30-102(b)(1)-(3), which would excuse the late filing, nor does the petition raise the types of due

process concerns that would also toll the statute of limitations. See Sample v. State, 82 S.W.3d 267,

273 (Tenn. 2002) (statute of limitations tolled due to a late arising suppression of exculpatory

evidence claim); Williams v. State, 44 S.W.3d 464, 477 (Tenn. 2001) (misrepresentation by attorney

as to continuing representation, rather than mere attorney negligence, possibly tolled the statute of

limitations); Seals, 23 S.W.3d at 278-79 (statute of limitations tolled due to mental incompetence

2

W e have previously expressed our concern with the State raising the statute of limitations defense for the first

time on appeal. John Parker Roe v. State, No. W 2000-02788-CCA-R3-PC, 2002 W L 31624850, at *12 n.2 (Tenn. Crim.

App., Jackson, Nov. 20, 2002), perm. to appeal denied (Tenn. Feb. 24, 2003). W e attribute this problem to the fact that

the assistant attorney general representing the State on appeal is usually not the same attorney representing the State at

the post-conviction hearing.

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of petitioner); Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995) (grounds for relief arose after the

statute of limitations normally would have run); Burford, 845 S.W.2d at 206 (petitioner unable to

file post-conviction claim in one county until conviction in another county had been set aside).

Despite our conclusion that the petition was barred by the statute of limitations, we none-

theless will address the issues raised by the petitioner because of the possibility of a further appeal

of this matter. See Jacobs v. State, 450 S.W.2d 581 (Tenn. 1970); State v. Pendergrass, 13 S.W.3d

389, 395 (Tenn. Crim. App. 1999).

III. Ineffective Assistance of Counsel

In the original and the first amended petition, seven separate claims were made that trial

counsel had been ineffective. In the second amended petition, the only claim of ineffective

assistance of counsel was that counsel “failed to subpoena the rape victim’s alleged boyfriend as a

witness to rebut the false testimony given in the presence of the jury by the alleged rape victim.”

This was the only ineffective assistance of counsel claim pursued at the evidentiary hearing. On

appeal, the petitioner has raised seven claims of ineffective assistance of counsel, but, of these, we

will consider only the claim argued at the hearing, for the remaining six, not having been pursued,

are waived. See Brimmer v. State, 29 S.W.3d 497 (Tenn. Crim. App. 1998).

In order to determine the competence of counsel, Tennessee courts have applied standards

developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)

(noting that the same standard for determining ineffective assistance of counsel that is applied in

federal cases also applies in Tennessee). The United States Supreme Court articulated the standard

in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is

widely accepted as the appropriate standard for all claims of a convicted petitioner that counsel’s

assistance was defective. The standard is firmly grounded in the belief that counsel plays a role that

is “critical to the ability of the adversarial system to produce just results.” Id. at 685, 104 S. Ct. at

2063. 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.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient

performance” in the first prong of the test in the following way:

In any case presenting an ineffectiveness claim, the performance

inquiry must be whether counsel’s assistance was reasonable

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considering all the circumstances. . . . No particular set of detailed

rules for counsel’s conduct can satisfactorily take account of the

variety of circumstances faced by defense counsel or the range of

legitimate decisions regarding how best to represent a criminal

defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell

below an objective standard of reasonableness under prevailing professional norms.” House v. State,

44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

As for the prejudice prong of the test, the Strickland Court stated: “The defendant must show

that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.

State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a

reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been

different”).

Courts need not approach the Strickland test in a specific order or even “address both

components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S. at 697,

104 S. Ct. at 2069; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency

or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

We note that 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,

104 S. Ct. at 2066, 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 fact that a strategy or tactic failed or hurt the defense does not alone

support the claim of ineffective assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165

(Tenn. Crim. App. 1997). Finally, a person charged with a criminal offense is not entitled to perfect

representation. See Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). As explained

in Burns, 6 S.W.3d at 462, “[c]onduct that is unreasonable under the facts of one case may be

perfectly reasonable under the facts of another.”

As to the sole allegation of ineffective assistance of counsel pursued at the post-conviction

hearing, namely, that trial counsel failed to subpoena a supposedly favorable witness who could

rebut the victim’s “false testimony,” we note initially that the post-conviction court did not

specifically address this allegation in its opinion, although stating that, in addition to his sentencing

claims, “[t]he petitioner alleged other grounds for relief which were included in his Petition for Post-

Conviction Relief, but no proof was offered at the evidentiary hearing in support of such. The Court

accordingly finds no merit to these other claims.” The post-conviction court was correct in this

analysis, for the only “proof” at the hearing as to ineffective assistance of counsel, since the

petitioner did not testify, was the testimony of trial counsel who denied that he had been ineffective,

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explaining efforts he had made to locate the so-called “exculpatory” witness and reasons why the

witness would not have been helpful, as well as the testimony of the prosecutor at trial, who opined

that the witness would not have been exculpatory.

This claim was explained in the second amended petition as “potentially exculpatory

evidence was withheld by the State regarding one witness’ [sic] boyfriend.” Apparently, the

petitioner’s theory, as stated by his attorney at the post-conviction hearing, was that the testimony

of this boyfriend “would have some bearing on the jury’s opinion of whether [the petitioner] could

have pulled off this trickery. Whether the victim’s [sic] honestly believed that this caller [the

petitioner] was that boyfriend.”

At the hearing, the petitioner’s trial counsel was questioned as to his knowledge of the

victims’ boyfriends:

Q And did you discover any of the identities of these alleged

boyfriends?

A I think sometime, I’ll answer this then I’d like to give the

background, if I could.

Q All right.

A Sometime after the case was set for trial, and maybe within days

of it going to trial, I think you-all have my file, but I don’t remember

the note, seeing the note in the file. Someone called our office and

said we have a name, and perhaps gave a number. But we were never

able to locate that person. And this would have been, originally the

case was set for trial in the snow and it was put off a week. So I don’t

remember the time frame, but I know it was a very short time frame.

....

Q What efforts did you take to find this person?

A We called the number. I think my investigator at that time, tried

to locate him. That I can’t be sure of, it’s been a while. If I could

explain something?

Q Certainly.

A The pre-trial motions in this case, the first motions that were

filed on the indictment was the indictment was unconstitutional. That

is it said fraud, without defining what fraud was. That was denied.

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Then we filed a motion to dismiss the indictment because it did

not put a factual allegation as required by the statute. That is, if they

are going to say fraud, they should put the facts in the indictment that

substantiate the fraud. That was denied.

Then we filed another motion for a bill of particulars. Saying

okay, if you say the indictment is good, Judge, then let the State come

forward and tell us talk to what this fraud is in a bill of particulars.

The Court said we were only entitled to the date, time and place.

We took that issue all the way to the United States Supreme

Court. Then I argued to the Judge, well Judge, if in fact, let’s just

assume that the fraud is impersonation, who did he impersonate?

And the court said, you’re not entitled to that information.

So when we got a call before trial, and I don’t specifically

actually remember, I’ve talked to some other people and I’m sure we

got some call at the office, but I don’t recall that being this is the

person. It was, this is something we could look into and this is a

phone number. I don’t remember, but we were already told by the

Court that we were not entitled to that information.

Trial counsel testified as to efforts to locate this witness and his opinion that the testimony

of the witness could have “killed” the defense:

Q Do you believe that the identity of this alleged, this John Doe

boyfriend would help you in a defense of [the petitioner] in this case?

A Sir, the phone call we received, I think was very very close,

maybe within a day, two days, something of that of trial. And I don’t

recall that specifically. We had already been told we are not entitled

to this information. Prior to the trial, I issued a subpoena for this

witness. I issued a John Doe subpoena. In fact, John Doe subpoena

was served on the investigator for the case. We served him with the

John Doe subpoena.

We had made every attempt that we could to get that

information. And he was not a witness to the case. He is somebody

I would have liked to have talked to. He is somebody I would like to

know if he existed.

Q Do you think the presence of this person in front of a jury could

have presented some difference in characteristics from [the

petitioner]?

A Could have helped us, could have killed us.

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Q And –

A I mean, you don’t know. I would say he’s better friends with [the

victim] then [sic] he would be with [the petitioner] or with us. I

wouldn’t expect him to be real helpful, just from past experience.

At the hearing, post-conviction counsel were asked by the court whether this “John Doe”

witness would be testifying and advised that they, themselves, had not located this witness and did

not know whether he even existed:

[COUNSEL]: Your Honor, we believe that this John Doe boyfriend

would have provided exculpatory - -

THE COURT: Where is the John Doe boyfriend?

[COUNSEL]: He was never produced.

THE COURT: Where is he today?

[COUNSEL]: We don’t know that he exists or does not exist.

THE COURT: Well, how does [trial counsel] know whether he

exists or not?

[COUNSEL]: We believe [trial counsel] was in a better position at

the time that he represented [the petitioner] at the trial to obtain this

information.

THE COURT: Why? Why can’t you do it now?

[COUNSEL]: Well Your Honor, as, I guess we could. I checked the

transcript, I don’t see - -

THE COURT: The only way I can determine what a witness would

have said in a post conviction relief petition is if I hear that witness.

Trial counsel’s uncontradicted testimony at the post-conviction hearing was that he issued

a “John Doe” subpoena before the trial and attempted to ascertain the identity of this witness at trial,

but was refused the information by the court. During the course of the trial, he decided not to pursue

this witness any further. Since this witness was not produced at the evidentiary hearing, the

petitioner has failed to show that he was prejudiced by counsel’s not producing this witness at trial.

See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (stating that “[w]hen a petitioner

contends that trial counsel failed to discover, interview, or present witnesses in support of his

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defense, these witnesses should be presented by the petitioner at the evidentiary hearing. As a

general rule, this is the only way the petitioner can establish that . . . the failure to have a known

witness present or call the witness to the stand resulted in the denial of critical evidence which inured

to the prejudice of the petitioner.”).

IV. Prosecutorial Misconduct

In his original petition, the petitioner alleged that his convictions were:

based upon false testimony and the state prosecutor willfully,

deliberately and knowingly withheld exculpatory evidence that could

have proven the rape victim was committing perjury. The victim

claimed that she had sexual intercourse with Petitioner because she

thought Petitioner was her boyfriend. The District Attorney

General[’s] Office interviewed the alleged John Doe and learned that

John Doe was not the victim’s boyfriend and that he had severed their

sexual relationship months prior to the alleged rape due to the

victim’s promiscuous behavior. The prosecutors suppressed this

information, refused to give Petitioner John Doe’s name and

knowingly allowed false testimony to be presented to the jury which,

consequently, violated the Due Process Clause of the Fourteenth

Amendment to the United States Constitution, and Article I § 8, of

the Tennessee Constitution.

In his second amended petition, the petitioner restated the issue as “[w]hether Petitioner’s

convictions were based on [the] State’s unconstitutional failure to disclose exculpatory evidence in

the form of the name and identity of a “John Doe” alleged boyfriend of one of the State’s witnesses.”

As with the other claims, the only testimony at the hearing as to this assertion came from trial

counsel and the prosecutor, both of whom denied that exculpatory information had been withheld.

Nonetheless, we will consider the claim.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218

(1963), the United States Supreme Court held that the prosecution has a duty to furnish to the

defendant exculpatory evidence pertaining either to the accused's guilt or innocence or to the

potential punishment that may be imposed. The Court held that "suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the evidence is material

either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id.

The duty to disclose extends to all information favorable to the accused whether the evidence is

admissible or inadmissible, State v. Spurlock, 874 S.W.2d 602, 609 (Tenn. Crim. App. 1993), and

to information "which might be useful to the defense[.]” Branch v. State, 4 Tenn. Crim. App. 164,

173, 469 S.W.2d 533, 536 (1969). However, the State's duty to turn over evidence under Brady does

not extend to information that the defense either already possesses or is able to obtain or to

information not in the possession or control of the prosecution. Wooden v. State, 898 S.W.2d 752,

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755 (Tenn. Crim. App. 1994) (citing Banks v. State, 556 S.W.2d 88, 90 (Tenn. Crim. App. 1977)).

Further, Brady does not require the State to investigate on behalf of the defendant. State v.

Reynolds, 671 S.W.2d 854, 856 (Tenn. Crim. App. 1984).

In order to establish a due process violation under Brady, a defendant must show the

following:

1. The defendant must have requested the information (unless the

evidence is obviously exculpatory, in which case the State is bound

to release the information whether requested or not);

2. The State must have suppressed the information;

3. The information must have been favorable to the accused; and

4. The information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995) (citations omitted).

At the post-conviction hearing, the assistant district attorney general testified as to his

knowledge of the “John Doe” witness:

Q General [], for purposes of this post conviction proceeding,

would you like to make a statement that would be proof as evidence?

A Yes. As far as this witness, Your Honor, as far as [trial counsel]

testified we were not ordered to divulge the name of this witness by

[the trial judge’s] bill of particulars. Obviously if we were aware if

the witness had potential exculpatory information, we would. We

were able to find this witness, I think on the Friday before the trial

started on a Monday. His name was Jeff. I don’t recall his last name

right off the top of my head. But he was now living out of state. We

talked to him and discussed what [the victim] was going to testify to.

He corroborated it, yes, he had been her friend and had gone over

there at various times, early morning hours, had called her and

whispered on the phone and things of that nature. So he basically

corroborated the witness.

[Co-counsel] and I determined whether we should give that name

or not, he was now married and didn’t want to get involved in this

case. But we did give that name to the defense when we found him

and what the phone number was. I can’t testify whether they talked

to him or not, but in interviewing him there was absolutely nothing

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exculpatory in his statement. But we did provide the information and

his location.

On cross-examination, the assistant district attorney general explained why he did not believe

the petitioner would have benefitted had this witness appeared at the trial:

Q Did you hear this man’s voice?

A Yes, I normally do when I talk to people.

Q Okay. And you don’t think that the jury could have heard any

differences between the voice of this witness and the voice of [the

petitioner]?

A Well, if you review the transcript, she talked about that he was

whispering and voices being disguised. At times he would whisper

and he would, so it was a whispering voice, so I don’t know.

Q Would you agree that were the jury able to differentiate between

this man and [the petitioner] that that could have been favorable to

[the petitioner]?

A No, based on the proof, I don’t.

The post-conviction court determined that it could not make a determination concerning the

exculpatory value of this witness without having the witness testify at the hearing. Since the only

witness presented at the post-conviction hearing on this issue denied the various allegations in this

regard, it is clear that the petitioner has failed to show by clear and convincing evidence that the

testimony of this “John Doe” boyfriend was obviously exculpatory, favorable to the accused, or

suppressed by the State. See Edgin, 902 S.W.2d at 389.

In addition, this allegation has been waived for failure to present it on direct appeal. “A

ground for 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 . . . .” Tenn. Code Ann. § 40-30-106(g) (2003). The petitioner failed to explain

in his petition or at the post-conviction hearing why this issue was not raised on direct appeal. This

is an elementary part of any petition for post-conviction relief. See Tenn. Code Ann. § 40-30-104(e)

(2003).

V. Percentage of Sentence to be Served

The petitioner argues on appeal, as we understand his claim, that his judgments provide that

his sentences are to be served at 30% and do not classify him as a multiple rapist and the DOC is

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bound by these. The State disagrees, arguing that this identical claim was resolved against the

petitioner in Mitchell v. Campbell, 88 S.W.3d 561 (Tenn. Ct. App. 2002). As we will explain, we

agree with the State.

The judgment forms are included in the record on appeal, and, on all four documents, the box

for “Standard 30% Range 1” is checked and the box beside “multiple rapist” is not checked on any

of the forms. In Mitchell, 88 S.W.3d at 566, the Court of Appeals rejected this same claim by the

petitioner:

Tenn. Code Ann. § 39-13-523(b) . . . was part of his sentence when

he was tried and convicted of multiple rapes in 1996. The

Department had no discretion regarding the application of Tenn. Code

Ann. § 39-13-523(b) to [the petitioner] in light of his two rape

convictions. Accordingly, the Department did not err by classifying

[the petitioner] as a “multiple rapist” for the purpose of Tenn. Code

Ann. § 39-13-523(b) and by determining that he was ineligible to earn

sentence reduction credits.

Id. (footnotes omitted).

Accordingly, we conclude that the petitioner made this same argument in Mitchell, where

the court determined that it was without merit. Applying the law of the case, we conclude that this

issue was previously resolved against the petitioner and cannot be litigated anew. See Memphis

Publ’g Co. v. Tennessee Petroleum Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn.

1998).

VI. Other Claims

On appeal, the petitioner has presented a number of additional claims, none of which was

argued or even acknowledged at the post-conviction hearing and most of which were last recited in

the first amended petition but not the second. No explanation is given as to why these long

unpursued issues have been resurrected on appeal. We now will review the claims made on appeal,

observing first that we have the same problem as did the post-conviction court in differentiating

between certain of the claims, which appear to be nearly identical.

In his appellate brief, the petitioner presents the additional claims that: Issue I – requiring

him to serve 100% of his rape sentences violates, inter alia, his Fourth and Fourteenth Amendment

rights (apparently a new claim raised for the first time on appeal); Issue II – the State failed to notify

him that he would serve 100% of his rape sentences if convicted (raised in the second amended

petition and determined by the post-conviction court adversely to the petitioner); Issue III – as in the

previous issue, the petitioner realleges that the State should have given him notice that “he would

be tried as a multiple rapist and if convicted would have to serve” his sentences at 100% (raised in

second amended petition and determined by the post-conviction court adversely to the petitioner);

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Issue IV – the petitioner should serve his rape sentences at 30%, as provided by the judgments, and

not at 100% (argued at the hearing and determined by the post-conviction court adversely to the

petitioner); Issue V – the petitioner presents five separate claims of ineffective assistance of counsel

(not raised in the second amended petition or at the hearing); Issue VI – trial counsel was ineffective

for failing to subpoena a former boyfriend of the victim or seek a continuance of the trial (pursued

at the hearing and determined by the post-conviction court adversely to the petitioner); Issue VII –

the State failed to disclose the name and identity of a former boyfriend of one of the victims (pursued

at the hearing and determined by the post-conviction court adversely to the petitioner); Issue VIII –

the petitioner’s multiple rape convictions violate his double jeopardy and due process rights (not

pursued at the hearing); Issue XI [sic] – faulty jury instructions (apparently raised for the first time

on appeal).

Thus, following the post-conviction hearing, the court ruled adversely to the petitioner as to

Issues II, III, IV, VI, and VII. As to Issues II and III, the post-conviction court correctly determined

that the petitioner “has not shown . . . prejudice” by lack of notice. Finally, as the post-conviction

court noted, the Tennessee Supreme Court has previously held that the “[n]otice such as that rule

[Rule 12.3 of the Tennessee Rules of Criminal Procedure] requires is not constitutionally mandated.”

State v. Harris, 919 S.W.2d 323, 331 (Tenn. 1996) (citing State v. Berry, 592 S.W.2d 553, 562

(Tenn. 1980)). As we have previously stated, the record supports these determinations. The post-

conviction court found as to the numerous claims which had been set out in his original, first, and

second amended petitions that “no proof was offered at the evidentiary hearing in support of such

[and] [t]he court accordingly finds no merit to these other claims.”

In Brimmer, 29 S.W.3d at 530, this court explained that a post-conviction claim is waived

when no proof is presented at the evidentiary hearing as to the claim:

There is no evidence at the post-conviction hearing concerning these

allegations and we cannot speculate as to the substance of the claims.

"We [must] decide cases . . . on the basis of the record as presented

to us for our consideration." Dearborne v. State, 575 S.W.2d 259,

264 (Tenn. 1978). The burden is always upon the appealing party to

develop a record which conveys a fair, accurate, and complete

account of those proceedings which form the basis of the appeal. Id.

Thus, appeal claims I, V, VIII, and XI are waived because no proof was presented in support

of them at the evidentiary hearing.

CONCLUSION

Based upon the foregoing authorities and reasoning, we affirm the order denying the petition

for post-conviction relief. We remand the matter for entry of corrected judgments as to Counts 2 and

3 of Indictment No. 95-B-1222 to reflect that, as to each count, the petitioner is a “multiple rapist,”

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and his sentences are to be served as such.

___________________________________

ALAN E. GLENN, JUDGE

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