The opinion
03/11/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 11, 2018
TIMOTHY CARTER v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2012-B-1221 Cheryl Blackburn, Judge
No. M2018-00061-CCA-R3-PC
The petitioner, Timothy Carter, appeals from the denial of his petition for post-conviction
relief, which petition challenged his Davidson County Criminal Court jury convictions of
theft of property valued at more than $60,000 and possession of a firearm by a convicted
felon. In this appeal, the petitioner asserts that the post-conviction court erred by
concluding that he had forfeited the right to appointed counsel in the post-conviction
proceeding and by ruling that he was not entitled to post-conviction relief. Discerning no
error, we affirm.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and J. ROSS DYER, JJ., joined.
Timothy Carter, Hartsville, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Megan King, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
A Davidson County Criminal Court jury convicted the petitioner of theft of
property valued at more than $60,000 and possession of a firearm by a convicted felon,
and the trial court sentenced the petitioner, a Career Offender, to 30 years’ incarceration.
In our opinion affirming the convictions and accompanying sentence, this court
summarized the case on direct appeal:
This case arises from the theft of a comic book collection
from a residence in La Vergne, Tennessee in April 2010. The
[petitioner] was identified as a suspect in the theft when he
sold or attempted to sell some of the comic books at area
stores. During the investigation, law enforcement officers
went to the [petitioner’s] apartment and, upon seeing the
stolen comic books in the backseat of a vehicle registered to
the [petitioner], impounded his vehicle to the police
department. After obtaining a search warrant, law
enforcement officers searched the [petitioner’s] vehicle and
recovered a handgun.
State v. Timothy Damon Carter, No. M2014-01532-CCA-R3-CD, slip op. at 2 (Tenn.
Crim. App., Nashville, Mar. 8, 2016), perm. app. denied (Tenn. June 23, 2016).
In a timely, 40-page petition for post-conviction relief accompanied by
some 300 pages of exhibits, the petitioner alleged myriad grounds for relief. In its
preliminary order, the post-conviction court noted that the petitioner had proceeded pro
se at trial after the trial court concluded that the petitioner had, by his obstreperous
behavior, forfeited his right to appointed counsel and that this court had affirmed that
decision on direct appeal. Citing State v. Carruthers, 35 S.W.3d 516 (Tenn. 2000), the
post-conviction court noted that the petitioner could only present claims of ineffective
assistance of counsel for those times that he was represented by counsel. Because, the
court concluded, all the issues raised by the petitioner in his original petition against the
attorneys who represented him before he forfeited the right to counsel had been fully
litigated on direct appeal, those issues qualified as previously determined and could not
be a basis for post-conviction relief. The court similarly concluded that the petitioner’s
claims of prosecutorial misconduct had been previously litigated. The post-conviction
court ruled that allegations of ineffective assistance by appellate counsel could be raised
in a petition for post-conviction relief but strongly cautioned newly appointed post-
conviction counsel to consult with the petitioner to present only cognizable claims in an
amended petition for relief.
Just over a month later on February 6, 2017, the petitioner filed pro se a
Motion for Arrest of Judgment, which motion argued that the judgment had not been duly
entered in the court minutes; that “Rutherford County authorities exceeded their
jurisdiction by investigating criminal activities in Rutherford County, Tennessee and
reporting their findings to the Davidson County, Tennessee, grand jury for indictment”;
that prosecutors had “acted in bad faith” by seizing his car without a warrant; and that
“the search warrant was issued . . . outside of their jurisdiction.” Appointed post-
conviction counsel moved to withdraw just three days later, citing the petitioner’s desire
to represent himself in the post-conviction proceeding.
-2-
At the hearing on the motion to withdraw, the petitioner told the court that
he wanted to represent himself with the assistance of elbow counsel. The court refused to
appoint elbow counsel and observed that the petitioner was “not going to cooperate with
anybody.” When the petitioner alleged that the problem lay with appointed counsel’s
failure to adequately communicate with him, the court allowed appointed counsel to
respond:
Your Honor, I have received a number of letters from
[the petitioner] in a very short amount of time all directing me
to do very different things. None of which I really
understood what he wanted. So I thought the safest course of
action would be to file the motion to withdraw, which is what
he said he wanted me to do.
The post-conviction court cautioned the petitioner that if the court appointed counsel,
then “the counsel makes the decisions,” before asking the petitioner if he wanted counsel
appointed. The petitioner replied, “I’m asking that this court allow me to be pro se so I
can guard my federal and state constitution within my post-conviction.” When the court
again refused to appoint elbow counsel, the petitioner expressed a desire to have counsel
appointed. Despite this request, the petitioner threatened “to go to the Board again” on
any person appointed as counsel who failed to communicate with him.
Less than three months following her appointment, the petitioner’s second
appointed counsel moved to withdraw as counsel, stating that she “has been threatened
with action in the Federal courts and with complaint to the Tennessee Board of
Professional Responsibility if Petitioner’s directives are not made.” Second appointed
counsel stated that it was her belief that her relationship with the petitioner was “beyond
repair.” At the hearing on her motion, second appointed counsel told the post-conviction
court that the petitioner had threatened to file a complaint against her with the Board of
Professional Responsibility if she “didn’t do what he told [her] to do.” When the court
asked the petitioner why he refused to cooperate, he replied, “I wrote this woman a letter,
this attorney a letter, asking her to guard my statement and my fair constitution in my
original post and do not amend my post. And if you amend my post, I will contact
Federal Court and make them command you to[.]” At that point, the post-conviction
court concluded that the petitioner had demonstrated his unwillingness to work with
appointed counsel and had, therefore, waived his right to appointed counsel. The post-
conviction court invited the petitioner to “file something else” and promised to hold a
hearing on any of his claims that could “qualif[y] for post-conviction relief.” The court
admonished the petitioner that he could not raise a claim of ineffective assistance of
counsel for anything that occurred at trial when he represented himself and that the
propriety of the pretrial rulings had already been litigated on direct appeal.
-3-
Following the hearing, the post-conviction court entered an order reiterating
its ruling that the petitioner had forfeited his right to appointed counsel in the post-
conviction proceeding. In the order, the post-conviction court included a chart indicating
which claims the petitioner was precluded from addressing in the post-conviction
proceeding because he had represented himself at trial, because the claims qualified as
either previously determined or waived, or because the claims were not cognizable
grounds for post-conviction relief.
At the May 7, 2018 evidentiary hearing, the petitioner insisted that he could
not proceed “because there was never a written waiver of [me] waiving my right to
proceed pro se.” The petitioner maintained that the post-conviction court had violated
due process principles because it had forced him to proceed pro se and, at the same time,
had denied him the right to be heard on his pro se filings. The court ordered the
petitioner to proceed.
Manuel Russ, who was appointed to represent the petitioner following the
hearing on the motion for new trial and on appeal, agreed that the petitioner had asked
him to file a supplemental brief addressing the fact that the trial court had refused to hear
those pretrial motions the petitioner had filed pro se. He said that he “did not file any
request [with] the trial court [to] add those issues in” because the filings at issue were
simply a rehashing of “what [the petitioner’s previous counsel] had done regarding the
suppression issues and had already had two hearings in front of the Court about it.” He
said that it was his opinion that those issues had been “adequately addressed” and that he
made those issues “a very big point in our appellate brief.” He said, “The pro se motions
I didn’t think really added anything to the argument that we were making at the Court of
[Criminal] Appeals.”
Mr. Russ said that he did not recall the petitioner’s asking him to obtain a
bill of particulars, but he noted that he received “a lot of written correspondence” from
the petitioner “with all kinds of things being requested and suggested.” Mr. Russ agreed
that the petitioner “probably did” ask counsel to “supplement the bill of particulars into
[the] appellate brief,” but he said that he could not recall whether a bill of particulars had
been filed, that a bill of particulars would not have been helpful to a determination of the
issues raised on direct appeal, and, most importantly, “supplementing the record is not
simply that you start submitting documents that you would like for [the appellate court]
to look at.” Mr. Russ noted that, if a bill of particulars had been filed, it would have been
part of the record and that, when he was appointed to represent the petitioner after the
hearing on the motion for new trial, “for the most part the record is fixed at what the
record is because that’s just procedurally how things work.” In any event, Mr. Russ
-4-
emphasized, a bill of particulars would not “have added anything to [the petitioner’s]
appeal.”
Mr. Russ recalled having had “several conversations either by mail or
otherwise” with the petitioner wherein the petitioner “had trouble understanding” how he
could be charged in one county when he had been arrested in another. Mr. Russ said that
he explained to the petitioner that the location where the stolen property was discovered
was “proper jurisdiction” for a theft charge. He said that the petitioner’s claim that
Davidson County lacked subject matter jurisdiction to charge him with the weapons
offense lacked merit because the petitioner was arrested in Davidson County in
possession of a weapon. Mr. Russ said that he did not challenge the sufficiency of the
evidence supporting the felon in possession conviction because he “felt that the evidence
was probably sufficient as well as the fact that we had much better issues regarding a
more serious charge, theft, than we did regarding the handgun.”
As to the petitioner’s allegation that Mr. Russ performed deficiently by
failing to bring a Confrontation Clause challenge to the trial court’s allowing the State to
present the affidavit of a State’s witness, Mr. Russ said that he did include that issue on
appeal. He said the issue was also raised in the motion for new trial.
After Mr. Russ left the stand, the petitioner noted that none of the witnesses
he had subpoenaed on the issue of subject matter jurisdiction were present. The post-
conviction court stated that the witnesses were not there because they were not relevant to
those issues that the petitioner was permitted to address via a claim for post-conviction
relief. The court then continued the hearing so that the petitioner could secure the
testimony of Jack Byrd, one of the attorneys who represented him prior to trial.
Mr. Byrd testified that he was originally appointed to represent the
petitioner in May 2012 and that he was permitted to withdraw from the case after the trial
court determined that the petitioner had forfeited the right to appointed counsel. Mr.
Byrd said that he did not request funds for an expert to value the comic books stolen by
the petitioner despite the petitioner’s request that he do so, explaining that, by that time,
the “comic books were no longer in the possession of the State, so there was no way that
an appraisal could be done of each comic book. So that would have been a moot motion
to even try to attempt.” Mr. Byrd said that, based upon his own research, he learned that
“the only way to do an accurate appraisal of those comic books would be to have the
actual comic book in hand and to be able to assess the value of it.” Mr. Byrd explained
that he could not have obtained the comic books for the purpose of having them
appraised because, as he understood it, “some of those comic books had been traded,
sold, and other things. So they would not be obtainable.” He agreed that all of the stolen
comic books had been returned to the victim.
-5-
During cross-examination by the State, Mr. Byrd said that, prior to
becoming an attorney, he “was a command criminal investigator in the United States
military” and that, after leaving the military, he worked as a private investigator for some
13 years. He said that, utilizing the skills he garnered as an investigator, he attempted to
ascertain the value of the comic books but soon learned that an appraisal of the comic
books could not be performed without having possession of the actual books that were
taken. He said that he obtained funds to hire a handwriting expert and that, before being
relieved as counsel of record, he consulted with the handwriting expert he hired. He said
that he did not ask for funds to hire an investigator because he already has an investigator
with whom he works when he is unable to perform investigations on his own.
At the conclusion of the hearing, the post-conviction court took the matter
under advisement. In its order denying post-conviction relief, the post-conviction court
meticulously detailed the history of the case, including the sheer volume of lengthy pro se
pleadings filed by the petitioner in the post-conviction court, another Davidson County
Criminal Court, and our supreme court. The history provided by the court also details the
petitioner’s inability to effectively communicate with any of the attorneys that have
previously been appointed to represent him. The post-conviction court concluded that all
claims regarding ineffective assistance of counsel at trial were pretermitted by the trial
court’s decision that the petitioner forfeited the right to appointed counsel, a decision that
was affirmed by this court on direct appeal. As such, the court concluded, the petitioner
could only raise those claims of ineffective assistance of counsel directed at those
attorneys who represented him prior to and after his trial. Of those claims directed at
counsel who had represented him prior to trial, the post-conviction court observed that
most qualified as either waived or previously determined. Specifically, the court
concluded that petitioner’s claims regarding his counsel’s handling of the seized evidence
was previously adjudicated at trial and on appeal. The court further found that the
petitioner’s claims of “prosecutorial misconduct,” which might otherwise have been
cognizable in a post-conviction proceeding, were “simply reframing the same issue
addressed during the suppression hearing and direct appeal,” and, as such, were
previously determined.
The post-conviction court found that Mr. Byrd’s failure to request funds to
hire an expert to appraise the stolen comic books did not amount to deficient
performance. The court accredited Mr. Byrd’s testimony that an accurate appraisal was
impossible because the books were no longer in the possession of the victim or the State.
The court found that the proof adduced at trial confirmed that not all the books were
available because “many books were not recovered and some of the recovered books had
sustained damage so their value could not be accurately assessed.” The post-conviction
-6-
court also observed that the petitioner had failed to submit any evidence at the evidentiary
hearing suggesting that the valuation of the comic books was erroneous.
The post-conviction court accredited Mr. Russ’s testimony and found that
“he made [] reasonable strategic decisions when determining which issues should be
raised in the direct appeal.” The court observed that the petitioner’s claim that Mr. Russ
failed to challenge the admission of certain testimony was belied by the record, which
showed that the issue was fully litigated at trial and on direct appeal.
In this timely appeal, the petitioner alleges that the post-conviction court
erred by requiring him to proceed pro se, by refusing to permit him to orally amend his
petition at the evidentiary hearing, and by concluding that many of his claims for post-
conviction relief were either waived or previously determined. The petitioner also
contends that the State engaged in prosecutorial misconduct by seeking a second
superseding indictment in his case and that he was deprived of the effective assistance of
counsel on direct appeal.
We view the petitioner’s claims with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).
A. Forfeiture of the Right to Counsel
The petitioner first asserts that the post-conviction court erred by
determining that he had forfeited his right to appointed counsel and requiring him to
proceed pro se.
A brief history of the petitioner’s prior behavior toward his appointed
attorneys is in order at this juncture. As we detailed in our opinion on direct appeal, the
petitioner behaved abhorrently toward the attorneys who were appointed to represent him
prior to the trial court’s determination that he had forfeited the right to appointed counsel
at trial. Although the trial court provided limited information regarding the reasons that
-7-
the petitioner’s first two attorneys, Jessamine Grice and Graham Pritchard, were
permitted to withdraw, the record established that the trial court permitted attorney Paul
Walwyn to withdraw after the petitioner became verbally abusive to Mr. Walwyn’s staff.
See Timothy Damon Carter, slip op. at 2-4.
The trial court then appointed Mr. Byrd. Shortly thereafter, Mr. Byrd
reported to the court that the petitioner refused to cooperate with Mr. Byrd’s trial
preparation. A few days later, Mr. Byrd moved to withdraw, but the trial court denied the
motion despite that, among other things, the petitioner “spat at Mr. Byrd after the
suppression hearing held on September 4, 2012.” Id., slip op. at 5. One month later, Mr.
Byrd again moved to withdraw, and the trial court granted the motion. The court ruled
that the petitioner would be required to represent himself with Mr. Byrd acting as elbow
counsel.
Three months later, the petitioner moved the court to reappoint Mr. Byrd as
his counsel. The trial court denied the motion and concluded that the petitioner had
forfeited the right to appointed counsel by his “extremely serious misconduct.” In
support of its ruling, the trial court found that the petitioner “refused to cooperate with
any of his appointed counsel and filed complaints against them with the Consumer
Assistance Program Board of Professional Responsibility”; that the petitioner spat on Mr.
Byrd following a suppression hearing; and that the petitioner made threats “to Mr. Byrd,
his family, and his law office staff,” including a threat “to ‘slash’ Mr. Byrd in court
should he continue as counsel on the case.” The court also found that the petitioner was
attempting to delay his trial by repeatedly requesting counsel and then asking to proceed
pro se.
This court affirmed the trial court’s ruling on direct appeal:
Even though the forfeiture of counsel occurred prior to
trial, based on these facts, we conclude that the [petitioner’s]
behavior was “sufficiently egregious to support a finding that
he forfeited his right to counsel” and in such a situation, the
trial court had no other choice than to conclude that the
[petitioner] had forfeited his right to counsel. Due to
numerous delays caused by the [petitioner], this case was not
tried until three years after the crime was committed. The
[petitioner] was uncooperative or refused to participate in
multiple proceedings, and he repeatedly demanded that he be
appointed a new attorney or be allowed to represent himself.
The [petitioner’s] threatening and abusive behavior towards
his attorneys and their staff seemed to escalate with each new
-8-
appointment of counsel. Indeed, the [petitioner] sp[a]t on his
fourth attorney and threatened to physically assault him on
multiple occasions. In such a situation, the trial court would
be hard-pressed to appoint a fifth attorney without serious
concern for his or her safety.
Id., slip op. at 6.
Against this backdrop, the post-conviction court appointed counsel to
represent the petitioner as part of its preliminary order. Within a very short period of
time, the petitioner inundated appointed counsel’s office with correspondence “directing
[counsel] to do very different things,” none of which directives counsel could even
understand. Appointed counsel also indicated that the petitioner had asked her to
withdraw so he could represent himself. The post-conviction court granted counsel’s
motion to withdraw but offered to appoint another attorney should the petitioner desire
one. The petitioner replied, “I’m asking that this court allow me to be pro se so I can
guard my federal and state constitution within my post-conviction,” but asked the court to
appoint elbow counsel. When the court refused to appoint elbow counsel, the petitioner
expressed a desire to have counsel appointed but threatened “to go to the Board again” on
any person appointed as counsel who failed to communicate with him. Within three
months, newly appointed post-conviction counsel moved to withdraw, citing the
petitioner’s threats of “action in the Federal courts and with complaint to the Tennessee
Board of Professional Responsibility if Petitioner’s directives are not made.” The
petitioner acknowledged threatening to “contact Federal Court and make them command”
newly appointed counsel to comply with his demands. Based upon the petitioner’s well-
demonstrated unwillingness to work with any attorney, the post-conviction court
concluded that the petitioner had forfeited his right to appointed counsel.
Although there is no constitutional right to counsel in post-conviction
proceedings, see House v. State, 911 S.W.2d 705, 712 (Tenn. 1995), the Post-Conviction
Procedure Act includes a statutory right to counsel, see T.C.A. § 40-30-107(b)(1). “The
appointment of counsel assists in ensuring that a petitioner asserts all available grounds
for relief and fully and fairly litigates these grounds in a single post-conviction
proceeding.” Leslie v. State, 36 S.W.3d 34, 38 (Tenn. 2000); see also Frazier v. State,
303 S.W.3d 674, 680 (Tenn. 2010) (emphasizing “that a post-conviction petitioner does
not stand in the same shoes as the criminally accused” and stating that “the petitioner
seeking post-conviction relief is entitled to counsel ‘not to protect them from the
prosecutorial forces of the State, but to shape their complaints into the proper legal form
and to present those complaints to the court’” (citation omitted)). The statutory right to
counsel, and indeed the entire post-conviction process itself, “may be denied to a
petitioner who abuses the post-conviction process.” Leslie, 36 S.W.3d at 39 (citing Cazes
-9-
v. State, 980 S.W.2d 364, 365 (Tenn. 1998)).
Our standard of review of the trial court’s determination that the post-
conviction petitioner forfeited his statutory right to counsel “is whether the trial court
abused its discretion in . . . requiring the petitioner to proceed without counsel.” Leslie,
36 S.W.3d at 37-38.
Initially, the post-conviction court appointed counsel to represent the pro se
petitioner following the filing of his timely petition for post-conviction relief. Despite the
appointment of counsel, the petitioner continued to file pro se pleadings in the post-
conviction court.1 Just over a month following the entry of the order, appointed counsel
moved to withdraw at the petitioner’s behest. Unlike the court in Leslie, the post-
conviction court held a hearing on the motion to determine whether the petitioner, in fact,
wanted to proceed pro se. See Lovin v. State, 286 S.W.3d 275, 285 (Tenn. 2009) (“While
the constitutional right to self-representation does not apply to post-conviction
proceedings, both the statutes authorizing the appointment of counsel in post-conviction
proceedings and the rules implementing these statutes recognize that prisoners have the
right of self-representation in post-conviction proceedings.”). Appointed counsel
testified that, within the short time since her appointment, she had been inundated with
correspondence from the petitioner directing her to act and that, by and large, she was
unable to discern the petitioner’s desires. She said that, ultimately, it was her
“understanding that [the petitioner] wanted to represent himself in this matter, and he
asked me to withdraw.” The petitioner spent the bulk of the hearing arguing with the
post-conviction court about those grounds for relief that would be cognizable in the post-
conviction proceeding. He initially asked to represent himself, acknowledging that he
had asked appointed counsel to withdraw. He then asked for elbow counsel. When the
court refused to appoint elbow counsel, the petitioner agreed to the appointment of
counsel but immediately threatened “to go to the Board” on any attorney that did not
communicate with him in the manner he desired. The second attorney appointed to
represent the petitioner likewise moved to withdraw in short order, noting that the
petitioner had threatened her with action in federal court if she did not comply with his
demands. The petitioner acknowledged the threat, and, at that point, the post-conviction
court concluded that the petitioner’s past behavior indicated that he was “not going to
cooperate with anybody.”
In our view, the record fully supports the conclusion of the post-conviction
court that the petitioner forfeited his statutory right to counsel. The petitioner’s behavior
toward his appointed counsel during the post-conviction proceeding was essentially an
1
Indeed, the sheer volume of pro se pleadings, most of which are accompanied by repetitive and
irrelevant exhibits, is substantial. The petitioner’s pro se petition and exhibits totaled more than 350
pages.
-10-
extension of his behavior toward his appointed counsel during the trial proceeding. The
petitioner simply failed to grasp the concept that appointed “[c]ounsel is in no way
obligated to comply with a petitioner’s demands to investigate or pursue unreasonable or
frivolous claims.” Leslie, 36 S.W.3d at 38. We cannot say that the post-conviction court
abused its discretion by refusing to continue appointing attorneys to represent the
petitioner given the history in this case. Consequently, the petitioner is not entitled to
relief on this issue.
B. Amendment of Petition
The petitioner next contends that the post-conviction court erred by
refusing to permit him to orally amend his petition at the evidentiary hearing to add a
claim that his counsel performed deficiently by failing to adequately litigate a Fourth
Amendment claim prior to trial. We need not tarry long over the petitioner’s claim
because, although the post-conviction court “may allow amendments and shall do so
freely when the presentation of the merits of the cause will otherwise be subserved,”
Tenn. R. Sup. Ct. 28, §8, the post-conviction court is under no duty to allow the addition
of an issue that is not cognizable in a post-conviction proceeding or that is clearly without
merit.
The petitioner’s counsel moved to suppress the evidence seized from his
car on a number of constitutional grounds, including the one that the petitioner claims
counsel failed to adequately litigate, and the trial court denied the motion. See Timothy
Damon Carter, slip op. at 9-12. Counsel then moved for a rehearing on the motion to
suppress, and the trial court again refused to suppress the evidence. See id., slip op. at
12-14. Mr. Russ included the denial of the motion to suppress as an issue on appeal, and
this court affirmed the ruling of the trial court:
We conclude that: (1) the comic books were in plain
view; (2) Officer Eubank had a right to be in the
condominium complex and standing next to the [petitioner’s]
vehicle when he viewed the comic books; and (3) the
incriminating nature of the comic books was immediately
apparent. Detective Eubank’s observation of the comic books
in plain view gave him probable cause to believe that the
[petitioner’s] vehicle contained stolen property, and thus, the
seizure of the vehicle pursuant to the automobile exception
was justified.
As to the [petitioner’s] argument that, pursuant to
Tennessee Code Annotated section 6-54-301, Detective
-11-
Eubank was operating outside the parameters of his
jurisdiction and his authority as a police officer, we agree
with the trial court’s conclusion that this statutory violation is
not a violation of the [petitioner’s] constitutional rights,
rendering the exclusionary rule inapplicable. The trial court
did not err when it denied his motion to suppress.
Id., slip op. at 29 (citations omitted).
Consequently, as a stand-alone ground for relief, the petitioner’s challenge
to the search of his vehicle qualifies as having been previously determined and, as such,
he cannot raise it in a post-conviction petition. See T.C.A. § 40-30-106(h) (“A ground
for relief is previously determined if a court of competent jurisdiction has ruled on the
merits after a full and fair hearing. A full and fair hearing has occurred where the
petitioner is afforded the opportunity to call witnesses and otherwise present evidence,
regardless of whether the petitioner actually introduced any evidence.”). Moreover,
because nothing suggests that the validity of the search was anything other than fully and
fairly litigated, the “presentation of the merits of the cause” would not “otherwise be
subserved” by the trial court’s refusal to allow the addition of this issue couched in terms
of ineffective assistance of counsel.
C. Trial Court Errors
The petitioner next asserts that the post-conviction court erred by
concluding that his “pro se motions were waived because he represented himself at trial.”
Initially, it is not clear to which pro se motions the petitioner is referring. As indicated,
the petitioner filed numerous pro se pleadings in the post-conviction court. Additionally,
at the hearings on the removal of counsel and the evidentiary hearings, the petitioner
made more than one reference to both the post-conviction court’s ruling on some of his
pro se pleadings prior to the hearing and the trial court’s refusal to rule on some of his pro
se pleadings prior to trial. To the extent that the petitioner is referring to the post-
conviction court’s failure to rule on his pro se pleadings prior to the evidentiary hearing,
the petitioner has failed to establish that any omission by the post-conviction court inured
to his detriment. To the extent that the petitioner is referring to the trial court’s failure to
rule on pro se pleadings filed prior to trial, any claim of error in this regard that occurred
prior to trial has been waived by the petitioner’s failure to present it as a ground for relief
on direct appeal. See T.C.A. § 40-30-106(g) (“A ground for relief is waived if the
petitioner personally or through an attorney failed to present it for determination in any
proceeding before a court of competent jurisdiction in which the ground could have been
presented . . . .”).
-12-
Similarly, the post-conviction court did not err by concluding that the
petitioner’s claim that the district attorney general committed prosecutorial misconduct
by obtaining a superseding indictment was waived by his failure to present it as a ground
for relief on direct appeal.
D. Ineffective Assistance of Counsel
Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, 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. at 694. Should the
petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.
When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he
petitioner bears the burden of overcoming this presumption,” id. (citations omitted). We
will not grant the petitioner the benefit of hindsight, second-guess a reasonably based trial
strategy, or provide relief on the basis of a sound, but unsuccessful, tactical decision
made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn.
Crim. App. 1994). Such deference to the tactical decisions of counsel, however, applies
only if the choices are made after adequate preparation for the case. Cooper v. State, 847
S.W.2d 521, 528 (Tenn. Crim. App. 1992).
1. Prior to Trial
The petitioner contends that he was deprived of the effective assistance of
counsel prior to trial because his counsel failed to challenge the validity of the search
warrant based upon the absence of a judge’s signature on the warrant, failed to dismiss
the superseding indictment for violation of the rule of mandatory joinder, failed to request
grand jury materials, failed to file a motion for a bill of particulars, failed to seek a
-13-
change of venue, failed to file a motion for alibi, failed to request funds to hire an expert
to appraise the stolen comic books, and failed to subpoena a witness to the hearing on the
motion to suppress.
As indicated above, although the petitioner’s claims of ineffective
assistance of counsel relative to the handling of the motion to suppress the evidence
seized from his car have not been waived or previously determined, the underlying claims
have been fully and fairly litigated. No evidence suggests that counsel could have done
anything more. Consequently, the petitioner is not entitled to relief on this issue.
The petitioner’s claims regarding counsel’s failure to file motions with
regard to venue, alibi, and a bill of particulars are utterly unsupported by evidence in the
record, citation to authorities, or argument. The petitioner’s claim that counsel performed
deficiently by failing to seek dismissal of the superseding indictment is also unsupported
by evidence, authorities, or argument. Accordingly, these claims are waived. See Tenn.
Ct. Crim. App. R. 10(b). Additionally, the petitioner’s claim regarding joinder is
completely without merit because the petitioner was charged with only one theft offense.
As to the petitioner’s claim that counsel performed deficiently by failing to
seek funds for an expert appraisal of the stolen comic books, Mr. Byrd’s accredited
testimony established that he did not seek funds for an expert appraisal because the comic
books were not available for appraisal. Additionally, the post-conviction court observed
that many of the comic books sustained damage that affected their value. Under these
circumstances, the petitioner failed to establish that counsel performed deficiently.
2. Post-Trial
The petitioner asserts that his counsel performed deficiently by failing to
file a motion for arrest of judgment based upon the lack of subject matter jurisdiction.
The petitioner presented no evidence on this claim at the evidentiary hearing. Mr. Byrd
did testify that the petitioner asked him to add a claim challenging the subject matter
jurisdiction to the motion for new trial and that he unsuccessfully attempted to explain to
the petitioner why that claim lacked merit. The petitioner’s confusion arises from the fact
that although he originally took the comic books from the victim’s residence in
Rutherford County, the stolen comic books were seized in Davidson County, and he was
subsequently prosecuted in Davidson County. The jurisdictional question, as framed by
the petitioner, is actually a claim of improper venue. Although our state constitution
“provides that an accused must be tried in the county in which the crime was committed,”
the State need only establish venue, and thereby the jurisdiction of the trial court, by a
preponderance of the evidence. State v. Young, 196 S.W.3d 85, 101-02 (Tenn. 2006)
(citations omitted). Moreover, “[v]enue is a question for the jury,” and “the jury is
-14-
entitled to draw reasonable inferences from the evidence” when determining venue. Id.
(citations omitted). “Importantly, where different elements of the same offense are
committed in different counties, ‘the offense may be prosecuted in either county.’” Id.
(citing Tenn. R. Crim. P. 18(b)).
Theft is committed by knowingly obtaining or exercising control over
property without the owner’s consent. See T.C.A. § 39-14-103(a). In this case, although
the petitioner obtained the comic books from the victim’s residence, he clearly exercised
control over the comic books when they were inside his car in Davidson County.
Because some elements of the theft offense were committed in Davidson County, the
offense was properly prosecuted in Davidson County. Because the offense was properly
prosecuted in Davidson County, counsel did not perform deficiently by failing to seek an
arrest of judgment on the basis of a lack of jurisdiction.
The petitioner also asserts that his counsel performed deficiently by failing
to obtain certified copies of his prior convictions for use at the sentencing hearing and
that he was prejudiced because “he received an illegal career offender sentence.”
Unfortunately for the petitioner, however, he represented himself at the sentencing
hearing and, as such, cannot present a claim of ineffective assistance of counsel for
anything related to his sentence. Moreover, as we noted on direct appeal, “the State
offered the presentence report and certified copies of the [petitioner’s] convictions,”
which established that the petitioner “had previously been convicted of: two counts of
burglary, three counts of aggravated burglary, two counts of aggravated robbery, one
count of felony possession of a weapon, one count of theft of property valued at over
$10,000, one count of theft of property valued at over $1,000, and one count of
aggravated assault.” Timothy Damon Carter, slip op. at 21. Thus, the petitioner was
properly sentenced as a career offender.
3. Appeal
The petitioner claims that Mr. Russ performed deficiently by failing to
challenge the subject matter jurisdiction of the Davidson County Criminal Court on
appeal. As discussed above, there is no merit to the petitioner’s claim of lack of
jurisdiction.
The petitioner also claims that Mr. Russ performed deficiently by failing to
challenge on appeal the trial court’s failure to issue a ruling on the petitioner’s pro se
pretrial motions and the sufficiency of the convicting evidence for his conviction of being
a felon in possession of a firearm.
-15-
Mr. Russ testified that he reviewed the record in this case and raised only
those issues he believed to be meritorious on appeal. Specifically, Mr. Russ testified that
he did not challenge the sufficiency of the evidence for the weapons conviction because it
was his opinion that the evidence was sufficient to support the petitioner’s conviction for
that offense. As to the petitioner’s pro se pretrial motions, Mr. Russ said that he did not
include that as an issue because the filings at issue were simply a rehashing of “what [the
petitioner’s previous counsel] had done regarding the suppression issues and had already
had two hearings in front of the Court about it” and that he had adequately addressed
those issues in his appellate brief.
“Counsel is not constitutionally required to argue every issue on appeal,”
State v. Matson, 729 S.W.2d 281, 282 (Tenn. Crim. App. 1986) (quoting State v.
Swanson, 680 S.W.2d 487, 491 (Tenn. Crim. App. 1984)), and, “[e]xperienced advocates
since time beyond memory have emphasized the importance of winnowing out weaker
arguments on appeal and focusing on one central issue if possible, or at most on a few
key issues,” Jones v. Barnes, 463 U.S. 745, 751-52 (1983). The determination to raise or
forego an issue on appeal is a matter “generally within appellate counsel’s sound
discretion,” Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004) (citing Jones, 463
U.S. at 751; King v. State, 989 S.W.2d 319, 334 (Tenn. 1999); Cooper v. State, 849
S.W.2d 744, 747 (Tenn. 1993)), and, as a result, counsel’s decision in this regard “should
be given considerable deference” on appeal, Carpenter, 126 S.W.3d at 887 (citing
Campbell v. State, 904 S.W.2d 594, 597 (Tenn. 1995); Strickland, 466 U.S. at 689).
Typically, to determine whether the petitioner is entitled to relief based
upon counsel’s failure to raise an issue on appeal, this court must examine the merit of
the omitted issue. As to the petitioner’s claim that Mr. Russ should have challenged the
sufficiency of the evidence supporting his weapons possession conviction, we observe
that the evidence was more than sufficient to support that conviction. During the search
of the vehicle registered in the petitioner’s name, authorities discovered the victim’s
stolen comic books, “a vehicle registration and cell phone bill, both listing the
[petitioner’s] name,” and “a gun in the engine compartment of the vehicle,” which “gun
was shown to the jury and entered into the record as evidence.” Timothy Damon Carter,
slip op. at 20. Elaine Ragan, an employee of the criminal court clerk’s office “identified
a certified copy of the [petitioner’s] prior conviction for a felony in case number 2004-B-
1762, Theft of Property, a Class C Felony.” Id., slip op. at 21. Under these
circumstances, Mr. Russ did not perform deficiently.
As to the petitioner’s claim that counsel should have challenged the trial
court’s failure to rule on his pro se pretrial motions, we observe, as we did above, it is
unclear from the record exactly to which motions the petitioner, a prolific filer of a
variety of pleadings, refers. Moreover, the petitioner’s questioning of Mr. Russ
-16-
established that Mr. Russ did not believe that the court’s failure to rule on any of the pro
se motions presented a viable issue on appeal, and the petitioner presented no evidence to
suggest otherwise. Under these circumstances, the petitioner cannot establish that Mr.
Russ performed deficiently.
Finally, the petitioner contends that Mr. Russ performed deficiently by
failing to challenge the admission of an affidavit from Tamara Cain, an accountant at one
of the businesses to which the petitioner sold the victim’s comic books and from which
the victim was able to repurchase some of his stolen comic books, on grounds that
admission of the affidavit violated the Confrontation Clause. At trial, the State presented
a receipt for the sale of the comic books to a business called Metropolis that bore the
petitioner’s name along with an affidavit by Ms. Cain establishing that the receipt was a
business record from Metropolis. The petitioner did not object to the admission of the
affidavit or receipt at trial. On appeal, the petitioner challenged the admission of the
affidavit and accompanying receipt on hearsay grounds but did not challenge them on
Confrontation Clause grounds. Such a challenge would not have availed the petitioner of
relief. The receipt, once properly qualified as a business record, was not testimonial and,
as such, the Confrontation Clause had no application to its admission into evidence. See
State v. Cannon, 254 S.W.3d 287, 303 (Tenn. 2008).
Conclusion
Based upon the foregoing analysis, we affirm the judgment of the post-
conviction court.
_________________________________
JAMES CURWOOD WITT, JR., JUDGE
-17-