Mohamed F. Ali v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

January 22, 2002 Session

MOHAMED F. ALI v. STATE OF TENNESSEE

Appeal from the Criminal Court for Washington County

No. 26033 R. Jerry Beck, Judge, By Interchange

No. E2001-00183-CCA-R3-PC

April 11, 2003

The petitioner, Mohamed F. Ali, appeals from the judgment of the Washington County Criminal

Court denying him post-conviction relief from his convictions for rape and attempted bribery. He

is serving an effective sentence of fifteen years in the Department of Correction. The petitioner

contends that the post-conviction court erred in (1) applying incorrect law governing judicial bias,

(2) finding that the convicting trial judge was not biased against him, (3) excluding evidence of

judicial bias, (4) refusing the petitioner’s discovery requests regarding the issue of bias, and (5)

denying the petitioner’s claim of ineffective assistance of counsel. We affirm the post-conviction

court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and

NORMA MCGEE OGLE , JJ., joined.

Janie L. Lindamood, Johnson City, Tennessee, for the appellant, Mohamed F. Ali.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Joe

C. Crumley, Jr., District Attorney General; and Victor J. Vaughn, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

The petitioner, a medical doctor, was convicted of raping a drugged patient in his office and

of attempting to bribe her to drop the rape claim. A concise summary of the relevant facts comes

from an earlier appeal in which the sentences were affirmed.1

The defendant is a physician. In 1989, one of his female

patients, the victim, went to the defendant to have her cholesterol

checked. After taking a blood sample, the defendant put on a rubber

glove, pulled up the victim’s dress, and placed his hand inside her

underwear. The defendant then administered an injection which he

explained was for muscle spasms and directed her to the examination

table. The victim described her state afterwards as in a “dream world”

or “in la la land.” The defendant removed the victim’s underwear,

fondled her privates, and stated that he would have to show the victim

how she and her husband should have intercourse. The victim

remembered that the defendant unzipped his pants and placed his

penis into her vagina and that, when she tried to pull away, he forced

her back. She described the incident was “over quickly.” When the

victim stepped away from the examination table, she noticed what

appeared to be a semen stain on the paper covering. She recalled that

she was unable to find her underwear. The defendant then directed

her to the reception desk to make another appointment. After leaving

the office, the victim stopped at a convenience market and called her

husband. When her husband arrived at the market, he found that her

speech was slurred. The victim informed him that she had been raped

1

W e note that the petitioner’s brief fails to comply with the requirements of the rules of appellate procedure.

The post-conviction record contains seven volumes o f testimony and exhibits. The convicting trial record contains over

thirty volumes of various sizes. Pursuant to Rule 27(a)(6), T.R.A.P., the appellant is required to present a statement

“setting forth the facts relevant to the issues presented for review with appropriate references to the record.” The

following is the petitioner’s statement of the facts:

Original facts were detailed by this Court in State o f Ten nessee v. M ohamed F. Ali, 1996 Tenn. Crim.

App. LEXIS 617 @ *2-5 (copy attached) and also by the lower co urt. R, II @ 220-25; T, I @ 18-23

Post-conviction facts were detailed by the lower court. R, II @ 225-29; T, I @ 23-32.

For purp ose o f brevity, A li relies on the statem ents of the facts alrea dy in rec ord, supra.

The argum ent po rtion of the brief is written in a cryptic style tha t in many instances defies understanding unless the

record is searched and reviewed in d etail to determine the pertinent facts and trial court actions. Arguments are often

conclusory or tangential. The brief purports to raise five issues but many things are argued. Given the nature of the brief

and the task at hand, we will focus o ur analysis on the five issues and refrain from pursuing argu ments that are tangential,

irrelevant, or waived.

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by the defendant and could not find her underwear. The matter was

then reported to the police.

Officers later found a semen stain on the examination table.

Testing indicated that the defendant could have been the source of the

semen. Later, the victim’s husband met with the defendant privately.

A recording of the conversation confirmed that the defendant claimed

to have given the victim an injection dosage of a steroid which he

contended had caused her to imagine that the rape had occurred. The

defendant stated that he had contacted his insurance company and had

been authorized to pay $ 20,000.00 in cash for the wrongful injection.

The defendant had also offered to pay for psychiatric counseling for

the victim.

Testimony by a representative of the defendant’s malpractice

insurance carrier contradicted the defendant’s claims. A blood and

urine analysis of the victim contradicted the defendant’s claim that he

had administered depo-medrol, a steroid; instead, tests indicated a

high level of hydroxyzine, a sedative used as a pre-anesthetic. Expert

testimony indicated that the drug could make one physically helpless.

State v. Mohamed F. Ali, Nos. 03C01-9802-CR-00065 and 03C01-9809-CR-00310, Washington

County, slip op. at 2-3 (Tenn. Crim. App. Aug. 24, 1999). The convictions were affirmed in a

previous appeal. See State v. Mohamed F. Ali, No. 03C01-9405-CR-00171, Washington County

(Tenn. Crim. App. Sept. 26, 1996).

After he was convicted, the petitioner ended his retained counsel’s representation and

represented himself through the motion for new trial hearing and sentencing. He raised the issue of

ineffective assistance of counsel and presented several witnesses at the new trial motion hearing.

Counsel were appointed for the appeal, but they did not raise the issue of ineffective assistance of

counsel in the appeal.

The post-conviction hearing was essentially limited to testimony on the issues of judicial bias

and the ineffective assistance of appellate counsel. Relative to ineffective assistance of trial counsel,

the post-conviction court noted that the petitioner represented himself at the motion for new trial

hearing and raised the issue of counsel’s effectiveness at that time. It concluded that the issue was,

therefore, previously determined and that if appellate counsel should have raised it in the appeal, the

only record would have been the transcript of the motion for new trial hearing. Thus, the relevant

record for us to review consists of the post-conviction hearing transcript and the motion for new trial

hearing transcript. We also take judicial notice of the convicting trial record on appeal.

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POST-CONVICTION HEARING

Rev. Donald P. Strother testified that he talked by telephone with Judge Lynn W. Brown,

who presided at the petitioner’s trial, two or three weeks before the petitioner’s sentencing. He said

he told Judge Brown that he had listened to the trial and that he thought a legally trained mind could

see the lack of evidence and, at least, give the petitioner a light sentence. He said Judge Brown told

him to come to the hearing to say what he wanted to say for the petitioner but also said, “you are not

going to like what I’m going to do about Dr. Ali.” Rev. Strother acknowledged that he also wrote

Judge Brown a letter on the petitioner’s behalf but that Judge Brown returned it without reading it.

He denied going to Judge Brown’s office.

Judge Lynn W. Brown testified that he presided at the petitioner’s 1993 trials for rape and

bail jumping. He recalled Rev. Strother coming to his office between the petitioner’s trial and

sentencing. He knew Rev. Strother, who had previously served as grand jury foreman when Judge

Brown had been an Assistant District Attorney General. Judge Brown stated that Rev. Strother

wanted to talk to him about the petitioner’s case and that he told Rev. Strother such a discussion was

improper. However, Rev. Strother persisted, telling him that the petitioner had accepted Jesus and

was innocent.

Judge Brown testified that he told Rev. Strother that nothing could be considered outside of

court. He acknowledged saying to Rev. Strother that the Reverend was not going to like what Judge

Brown was going to do, but he denied having his mind made up about sentencing at that time. Judge

Brown indicated that his statement was partly in response to Rev. Strother’s claim of the petitioner’s

innocence, given the overwhelming evidence of the petitioner’s guilt.

Judge Brown was questioned about other events which the petitioner contends show his bias

against the petitioner. Judge Brown acknowledged telling a bondsman that what he needed was a

“good used camel” relative to the bondsman’s attempts to return the petitioner from Egypt. Judge

Brown said that he was intending humor directed at the bondsman given the futility of his attempts.

Judge Brown acknowledged that he was an acquaintance of Dr. Jan Allen DeWitt who

testified at the motion for new trial hearing at which the petitioner represented himself. He

acknowledged eating lunch with Dr. DeWitt on the day he testified. Judge Brown explained that he

went to lunch with his court reporter. When Dr. DeWitt arrived and no seats were available, he

invited Dr. DeWitt to join them. Judge Brown also said he saw no reason to disclose the fact that

Dr. DeWitt was a personal acquaintance.

Judge Brown identified a transcript of a hearing for bond for the petitioner pending appeal.

The transcript reflects that the petitioner’s counsel sought Judge Brown’s recusal because the

petitioner had filed a complaint against him with the Court of the Judiciary. Regarding the

complaint, Judge Brown stated, “I have never seen so much garbage, untruth, lies and deceitfulness.

And the Court of Judiciary determined that that was about the substance of it, it’s been dismissed.”

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After hearing argument from counsel, with references to the evidence at the trial and sentencing,

Judge Brown denied bond, concluding that a risk of flight existed.

Judge Brown denied harboring any personal prejudice or bias against the petitioner. He

denied basing any rulings in trial or sentencing in any sense on personal prejudice or bias against the

petitioner.

Ronald R. England testified that he was the sheriff in Washington County in 1994. He said

he continued to hold the petitioner in the local jail after sentencing at the request of Rev. Strother.

He said Judge Brown then told him to send the petitioner to the state penitentiary when the next

opening occurred.

Randall Reagan testified that he handled the petitioner’s case on appeal through his contract

appellate work for the Public Defender’s Office. He said he reviewed the entire record and had

numerous telephone conversations with the petitioner, discussing the case and strategies. He

concluded that the record was not sufficient to raise the issue of ineffectiveness of counsel on appeal

and told the petitioner the issue was better left for a post-conviction claim. Mr. Reagan did not think

this was bad advice and noted appellate decisions saying the practice of raising ineffective assistance

of counsel on direct appeal was “fraught with peril.” He believed that the main issue for appeal

related to whether a proper waiver of counsel existed for the petitioner’s new trial motion and

sentencing. He did not review the record for ineffective counsel purposes and saw no glaring error

committed by trial counsel.

David Bautista, the District Public Defender, testified that his office was appointed to

represent the petitioner on appeal. He said they review the case, identify issues available for the

appeal, and note them on a form. The petitioner’s form has notes that the petitioner complained

about the ineffective assistance of counsel. Mr. Bautista was aware that Mr. Reagan did not include

the ineffective counsel issue in the brief. However, Mr. Bautista did not believe sufficient grounds

existed to pursue the claim.

Mr. Bautista recalled the hearing before Judge Brown regarding the petitioner getting bond

pending appeal. He said Judge Brown seemed upset or mad for no apparent reason.

James T. Bowman, the petitioner’s trial counsel, testified that he saw nothing in Judge

Brown’s demeanor toward the petitioner during the trial that would have led him to believe any

preconceived bias or prejudice existed. The trial court barred further testimony from Mr. Bowman

regarding his representation of the petitioner, noting that the issue of ineffective assistance of trial

counsel was previously determined and that appellate counsel would only have had the transcript of

the motion for new trial hearing.

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MOTION FOR NEW TRIAL HEARING

The petitioner, acting as his own counsel, called numerous witnesses at the hearing on the

motion for new trial. His primary complaints against his trial counsel dealt with the failure to

develop and present existing evidence on his behalf, obtain expert assistance, and obtain existing

evidence to impeach the victim.

Dr. Jan Allen DeWitt testified that he examined the victim on the day in question. He saw

no bruises, no changes in her flesh, nor dried secretions. He said he found nothing “positive.” He

said that her behavior was tense and “consistent with having something awful happen however.”

Dr. DeWitt admitted it would be difficult to tell whether a drug or something else was affecting her

demeanor, but he said he saw no sign that the victim was under the influence of something. Dr.

DeWitt was subpoenaed by the state but not asked to testify. He was not contacted by trial counsel.

Johnson City Police Sergeant Sam Reed was the chief investigating officer on the case. He

testified that they had an open file policy and that Dr. DeWitt’s report was in the file. He recalled

being at the emergency room for two or three hours while the victim was examined. Dr. DeWitt

gave him a sex crime kit for the victim, which he sent to the FBI. Sergeant Reed said that a college

student accompanied him.

Sergeant Reed testified that he searched the petitioner’s office, primarily the examining room

in question. He took swabs and smears from various places and took the paper from the top of the

examination table. He sent the various items to the FBI but was not aware that the swabs and smears

had not dried enough for use until an FBI agent testified at the trial.

Sergeant Reed also acknowledged having to obtain three separate blood samples from the

defendant. The first two did not result in any FBI testing, but the last one did.

Danny Pyke testified that he was a former officer and had accompanied Sergeant Reed to the

petitioner’s office. He recalled the paper being taken from the examination table. He acknowledged

being indicted for prescription forgeries and receiving pretrial diversion. However, he denied any

wrongdoing.

Sarella Patel testified that he had been a deputy jailer for the Washington County Sheriff’s

Department in 1992. He acknowledged providing information to the District Attorney General a day

or two before the petitioner’s trial that was based upon what the petitioner had told him. He testified

at the petitioner’s trial on behalf of the state.

Nechia Ann Douglas testified that she took a Physician’s Desk Reference (PDR) to the

petitioner’s trial attorney at the courthouse during the trial and retrieved it afterward. She said that

Mr. Bowman’s secretary, Martha Perkins, told her that she would receive medical records from Blue

Cross/Blue Shield, but she never received any.

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Vickie Wise testified that she had been the petitioner’s secretary and medical assistant. She

said she tried to get Mr. Bowman’s office to get a ledger card from Jones & Jones law firm in

Greeneville. Mr. Bowman’s secretary kept saying that they would. Ms. Wise said she called them

for weeks, but they did not get any ledger cards. She identified a card and said that it was the day

she “worked Ms. Dugger out,” referring to the victim’s daughter, and that she had talked with the

victim and the victim had paid on her account. She said this was important because the victim

denied paying anything on the day in question, claiming that she did not have time. She

acknowledged that she testified at the petitioner’s trial regarding the victim making a payment and

the ledger card.

Ms. Wise testified that she gave Mr. Bowman a list of patients that had been in the office that

day and medical records. She said that a week before trial, Mr. Bowman asked her for information

regarding Depo-Medrol and Vistaril but that she told him that she was not qualified. She also stated

that she relayed to Mr. Bowman the petitioner’s request for an independent DNA and genetics

expert. She said Ms. Perkins, Mr. Bowman’s assistant, complained about and was frustrated over

the short period of time she was allowed to handle the case, mentioning that Mr. Bowman had given

it to her one month before trial.

Christy Leah Anderson testified that she had no problem at all in getting ten boxes of

documents from Jones & Jones law firm after the trial. She acknowledged that she had an affair with

the petitioner for three years.

Martha Davis Bowman testified that she was a certified paralegal who had worked for Mr.

Bowman for two years at the time of the hearing. She recalled being informed about records in

Greeneville, but she remembered that her office had a copy of the particular ledger card of interest

that was used at trial. She said that they believed that the copy showed the victim had paid.

Ms. Bowman acknowledged that the petitioner provided a specific name of a DNA expert,

Jack Ralley, and a neurologist. The neurologist treated the petitioner before the petitioner left the

country before his trial. The petitioner wanted him to testify about the petitioner’s state of mind

before he left and the medications he prescribed for the petitioner.

Ms. Bowman testified that the petitioner told her he had “important character” witnesses and

provided her with the names. She did not recall whether any of the character witnesses were called

at the trial. Also, she did not remember complaining before trial of having too little time for the

case.

The petitioner testified and identified various exhibits. He had photographs of his office and

the examining room in question. He submitted medical records and lab tests of patients that were

seen by him on the day in question, noting that he was questioned at the trial regarding other persons

who were examined in that room. He submitted a letter and an article by Dr. Donald C. Thompson

dealing with certain drugs causing sexual fantasies and hallucinations, noting that the victim was

prescribed one of the drugs discussed. The petitioner presented letters from willing character

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witnesses, both physicians and nonphysicians. He had documents from persons who had information

regarding the victim. The petitioner presented financial records, stating that they would show that

he left assets for his wife and child. He noted that he was cross-examined about his fleeing to Egypt

and not supporting his family.

On cross-examination, the petitioner said that he discussed character witnesses with Mr.

Bowman, but he denied agreeing with him that character witnesses would not be used. The

petitioner said that he also gave Mr. Bowman the names of two people who were willing to testify

regarding DNA. He did not believe Mr. Bowman had the scientific knowledge to cross-examine a

DNA expert. He said he urged Mr. Bowman many times to obtain such an expert. He explained that

such an expert could cast doubt upon the state’s expert who identified semen from the examining

room as coming from the petitioner. When asked if he had told Mr. Bowman that he had had sex

in many places in that office and that the semen could have been his, the petitioner said “not in that

particular room, no.” He also acknowledged that he told Mr. Bowman that he and his wife were

trying to conceive a child, that he had been doing sperm counts on himself, and that the semen may

have come from that. He denied getting Christy Anderson to tell Mr. Bowman just before trial that

she and the petitioner had sex on the examination table that night. He also denied having sex with

Ms. Anderson on that table that night.

The petitioner acknowledged prescribing Xanax for the victim and that the FBI test of the

victim’s blood did not find any Xanax. However, he referred to “flashbacks, hallucinations” that

could occur.

The petitioner submitted a copy of his civil complaint against Mr. Bowman, stating that it

contained the various complaints he had about Mr. Bowman’s representation.

The state called Mr. Bowman as a witness. Mr. Bowman had practiced for twenty-five years,

primarily in criminal defense. He was hired by the petitioner when the petitioner was charged with

rape and bribery and also represented the petitioner when he was indicted on Medicaid and Blue

Cross fraud charges. He said that a lot of people communicated with him on the petitioner’s behalf

and some offered to be character witnesses. Mr. Bowman testified that he had difficulty getting the

petitioner to focus on what he thought was important regarding the case. He said the petitioner often

talked about filing lawsuits and often tried to enlist Mr. Bowman’s help for other prisoners.

Mr. Bowman believed that the fact the petitioner was depressed when he fled the country was

a nonissue. He did not think anyone would doubt his being depressed and noted that witnesses

testified about it. He saw no need to bring in the neurologist who treated the petitioner.

Mr. Bowman saw no need for a DNA expert. He said the petitioner never denied that the

semen could be his and the petitioner had an explanation as to why his semen would be found in the

room. He said the petitioner told him that he routinely conducted sperm counts because he was

trying to have a child. Mr. Bowman said that closer to trial, the petitioner said he had sex in the

room with Christy Anderson. Mr. Bowman stated that the petitioner also said that he had sex all

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over his office with various people and that it would not be unusual to find his semen in the office.

Mr. Bowman said he told the petitioner that he would have him testify regarding the sperm count,

but not the sex in the office because it would not create a “creditable impression” on the jury. He

acknowledged that after the petitioner told him different versions regarding the semen, he doubted

whether the petitioner was telling the truth.

Mr. Bowman testified that he discussed character witnesses with the petitioner a lot. He said

that he went over the pros and cons with the petitioner and told him that calling them “would

probably be a bad mistake” and recommended against them. He said that the petitioner did not

understand the limited nature of character witnesses. He noted that the state could ask the witnesses

about the fraud charges and call other witnesses. He believed that, at best, character witnesses would

be a “wash.” He did not know if the petitioner agreed with his assessment, but he stated that the

petitioner “certainly acquiesced” in his decision not to use them.

Mr. Bowman testified that the petitioner considered himself an expert in the area of

pharmacology. Mr. Bowman said that he emphasized to the petitioner that the case was a rape case,

not a case of drugs. He said that the petitioner never offered him an explanation for why Vistaril

was in the victim’s bloodstream, saying that he did not know. He noted that the petitioner failed to

advise him that the petitioner had administered Vistaril to the victim in the past, a point on which

the state cross-examined the petitioner at the trial.

Mr. Bowman testified that the petitioner wanted to be co-counsel because the trial court had

admonished him at one time for speaking up. The petitioner believed that if he were co-counsel, the

trial court could not put him in jail. Mr. Bowman told the petitioner that he was not willing to have

the petitioner as co-counsel.

On cross-examination, Mr. Bowman acknowledged not introducing into evidence the

photographs taken of the petitioner’s examining room and examination table. He acknowledged that

the petitioner asserted that it was impossible to have sex the way the victim claimed on the table and

wanted him to bring the examination table into court. Mr. Bowman thought it would have been very

damaging to introduce the table, and he was also concerned given the fact that the petitioner had told

him that he had had sex with Christy Anderson on the examination table.

Mr. Bowman acknowledged that Dr. DeWitt was the only physician to examine the victim

and that he was not called as a witness even though the petitioner asked him to do so. Mr. Bowman

said he discussed the matter with the petitioner at counsel table. He said that Dr. DeWitt did not find

any physical evidence, but would have testified that the victim was in a distraught state of mind and

reported having undergone a terrible event. Mr. Bowman declined to call Dr. DeWitt.

Generally, Mr. Bowman did not think that the scientific issues about which the petitioner was

concerned about witnesses not being called would have affected the outcome. He related this

specifically to the drug testing that was done and the DNA evidence. In this respect, he did not think

it was important to determine the victim’s husband’s DNA.

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Mr. Bowman acknowledged that he did not call any of the other patients that the petitioner

saw that day. He noted that the petitioner’s office had trouble tracking them down, attributing the

trouble to the length of time that transpired when the petitioner left the country.

Mr. Bowman testified that he did not think a change of venue should have been sought. He

did not believe that the publicity regarding the petitioner’s case justified a change. He said that the

petitioner had been of the opinion that he had many friends and supporters in Washington County

and that the trial should remain there.

Mr. Bowman acknowledged listening to the taped conversation that the petitioner had with

the victim and her husband. He believed that he could understand what was being said. He said that

he did not have the tape checked for authentication. He explained that he saw no need to check it

because the petitioner never complained that the tape had false statements in it. He noted that the

petitioner was, in fact, anxious that some parts of the tape be played because the petitioner denied

the rape.

The petitioner called Dr. Michael Miyamoto, a professor of pharmacology at the Quillen

College of Medicine. He said he saw nothing connecting benzodiazepines with sexual fantasies,

although he said it could be possible. He denied knowing the effects of Vistaril or Depo-Medrol.

He read from a PDR regarding the Depo-Medrol formulation being changed in November 1990 to

be more “bioavailable” than previously. He explained that bioavailability relates to the drug’s ability

to combine with the appropriate receptors to produce the intended effect. He acknowledged that a

drug that is not highly bioavailable can be injected but found in very small traces in the blood half

an hour or an hour after absorption.

Lisa Michelle Stewart testified that she was a medical office assistant for the petitioner. She

identified a letter that she wrote to Mr. Bowman and noted that the office records reflected that the

victim had previously been hysterical and called the office many times threatening to kill herself if

she could not talk to the petitioner immediately. She said that the victim had other personality

problems, too. She described the victim as a problem patient. Ms. Stewart was subpoenaed to

testify, but at that time, she had a five-day-old baby and her husband was having surgery that same

day. She said that she did not recall being contacted by Mr. Bowman or his office about testifying

the next day.

Ms. Penny R. Smith testified that she was the former wife of the petitioner and that her

attorney was Rebecca Jones of Jones & Jones in Greeneville. After the petitioner left the country,

her attorney had boxes of his mail, office records, and the like delivered to the law office. She

recalled testifying at the trial and talking with Mr. Bowman. However, she did not believe that they

discussed the substance of her testimony. Ms. Smith identified documents reflecting that she

received $50,000 on the sale of the house and $700 per month for ten years for the sale of the

petitioner’s office building and stated that the petitioner left her with $50,000 in cashier’s checks.

She also acknowledged having a Toyota and a Jeep. However, Ms. Smith noted that the petitioner

asked her for the checks, which she refused, about a month before he fled to Egypt and that the

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finances were a mess after his flight. On cross-examination, Ms. Smith said that they had planned

on starting a family. She said that she went off birth control pills in June and got pregnant some time

in July. She said that the petitioner did the pregnancy test and would have known that she was

pregnant by August.

Judge Brown accredited Mr. Bowman’s testimony. He concluded that the tape of the

petitioner’s conversation with the victim was damaging and that counsel did “quite a good job”

minimizing damage done when the petitioner testified. He concluded that the petitioner received

excellent representation.

POST-CONVICTION COURT’S FINDINGS AND CONCLUSIONS

After the hearing, the post-conviction court entered a Finding of Fact and Memorandum of

Law that is sixty-two pages long and need not be reproduced here. It suffices, at this juncture, to

state the court’s summary findings:

(1) The petitioner, Mohamed F. Ali, has failed to establish by clear

and convincing evidence, T.C.A. § 40-30-210(f), that he is entitled to

post-conviction relief upon an issue or combined issues presented.

Although no longer the law, the court had also viewed the facts in

light of the former preponderance rule and finds the petitioner had not

shown that he would be entitled to relief under the former and now

repealed preponderance test.

(2) This court specifically finds that the actions of Judge Lynn W.

Brown, beyond a reasonable doubt, did not and could not result in any

prejudice to the petitioner and that the petitioner was not denied a fair

judge at any stage of the proceedings.

The court accredited Judge Brown’s testimony.

Relative to the claim of ineffective trial counsel, the court stated:

This court declined to hear new proof or reopen the issue alleging that

original trial counsel was ineffective on the basis that this issue had

been directly raised as a ground in the motion for new trial where an

evidentiary hearing was conducted by the original trial judge.

....

This court, considering that the Tennessee Court of Criminal Appeals

had specifically found the pro se petitioner’s representation at the

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motion for new trial hearing was proper, found that the issue was

waived and previously determined by the trial court. In effect, the

court declined a direct second bite of the apple. House v. State, 911

S.W.2d 705, 710 (Tenn. 1995).

Relative to the claim of ineffective appellate counsel, the post-conviction court noted that

appellate counsel advised the petitioner not to include the ineffective assistance of trial counsel as

an issue on appeal because it was best left for a future post-conviction proceeding. The court stated

this was incorrect legal advice. However, the court also concluded that the decision not to appeal

the ineffective counsel issue was a “reasonable tactical choice” based upon appellate counsel’s view

of the weakness of the issue. In this respect, the court also concluded that the petitioner was not

prejudiced by the failure to pursue the issue in the original appeal.

LAW GOVERNING JUDICIAL BIAS

The petitioner contends that the post-conviction court applied an incorrect standard in

assessing whether judicial bias existed at the petitioner’s convicting trial. He asserts that the court

mistakenly applied harmless error analysis and, even then, disregarded the cumulative affect of

existing errors. The state responds that the post-conviction court did not apply harmless error

analysis, noting that the court found that no judicial bias existed.

The petitioner asserts that the law governing judicial bias emanates from State v. Benson, 973

S.W.2d 202 (Tenn. 1998), in which our supreme court vacated convictions because the judge had

solicited a bribe from the defendant. The court held that the right to an impartial judge is basic to

a fair trial and that a violation of the right affects the integrity of the judicial process and requires a

new trial without a need for harmless error analysis. Id. at 207. It quoted from Vasquez v. Hillary,

474 U.S. 254, 263, 106 S. Ct. 617, 623 (1986), the following:

“When constitutional error calls into question the objectivity of those

charged with bringing a defendant to judgment, a reviewing court can

neither indulge a presumption of regularity nor evaluate the resulting

harm. Accordingly, when the trial judge is discovered to have had

some basis for rendering a biased judgment, his actual motivations

are hidden from review, and we must presume that the process was

impaired.”

973 S.W.2d at 207. We note that the quote comes from a paragraph in which only a plurality of the

court joined. See Vasquez, 474 U.S. at 255, 106 S. Ct. at 619. The petitioner also relies upon the

Code of Judicial Conduct, which provides: “A judge shall disqualify himself or herself in a

proceeding in which the judge’s impartiality might reasonably be questioned.” Tenn. S. Ct. R. 10,

Canon 3, E(1).

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The petitioner contends that Benson adopted the evidentiary standard and “2-prong” rule in

Vasquez. He states that the evidentiary standard is “some basis.” He states that the “2-prong” rule

is “that, once the judge is discovered to have had ‘SOME BASIS’ for rendering a biased judgment,

a reviewing court can neither indulge a presumption of regularity nor evaluate the resulting harm.”

First, we agree that the post-conviction court on occasion viewed events solely from a

prejudice viewpoint. However, we believe the petitioner misapprehends many of the post-conviction

court’s rulings. In many of the examples the petitioner cites to us, the post-conviction court’s actions

reflect findings regarding both the lack of bias against the petitioner and the lack of harm to him.

As previously noted, the post-conviction court ultimately stated:

This court specifically finds that the actions of Judge Lynn W.

Brown, beyond a reasonable doubt did not and could not result in any

prejudice to the petitioner and that the petitioner was not denied a fair

judge at any stage of the proceedings.

We interpret the post-conviction court’s rulings to encompass two issues: (1) whether Judge Brown

was biased against the petitioner and (2) whether Judge Brown’s conduct was improperly prejudicial

to the petitioner. In other words, the court considered the impact of Judge Brown’s claimed

misconduct even if it did not justify a finding of bias. We conclude that the post-conviction court

did not erroneously apply a harmless error analysis to the ultimate issue of judicial bias.

As to the petitioner’s claimed evidentiary standard of “some basis,” we do not believe that

our supreme court adopted such a standard or burden of proof when it quoted Vasquez. In Benson,

the court concluded that the preponderance of the evidence showed that the trial judge had solicited

the petitioner for a bribe and that the judicial corruption required reversal. 973 S.W.2d at 207. The

preponderance of the evidence standard arose from the former post-conviction procedure act and the

court noted that under the new act, a petitioner has the burden of proving factual allegations by clear

and convincing evidence. Id.; see Tenn. Code Ann. § 40-30-210(f). The present case is governed

by the new Post-Conviction Procedure Act. Thus, the petitioner was required to prove his

allegations of fact by clear and convincing evidence, and we may overturn the trial court’s findings

only when the evidence in the record preponderates against those findings. See Fields v. State, 40

S.W.3d 450, 456-57 (Tenn. 2001). We do agree, though, with the petitioner’s assessment of the

result once judicial bias is proven. Reversal is required without any separate consideration of

whether proof of prejudice exists.

What constitutes the type of bias that is at issue in this case has been fully discussed by this

court previously.

While the words “bias” and “prejudice” are central to the

determination of whether a recusal should be granted, neither term is

defined in Tennessee case law as it relates to the issue of recusal.

Generally the terms refer to a state of mind or attitude that works to

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predispose a judge for or against a party. Other jurisdictions have

elaborated on that decision.

A Missouri court has defined “prejudice” necessary to require

recusal as

[T]he attitude of personal enmity towards the party or

in favor of the adverse party to the other’s detriment.

It is not the mere possession of views regarding the

law or the conduct of a party or of his counsel.

Prejudice is in the personal sense rather than in the

judicial sense. Prejudice refers to a mental attitude or

a disposition of the judge towards a party: either a

hostile feeling or spirit of ill-will against one of the

litigants, or a favoritism toward one of them.

State ex rel. Wesolich v. Goeke, 794 S.W.2d 692, 697 (Mo. App.

1990).

Not every bias, partiality, or prejudice merits recusal. To

disqualify, prejudice must be of a personal character, directed at the

litigant, “must stem from an extrajudicial source and result in an

opinion on the merits on some basis other than what the judge learned

from . . . participation in the case.” Id.

Personal bias involves an antagonism toward the moving party

. . . but does not refer to any views that a judge may have regarding

the subject matter at issue. Impersonal prejudice resulting from the

judge’s background experience does not warrant disqualification. If

the bias is based upon actual observance of witnesses and evidence

given during the trial, the judge’s prejudice does not disqualify the

judge. However, if the bias is so pervasive that it is sufficient to deny

the litigant a fair trial, it need not be extrajudicial.

Adverse rulings by a trial court are not usually sufficient

grounds to establish bias. Rulings of a trial judge, even if erroneous,

numerous and continuous, do not, without more, justify

disqualification.

Often parties allege that comments made by the judge

demonstrate bias or prejudice. An expression of opinion of the merits

of the case prior to hearing the evidence is indicative of bias.

Remarks which suggest that the judge has taken a position favorable

or unfavorable to a party also indicate bias. Remarks indicating a

judge’s personal moral conviction or which “reflect prevailing

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societal attitudes” are insufficient alone to mandate disqualification.

United States v. Norton, 700 F.2d 1072, 1076 (6th Cir. 1983). Any

comments made by the trial court must be construed in the context of

all the facts and circumstances to determine whether a reasonable

person would construe those remarks as indicating partiality on the

merits of the case.

Alley v. State, 882 S.W.2d 810, 821-22 (Tenn. Crim. App. 1994) (most citations omitted). We will

review the claim of bias with these guidelines in mind.

JUDICIAL BIAS

The petitioner contends that the post-conviction court erred by finding that Judge Brown was

not biased. He refers to various events that happened before, during, and after his trial, which he

claims show Judge Brown’s bias against him.

First, he refers to Judge Brown’s comments during hearings on June 6, 1991, and October

4, 1991, that dealt with the bonding company on the petitioner’s bond during the time that the

petitioner had absconded to Egypt. Relative to an attempt to locate and return the petitioner for trial,

Judge Brown commented about his hoping that the bonding agent had a “good used camel,” because

he was going to need it. The post-conviction court, referring to one of the hearings, found that:

The camel comment was not a racial slur nor evidence of bias of the

judge toward the petitioner and even if by some leap of the

imagination it could be considered as such it would be harmless error

beyond a reasonable doubt and no possible prejudice could fall on the

petitioner as a result of the comment.

The comment seems to be at best a side remark clearly aimed at the

bail bondsman pointing out the difficulty he might have in returning

a very elusive fugitive defendant from Egypt [probably an attempt at

ironical humor].

Also, although his brief does not specify how the remarks show bias, the post-conviction

court stated that the petitioner claimed that the comment amounted to a racial slur and was

insensitive to the petitioner. We assume that the petitioner’s concerns remain the same, although

he does not explain why he believed the comment to be a racial slur and insensitive to him. The

petitioner complains that the court considered only one of the remarks. Given the fact of the

petitioner’s whereabouts at the time of the hearings, the fact that Egypt is largely desert terrain, and

the fact that camels have been used for countless centuries as beasts of burden and conveyance in

desert regions of Africa and the Middle East, we agree with the post-conviction court’s view of the

comments. Obviously, the context of both comments was the same, and although the post-

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conviction court mentioned only one of the hearings, its findings apply equally well to the second

hearing.

Second, the petitioner refers to Judge Brown prohibiting him at his motion for new trial

hearing from making an offer of proof through witnesses of the manner by which the petitioner’s

passport was released to private individuals who, he claims, unlawfully posed as FBI agents in

Egypt. The petitioner claimed that he wanted to show that the police were not authorized to release

the passport and that the methods used to return him for trial violated his Fourth Amendment rights.

The record reflects that Judge Brown viewed the petitioner’s claim as irrelevant to the issue of

whether or not the petitioner was entitled to a new trial. Also, Judge Brown noted that the petitioner

testified that he returned from Egypt voluntarily. He indicated that the fact that “bounty hunters put

some pressure” on the petitioner was irrelevant.

The petitioner complains that Judge Brown’s refusal to allow him to present proof reflects

that Judge Brown “targeted” the petitioner. We note that the post-conviction court wrongly found

that this issue was waived because it was not in the motion for new trial. However, we agree with

the court’s conclusion that the remedies arguably resulting from the petitioner’s claim would not

result in his obtaining a new trial.

Third, the petitioner refers to impeachment of the victim at trial. His brief states that the

court allowed impeachment “but excluded similar others intended to show bias and proof of habit.

Bias was shown when Brown stated that the only perjured testimony he heard was Ali’s . . . when

the alleged victim’s perjury had been noted” by Judge Brown. The petitioner’s brief does not specify

what was allowed and what was excluded. The record of the convicting trial reflects that the victim

was describing the sensation that she felt from the medication that the petitioner had given her before

the rape. Mr. Bowman then queried, “Was it the same sensation that you had after you had taken

LSD or marijuana in your life?” The victim responded that she had never taken LSD or marijuana

in her life. At first, Judge Brown sustained the state’s objection. The record reflects that documents

reportedly from Watauga Mental Health Services included an intake sheet dated five days after the

rape obtaining information regarding the victim. One of the sheets contained notes reflecting that

the victim had used LSD in 1986 and used marijuana two to three times in 1986. The prosecution

had turned the records over to the defense. Initially, Judge Brown believed that its prejudicial effect

outweighed any probative value of the evidence. However, the next morning he considered the

matter further. In a jury out hearing, the victim again denied any use of LSD or marijuana. When

shown the mental health center documents, she denied telling anyone that she had used LSD and

marijuana in 1986 and denied that she had written those notations. She said that the information was

inaccurate. Judge Brown then concluded that the defense could question the victim regarding prior

use of LSD and marijuana. In front of the jury, Mr. Bowman asked the victim if she ever told

representatives of the Watauga Mental Health Center that she in fact had used LSD and marijuana.

She replied that she did not.

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We fail to see how any actions by Judge Brown regarding this issue indicate bias against the

petitioner. To the contrary, the record reflects that he used considered judgment and ruled in favor

of the petitioner.

At the motion for new trial hearing, Judge Brown was delivering his findings when the

petitioner inquired about findings regarding the victim’s “perjured testimony.” Judge Brown

responded, “The Court is of the opinion that if there was any perjured testimony in this case it was

yours, Mr. Ali.” He also explained that the victim had not signed the documents and he did not find

it to be perjury. We view Judge Brown’s comment to be gratuitous relative to the issue regarding

the victim’s testimony. However, Judge Brown presided over the trial and observed all the witnesses

and evidence given during the trial. Judge Brown’s comment reflects a conclusion drawn from those

observations. He was allowed to do so. See Alley, 882 S.W.2d at 821.

Fourth, the petitioner refers to the ex parte contact Judge Brown had with Rev. Strother

noting that two weeks before his sentencing hearing, Judge Brown said, “Don, you are not going to

like what I am going to do in Dr. Ali’s case.” The petitioner’s brief regarding this issue complains

about the findings of the post-conviction court and questions the validity of Judge Brown’s original

insistence that Rev. Strother had visited him in the office as opposed to having a telephone

conversation. The brief does not otherwise specify how Judge Brown’s comment shows him to be

biased against the petitioner.

The record reflects that Rev. Strother contacted Judge Brown in ex parte fashion about the

petitioner’s sentencing. He indicated that he believed there was lack of evidence and that Judge

Brown should give the petitioner a light sentence. Judge Brown acknowledged telling Rev. Strother

that he would not like what Judge Brown was going to do about the petitioner. However, he denied

having his mind made up about sentencing at that time and indicated that his statement was partly

in response to Rev. Strother’s claim of the petitioner’s innocence. The post-conviction court

accredited Judge Brown’s testimony regarding these facts. We do not believe the record

preponderates against such findings.

Fifth, the petitioner refers to Judge Brown’s purported ex parte contact with Sheriff England

for the purpose of having the petitioner sent to the state penitentiary. The petitioner asserts that the

timing was critical because it was before the hearing on his motion for new trial and he was

proceeding without an attorney. He notes, as well, that Judge Brown then changed the hearing date

to over two weeks later, which the petitioner asserts allowed certain witnesses to become

“unavailable” on the new date. The petitioner’s brief does not specify the missing witnesses or their

expected testimony.

The record reflects that Judge Brown denied contacting Sheriff England about the petitioner.

Mr. England testified that Judge Brown had told him to send the petitioner the next time there was

an opening. Mr. England acknowledged that he had previously been holding the petitioner locally

at the request of Rev. Strother. The post-conviction court found nothing wrong with Judge Brown’s

actions and pointedly criticized Mr. England for complying with Rev. Strother’s request.

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The petitioner contends that Judge Brown’s actions reflect bias because he targeted the

petitioner with them. He notes that Judge Brown did not tell the former sheriff to “ship off sentenced

prisoners.” On the other hand, we note that the evidence does not reflect whether any other prisoners

were being intentionally detained by the former sheriff and whether Judge Brown knew about them.

The post-conviction court found that Judge Brown’s actions did not show bias. We do not believe

that the evidence preponderates otherwise.

Sixth, the petitioner refers to Court of the Judiciary findings. He asserts that Judge Brown

violated confidentiality rules regarding the court’s investigation of the petitioner’s complaints and

that Judge Brown “used foul language and insulted” the petitioner. At the post-conviction hearing,

Judge Brown acknowledged that the Court of the Judiciary deemed the lunch with Dr. DeWitt and

the ex parte conversation with Rev. Strother to be inappropriate. The record reflects that Judge

Brown held a hearing regarding bond pending appeal while the petitioner’s case was on appeal.

When the petitioner’s counsel referred to the complaint filed with the Court of the Judiciary, Judge

Brown stated, “I have never seen so much garbage, untruth, lies and deceitfulness. And the Court

of the Judiciary determined that that was about the substance of it, it’s been dismissed.”

The post-conviction court viewed the Court of the Judiciary findings to be irrelevant to the

issue of judicial bias. We agree. Moreover, the petitioner does not specify what confidentiality rule

Judge Brown violated in discussing with the petitioner’s attorneys complaints that the petitioner had

made to the Court of the Judiciary. We do note that the petitioner’s conviction and sentencing,

which were ultimately sustained, had occurred at the time of the bond hearing. In other words, Judge

Brown’s view of the petitioner’s allegations in the complaint has no probative value as to Judge

Brown’s views of the petitioner in earlier proceedings.

Seventh, the petitioner refers to the fact that Judge Brown ate lunch with a witness who

testified at the motion for new trial hearing and failed to disclose his relationship with the witness.

This claim relates to the fact that Judge Brown ate lunch with Dr. Jan Allen DeWitt, who testified

at the new trial hearing. Judge Brown acknowledged that he was an acquaintance of Dr. DeWitt and

acknowledged eating lunch with him on the day Dr. DeWitt testified. Judge Brown said that he and

his court reporter went to lunch and that when Dr. DeWitt arrived, he invited him to join them

because no other seats were available. Judge Brown saw no reason to disclose the fact that Dr.

DeWitt was a personal acquaintance. The post-conviction court found that the proof did not show

“any act by [Judge] Brown that would detract from the conclusion that the petitioner suffered no

harm to his case or that the trial judge was biased against him.” We agree that the petitioner has not

shown how this relates to purported bias. Dr. DeWitt’s testimony was straightforward regarding his

examination of the rape victim. The record reflects that the petitioner made several complaints to

the Court of the Judiciary regarding Judge Brown. Apparently, the court in one of the cases

responded that it was inappropriate for Judge Brown to be eating lunch with a witness who was

testifying in the matter before the judge. However, we see nothing that would relate Judge Brown’s

actions to bias against the petitioner.

-18-

Eighth, the petitioner referred to Judge Brown’s advising prison guards in 1998 that the

petitioner remained a security threat and should not have his restraints removed. Unfortunately, the

petitioner’s brief fails to relate this to any measure of bias. We fail to see any specific relevance of

these circumstances to the petitioner’s convictions and sentences.

Ninth, the petitioner asserts that Judge Brown made improper comments during the motion

for new trial hearing. He notes that Judge Brown told an assistant district attorney, “I know we’re

wasting time General, but let’s–I’m giving–him more latitude,” and “I’m letting him build a record.”

This occurred while the petitioner was examining a witness. The petitioner’s brief asks, “Who were

WE/US?” The state argues that Judge Brown’s statements are nothing more than an explanation to

an objecting prosecutor regarding the broad latitude given a pro se defendant. It also argues that the

use of the pronoun “we” was obviously a reference to the collective individuals in the courtroom.

We agree with the state’s view of this matter.

Tenth, the petitioner refers to an assistant district attorney general filing a motion to quash

a subpoena on behalf of Judge Brown. The petitioner claims that such was inappropriate and a

conflict of interest. However, as the state notes, the motion to quash was filed in the post-conviction

proceeding before another judge. It is irrelevant to whether Judge Brown was biased against the

petitioner during the proceedings dealing with his conviction and sentencing.

The petitioner claims that various events and conduct by Judge Brown prove bias. Overall,

the petitioner presents (1) two pretrial hearings dealing with the petitioner’s fugitive status, (2) a

mid-trial ruling relative to impeachment of the victim, (3) Judge Brown’s presentence conversation

with Rev. Strother, (4) Judge Brown’s order before the motion for new trial hearing that the

petitioner be sent to the penitentiary, (5) Judge Brown’s refusal to allow the petitioner to provide

evidence at the motion for new trial hearing regarding the petitioner’s passport and how he was

returned to the United States, (6) Judge Brown’s comments to the prosecutors during the motion for

new trial hearing relative to wasting time, (7) Judge Brown’s comment at the motion for new trial

hearing that the only perjury he had heard was the petitioner’s, (8) Judge Brown’s eating lunch with

Dr. DeWitt during the motion for new trial hearing, (9) Judge Brown’s comments regarding the

Court of the Judiciary complaints that were filed after the petitioner’s case was on appeal, (10) Judge

Brown’s comments to prison guards in 1998, and (11) the motion to quash filed on behalf of Judge

Brown by an assistant district attorney general during the post-conviction proceedings. Looking at

the facts, severally and collectively, regarding the various events upon which the petitioner relies,

giving credit to most of the basic findings made by the post-conviction court, we fail to see how any

rational mind could conclude to any reasonable degree that Judge Brown was personally biased

against the petitioner during the trial court proceedings in the petitioner’s rape and attempted bribery

case.

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EXCLUSION OF EVIDENCE

The petitioner complains about the post-conviction court’s excluding evidence at the hearing.

He contends that the evidence was admissible because it was relevant to the issue of judicial bias.

Some of the complaints are specific while others are not.

The petitioner complains that the post-conviction court prohibited him from questioning

Judge Brown regarding the “refusal” to grant the petitioner pretrial jail credits. While reviewing the

petitioner’s list of disciplinary complaints at the post-conviction hearing, Judge Brown noted the one

about this claim and stated that he did not recall pretrial jail credits ever arising as an issue. When

the petitioner’s counsel was verifying if Judge Brown did not recall, the post-conviction court

sustained the state’s objection. The court stated that because the petitioner had ultimately received

his jail credits, he was not prejudiced.

The record reflects that the judgment forms for the petitioner’s convictions, filed in

December 1993, were completely filled out except for the pretrial jail credits. Although the

petitioner testified about the length of his detention at the sentencing hearing, we see no indication

in the record that the petitioner raised the issue of the judgments being incomplete after the date they

were filed. That is, no mention was made at the motion for new trial hearing or on appeal.

The petitioner claims that Judge Brown left his pretrial jail credits off and then ignored the

petitioner’s subsequent motion to obtain the credits. He argues that the fact that he ultimately

received the credits is beside the point. Rather, he argues, Judge Brown’s nonaction is relevant to

the petitioner’s claim that Judge Brown was biased against him.

We agree with the petitioner. The post-conviction court erred in not allowing him to question

Judge Brown about the failure to act regarding the pretrial credits. However, in context, we do not

believe that the error more probably than not affected the result. T.R.A.P. 36(b). As previously

noted, in reviewing the record, including the many instances that the petitioner has claimed show

bias, we have concluded that the existing evidence does not reflect personal, improper bias by Judge

Brown against the petitioner. We also note that the post-conviction court found that the petitioner

was not denied a fair judge at any stage of the proceedings. Nothing even hints at such a bias

through the motion for new trial hearing. Judge Brown said that he did not recall pretrial credits

being an issue. We cannot fathom how further questioning would have made any difference in the

ultimate findings and conclusions reached by the post-conviction court.

The petitioner complains that the trial court refused to allow proof regarding Judge Brown’s

relationship with Danny Pike. He states that Mr. Pike testified at the motion for new trial hearing

and knew Judge Brown personally. He states that Judge Brown was “judicially” involved in Mr.

Pike’s multiple indictments, pretrial diversions, and probation revocations. The petitioner asserts

that Judge Brown failed to disclose his personal and judicial relationship with Mr. Pike.

-20-

The record reflects that Mr. Pike was called by the petitioner to testify at the motion for new

trial hearing relative to the state not providing exculpatory information. Mr. Pike had been employed

by the Johnson City Police Department and had accompanied Sergeant Sam Reed in the July 1989

search of the petitioner’s office. He testified about the items found by him and Sergeant Reed. He

acknowledged being indicted in 1992 for forging narcotic prescriptions and being placed on pretrial

diversion. Mr. Pike denied abusing narcotics in July 1989 and denied having a narcotics problem

or forging narcotic prescriptions. Judge Brown concluded that Mr. Pike revealed no exculpatory

information for the petitioner. We note that Mr. Pike did not testify at the petitioner’s trial.

The post-conviction court concluded that because Mr. Pike did not testify at the trial, proof

regarding him and Judge Brown was unnecessary. Again, we agree with the petitioner that the post-

conviction court missed the petitioner’s point. The fact that Mr. Pike did not testify at the

petitioner’s trial had little relevance to whether or not Judge Brown’s relationship with him was a

matter of concern at the motion for new trial hearing. Thus, the post-conviction court erred.

However, in context, we do not believe that the error more probably than not affected the result.

T.R.A.P. 36(b). First, we do not believe that the witness’s being a former police department

employee and a former defendant appearing before Judge Brown gave rise to a duty on Judge Brown

to disclose any relationship. Second, we note that the fact that Mr. Pike was a nominal witness and

answered all of the petitioner’s questions provides no hint of judicial bias in the process.

Next, the petitioner complains about the trial court’s failure to comply with the July 18, 1994

order of this court remanding the issue of the petitioner’s indigency to the trial court for hearing. His

argument is the following:

An excluded “act from the bench”. Brown refused to comply

with this Court’s Order dated 7/18/94 (R, I at 112-118, 127-28). Ali

wanted to discover Brown’s habit or routine practice and whether he

treated similarly-situated defendants alike. The cumulative-effect..

[sic]

The petitioner’s references are only to the orders filed by this court and his own pleadings. There

is no evidence of what transpired in the trial court after this court’s July 18 order. In fact, there is

no reference to anything occurring at the post-conviction hearing relative to this matter. The

petitioner has shown no basis for relief.

Next, the petitioner refers to an “untrue affidavit and motion to quash in 1997.” He states:

Details and exhibits are explained in the record (R, I at 20, 110-11,

128-29). Connection to Ali is obvious. This act was neither “from

the bench” nor after Brown “lost control of case”, but the court

ignored it in the Order. The cumulative-effect..[sic]

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The record references are to the petitioner’s post-conviction petition, an exhibit to his amended

petition, and his memorandum in support of his post-conviction claim of bias. The exhibit reflects

that the motion to quash a subpoena for Judge Brown was filed in a civil case the petitioner had filed

against the victim and others. The petitioner makes no reference to the hearing transcript relative

to proof or the post-conviction court’s rejection of these matters. The petitioner has shown no basis

for relief.

Next, the petitioner refers to “ex parte contact with Alfa Bridger.” He asserts:

Details, exhibits and connections to Ali are explained in record (R, I

at 20, 101-02, 129). After Brown testified, his credibility was at issue

and Ali was entitled to question him about any relationship that he

has had in the past, a friendship, association or otherwise, to show

bias, prejudice or interest (Exhibit 10, I at 91). Ali wanted to reveal

that Brown discussed his case with his friend ex parte. The

cumulative-effect..[sic]

Again, the references are to pleadings, exhibits, and a memorandum filed by the petitioner. The only

reference to the record relates to Judge Brown allowing the state at the motion for new trial hearing

to cross-examine a witness called by the petitioner about her intimate relationship with the petitioner.

Judge Brown viewed it to be relevant to her credibility in testifying for the petitioner. At another

point, the petitioner sought to ask Judge Brown about a relationship with another woman, not a

witness, and the post-conviction court prohibited it as irrelevant to the inquiry. The petitioner has

failed to see the difference between the two events. The relationship of a party and a witness who

testifies for that party is relevant to the witness’s credibility, the concern obviously being whether

the witness would knowingly or unknowingly slant testimony in favor of the party to be helpful.

However, when the party is testifying and is asked about a relationship with a nonwitness, the

relationship to the party’s credibility is not apparent. In the present case, the petitioner has not

provided anything other than general claims regarding what he expected to prove by such a line of

questioning. A trial court need not admit tangential evidence or allow fishing expeditions. In this

respect, the determination of relevancy is within the discretion of the trial court and will not be

overturned absent an abuse of discretion. State v. Williamson, 919 S.W.2d 69, 78-79 (Tenn. Crim.

App. 1995).

Next, the petitioner complains about the post-conviction court not allowing proof of Judge

Brown’s signing a blank order of dismissal in 1998 in one of the petitioner’s habeas corpus cases.

His brief presents the following argument:

Ali did not seek to “re-try a habeas corpus” in post-conviction

context, contrary to the court finding (T, I at 97, 101, 113). Error was

corrected after Ali was forced to file multitudes of pleadings (R, I at

103-04, 126-30). He wanted to show that Brown targeted him with

the act. Was it his habit or routine practice to sign blank orders

-22-

dismissing similarly-situated writs? If he answered “YES”, he was

grossly negligent and if he answered “NO”, he targeted Ali. The

court did not allow Ali’s questions after Brown was cross-examined

(T, I at 98: lines 1-3) and even after the State asked him about

difference “acts from the bench” to show non-bias (T, II at 165). The

cumulative-effect..[sic]

The record reflects that in November 1998, Judge Brown entered an order in one of the petitioner’s

habeas corpus cases that did not contain a case number. The petitioner refers to a letter from Judge

Brown to the presiding judge of the district that explains that the judgment related to a case that had

been appealed and remanded for execution of judgment but that the clerk’s office filled in the wrong

case number, thereby dismissing another pending habeas corpus case by the petitioner. The post-

conviction court ruled that evidence regarding the order would not be allowed because it related to

events well after Judge Brown had any dealings with the petitioner’s criminal case.

The petitioner contends that the post-conviction court was mistakenly relying on the fact that

the habeas corpus action was a collateral matter because of its mistaken belief that prejudice was the

issue. As before, the petitioner asserts that the evidence would be relevant to proving that Judge

Brown was biased against him during the times at issue. We agree with the petitioner that the post-

conviction court misunderstood the purpose of the evidence. However, we believe that any evidence

presented regarding that time would be of nominal probative value regarding Judge Brown in 1993

and 1994. We believe that any error was harmless.

Next, the petitioner complains about the post-conviction court excluding evidence regarding

Judge Brown’s writing the Board of Paroles against the petitioner being paroled. The petitioner

asserts that the letter contained “untrue facts.” He notes that the letter stated that he entered guilty

pleas to Medicaid fraud charges when he actually entered a nolo contendere plea to theft under $500.

He states that Judge Brown said that the petitioner’s lawsuit against the victim had been “dismissed

as frivolous,” when it had been voluntarily nonsuited at the time. The petitioner asserts that he

wanted to question Judge Brown about his opinions in the letter which were inconsistent with facts

personally known to Judge Brown. As in the trial court, he posits that the letter resulted from Judge

Brown’s anger about the petitioner’s lawsuit that had been served upon him just days earlier. Again,

the post-conviction court refused to allow the questioning of Judge Brown regarding the letter or to

allow a subpoena for “similar letters against similarly-situated parolees of different race or religion.”

He boldly asserts, “Brown’s letter showed bias in 1999 and supported earlier bias in 1993 and 1994.

The cumulative-effect.. [sic]” We do not quarrel with the post-conviction court’s decision not to

allow evidence regarding the letter. In fact, the petitioner’s argument regarding the letter resulting

from Judge Brown’s anger about the petitioner’s lawsuit warrants an inference that the letter has no

probative value regarding whether or not Judge Brown was biased in 1993 or 1994. There is no

merit to this claim.

Last, the petitioner refers to an “ex parte boat trip in 1999" and states the following:

-23-

Details, exhibits and connection to Ali are explained in record

(R, I at 20-21, 100, 130). After Brown testified, his credibility was

at issue and Ali was entitled to question him about any relationship

that he has had in the past, a friendship, association or otherwise, to

show bias, prejudice or interest (Evid. R. 616; Please See Exhibit 10,

I at 91).

Under the totality of circumstances, a question such as “Judge

Brown: Did you discuss Ali’s on your boat that day?” would have

been relevant. The cumulative-effect..[sic]

The references are to the petitioner’s pleadings and an exhibit of an internal memorandum from the

Correctional Counseling Institute’s director to its executive director. Generally, the circumstances

relate to a March 1999 social gathering with Judge Brown and his wife and the director and an

employee of his on Judge Brown’s boat. We can glean no relevance to the issues in this case. The

petitioner provides no authority that he can take his own legal fishing trip to ask questions regarding

anyone that Judge Brown happens to meet. As previously noted, the post-conviction court had the

discretion to determine the admissibility of evidence and its relevance to the case. There is no merit

to this claim.

DISCOVERY REQUESTS

The petitioner contends that the post-conviction court improperly refused to allow discovery

relating to certain matters involving Judge Brown’s testimony. He refers to a letter that the post-

conviction court sent to Judge Brown on January 19, 2001, in which the court noted that Judge

Brown told the court’s legal assistant that he had reviewed his calendars or journals to allay any

concerns he had regarding his testimony about facts or events that occurred eight years earlier. The

court advised Judge Brown to notify the court and counsel if something developed from his review.

Partly in response to the letter, the petitioner filed a motion seeking a rehearing, a new trial,

and, alternatively, a reconsideration. Among other things, the motion sought complete discovery

regarding Judge Brown’s comments to the post-conviction court’s legal assistant. The inference

made by the petitioner was that Judge Brown had apparently viewed some of his testimony to be in

error. The court denied the motion without allowing further testimony from Judge Brown. It

assumed for argument sake that Judge Brown was acknowledging that his conversation with Rev.

Strother was by telephone, not in person as he had previously described. The court concluded that

the change would not alter its view of Judge Brown’s credibility or its findings. We note that a

second order of denial entered by the post-conviction court reflects that the petitioner filed a second

motion to reconsider.

The petitioner contends that he was entitled to question Judge Brown under oath in order to

assess the changes, if any, in Judge Brown’s recollections that would bear on his credibility or the

bias claim. He asserts that even though Judge Brown did not offer any new information, the

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petitioner and the post-conviction court should be allowed to make their own assessment of such

information by means of a hearing. The state responds that the court lost jurisdiction of the case, so

the petitioner was not entitled to a hearing or discovery. We agree with the state.

The post-conviction court entered its judgment denying the petitioner relief on January 7,

2001. It issued the letter to Judge Brown, with copies to counsel, on January 19, 2001. The

petitioner filed his notice of appeal and motion for a transcript of the proceedings for appeal purposes

January 22, 2001. The petitioner’s first motion for relief from the post-conviction court’s judgment

was filed on February 16, 2001.

Unless otherwise provided by a statute or rule, a trial court’s jurisdiction over a case ends

upon the filing of a notice of appeal. See State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996).

The filing of the notice of appeal vests jurisdiction in the appellate court. Any filing in the trial court

and any action by that court after the notice of appeal is filed are effectively nullities. In the present

case, the post-conviction court had no jurisdiction to order the discovery requested by the petitioner.

Thus, there is no merit to this issue.

INEFFECTIVE ASSISTANCE OF COUNSEL

Most of the petitioner’s complaints and assertions relate to his trial attorney, Mr. Bowman.

He also asserts that he has overcome the presumption of waiver so as to allow him to pursue his

claim of ineffective assistance of his trial counsel. He relies upon matters he claims were discovered

after his motion for new trial hearing, such as, the affidavit of Dana Rogers in which Mr. Rogers

stated that he was a former boyfriend of the victim and that the victim made numerous false criminal

charges against him. Rev. Strother testified that he obtained the affidavit and relayed it to Mr.

Bowman in 1995.

First, we believe that the petitioner misapprehends the status of his claim against trial

counsel. The petitioner raised and litigated this claim at the motion for new trial hearing. He did

so at his peril. The fact that he had not discovered certain circumstances regarding counsel does not

negate the fact that he had taken the opportunity to present his claim at that time.

A ground for relief is previously determined if a court of

competent jurisdiction has ruled on the merits after a full and fair

hearing. 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.

Tenn. Code Ann. § 40-30-206(h). Moreover, this court has concluded that allegations of additional

facts to support a claim for relief may not overcome the fact that the claim has been previously

determined. See Cone v. State, 927 S.W.2d 579, 582 (Tenn. Crim. App. 1995). In this respect, the

petitioner has neither alleged nor shown that his failure to discover the new information resulted

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from improper state conduct or other such conduct that might raise a due process issue which might

overcome the rule of previous determination. See, e.g., Sample v. State, 82 S.W.3d 267 (Tenn.

2002). Thus, with the petitioner acting as his own counsel at the new trial motion hearing, any

failure to present all factual bases for his claim against trial counsel falls at his feet. The post-

conviction court properly limited the petitioner’s claim to the issue of the ineffective assistance of

appellate counsel with the record for review being limited to the original trial and the hearing on the

motion for a new trial.

At this point, we note that the petitioner repeatedly refers to “cross-over” effect from Judge

Brown’s actions – which he claims were biased – to the issue of ineffective assistance of trial

counsel. We need not revisit the petitioner’s claims against Judge Brown. Suffice it to say that our

conclusion that the trial court properly found that Judge Brown was not biased forecloses this avenue

of the petitioner’s attack.

Due process of law requires that a criminal defendant be entitled to the effective assistance

of counsel on appeal. Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995); Evitts v. Lucey, 469

U.S. 387, 105 S. Ct. 830 (1985). The test by which we consider the effectiveness of appellate

counsel is the same as that for trial counsel. Under the Sixth Amendment, when a claim of

ineffective assistance of trial counsel is made, the burden is on the petitioner to show (1) that

counsel’s performance was deficient and (2) that the deficiency was prejudicial in terms of rendering

a reasonable probability that the result of the trial was unreliable or the proceedings fundamentally

unfair. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); State v. Melson,

772 S.W.2d 417, 419 n.2 (Tenn. 1989). Also, in reviewing counsel’s conduct, a “fair assessment of

attorney performance requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Thus, the fact that a particular strategy or tactic

failed or even hurt the defense does not, alone, support a claim of ineffective assistance. Deference

is made to trial strategy or tactical choices if they are informed ones based upon adequate

preparation. See Hellard, 629 S.W.2d at 9.

Relative to appellate counsel, the petitioner contends that counsel incorrectly advised him

regarding not raising on appeal the issue of the ineffective assistance of trial counsel and improperly

failed to raise the issue on appeal. Unquestionably, the circumstances of this case reflect that

appellate counsel was legally incorrect in telling the petitioner that the ineffective counsel issue

could be raised in a subsequent post-conviction case and should not be raised in the appeal of the

conviction. We acknowledge that appellate counsel was attempting to follow this court’s previous

admonishments about raising the issue of trial counsel’s effectiveness in the direct appeal, warning

that such a practice is “fraught with peril.” See, e.g., State v. Anderson, 835 S.W.2d 600, 606 (Tenn.

Crim. App. 1992); State v. Jimmy L. Sluder, No. 1236, Knox County (Tenn. Crim. App. Mar. 14,

1990) (refusing to decide the issue and stating that it could be raised later in a post-conviction

action). However, once the petitioner raised the issue in his motion for new trial and developed

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extensive proof, counsel should have recognized that the failure to appeal this litigated issue would

leave the matter as a previously determined issue.

In any event, we conclude that the petitioner has not shown that his convictions, sentences,

or lost appeals resulted from the ineffective assistance of counsel. First, we note that the petitioner’s

brief on this issue provides little detail, little explanation of the facts supporting his assertions, and

little reasoning. He starts with “examples” that he says show the “cross-over effect of judicial bias.”

The examples relate to Judge Brown’s (1) hindering the petitioner’s ability to develop a “fruit of the

poisonous tree” claim, (2) having the petitioner sent to the DOC and changing the new trial motion

hearing date, thereby causing loss of witnesses, (3) hindering the petitioner’s development of his

“Mystery Witness/Campbell/Caldwell/Henderson” claim, and (4) hindering the petitioner’s ability

to preserve a claim regarding grand jury tampering. Unfortunately, the petitioner does not explain

either the facts behind each claim or how any facts or law would provide him relief from his

convictions or sentences.

He then presents an “example” showing that the preponderance of the evidence is against the

trial court’s findings. He notes that he claimed counsel should have investigated DNA evidence

reflecting that sperm found in the petitioner’s examining room belonged to the petitioner. The

petitioner’s ex-wife had testified that they knew she was pregnant “by August.” The petitioner

correctly notes that the rape charge was in July but that the trial court incorrectly concluded that the

rape was August. Based upon this mistake, the trial court stated that if the petitioner had testified

that the sperm could have existed because of sperm count tests for pregnancy purposes, “the defense

case would have self-destructed.” Needless to say, the trial court’s reliance upon the rape occurring

in August was in error. However, the petitioner does not explain how this error renders the trial

court’s conclusion that the petitioner received effective assistance to be error. Moreover, the

petitioner provides no other examples, only asserting that the “evidence and record preponderates

against the majority of lower court’s findings against Ali.”

Finally, the petitioner asserts the following regarding appellate counsel:

Appellate counsel rendered deficient performance, and

prejudiced Ali again, in 1995 by giving him wrong advice on waiver

of Ineffective Counsel issue and by failing to raise other issues which

had reasonable probability of success. “Fruit of the Poisonous Tree”,

“Mystery Witness” and “Grand Jury Tampering” claims were ripe for

review “as is” (as developed pro se). EXAMPLE: the lower court

found FACTUAL MERIT in “Fruit of the Poisonous Tree” claim (R,

II @ 226 & n. 3, 269). Ali cited McLaughlin, 500 U.S. 44 and Wong

Sun, 371 U.S. 471 in his Amended Motion or [sic] A New Trial dated

2/4/94 (Exhibit 18, II @ 6-7), thus, this claim had LEGAL MERIT as

well; Huddleston, 924 S.W.2d 666.

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The lower court denied relief mainly due to the imperfect

quality of Motion for a New Trial pro se record, which was caused by

the cross-over effect of judicial bias and errors.

The evidence in record preponderates against the majority of

lower court’s findings against Ali.

The cumulative-effect of all factors and errors should tip the

scale in Ali’s favor under the second prong of Strickland.

The conclusory and limited arguments in the petitioner’s brief are insufficient to justify relief. If the

petitioner provides only “examples,” it is not our job to rummage through the record to find other

“examples.” As to the examples given, the petitioner does not specify and we have not found any

prejudice related to them.

The “Fruit of the Poisonous Tree” claim relates to the fact that the petitioner’s passport was

apparently given to private citizens by law enforcement for the purpose of aiding in pursuing and

returning the petitioner who had fled to Egypt. The “Mystery Witness” claim is related to the

“Poisonous Tree” claim in that it is based upon the state’s witness, Paul Caldwell, who went to Egypt

and induced the petitioner’s return to the United States.

The convicting trial transcript reflects that Mr. Caldwell contracted with the petitioner’s

bonding company, as a bounty hunter, to locate and retrieve the petitioner from Egypt. Mr. Caldwell

acknowledged using an alias of Bob Henderson and having other associates using aliases. He stated

that he located the petitioner and talked with him about returning. He said the petitioner refused to

leave Egypt and offered him various sums of money to leave him alone. Ultimately, Mr. Caldwell

got the petitioner to return to the United States by using “psychological measures.”

At the new trial motion hearing, the petitioner complained that Mr. Caldwell was a surprise

witness who had not previously been disclosed to the defense. The petitioner asserted that the state

sought a continuance to obtain the presence of “Paul Campbell” but that Paul Caldwell was the

witness called. The state noted that the defense neither objected to the witness testifying nor sought

a delay to allow further defense preparation. Thus, any objection at the time of the motion for new

trial was waived.

Unfortunately, the petitioner does not specify in his brief the issue to which Mr. Caldwell

relates. If he is still complaining about Mr. Caldwell being a surprise witness and the failure of his

counsel to object to him, he has not provided what, if anything, has been uncovered that would have

a reasonable probability of changing the result in his trial. In other words, he has not shown any

improper prejudice because of Mr. Caldwell’s testimony.

Perhaps the petitioner’s complaint regarding Mr. Caldwell relates to the “poisonous tree”

claim. In another part of his brief, the petitioner claims that his passport was improperly released

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to private citizens who took it overseas and lied about being FBI agents. As previously discussed,

in complaining about Judge Brown not allowing the petitioner to call witnesses at the new trial

motion hearing, the petitioner’s brief asks if the bounty hunters acted in concert with state agents,

what was the chain of custody of the passport, and when was he brought before a magistrate for

arraignment after a warrantless arrest. He raises these concerns in the context of violation of his

Fourth Amendment rights and invokes the fruit of the poisonous tree doctrine by which items and

statements derived from an illegal search or seizure may not be used as evidence.

Unfortunately, though, the petitioner does not specify what items or statements are subject

to suppression. In any event, we see no merit to the petitioner’s claim. Even if the bounty hunters

were acting on behalf of the State of Tennessee, the petitioner admitted that he returned voluntarily.

Thus, no seizure occurred in Egypt. As importantly for trial purposes, the fact that he may have been

“duped” regarding the bounty hunters’ authority does not bar his prosecution in Tennessee. See, e.g.,

State v. James Blanton, No. 01C01-9307-CC-00218, Cheatham County, slip op. 32-37 (Tenn. Crim.

App. Apr. 30, 1996) (holding that “illegal” kidnapping of defendant in Mexico by FBI agents and

return to the United States did not bar the defendant’s trial and conviction), aff’d, 975 S.W.2d 269,

285 (Tenn. 1998) (expressly affirming the issues decided in the Court of Criminal Appeals).

Relative to his claim of being held forty-eight hours without an arraignment, it appears that

he is referring to the circumstances surrounding his return from Egypt. In this respect, we note that

the petitioner was already indicted and that a capias had issued for his arrest once his fugitive status

had been learned. Obviously, his arrest or detention cannot be considered “warrantless.”

Relative to his “Grand Jury Tampering” claim, the petitioner relies upon his trial attorney’s

affidavit filed at the new trial motion hearing which states the following:

On Thursday, February 1, 1990, I began receiving information

concerning the allegations contained in the foregoing motion. I

received additional information on Wednesday, February 7, 1990.

Neither I, anyone in my employ, nor the defendant, have had any

contact with any grand juror, nor to my knowledge did anyone above-

named solicit any other person for this information. Nevertheless,

based upon information and belief, I state the foregoing [sic].

Investigator Sam Reed appeared as the only Grand Jury witness in

this cause. One grand juror excused himself from voting in this case.

Thereafter, following the testimony, the Grand Jury voted a “no true”

bill, the vote being eleven for and one against. Thereafter the witness

was allowed to return to the Grand Jury room, not for the purpose of

giving testimony but for the purpose of influencing the recalcitrant

grand juror into changing his or her vote. After two subsequent votes,

said grand juror did in fact change her vote. Additionally, upon

information and belief, I state that the witness falsely testified to the

Grand Jury that the defendant had “confessed” to the crimes in the

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indictment. The state has provided all statements of the defendant to

counsel and I am aware of no statement by the defendant that can be

characterized as a confession. I am further advised that when

requested by a grand juror to produce said statements, the witness

declined to do so.

At the new trial motion hearing, Judge Brown viewed Mr. Bowman’s affidavit as bearing on the

petitioner’s claim of newly discovered evidence. He noted that a motion to dismiss the indictment

had not been filed before trial and deemed the issue waived. See Tenn. R. Crim. P. 12(b)(2). The

petitioner sought to call witnesses, apparently including a grand juror, but Judge Brown deemed

them unnecessary given his ruling. The petitioner did not testify or question Mr. Bowman about the

circumstances surrounding this issue as it would relate to the ineffective assistance of counsel.

We perceive a fundamental problem with the petitioner’s claim, even taking Mr. Bowman’s

affidavit as true. The affidavit provides that the information came to Mr. Bowman’s attention in

February 1990. The original indictment against the petitioner was returned in December 1989.

However, the trial court dismissed that indictment and ordered that any resubmission of the case

occur before a new grand jury to be selected on March 1, 1990. The indictment under which the

petitioner was tried and convicted was returned on March 12, 1990. Any tainting of the grand jury

returning the original indictment could not carry over to the new grand jury and new indictment. The

petitioner has not specified how this claim could result in relief from his conviction.

Other than previously noted, the petitioner’s brief does not point to any evidence showing

the ineffective assistance of counsel. We have reviewed the record and the various claims of

ineffective assistance of counsel presented by the petitioner at both his new trial and post-conviction

hearings. The post-conviction court made detailed findings regarding the petitioner’s claims about

counsel. It found in many of them that Mr. Bowman’s conduct was reasonable and tactical in nature.

It found no prejudice to the petitioner from Mr. Bowman’s actions or lack thereof. In this respect,

the court concluded that there was no probability that an appeal on the issue of ineffective assistance

of trial counsel would have been successful. We agree. We see nothing in the record that entitles

the petitioner to relief from his convictions and sentences based on his claim of the ineffective

assistance of counsel at trial or on appeal.

In consideration of the foregoing and the record as a whole, we affirm the judgment of the

post-conviction court.

___________________________________

JOSEPH M. TIPTON, JUDGE

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