Jeffrey Lee Potts v. State of Tennessee

02/13/2026

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

January 14, 2026 Session

JEFFREY LEE POTTS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2017-A-114 Jennifer Smith, Judge

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No. M2024-01853-CCA-R3-PC

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Petitioner, Jeffrey Lee Potts, claims the post-conviction court erred by denying his petition

for relief from his conviction for attempted second degree murder. On appeal, Petitioner

claims (1) that Tennessee Code Annotated section 40-30-110(f), which requires that

petitioners prove “allegations of fact by clear and convincing evidence,” is inconsistent

with Strickland v. Washington, 466 U.S. 668 (1984), and “erects an unconstitutional barrier

to relief” and (2) that trial counsel rendered ineffective assistance by failing to obtain and

call a use-of-force expert witness at trial. Discerning no error, we affirm the judgment of

the post-conviction court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which TIMOTHY L.

EASTER and JILL BARTEE AYERS, JJ., joined.

Daniel J. Murphy, Lewisburg, Tennessee, for the appellant, Jeffrey Lee Potts.

Jonathan Skrmetti, Attorney General and Reporter; Benjamin A. Ball, Senior Assistant

Attorney General; Glenn R. Funk, District Attorney General; and D. Paul Dewitt and Doug

Thurman, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION

Procedural History

This case arises from an August 14, 2016 shooting at the Davidson County

townhouse of Jennifer Burnett. Petitioner, who had been romantically involved with Ms.

Burnett while she was married to the victim, Michael Thomson, shot the victim five times,

leaving him permanently paralyzed.

A Davidson County grand jury indicted Petitioner for attempted first degree

premeditated murder, and a petit jury convicted him of the lesser-included offense of

attempted second degree murder. The trial court sentenced Petitioner as a Range I offender

to twelve years’ incarceration. The judgment was affirmed on direct appeal. State v. Potts,

No. M2020-01623-CCA-R3-CD, 2022 WL 2348233, at *1 (Tenn. Crim. App. June 29,

2022), perm. app. denied (Tenn. Dec. 14, 2022).

Summary of the Factual Background

The following factual summary is derived from this court’s opinion from the direct

appeal. Id. at *1-14.

The victim testified that he married Ms. Burnett in December 2013, at which time

Ms. Burnett and her daughter Rebecca Burnett1 moved into his house in Lebanon, and Ms.

Burnett began renting out a townhouse she owned in Davidson County. In addition, the

victim and Ms. Burnett owned other rental properties that were managed by Ms. Burnett.

Ms. Burnett hired Petitioner to do maintenance work at their properties. Id. at *1.

The victim and Ms. Burnett experienced marital difficulties leading to the victim’s

filing for divorce in the spring of 2016. On July 19, 2016, Ms. Burnett obtained a

temporary order of protection against the victim based on allegations of domestic abuse.

The order of protection required the victim to leave his residence in Lebanon and prohibited

the victim from possessing a firearm. Id. at *1-2.

The victim claimed that he learned that Petitioner and Ms. Burnett were having an

affair on the day Ms. Burnett obtained the order of protection, after allegedly seeing them

kissing in the parking lot. The victim told Rebecca that he had wanted to kill Petitioner.

On the same day the order of protection was issued, the victim returned to the Lebanon

residence and was arrested for violating the order of protection. The victim admitted that

several violent incidents had occurred between himself and Ms. Burnett. Id.

According to Ms. Burnett, the order of protection was dismissed on August 4, 2016,

after she signed divorce papers and agreed to move out of the victim’s home within ten

days. After the dismissal of the order of protection, the victim retrieved his firearms from

the safe. Id. at *2.

On August 9, 2016, the victim met Ms. Burnett in the parking lot of a Kroger near

Ms. Burnett’s townhouse. The victim “wore his Glock pistol on his hip at the meeting.”

During the meeting at Kroger, Ms. Burnett agreed to travel to New York City and then to

1

We will refer to Rebecca Burnett as Rebecca to avoid confusion.

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Nicaragua with the victim. Before leaving for New York, the victim paid to have the locks

on Ms. Burnett’s townhouse changed so that Petitioner could not enter. Id. at *2-3.

On Friday, August 12, the victim and Ms. Burnett flew from Nashville to New York

City. Ms. Burnett asked Petitioner to care for her pets while she was away. They returned

to Nashville on August 14. On the date of the shooting, the victim sent Petitioner a lengthy

text message about his reunion with Ms. Burnett and calling Petitioner “a stalking, crying

piece of s--t.” The victim also sent a text to Rebecca asking if Petitioner had a key to the

townhouse. After Rebecca replied that Petitioner did not have a key, the victim texted

Rebecca, “Okay, I’m just making sure I don’t have to kill me an MF if he comes in.” Id.

at *4. After returning to Nashville, the victim and Ms. Burnett drove to Ms. Burnett’s

townhouse. The victim testified that he did not suspect that Petitioner would be at the

townhouse. Id. at *3.

The victim followed Ms. Burnett into the townhouse. When the victim stepped

inside, Petitioner opened fire “from an elevated position over a short wall.” The first shot

hit the victim in his chest. Petitioner fired seven rounds, emptying the magazine and

striking the victim five times. The victim, who was permanently paralyzed as a result of

his injuries, testified that he was not armed when he entered the townhouse. Id.

Rebecca corroborated the victim’s physical abuse of her mother. On August 9, the

victim sent Rebecca multiple texts saying that the locks on her mother’s townhouse were

being changed and “expressing his anger” that Petitioner had a key to the townhouse.

Rebecca described the victim as “freaking out” because he thought Petitioner was staying

in the townhouse. She testified that the victim often carried a gun in a holster and that the

victim was larger than Petitioner. Id. at *5.

Ms. Burnett provided detailed testimony regarding the physical abuse she suffered

at the hands of the victim. She said that in April 2015, the victim “punched her four times

during an argument while she was driving and then punched her four more times after she

pulled over.” Ms. Burnett testified that in October 2015, during an argument while driving

home from dinner, the victim struck her with the back of his hand, breaking her front teeth

with his “special forces” ring. She testified that in May 2016, the victim told her that “their

pending divorce action would not matter because she would be dead soon.” She said that

in June 2016, the victim placed her in a “choke hold, causing her earring to poke into her

neck.” Multiple photographs reflecting injuries to Ms. Burnett caused by the victim were

entered into evidence. Id. at *5.

Ms. Burnett explained that she had agreed to go on two trips with the victim “to keep

the victim happy and away from [Petitioner].” Ms. Burnett said that, when she went with

the victim to the townhouse on the evening of the shooting, “she was not expecting

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[Petitioner] to be there or she would not have gone.” Ms. Burnett “estimated that she had

been in the house for only about thirty seconds and was eight feet inside of the house when

[Petitioner] started shooting.” Id. at *10.

According to Petitioner, the victim learned of the affair on August 4, 2016, when he

found text messages between Petitioner and Ms. Burnett. A few days later, Petitioner went

to the victim’s house to help Ms. Burnett move the rest of her belongings. While there, the

victim “demanded to look inside two suitcases that [Petitioner] was carrying.” Petitioner

stated that the victim “had a pistol on his hip and threatened to ‘end’ him if he removed any

property that did not belong to Ms. Burnett.” Id. at *8.

Petitioner said that Rebecca called him to advise him that the victim had sent her a

text message threatening to kill Petitioner. Petitioner said that he called the police on both

August 10 and August 14 seeking information about how to obtain an order of protection

against the victim. After speaking with police, Petitioner went to a storage unit and obtained

a handgun to protect himself. Id. at *9-10.

Petitioner was in the bedroom of Ms. Burnett’s townhouse on the evening of August

14, when he heard a car pull into the driveway. Petitioner looked out the window and saw

the victim’s black BMW. Petitioner said that he knew the victim had been in the military

and “had received specialized training in fighting.” He also said the victim was bigger than

he was and often carried a handgun. He said he was afraid because he thought that the

victim “was there to finish what he started, to kill [him].” Petitioner said that he

immediately called 911. While on the phone with the 911 operator, Petitioner grabbed the

handgun that he had retrieved earlier from the storage unit. By the time he walked out of

the bedroom, the victim was already entering the townhouse. Petitioner said that he shot

the victim in self-defense because he feared for his life. He only remembered shooting one

time, but he acknowledged that he fired seven rounds. Id. at *10-11.

Dr. Stephen Montgomery, a forensic psychiatrist, testified as an expert witness for

the defense. He stated that he interviewed Petitioner and reviewed police reports, witness

statements, Petitioner’s 911 call, and Petitioner’s medical and mental health treatment

records from the Veterans Administration Hospital for the past eighteen years. Dr.

Montgomery opined that, at the time Petitioner shot the victim, Petitioner was suffering

from post-traumatic stress disorder (PTSD) and was not “sufficiently free of excitement

and passion as to be capable of exercising reflection and judgment” prior to shooting the

victim. Dr. Montgomery also opined that Petitioner “was not capable of forming

premeditation.” On cross-examination, Dr. Montgomery “conceded that the Defendant

had not reported any signs or symptoms of PTSD prior to the date of the shooting.” Id. at

*11-12.

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The jury convicted Petitioner of attempted second degree murder. Following a

sentencing hearing, the trial court sentenced Petitioner as a Range I offender to twelve

years’ incarceration. Id. at *14.

Post-Conviction Relief Hearing

Petitioner filed a timely pro se petition for post-conviction relief, and appointed

counsel filed two amended petitions. As relevant to issues preserved in this appeal,

Petitioner claimed that trial counsel was ineffective for failing to call an expert to opine

that Petitioner’s use of force was reasonable “based on the totality of circumstances.”

Petitioner also claimed that the clear and convincing evidence standard “is utterly

inconsistent” with the “reasonable probability standard” of Strickland and “is therefore

unconstitutional.”

At the August 9, 2024 evidentiary hearing, Petitioner tendered Melvin Brown as an

expert regarding use of force and/or self-defense. Mr. Brown testified that, after his

discharge from the Navy, he served in the United States Army Reserve, where he attended

military police school. In 1984, he was hired by the Metropolitan Nashville Police

Department (MNPD). He started as a patrol officer and was promoted to patrol sergeant

and then patrol lieutenant. He was on the SWAT team from 1987 until his first Iraq

deployment in 2004.

During Mr. Brown’s time with MNPD, he attended the police academy and

underwent numerous hours of firearms training. He later taught use of firearms, defensive

tactics, and empty hand self-defense at the police academy. Mr. Brown testified that he

had undergone training on the type of force that “is deemed legally objectively reasonable”

and the use of force that is “outside what is objectively reasonable.” He also operated a

martial arts training facility in Nashville for a little over thirty years. He retired from

MNPD in 2014. From 2014-2018, he served as Tennessee Alcoholic Beverage

Commission (TABC) Special Agent-in-Charge and as the Defensive Tactics & Firearms

Instructor. From 2018 to the time he testified, he was employed by TABC as an Inspector

and Special Assistant to the Executive Director of the Metro Nashville Beer Permit Board

and was currently a police officer at Volunteer State Community College.

Mr. Brown said that he testified as a use-of-force expert for a defendant in a 2025

Williamson County homicide trial. He estimated that over the last twenty or thirty years,

he had testified as an expert no less than ten and no more than twenty times, of which four

or five were in court and the rest by deposition. He said about one-half of the cases in

which he testified involved use of force by law enforcement and the other half involved

use of force by civilians. He said that the standards were different for each group.

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The State objected to Mr. Brown’s qualifications to testify as an expert on use of

force by a civilian. The State argued that use-of-force expert testimony was not needed

because Petitioner had testified at trial, the jury was instructed on self-defense, and the jury

determined that Petitioner did not act in self-defense. Petitioner argued that Mr. Brown

could have provided “specialized knowledge based on his training of what it’s like in that

situation.”

The post-conviction court noted that Mr. Brown’s report stated that Petitioner “had

an actual honest belief that there was a threat of bodily injury, that any other reasonable

person would have feared imminent harm.” The court recognized that Mr. Brown had

“specialized knowledge [] in law enforcement tactics” and “extensive military experience

and training.” However, the court found that this case does not involve use of force by law

enforcement nor does it involve someone “trying to disarm an armed aggressor.” The court

found that this was a domestic setting and that Mr. Brown was being offered as an expert

“to speak to the ultimate question of what was in [Petitioner]’s mind at the time of this

event.” The court noted that Petitioner “testified to that and the jury rejected it.” The court

concluded that, had Mr. Brown “been proffered by the defense counsel at trial, the [c]ourt

would not have qualified [him] as an expert in this case because the area of expertise is not

relevant to the questions before the jury” and “would not have substantially assisted the

trier of fact.”

One of the two lawyers who represented Petitioner in the trial testified that he had

been employed by the Metropolitan Nashville Public Defender’s Office for twenty-seven

years. He was only questioned about his direct examination of MNPD Officer Richard

Olive and his decision not to move for a mistrial based on alleged hearsay testimony by

Officer Olive. Neither the State nor Petitioner questioned trial counsel about trial strategy

or about counsel’s decision to call a forensic psychiatrist to testify as an expert and not call

a use-of-force expert.

The post-conviction court took the matter under advisement and issued a written

“Memorandum and Order” addressing all claims raised in the pro se and amended petitions.

The court found all except three claims were waived because Petitioner presented no proof

or argument at the evidentiary hearing to support those claims. The court found the claim

related to Officer Olive’s testimony was without merit.

The other two claims are the claims Petitioner raised in this appeal. The post-

conviction court noted that Mr. Brown’s report stated he was hired to determine “whether

the actions alleged to have been committed by [Petitioner] were in whole or in part justified

as an act or acts of lawful self-defense in consideration of the totality of the circumstances.”

The court found that Mr. Brown’s opinions were derived from an “extensive analysis”

applying the police use-of-force standard, a doctrine wholly inapplicable here, and that

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admitting his testimony would have risked confusing the issues, would not have

substantially assisted the trier of fact, and would have invaded the jury’s province on the

issue of self-defense.

The post-conviction court also concluded that Petitioner’s defense was in no way

prejudiced by trial counsel’s failure to present expert proof on use of force because the jury

was “fully instructed on self-defense, and the factual and legal analysis necessary to reach

a conclusion” on self-defense.

The post-conviction court found that the decision to hire and call an expert witness

was a “strategic decision” that is entitled to a “strong presumption of reasonableness.” The

court concluded that Petitioner’s trial counsel were not ineffective for failing to call a use-

of-force expert and denied the petition.

Petitioner timely appealed.

Analysis

On appeal, Petitioner raises two issues. First, he claims Tennessee’s clear and

convincing evidence standard for post-conviction relief is inconsistent with Strickland and

is, therefore, unconstitutional. Second, he claims the post-conviction court erred by

denying relief based on trial counsel’s failure to call a use-of-force expert at trial. The

State argues that the post-conviction court applied the appropriate standard of proof

established in State v. Dellinger, 279 S.W.3d 282 (Tenn. 2009), and properly concluded

that Petitioner failed to demonstrate trial counsel were ineffective. We agree with the State.

Clear and Convincing Evidence Standard

Petitioner argues that

Tennessee’s post-conviction framework, as articulated in Tenn. Code Ann. §

40-30-110(f) and upheld in Dellinger, erects an unconstitutional barrier to

relief. It contravenes Strickland by requiring that factual predicates be

proved by a level of certainty that exceeds what the Sixth Amendment

demands — and effectively makes the exercise of federal constitutional

rights in post-conviction proceedings illusory. Such a framework is not a

faithful application of Strickland, but a judicially constructed obstacle to its

enforcement.

Since enactment of the Post-conviction Procedure Act of 1995, petitioners have had

“the burden of proving the allegations of fact by clear and convincing evidence.” Tenn.

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Code Ann. § 40-30-110(f). In 2009, our supreme court amended Tennessee Supreme Court

Rule 28 section 8(D)(1) so that a petitioner’s burden of proof for allegations of fact under

Rule 28 was the same as the burden of proof under Tennessee Code Annotated section 40-

30-110(f). Dellinger, 279 S.W.3d at 294.

In Dellinger, the petitioner argued that “Tennessee Code Annotated section 40-30-

110(f) and Tennessee Supreme Court Rule 28 section 8(D)(1), are contrary to the

requirements of Strickland and that the post-conviction . . . court therefore applied an

incorrect burden of proof to his ineffective assistance of counsel claims.” Id. at 293. Our

supreme court found that requiring a petitioner “to prove the fact of counsel’s alleged error

by clear and convincing evidence” does not implicate “the Strickland inquiry.” Id.

(emphasis omitted). The court noted that, “[i]f that burden of proof is met, the court then

must assess under Strickland whether that error ‘fell below an objective standard of

reasonableness,’” and “whether the error raised ‘a reasonable probability . . . that the result

of the proceedings would have been different[.]’” Id. at 294 (quoting Strickland, 466 U.S.

at 687-88, 694); see also Phillips v. State, 647 S.W.3d 389, 401 (Tenn. 2022).

As an intermediate appellate court, the Tennessee Court of Criminal Appeals is

bound by Tennessee Supreme Court precedent. State v. Pendergrass, 13 S.W.3d 389, 397

(Tenn. Crim. App. 1999); State v. Jones, No. W2016-01550-CCA-R3-CD, 2017 WL

2820173, at *1 (Tenn. Crim. App. June 29, 2017); State v. Crank, No. E2012-01189-CCA-

R3-CD, 2013 WL 5371627, at *6 (Tenn. Crim. App. Sept. 26, 2013), aff’d, 468 S.W.3d 15

(Tenn. 2015). We agree with the State’s argument that this court is no more at liberty to

overrule Dellinger than it would be to overrule Strickland. The issue raised by Petitioner

is without merit.

Effective Assistance of Counsel

The right to effective assistance of counsel is safeguarded by the Constitutions of

both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.

art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel, a

petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the

deficiency prejudiced the defense. Strickland, 466 U.S. at 687; see State v. Taylor, 968

S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same standard for ineffective

assistance of counsel applies in both federal and Tennessee cases). Both factors must be

proven in order for a court to grant post-conviction relief. Strickland, 466 U.S. at 687;

Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997); Goad v. State, 938 S.W.2d 363, 370

(Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is no

need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007) (citing

Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of counsel’s

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

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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;

see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial strategy,

and we will not grant relief based on a sound, yet ultimately unsuccessful, tactical decision.

Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

As to the first prong of the Strickland analysis, “counsel’s performance is effective

if the advice given or the services rendered are within the range of competence demanded

of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523

S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that

counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions

were so serious as to fall below an objective standard of reasonableness under prevailing

professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see

also Baxter, 523 S.W.2d at 936.

Even if counsel’s performance is deficient, the deficiency must have resulted in

prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong of

the Strickland analysis, the petitioner “must show that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks omitted).

Post-conviction relief cases often present mixed questions of law and fact. See

Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound by the post-

conviction court’s factual findings unless the evidence preponderates against such findings.

Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing the post-conviction

court’s factual findings, this court does not reweigh the evidence or substitute its own

inferences for those drawn by the post-conviction court. Id.; Fields, 40 S.W.3d at 456

(citing Henley, 960 S.W.2d at 578). Additionally, “questions concerning the credibility of

the witnesses, the weight and value to be given their testimony, and the factual issues raised

by the evidence are to be resolved by the [post-conviction court].” Fields, 40 S.W.3d at

456 (citing Henley, 960 S.W.2d at 579); see also Kendrick, 454 S.W.3d at 457. The post-

conviction court’s conclusions of law and application of the law to factual findings are

reviewed de novo with no presumption of correctness. Kendrick, 454 S.W.3d at 457.

In cases where a petitioner claims that trial counsel failed to present a witness in

support of the petitioner’s defense, including an expert witness, the petitioner must present

such witness at the post-conviction hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn.

Crim. App. 1990). The post-conviction court must then determine whether the testimony

of that witness “would have been (1) admissible . . . and (2) material to the defense” if it

had been presented at trial. Pylant v. State, 263 S.W.3d 854, 869 (Tenn. 2008).

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Questions regarding the qualifications, admissibility, relevancy, and competency of

expert testimony are matters left within the broad discretion of the trial court or in this case

the post-conviction court. State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002). The post-

conviction court’s ruling shall not be overturned on appeal absent a finding that the court

“abused its discretion in admitting or excluding the expert testimony.” Id. Even if the

post-conviction court determines that the testimony of an expert witness would have been

admissible, trial counsel would not be deficient for failing to call the expert witness at trial

if the testimony would not have “materially aided the petitioner’s defense[.]” Pylant, 263

S.W.3d at 869.

Petitioner proffered Mr. Brown as an expert in use of force, and the State objected

to Mr. Brown’s qualifications to testify as an expert on use of force by a civilian. In

Tennessee, the admissibility of expert testimony is governed by Tennessee Rules of

Evidence 702 and 703. State v. Bargery, No. W2016-00893-CCA-R3-CD, 2017 WL

4466559, at *46 (Tenn. Crim. App. Oct. 6, 2017), no perm. app. filed. Rule 702 states, “If

scientific, technical, or other specialized knowledge will substantially assist the trier of fact

to understand the evidence or determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education may testify in the form of an opinion

or otherwise.” Tenn. R. Evid. 702. “Trial courts act as gatekeepers when it comes to the

admissibility of expert testimony.” State v. Scott, 275 S.W.3d 395, 401 (Tenn. 2009). “The

determinative factor is whether the witness’s qualifications authorize him or her to give an

informed opinion on the subject at issue.” Stevens, 78 S.W.3d at 834.

The post-conviction court recognized that Mr. Brown “performed an extensive

analysis using the police use-of-force standard” but found that this standard “was wholly

inapplicable in this case.” The court found that Mr. Brown’s ultimate conclusion was that

the actions of [Petitioner] were objectively reasonable and proportional

[under the] law self-defense and the injuries to the victim were not caused by

malice, carelessness, recklessness, or indifference by [Petitioner] if the

mental state of [Petitioner], supported by qualified psychological experts,

caused him to believe the imminent danger was present whether it existed or

not.

The court found the above-quoted conclusion “misstated the law of self-defense”

and “any conceivable relevancy” Mr. Brown’s conclusion had “would have been

substantially outweighed by the risk of confusion of the issues and misleading the jury.”

Questions regarding the qualifications, admissibility, relevancy, and competency of expert

testimony are matters left within the broad discretion of the post-conviction court, and the

post-conviction court found that, had Mr. Brown “been proffered by the defense counsel

at trial, the [c]ourt would not have qualified [him] because the area of expertise [wa]s not

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relevant to the questions before the jury” and that his testimony “would not have

substantially assisted the trier of fact.”

In this case, trial counsel decided to call Dr. Montgomery, a forensic psychiatrist,

as an expert at trial. Dr. Montgomery opined that Petitioner was suffering from PTSD and

was not “sufficiently free of excitement and passion as to be capable of exercising

reflection and judgment” prior to shooting the victim. Although each case “must stand on

its own facts,” “[i]n most cases, [] the decision to select an expert, or which expert to select,

constitutes one of the ‘strategic’ defense decisions that Strickland v. Washington shields

from scrutiny.” Kendrick, 454 S.W.3d at 475. Strategic decisions “made after thorough

investigation of law and facts relevant to plausible options are virtually unchallengeable[.]”

Strickland, 466 U.S. at 690. During the post-conviction hearing, Petitioner decided not to

even question trial counsel about the investigation he undertook in deciding the type of

expert witness to call. We will not second-guess trial counsel’s strategic decisions. See

Morris v. State, No. W2022-00208-CCA-R3-PC, 2023 WL 2733503, at *38 (Tenn. Crim.

App. Mar. 31, 2023) (citing Granderson, 197 S.W.3d at 790), no perm. app. filed.

In order to receive post-conviction relief for ineffective assistance of counsel,

Petitioner had to prove that counsel’s alleged error in not calling a use-of-force expert “fell

below an objective standard of reasonableness” and that counsel’s deficiency prejudiced

Petitioner’s defense. Strickland, 466 U.S. at 687; Phillips, 647 S.W.3d at 401. Petitioner

failed to prove both the deficient performance prong and the prejudice prong of Strickland.

Conclusion

A petitioner seeking post-conviction relief has “the burden of proving the

allegations of fact by clear and convincing evidence.” Tenn. Code Ann. § 40-30-110(f);

Dellinger, 279 S.W.3d at 291. Because Petitioner has failed to prove both prongs necessary

to satisfy Strickland, we conclude that Petitioner cannot prevail on his claim for ineffective

assistance of counsel. The judgment of the post-conviction court denying relief is affirmed.

s/Robert L. Holloway, Jr.

ROBERT L. HOLLOWAY, JR., JUDGE

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