Danny R. Mays v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs May 3, 2016

DANNY R. MAYS v. STATE OF TENNESSEE

Appeal from the Circuit Court for Madison County

No. C-14-164 Donald H. Allen, Judge

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No. W2015-02237-CCA-R3-PC - Filed September 9, 2016

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The petitioner, Danny R. Mays, appeals the denial of his post-conviction petition, arguing

the post-conviction court erred in finding he received effective assistance of counsel at

trial and on direct appeal. After our review of the record, briefs, and applicable law, we

affirm the denial of the petition.

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

J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN, J., joined.

CAMILLE R. MCMULLEN, J., concurring in results only.

G.W. Sherrod, III, Henderson, Tennessee, for the Defendant-Appellant, Danny R. Mays.

Herbert H. Slattery, III, Attorney General and Reporter; Nicholas W. Spangler, Assistant

Attorney General; Jerry Woodall, District Attorney General; and Shaun A. Brown,

Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

FACTS

In 2010, the petitioner’s failure to comply with a traffic stop, and the events that

followed, led a Madison County jury to convict him of felony evading arrest, reckless

driving, driving on a cancelled, suspended or revoked license, leaving the scene of an

accident, violation of the registration law, criminal trespass, vandalism, and possession of

marijuana. The trial court sentenced the petitioner to eight years in confinement for the

combined offenses. On direct appeal, this Court affirmed the petitioner’s convictions

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after thoroughly reviewing the evidence produced at trial. The Court summarized the

facts as follows:

This case arises from a traffic stop of a vehicle driven by the [petitioner]

that occurred on November 23, 2010, at 8:25 a.m. As a result of events that

occurred after the stop, a Madison County grand jury indicted the

[petitioner] for felony evading arrest, reckless driving, driving on a

cancelled, suspended or revoked license, leaving the scene of an accident,

violation of the registration law, criminal trespass, vandalism, and

possession of marijuana. At the [petitioner’s] trial on these charges, the

parties presented the following evidence: Joseph Williams, an officer with

the Jackson Police Department, testified that he was part of the “street

crimes unit” and, as such, he was typically dressed in uniform and in a

marked patrol car when he was on duty. He said that on November 23,

2010, at approximately 8:25 a.m., he saw a white Chevrolet Caprice, 1991

or 1992 model, with a vehicle tag number 380 XXL. He put the tag number

into his patrol unit’s computer to check the tag through “NCIC.” The tag

returned as being registered to a 2002 Saturn. Based upon this information,

Officer Williams initiated a traffic stop.

Officer Williams testified that, after he activated his lights, the vehicle’s

driver did not immediately pull over and stop, continuing southbound.

Officer Williams said that the driver did not increase his speed but failed to

pull over. Officer Williams activated his sirens and, as the two vehicles

approached an intersection, the driver increased his speed “highly” to

approximately fifty miles per hour and ran the stop sign at the intersection.

The driver then slightly slowed down at a red light and turned right, which

was westbound. Officer Williams testified that the driver did not stop and

did not have time to check for oncoming cars.

Officer Williams testified that he continued to pursue the driver, whose

speed reached greater than seventy miles per hour. The officer, who was on

the police radio with his supervisor, relayed the events as they were

occurring to his supervisor. His supervisor advised him, because of the

speed and the traffic, to “disengage the pursuit.” Officer Williams complied

with the order immediately. Officer Williams explained that disengaging

meant that he turned off his lights and siren and reduced his speed,

following all traffic laws. He said that, as he disengaged, the vehicles were

approaching the Highway 45 bypass. There was a red light at the

intersection, and the driver of the vehicle, traveling at a high rate of speed,

continued through the intersection, nearly striking a vehicle turning

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northbound head-on. When avoiding the head-on collision, the driver

nearly lost control of the vehicle but was able to regain control. The officer

followed the driver, driving a normal rate of speed and without his lights

and sirens activated, until the driver sped out of his view. He estimated that

the driver was traveling at 100 miles per hour when he lost sight of him.

Officer Williams said that, a short time after he lost sight of the driver and

was returning to his normal duties, he received a radio call from his

supervisor advising him that the Sheriff’s Department had encountered the

same vehicle. Officer Williams was directed to provide the state troopers

the “county” and the tag number. Officer Williams was still in the area and

saw the vehicle traveling at a high rate of speed back “into town.” The

driver was speeding toward the officer at around sixty to seventy miles per

hour. Officer Williams pulled over to the side of the road and, after the

driver passed, he made a U-turn and reinitiated pursuit with his lights and

sirens activated.

Officer Williams testified that, during the pursuit, the traffic was “heavy.”

The driver went through several intersections and then began driving

southbound in the northbound lane. The officer observed “cars going in

every direction attempting to avoid this vehicle from being struck head-on

by this vehicle at a high rate of speed.” Vehicles were moving left and

right, getting into the median and emergency lane to avoid a collision.

Officer Williams saw one vehicle drive into a ditch between the two lanes

and spin around two or three times in an attempt to avoid being struck

head-on.

Officer Williams said that he pursued the vehicle toward downtown and

that he followed the vehicle as it traveled into the appropriate lane of travel.

At this point, two sheriff’s deputies joined in the pursuit. Officer Williams

said he maintained contact with dispatch to inform them of his path of

travel. Sergeant Whitman, who was in the downtown area, was attempting

to discern the lane of travel of the vehicles so that he could set out spikes in

an attempt to deflate the tires of the driver’s vehicle. Officer Williams

received information from Sergeant Whitman that the driver’s vehicle had

collided with his patrol car, and Sergeant Whitman was joining the pursuit.

Officer Williams said that Sergeant Whitman was the lead vehicle at this

point and that Officer Williams was the third or fourth car in pursuit.

Officer Williams recalled that Sergeant Whitman radioed that the driver

had exited his vehicle and was fleeing on foot. The officer arrived at the

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scene and saw the driver’s vehicle with the door open, off the side of the

road up on on [sic] a little hill where it had rolled off the road. Officer

Williams drove past the vehicle and on to another street in an attempt to cut

off the driver. Sergeant Whitman then radioed and advised him that the

[sic] had last seen the driver at 210 McCowat Street. Officer Williams

traveled the short distance to that address, which appeared to be a single

family residence, and he immediately set up a perimeter. The officer noted

that there was broken glass on the rear door of the address, and he advised

the other officers engaged in the pursuit. Officer Whitman secured the back

door, and Officer Williams went to the front of the house, where he

observed other officers speaking with someone who had answered their

knock. Officer Williams returned to the back door, and he and Officer

Whitman looked inside the back door. They saw the driver attempting to

conceal himself by lying down between a number of items that were in the

room.

Officer Williams said that he gave the driver commands to “stand up,” and

the driver ignored those commands, continuing to lie on the floor. The

officers entered the room and forcibly took the driver into custody. The

officer then identified the [petitioner] as the driver of the vehicle that he

pursued on that occasion. Officer Williams recalled that the [petitioner’s]

arms and hands were bleeding. Officer Williams transported the [petitioner]

to the officer’s patrol car, where he obtained the [petitioner’s] Tennessee

State Identification card, which listed the [petitioner’s] name and date of

birth.

Officer Williams testified that he put the [petitioner’s] information into his

computer and determined that the [petitioner’s] driver’s license had been

revoked. The State offered a certified copy of the [petitioner’s] driving

history, which confirmed that his driver’s license had been revoked at the

time of his arrest. The officer also determined that the license tag on the

[petitioner’s] vehicle was registered to a different vehicle that was owned

by a different person.

During cross-examination, Officer Williams testified that he did not search

the vehicle after the [petitioner] fled. He conceded that there could have

been someone else in the vehicle who could have ducked behind the seat as

he was pursuing the [petitioner]. He did not, however, believe this to be the

case. The officer said that Sergeant Whitman was the first person on the

scene where the vehicle was located because he was the officer pursuing

the vehicle at that time. Officer Williams denied recalling that he had

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testified differently in any other proceedings. Officer Williams said he did

not personally observe the [petitioner] exit the vehicle. Further, he said that,

during the pursuit, he was only able to identify the [petitioner] as an

“African–American male” and was unable to observe anything else about

him until he saw the [petitioner] in the residence at 210 McCowat Street.

Officer Williams testified that the vehicle was later secured and

photographed, and officers determined by the vehicle identification number

that the vehicle was not stolen. They conducted no further investigation into

the owner of the Saturn to which the vehicle’s license plates belong. The

officer conceded that his testimony that the driver exceeded speeds of one

hundred miles per hour was based upon his personal estimation. Officer

Williams agreed that, once the [petitioner] was arrested, police ceased

searching for any other suspects. During redirect examination, Officer

Williams identified photographs of the vehicle at the scene where it was

abandoned, and he noted that only the driver’s side front door was open.

The officer testified that Officer Arnold with the Jackson Police

Department took these photographs. During re-cross-examination, Officer

Williams conceded that he did not know how long after the [petitioner] was

apprehended that the photographs were taken.

Jefferey Tullos, a Sergeant with the Madison County Sheriff’s office,

testified that, on November 23, 2010, he was traveling away from

downtown Jackson when he noticed a “city unit,” with its lights and sirens

activated, following a white Chevrolet Caprice. The vehicle was

approaching an intersection, with the police car following closely behind,

and then turned and headed toward the “bypass.” Sergeant Tullos joined the

pursuit. Shortly after that, the city police officer disengaged the pursuit, and

the Caprice proceeded west. When the city police officer stopped pursuit,

Sergeant Tullos also ended his pursuit of the vehicle. Sergeant Tullos

testified that the vehicle was traveling in excess of the speed limit, but he

could not estimate the vehicle’s speed.

Sergeant Tullos testified that he next saw the vehicle stopped in traffic. The

vehicle, which had only one occupant, proceeded through the intersection

against the light headed toward downtown. The Sergeant activated his

lights and sirens and again began to pursue the vehicle. The vehicle then

entered the northbound lane, traveling south against the flow of traffic.

Sergeant Tullos observed several vehicles swerving out of the path of the

vehicle, one of which proceeded into the median. Sergeant Tullos slowed

down his rate of speed to ensure there were no major accidents and that no

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one was injured. The Sergeant said he lost sight of the vehicle, which was

still being pursued by other officers.

Sergeant Tullos said that the next time he saw the vehicle it was stopped,

and the occupant of the vehicle had exited. The sergeant followed some of

the city officers toward McCowat Street and there met Sergeant Whitman,

who stated he had found a broken window at the back door of 210

McCowat Street. The Sergeant testified that he assisted in apprehending the

[petitioner], who was lying on the floor under some debris in the utility

room at the rear of the house.

During cross-examination, Sergeant Tullos testified that he was, at one

point, only one car length from the vehicle during the pursuit. The sergeant

agreed that no cars were damaged when the vehicle traveled south in the

northbound lane. Sergeant Tullos agreed that he did not see the [petitioner]

exit his vehicle. During redirect examination, Sergeant Tullos testified that

the [petitioner] appeared similar to the person that he saw driving the

Caprice.

Phillip Whitman, a sergeant with the Jackson Police Department, testified

that he became aware of this pursuit by radio, and he learned that the

pursuit was headed his direction. He then observed a white “Chevy” being

pursued by a deputy. Sergeant Whitman testified that he decided to attempt

to terminate the pursuit, but he “missed [his] opportunity.” [sic] He

explained that, as the vehicle approached, he attempted to hit the vehicle

with his patrol car. The sergeant hit the vehicle in the left quarter panel

between the rear tire and the trunk area, resulting in only a glancing blow.

The vehicle “fishtailed” and continued on.

Sergeant Whitman testified that he joined the pursuit, which was headed

through the downtown area of Jackson. Sergeant Whitman noted that the

driver “blew through every intersection it came to.” After pursuing for a

short distance, Sergeant Whitman observed the driver of the vehicle jump

out of the vehicle, leaving it in gear. As the vehicle ran into a light pole,

Sergeant Whitman observed the driver, noting he was an African American

male wearing black jeans, a white t-shirt, a black hooded jacket, and white

tennis shoes with green soles. In his car, Sergeant Williams followed the

fleeing driver through an alley. When he saw Officer Williams, who

indicated that he had not yet seen the driver, Sergeant Whitman believed

the driver was located in the area of the two houses between the alley and

the street.

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Sergeant Whitman testified that he and Officer Williams made a “sweep” of

the area, and they noted broken glass on an exterior door of a home. It

appeared that someone had broken the glass, and then reached around and

unlocked the door. Sergeant Whitman said that, when he looked inside the

residence, he saw the [petitioner], wearing the white tennis shoes with

green soles, lying on the floor. Officers took the [petitioner] into custody,

and Sergeant Whitman noted that the [petitioner] was no longer wearing a

black hoodie jacket. The sergeant said that other officers located the jacket

near a fence close to the scene.

During cross-examination, Sergeant Whitman testified that he was unsure

whether anyone took fingerprints or DNA samples from the vehicle. The

sergeant said that he did not participate any further in investigating this

case.

Phillip Kemper, a sergeant with the Jackson Police Department, testified

that he was working on November 23, 2010, when he heard that there was a

police pursuit that involved the Jackson Police Department and the

Madison County Sheriff’s Department. Sergeant Kemper was not involved

in the pursuit, but he responded later to the McCowat Street address. When

he arrived, the other officers had isolated the house that they believed the

driver had entered. There was a K–9 officer present, and the dog was trying

to track the path the driver had taken. Sergeant Kemper went into the

backyard of the residence where a black jacket was found. Inside the jacket,

Sergeant Keper [sic] found a “Swisher Sweet’s [cigar] box.” He opened the

box and found it contained a marijuana “joint.” The sergeant notified the

patrol officer who was taking the pictures and collecting evidence, and the

officer came and photographed and collected the jacket and the box.

During cross-examination, Sergeant Kemper testified that he looked around

the fence in the area where the jacket was found. He could not recall if

there was a hole in the fence, but he said that the fence did not appear to be

damaged. The sergeant agreed he picked up the jacket before it was

photographed, but he said he did not transport the jacket anywhere and

instead only checked the pockets.

Edward McMullen, an officer with the Jackson Police Department, testified

that he was working on November 23, 2010, when he was made aware of

the pursuit of the white Chevrolet Caprice in this case. He said that he was

not involved in the pursuit but that he headed in the general direction to

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offer assistance. When the pursuit ended, and the driver fled on foot,

Officer McMullen assisted in establishing a perimeter around the area

where the driver was thought to have fled. Officer McMullen said that he

went to the house where Sergeant Whitman was located in the backyard.

Sergeant Whitman indicated that Officer McMullen should go to the front

of the house. An African–American man came to the front door. Officer

McMullen spoke with the man, who said that he and his mother lived there.

Officer McMullen talked to the two residents, informing them about the

investigation.

Officer McMullen testified that he then went around to the back of the

home to tell Sergeant Whitman that there was a man and a woman in the

house. Sergeant Whitman silently motioned to Officer McMullen that he

had seen the suspect and told him to ask the residents if there was broken

glass on their back door. Officer McMullen returned to the front of the

home, asked the residents about the door, and was informed that there

should not be any broken glass. Officer McMullen then instructed the two

residents to exit the house for their own safety. Officer McMullen and a

deputy entered the front of the home and heard other officers taking

someone into custody. Officer McMullen explained he heard the officers

yelling, “Let me see your hands.” By the time Officer McMullen was able

to walk downstairs to the back of the home, the [petitioner] was in custody.

Officer McMullen testified that his only other involvement in this case was

to take photographs of the damage to the house where the [petitioner] was

found hiding and a jacket located near the house. Officer McMullen also

photographed a marijuana cigar that Sergeant Kemp [sic] had found in the

jacket pocket.

During cross-examination, Officer McMullen testified that he did not recall

Officer Kemper saying that he had moved the jacket before Officer

McMullen photographed it. He said that he did not personally recall that the

[petitioner] was wearing green-soled tennis shoes, but he recalled this fact

being discussed on the police radio. Officer McMullen recalled that the two

residents of the house informed him that there was no one else present in

the home. He said that they were “rattled” when he informed them that

someone had entered their home from the back porch.

Betty Puryears, a resident of 210 McCowat Street, testified that police

officers came to her home on November 23, 2010, while she and her son,

who lived with her, were at home. She recalled that, before officers entered

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her residence, she and her son were watching them from her window. She

said that there were police “cars everywhere” and officers running up and

down the street. An officer came to her door and asked who lived in the

home. She told the officer that she and her son, who was standing with her,

were the only two people who lived there. Ms. Puryears testified that she

did not know that there was someone in their home. Officers brought the

man to the living room, and Ms. Puryears identified the [petitioner] as the

man who had been in her home that day. She said she did not know the

[petitioner], and she had not given him permission to be in her house that

day.

Ms. Puryears testified that, as a result of this incident, the glass in her back

door was broken, and her washing machine, which was located in the utility

room, was also broken. Her landlord repaired the glass in the door, but she

was required to replace her washing machine, which cost her approximately

$390.

During cross-examination, Ms. Puryears testified that she did not know

how much time elapsed between the time the [petitioner] entered her home

and when he was apprehended by police. Ms. Puryears said that there was a

fence in part of her backyard and that she did not recall it having any holes

in it.

Brenda McNeil, an evidence technician for the Jackson Madison County

Metro Narcotics Unit, testified that she received the drug evidence in this

case. She took this evidence to the Memphis Tennessee Bureau of

Investigation crime laboratory for testing. After it was tested, she

transported the evidence back to her facility.

Shalandus Harris, a Special Agent Forensic (“TBI”) Scientist with the TBI,

testified that the evidence submitted to her was a hand-rolled cigar. Agent

Harris tested the material inside the cigar and determined it was marijuana.

During cross-examination, she agreed she did not weigh the marijuana, and

she could not testify about how much marijuana the cigar contained.

The State entered a certified copy of the vehicle registration of license plate

380 XXL.

The [petitioner] recalled Sergeant Williams, who reiterated that Sergeant

Whitman was the lead vehicle in the pursuit at the time the driver fled from

the white Caprice. Sergeant Whitman was, therefore, the one who saw the

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driver leave his vehicle. Sergeant Williams said he did not recall being

asked that question previously at a different hearing.

Based upon this evidence, the jury convicted the [petitioner] of felony

evading arrest, reckless driving, driving on a cancelled, suspended or

revoked license, leaving the scene of an accident, violation of the

registration law, criminal trespass, vandalism, and possession of marijuana.

The trial court sentenced him to an effective sentence of eight years.

State v. Mays, No. W2013-01052-CCA-R3CD, 2014 WL 1669858, at *1-7 (Tenn. Crim.

App. Apr. 24, 2014).

The petitioner retained private counsel to represent him at trial, while appointed

counsel represented him on direct appeal. After the direct appeal, the petitioner filed a

pro se petition for post-conviction relief. The circuit court then appointed counsel to

represent the petitioner in the present case. After the appointment, the petitioner filed an

amended petition for post-conviction relief alleging ineffective assistance of trial and

appellate counsel. The petitioner generally alleged both trial and appellate counsel failed

to effectively communicate with him or to file necessary motions on his behalf.

Specifically, the petitioner alleged trial counsel: (1) failed to file a motion to

suppress evidence of the jacket and cigar box found at the arrest scene; (2) failed to

challenge the chain of custody of evidence tested by TBI; (3) failed to object to the

identification of the petitioner by certain witnesses; (4) failed to hold the State to its

burden of proof at trial; (5) failed to introduce certain vehicle license and registration

evidence; (6) failed to file a Notice of Mitigating Factors at sentencing; (7) failed to

receive and/or communicate a notice of enhancement factors with the petitioner before

sentencing; (8) failed to enter or require certified copies of prior judgments at sentencing;

(9) failed to raise issues regarding language in the indictment; (10) failed to investigate

legal and factual issues of merit relating to the petitioner’s case; and (11) failed to timely

file a Motion for New Trial. In addition, the petitioner alleged trial counsel was

intoxicated at trial and that both trial and appellate counsel failed to properly challenge

the consecutive sentences imposed by the trial court. Finally, the petitioner alleges

appellate counsel failed to raise an ineffective assistance of counsel claim in both the

Motion for New Trial and on direct appeal.

Both the petitioner and appellate counsel testified at the post-conviction

evidentiary hearing. Trial counsel did not testify. Though the testimony was lacking, the

petitioner stated he met with trial counsel twice before trial, he did not notify the trial

judge of the suspected intoxication of trial counsel, and the jacket found at the scene of

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the arrest was not his. Additionally, appellate counsel testified that he and the petitioner

mutually agreed to file an ineffective assistance of counsel claim after the direct appeal.

After the evidentiary hearing, the post-conviction court conducted a thorough

review of the record and entered an order denying post-conviction relief. The court found

the petitioner failed to prove ineffective assistance of both trial and appellate counsel by

clear and convincing evidence. The court held trial counsel filed pre-trial motions on

behalf of the petitioner and his performance was “within the range of competence

demanded of attorneys representing defendants in criminal cases.” The court held

appellate counsel properly filed a Motion for New Trial and a direct appeal on behalf of

the petitioner. Thus, the court held the petitioner failed to show counsels’ performance

prejudiced his proceedings and the petition for post-conviction relief was denied in full.

This appeal followed.

ANALYSIS

The petitioner argues he received ineffective assistance of counsel alleging

numerous deficiencies on behalf of both trial and appellate counsel. The petitioner bears

the burden of proving his post-conviction allegations by clear and convincing evidence.

See Tenn. Code Ann. § 40–30–110(f). The findings of fact established at a post-

conviction evidentiary hearing are conclusive on appeal unless the evidence

preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996).

This Court will not reweigh or reevaluate evidence of purely factual issues. See Henley v.

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

application of the law to the facts is de novo, with no presumption of correctness. See

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

counsel presents mixed questions of fact and law. See Fields v. State, 40 S.W.3d 450, 458

(Tenn. 2001). Thus, this Court reviews the petitioner’s post-conviction allegations de

novo, affording a presumption of correctness only to the post-conviction court’s findings

of fact. See Fields, 40 S.W.3d at 458; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner must show

both that counsels’ performance was deficient and that counsels’ deficient performance

prejudiced the outcome of the proceedings. Strickland v. Washington, 466 U.S. 668, 687

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

the standard for determining ineffective assistance of counsel applied in federal cases is

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

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

This requires showing that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient

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performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.

466 U.S. at 687.

A petitioner proves a deficiency by showing “counsel’s acts or omissions were so

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

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

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

of the Strickland test is satisfied when the petitioner shows there is a reasonable

probability, or “a probability sufficient to undermine confidence in the outcome,” that

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

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

In order for a post-conviction petitioner to succeed, both prongs of the Strickland

test must be satisfied. 466 U.S. at 687. Thus, courts are not required to even “address

both components of the inquiry if the defendant makes an insufficient showing on one.”

Strickland, 466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “a failure to

prove either deficiency or prejudice provides a sufficient basis to deny relief on the

ineffective assistance claim”).

On appeal, the petitioner has failed to present any evidence showing counsels’

alleged deficient performance prejudiced the outcome of the proceedings. Strickland, 466

U.S. at 687. In support of his claim, the petitioner merely recites the deficiencies alleged

in his petition and summarizes the proceedings of the post-conviction hearing. At the

hearing, however, the petitioner failed to elicit any evidence to demonstrate a reasonable

probability that the alleged deficiencies prejudiced the proceedings. Id. at 694. Rather, the

evidence produced at the hearing established that many of the alleged deficiencies were

cured through the direct appeal process and that several of the alleged deficiencies were

lacking in sufficient legal grounds. Based upon the evidence presented on appeal and in

the record, the petitioner cannot succeed under Strickland. 466 U.S. at 687.

For example, the petitioner claims trial counsel should have filed a motion to

suppress evidence of the jacket and marijuana found at the arrest scene. However, the

petitioner denied ownership of the jacket at the evidentiary hearing.1 As a result, the

petitioner had no standing to file a motion to suppress the jacket and marijuana evidence.

See Bowman v. State, 362 S.W.2d 255, 257 (1962) (citations omitted) (holding: “It is the

1

The marijuana at issue was found inside of the jacket.

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general law of this State that when one disclaims interest in the premises or possessions

searched or in the articles seized he cannot question the legality of the search and seizure

and it necessarily follows there can be no valid objection to evidence obtained by such

search.”). Accordingly, no evidence exists to support that trial counsel was ineffective as

to the jacket and marijuana evidence and the petitioner cannot prove any resulting

prejudice based on this alleged deficiency.

The petitioner also claims that trial counsel was intoxicated during trial. However,

the petitioner did not discuss any concerns as to the suspected intoxication of trial counsel

with the trial judge and he failed to call trial counsel at the post-conviction hearing. The

burden is on the petitioner to present clear and convincing evidence of his post-

conviction allegations, a failure to do so precludes the petitioner from meeting his

burden. See Tenn. Code Ann. § 40–30–110(f); Goad, 938 S.W.2d at 369. The only

evidence supporting this allegation is the petitioner’s testimony that trial counsel “was

sweating a whole lot” during trial. The post-conviction court found that the petitioner

failed to establish trial counsel was intoxicated during trial. We agree. As a result, the

petitioner cannot prove that he was prejudiced by trial counsel’s alleged intoxication.

The post-conviction court also addressed the petitioner’s general claim that trial

counsel failed to file “necessary motions” on his behalf. The court outlined its review of

pertinent actions taken by trial counsel on behalf of the petitioner in a letter to counsel.2

The post-conviction court explained:

Furthermore, it appears to the Court based upon a careful review of

the Court file and record, that [trial counsel] did in fact file a Motion on

November 4, 2011, being a “Request for Discovery, Inspection (of the

State’s file) and Notice of Intent to Use Evidence.” It appears that the State

complied with the [petitioner’s] request for discovery and in turn filed a

“State’s Demand for Inspection and Notice of Alibi Defense” on November

16th, 2011, and a State’s “Notice of Request for Enhanced Punishment” on

December 15th, 2011. Additionally, [trial counsel] filed prior to the trial

date a “Motion in Limine to Exclude Prior Bad Acts or Criminal

Convictions of the Defendant” and “Proposed Jury Instructions.” The trial

was held on February 1st and 2nd, 2012, and the [petitioner], according to

the trial transcript and record, freely, voluntarily and knowingly chose not

to testify at his trial in this matter. The written “waiver of right to testify”

signed by [the petitioner] on February 2nd, 2012, is part of the Court record.

2

The post-conviction court’s letter was incorporated by reference into its Order Denying

Petitioner’s Petition for Post-Conviction Relief and Amended Petition.

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The court concluded that “the advice given and the services rendered by trial

counsel were certainly within the range of competence demanded of attorneys

representing defendants in criminal cases, and that the [p]etitioner failed to show that his

attorney’s performance was deficient or that any alleged deficient performance somehow

prejudiced the [p]etitioner.” We again agree with the findings of the post-conviction

court. The record is absent any evidence that trial counsel failed to file “necessary

motions” on behalf of the petitioner and the petitioner cannot prove any prejudice as a

result.

Though the petitioner alleged numerous deficiencies of counsel on appeal, he

failed to address how any of the alleged deficiencies prejudiced the proceedings. This

Court is not required to address the strength of the specific deficiencies alleged and we

have sufficient grounds to deny the petitioner’s claim for post-conviction relief without

further analysis. Strickland, 466 U.S. at 697; see also Goad, 938 S.W.2d at 370.

Accordingly, the petitioner has failed to show by clear and convincing evidence that

counsels’ performance prejudiced the outcome of the proceedings as required by

Strickland. Id. The petitioner is not entitled to post-conviction relief for his claim of

ineffective assistance of counsel.

CONCLUSION

Based upon the foregoing authorities and reasoning, the judgment of the post-

conviction court is affirmed.

____________________________________

J. ROSS DYER, JUDGE

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