Mansour Bin El Amin v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 21, 2016

MANSOUR BIN EL AMIN v. STATE OF TENNESSEE

Direct Appeal from the Circuit Court for Montgomery County

No. 41100797 William R. Goodman, III, Judge

No. M2016-00048-CCA-R3-PC – Filed February 24, 2017

The Petitioner, Mansour Bin El Amin, filed a petition for post-conviction relief from his

conviction of theft of property valued at $1,000 or more but less than $10,000. In the

petition, the Petitioner alleged that his trial counsel was ineffective. The Petitioner also

filed a motion for the post-conviction court to approve funds for a private investigator to

locate witnesses for the Petitioner‟s case. The post-conviction court denied the petition

and the motion, and the Petitioner appeals. Upon review, we affirm the judgment of the

post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT

WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the Appellant, Mansour Bin El Amin.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;

John Wesley Carney, Jr., District Attorney General; and Helen Young, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Factual Background

The Petitioner was charged with aggravated burglary and theft of property valued

at $1,000 or more but less than $10,000. At trial, the victim, Laurien McDowell, testified

that she lived alone in an apartment in a duplex. State v. Mansour Bin El Amin, No.

M2012-01261-CCA-R3-CD, 2013 WL 2393061, at *1 (Tenn. Crim. App. at Nashville,

May 31, 2013). She spent the night of June 18, 2011, away from the apartment. When

she returned around 7:00 a.m. the next morning, she discovered that a flat screen

television, an Xbox video game system, a watch, four jewelry chains, a laptop computer,

and some DVDs were missing. The victim estimated that the laptop computer was worth

$120, the television was worth $350, the four missing jewelry chains were worth $115

each, and the Xbox was worth $300. The victim went to the apartment of her next-door

neighbor, Mikia Jackson, and called the police. Initially, the victim thought that

Jackson‟s fiancé, who had been gone all night, was responsible for the burglary.

However, suspicion turned to the Petitioner when Jackson told the victim that the

Petitioner came to Jackson‟s apartment around 10:00 or 11:00 p.m. the night before to

use her telephone.

Daniel West testified that at the time of the offense, he and his wife, Janazea West,

were allowing the Petitioner to live with them. Id. at *2. Their apartment was

approximately fifteen minutes from the victim‟s apartment. On the night of June 18,

2011, Mr. West went to bed around 10:00 p.m. Around 12:30 a.m., he went to the

restroom and noticed a flat-screen television on the couch in the living room. When he

woke around 6:00 a.m., the television was still there, and the Petitioner was in the

apartment. Mr. West asked from where the Petitioner had gotten the television, and the

Petitioner said “that he „had made a lick,‟” which Mr. West thought meant the Petitioner

had committed a robbery. Id. Thereafter, the Wests called Detective Nicholas Newman

and the victim. They offered to return the television to the victim‟s apartment “rather

than have the police come to their apartment.” Id. at *3.

Mrs. West testified that at the time of the offense, the Petitioner and Mrs. West‟s

brother, Jamez Hardy, were living in the Wests‟ apartment. Id. at *4. On the morning of

June 19, Mrs. West woke and saw a television in her closet. Afterward, she went to the

store with the Petitioner, and he “told her he „made a lick.‟” She told him to remove the

stolen property from her residence. Thereafter, she noticed that she “had three missed

calls from an unfamiliar number.” Id. at *3, 4. Mrs. West returned the calls and spoke

with Jackson. Id. at *3. Mrs. West told Jackson “that a television was in her closet and

that her husband told her a watch was there.” Id. Mrs. West promised to return the

stolen property. Id. at *4. To avoid leaving their fingerprints on the victim‟s television

and watch, the Wests made the Petitioner put those items into their vehicle. The police

met the Wests at the end of the victim‟s driveway, and Detective Newman took the

television and watch from the vehicle. Id. at *3, 4.

Clarksville Police Detective Brian Tenery testified that he went to the victim‟s

duplex, spoke with the victim, and got a list of the stolen property. Id. at *5. Jackson

gave him a description of the Petitioner and told him where the Petitioner lived.

Thereafter, Detective Tenery went to the Wests‟ apartment complex. In the parking lot,

he saw a red 1988 Oldsmobile Cutlass. Detective Tenery looked inside the car and saw

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the victim‟s Xbox. During a search of the car, Detective Tenery found a plastic garbage

bag which contained the victim‟s video games and DVDs.

Quentin Banks testified that he had borrowed the red Cutlass from his cousin,

Demarcus Reyes. Mr. Banks did not have a key to the car, could start the car without a

key, and had left the car doors unlocked. Mr. Banks denied putting the stolen items in the

car and asserted that he did not know the Petitioner or Brooks Robinson.

Detective Nicholas Newman testified that he did not think either the Wests or Mr.

Banks were involved in the theft. Id. at *6. The Petitioner told Detective Newman that

he was locked out of the Wests‟ apartment on the night of June 18 and that “„Q‟” drove

him to Jackson‟s apartment around 10:00 p.m. so he could use her telephone. Id.

“Detective Newman said the [Petitioner] knew the property was found in Mr. Banks‟s car

when the [Petitioner] told Detective Newman that he rode with Q.” Id. The Petitioner

was unable to contact Mrs. West by telephone, however, and Q drove him back to the

apartment complex. The Petitioner maintained that he found the stolen television in a

vacant apartment near the Wests‟ apartment. The Petitioner said that the television was

never in the Wests‟ apartment. The police checked the victim‟s apartment and the stolen

items for fingerprints. One of the Petitioner‟s fingerprints was found on the garbage bag

containing some of the stolen items. Id. at *8. Three fingerprints belonging to Robinson

were also found on the garbage bag. No other identifiable fingerprints were found on the

remainder of the stolen property. Id. at *7.

The jury acquitted the Petitioner of aggravated burglary but found him guilty of

theft of property valued at $1,000 or more but less than $10,000, a Class D felony. The

trial court sentenced the Petitioner as a Range II, multiple offender to seven years and six

months in the Tennessee Department of Correction. On direct appeal, this court affirmed

the Petitioner‟s conviction. Id. at *1. The Petitioner did not seek permision to appeal to

our supreme court.

On December 6, 2013, the Petitioner filed a petition for post-conviction relief.1

On February 5, 2015, the Petitioner filed an amended petition for post-conviction relief.

In the post-conviction petitions, the Petitioner alleged that his trial counsel was

ineffective by failing to more fully investigate the case; to discuss tactical decisions with

the Petitioner; to present a meaningful defense at trial, including a “third party culpability

defense”; and to adequately argue for an acquittal on the charge of theft of property over

$1,000. On November 12, 2015, the Petitioner filed a motion “to have a private

investigator assigned to [the] Petitioner‟s case in order to locate witnesses that would

have been instrumental to [the] Petitioner‟s case.”

1

On June 25, 2014, the post-conviction court granted the Petitioner a delayed appeal to seek permission

to appeal to our supreme court and held the remaining post-conviction issues in abeyance. Our supreme

court denied the application on September 18, 2014.

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On December 3, 2015, at the beginning of the post-conviction hearing, the post-

conviction court denied the motion for a private investigator. Turning to the issues in the

post-conviction petition, the State told the post-conviction court that it did not anticipate

calling the Petitioner‟s trial counsel as a witness because it did not think trial counsel‟s

“testimony would add to anything.”2 The Petitioner was the sole witness at the post-

conviction hearing.

The Petitioner testified that trial counsel was appointed to represent him in circuit

court. According to the Petitioner, he met with trial counsel only once or twice while

incarcerated, and each visit lasted five or ten minutes. Trial counsel did not provide the

Petitioner with the discovery materials; however, he received the discovery materials

from the court clerk and thereby learned about the State‟s evidence against him.

The Petitioner said that he had several court dates prior to trial. Trial counsel did

not meet with the Petitioner before or after the court dates and never explained the

proceedings. The Petitioner called trial counsel several times but was unable to talk with

him. Additionally, the Petitioner wrote letters to trial counsel, but trial counsel did not

respond to the letters. The Petitioner tried to get trial counsel to withdraw from the case.

The Petitioner said that if he had spent more time with trial counsel, he would

have asked him to subpoena witnesses, namely Olivia Hampton; her sister, Neisha

Hampton; and the Hamptons‟ grandmother, Evelyn Banks. The Petitioner said that the

Hamptons could have testified that Robinson was Olivia Hampton‟s boyfriend and that

the Hamptons, Robinson, and Mr. Banks lived together and knew the Wests. The

Petitioner stated that Mrs. Banks could have testified as an alibi witness because the

Petitioner was at her apartment at the time of the crime. The Petitioner maintained that

Mr. Banks drove the Petitioner to Mrs. Banks‟s apartment around 10:00 p.m. on the night

of the offense. Mrs. Banks lived “[t]hree apartments down” from the Wests. The

Petitioner stayed at Mrs. Banks‟s apartment until 6:30 or 7:00 a.m. the next morning.

When the Petitioner returned to the Wests‟ apartment, he saw that the door to the vacant

apartment next door was open. The Petitioner went inside the vacant apartment and

found the stolen television. The Petitioner told trial counsel that he had nothing to do

with the theft.

2

We caution that on many occasions, this court has observed “that original counsel, when available,

should always testify in a post-conviction proceeding when there is an allegation that he was ineffective.”

State v. Hopson, 589 S.W.2d 952, 954 (Tenn. Crim. App. 1979); see Joseph Howard Green, Jr. v. State,

No. M2014-00148-CCA-R3-PC, 2014 WL 7269939, at *8 (Tenn. Crim. App. at Nashville, Dec. 22,

2014), perm. to appeal denied, (Tenn. Apr. 10, 2015). This court has also asserted that “„the [S]tate

should present the attacked counsel [when available] to show what occurred.‟” Antonio Dwayne Johnson

v. State, No. M2013-01919-CCA-R3-PC, 2014 WL 1266295, at *4 (Tenn. Crim. App. at Nashville, Mar.

27, 2014) (quoting State v. Craven, 656 S.W.2d 872, 873 (Tenn. Crim. App. 1982)).

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The Petitioner said the State filed a notice that he would be impeached with his

prior convictions if he testified at trial. Additionally, the prosecutor sent him “papers”

warning that if he testified at trial, the State would “enhance [his] conviction” and

sentence him as a Range II offender. Based upon the advice of trial counsel, the

Petitioner chose not to testify at trial. The Petitioner acknowledged that he had two prior

convictions of aggravated burglary, that he was a Range II offender, and that he also had

juvenile adjudications for aggravated robbery, robbery, and theft.

The Petitioner noted that the victim and Jackson testified for the State at trial and

that the Wests testified for the State and for the defense. Nevertheless, the Petitioner

complained that trial counsel “failed to present any meaningful defense” at trial. The

Petitioner alleged that trial counsel should have presented proof that the victim “blamed .

. . Jackson for breaking into [the victim‟s] house,” that the Wests did not want the police

to come to their residence, and that Mrs. West‟s brother, Jamez Hardy, also lived at the

Wests‟ residence at the time of the crime and should have been an alternate suspect.

The Petitioner conceded that his fingerprint was found on the trash bag containing

some of the stolen items. The Petitioner theorized that his fingerprint could have been on

the bag because the Wests were involved in the theft, and they had obtained the trash bag

from their apartment. The Petitioner said he sent trial counsel letters outlining his theory

regarding the Wests‟ involvement in the theft, but trial counsel and the Petitioner never

discussed the Petitioner‟s theory.

The Petitioner wanted trial counsel to present proof that Robinson had seven or

eight prior convictions of robbery and burglary. The Petitioner conceded that Robinson

could not be located prior to the Petitioner‟s trial and that post-conviction counsel could

not locate Robinson prior to the post-conviction hearing.

The Petitioner maintained trial counsel should have attempted to prove that the

value of the items taken was less than $1,000. The Petitioner contended that the proof at

trial at most established a connection between the Petitioner and the television and watch,

not the other stolen items. The Petitioner also contended that trial counsel should have

established that the State did not prove the Petitioner had possession or constructive

possession of any of the stolen merchandise. The Petitioner opined that trial counsel

should have attempted to prove that either the Wests, Mr. Banks, and/or Robinson were

involved in the crime but that the Petitioner was not.

The Petitioner acknowledged that he was acquitted of aggravated burglary. He

contended that but for the errors of trial counsel, he also would have been acquitted of

theft or convicted of theft in a lesser amount.

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On cross-examination, the Petitioner said that post-conviction counsel tried to

subpoena Mrs. Banks and the Hamptons for the post-conviction hearing but that they

were not present to testify.3 The Petitioner conceded that at the time of trial, he was not

upset that the three women did not testify. He explained that he thought his innocence

would be proven without their testimony.

The Petitioner acknowledged that prior to trial, he received a letter from trial

counsel informing him of a favorable plea offer from the State. The Petitioner

acknowledged that he rejected the offer. The Petitioner also filed a complaint with the

Board of Professional Responsibility about trial counsel‟s failure to meet with him.

The Petitioner acknowledged that his post-conviction petitions did not include

claims that trial counsel failed to investigate the Hamptons or Mrs. Banks or to have them

testify at trial. The Petitioner further acknowledged that he did not include his claim that

trial counsel failed to communicate with him.

The post-conviction court found that the Petitioner had failed to prove that trial

counsel was ineffective or that he was prejudiced by any alleged deficiency of trial

counsel. On appeal, the Petitioner challenges the trial court‟s denial of post-conviction

relief and its denial of funds to hire a private investigator.

II. Analysis

A. Ineffective Assistance of Counsel

To be successful in a claim for post-conviction relief, a petitioner must prove the

factual allegations contained in the post-conviction petition by clear and convincing

evidence. See Tenn. Code Ann. § 40-30-110(f). “„Clear and convincing evidence means

evidence in which there is no serious or substantial doubt about the correctness of the

conclusions drawn from the evidence.‟” State v. Holder, 15 S.W.3d 905, 911 (Tenn.

Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.

1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded

their testimony, and the factual questions raised by the evidence adduced at trial are to be

resolved by the post-conviction court as the trier of fact. See Henley v. State, 960

S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court‟s findings of fact are

entitled to substantial deference on appeal unless the evidence preponderates against

those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

A claim of ineffective assistance of counsel is a mixed question of law and fact.

3

At the beginning of the hearing, post-conviction counsel stated that the Petitioner had sought “several

subpoenas,” that the subpoenas had been “issued by the clerk,” but that the people subpoenaed “couldn‟t

be found to be served.”

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See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction

court‟s findings of fact de novo with a presumption that those findings are correct. See

Fields, 40 S.W.3d at 458. However, we will review the post-conviction court‟s

conclusions of law purely de novo. Id.

When a petitioner seeks post-conviction relief on the basis of ineffective

assistance of counsel, “the petitioner bears the burden of proving both that counsel‟s

performance was deficient and that the deficiency prejudiced the defense.” Goad v.

State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,

687 (1984)). To establish deficient performance, the petitioner must show that counsel‟s

performance was below “the range of competence demanded of attorneys in criminal

cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, 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.” Strickland, 466 U.S. at 694. Moreover,

[b]ecause a petitioner must establish both prongs of the

test, a failure to prove either deficiency or prejudice provides

a sufficient basis to deny relief on the ineffective assistance

claim. Indeed, a court need not address the components in

any particular order or even address both if the [petitioner]

makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

The Petitioner contends that trial counsel was ineffective by having insufficient

contact with him and by failing to speak with the Hamptons and Mrs. Banks and call

them as witnesses at trial. The State responds that the Petitioner waived these issues by

failing to include them in his post-conviction petitions. This court has cautioned that

“[i]ssues not included in a post-conviction petition may not be raised for the first time on

appeal and are waived.” Bobby J. Croom v. State, No. W2015-01000-CCA-R3-PC, 2016

WL 690689, at *8 (Tenn. Crim. App. at Jackson, Feb. 19, 2016) (citing Walsh v. State,

166 S.W.3d 641, 645 (Tenn. 2005), and Cauthern v. State, 145 S.W.3d 571, 599 (Tenn.

Crim. App. 2004)), perm. to appeal denied (Tenn., June 24, 2016). We agree with the

State that the Petitioner‟s issues regarding trial counsel‟s insufficient contact with the

Petitioner and trial counsel‟s failure to speak with the Hamptons and Mrs. Banks were

waived.

The Petitioner also contends that trial counsel was ineffective by ignoring the

Petitioner‟s suggested trial strategy and by not being prepared for trial. The Petitioner

does not, however, specify what trial strategy trial counsel ignored or what further

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preparations trial counsel should have made. Instead, the Petitioner merely cites to his

own testimony in the transcript of the post-conviction hearing and provides brief

parentheticals to indicate he is complaining about Mrs. Banks‟s being a potential alibi

witness, about his fingerprint possibly being on the trash bag because the Wests got the

bag from their apartment, and about the value of the items stolen and the Petitioner‟s

constructive possession of the items. We conclude that this lackluster presentation of the

issues does not comply with Tennessee Rule of Appellate Procedure 27(a)(7)(A), which

mandates that a brief contain “the contentions of the appellant with respect to the issues

presented, and the reasons therefor, including the reasons why the contentions require

appellate relief, with citations to the authorities and appropriate references to the record.”

Generally, a failure to comply with the rules results in a waiver of the issues. See State v.

Thompson, 36 S.W.3d 102, 108 (Tenn. Crim. App. 2000).

Nevertheless, we briefly note that the Petitioner failed to establish any deficiency

by trial counsel. The Petitioner did not present any witnesses at the post-conviction

hearing that he wished had testified at trial. Generally, “[w]hen a petitioner contends that

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

these witnesses should be presented by the petitioner at the evidentiary hearing.” Black

v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). We may not speculate on what

benefit the witnesses might have offered to the Petitioner‟s case, nor may we guess as to

what evidence further investigation may have uncovered. Id. Moreover, regarding trial

strategy, we note that “[w]hen reviewing trial counsel‟s actions, this court should not use

the benefit of hindsight to second-guess trial strategy and criticize counsel‟s tactics.”

Irick v. State, 973 S.W.2d 643, 652 (Tenn. Crim. App. 1998). Further, “[a]llegations of

ineffective assistance of counsel relating to matters of trial strategy or tactics do not

provide a basis for post-conviction relief.” Taylor v. State, 814 S.W.2d 374, 378 (Tenn.

Crim. App. 1991).

Finally, the Petitioner claims that trial counsel failed to challenge the sufficiency

of the evidence supporting his theft conviction. This claim is belied by the record.

Notably, on direct appeal, trial counsel argued

that the evidence [was] insufficient to support [the

Petitioner‟s] conviction because he was not in possession of

any of the stolen property. He argue[d] that the evidence

proved mere constructive possession of the television because

[Mrs.] West possessed and returned the television and the

watch and the testimony showed the property was in Mr. and

[Mrs.] West‟s apartment. He argue[d] that although the jury

did not make specific findings about what property he took, it

must have found that he took some of the property found in

Mr. Banks‟s car to reach the total value of more than $1000.

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He argue[d] that there [was] insufficient evidence for the jury

to infer he exercised control over any of the property found in

Mr. Banks‟s car other than the garbage bag because no

witness placed him in or near the car and no fingerprints were

found on any of the property. He also argue[d] that because

the evidence show[ed] the value of the stolen property he

actually or constructively possessed was less than $1000, the

evidence was insufficient to prove he was guilty of theft of

property valued at more than $1000.

El Amin, No. M2012-01261-CCA-R3-CD, 2013 WL 2393061, at *9. This court found

no merit to the issues on direct appeal. Id. The record before us does not preponderate

against the post-conviction court‟s finding that the Petitioner failed to establish that trial

counsel was ineffective.

B. Post-Conviction Investigator

Prior to the post-conviction hearing, the Petitioner filed a motion requesting funds

for a private investigator. The post-conviction court denied the motion, noting that to

grant the request would directly contradict the mandate of Tennessee Supreme Court

Rule 13 section 5(a)(2) and Davis v. State, 912 S.W.2d 689 (Tenn. 1995). On appeal, the

Petitioner challenges the post-conviction court‟s denial of his request for funds for a

private investigator. However, the Petitioner‟s brief does not provide any facts or

argument in support of his challenge. As we noted earlier, an appellate brief must

contain “the contentions of the appellant with respect to the issues presented, and the

reasons therefor, including the reasons why the contentions require appellate relief, with

citations to the authorities and appropriate references to the record.” Tenn. R. App. P.

27(a)(7)(A). Accordingly, the Petitioner‟s claim is waived.

III. Conclusion

Based upon the foregoing, we affirm the judgment of the post-conviction court.

_________________________________

NORMA MCGEE OGLE, JUDGE

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