Antonio Howard v. State of Tennessee

07/16/2020

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

Assigned on Briefs April 1, 2020

ANTONIO HOWARD v. STATE OF TENNESSEE

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Shelby County

No. 12-02872 James M. Lammey, Jr., Judge

___________________________________

No. W2018-00786-SC-R11-PC

__________________________________

In this post-conviction appeal, we clarify the appropriate standard to be applied when a

criminal defendant claims ineffective assistance of counsel based on trial counsel’s failure

to file a timely motion for new trial. The petitioner, Antonio Howard, was convicted of

several offenses, including aggravated rape, especially aggravated robbery, aggravated

robbery, and aggravated assault. Following the conviction and sentencing, the petitioner’s

trial counsel admittedly failed to file a timely motion for new trial. Consequently, the

petitioner was found to have waived several issues on direct appeal. The petitioner filed a

petition seeking post-conviction relief claiming, among other things, that counsel was

ineffective for failing to file a timely motion for new trial. However, the post-conviction

court denied his request, concluding that trial counsel was deficient but that the petitioner

was not prejudiced by trial counsel’s deficiency. The Court of Criminal Appeals agreed

with the post-conviction court that counsel was deficient for failing to file a timely motion

for new trial but, relying on Wallace v. State, 121 S.W.3d 652, 658 (Tenn. 2003), held that

the petitioner was presumptively prejudiced by the deficiency. The intermediate appellate

court, therefore, concluded that the petitioner was entitled to post-conviction relief in the

form of a delayed appeal. We granted the State’s application for permission to appeal to

address whether the Court of Criminal Appeals correctly determined that the petitioner was

presumptively prejudiced under these circumstances. We conclude that trial counsel’s

failure to file a timely motion for new trial does not require a presumption of prejudice,

overruling this Court’s previous decision in Wallace. We have determined, therefore, that

the post-conviction court properly considered whether the petitioner was prejudiced by his

trial counsel’s deficiency, and we find no error in the post-conviction court’s conclusion

that he was not. Accordingly, we reverse the judgment of the Court of Criminal Appeals

and reinstate the judgment of the post-conviction court denying post-conviction relief.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Court of

Criminal Appeals Reversed; Judgment of the Trial Court Affirmed

ROGER A. PAGE, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J.,

and CORNELIA A. CLARK, SHARON G. LEE, and HOLLY KIRBY, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein, Solicitor

General; Caitlin Smith, Senior Assistant Attorney General; Amy P. Weirich, District

Attorney General; and Leslie Byrd and Jamie Kidd, Assistant District Attorneys General,

for the appellant, State of Tennessee.

Patrick E. Stegall, Memphis, Tennessee (at post-conviction hearing); and William D.

Massey, Memphis, Tennessee (on appeal), for the appellee, Antonio Howard.

OPINION

I. BACKGROUND

In 2014, a jury convicted the petitioner of six counts of aggravated rape, one count

of especially aggravated robbery, two counts of aggravated robbery, and three counts of

aggravated assault, for which the Criminal Court for Shelby County imposed an effective

124-year sentence. State v. Antonio Howard, No. W2014-02488-CCA-R3-CD, 2016 WL

3131515, at *1 (Tenn. Crim. App. May 26, 2016).1 Following the jury trial, trial counsel

for the petitioner failed to file a timely motion for new trial. See Tenn. R. Crim. P. 33(b)

(“A motion for a new trial shall be in writing . . . within thirty days of the date the order of

sentence is entered.”).

Nonetheless, the petitioner appealed, arguing that the evidence was insufficient to

support his convictions and challenging the sentence imposed. See State v. Jones, No.

M2017-01666-CCA-R3-CD, 2020 WL 2079270, at *3 (Tenn. Crim. App. Apr. 30, 2020)

(“Generally, failure to raise an issue, other than sufficiency of the evidence or sentencing,

in a motion for a new trial constitutes waiver of that issue for purposes of appellate

review.”). In his direct appeal, the petitioner also raised the following issues concerning

the admission of witness testimony: (1) whether the trial court erred in allowing a co-

1

For a full recitation of the facts supporting the defendant’s convictions, see the above-cited Court

of Criminal Appeals’ opinion on direct appeal.

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defendant to testify in street clothing; (2) whether the trial court improperly allowed a

victim to testify to “prejudicial” and “grossly irrelevant information”; and (3) whether the

trial court erred in not allowing the petitioner to cross-examine a State’s witness, an

investigator, concerning the substance of her report. In its opinion on direct appeal, the

Court of Criminal Appeals addressed only the sufficiency of the evidence and the

sentencing issues and determined that plenary review of the remaining alleged errors was

waived due to the untimely motion for new trial. Howard, 2016 WL 3131515, at *12; see

Tenn. R. App. P. 3(e) (“[I]n all cases tried by a jury, no issue presented for review shall be

predicated upon error in the admission or exclusion of evidence . . . unless the same was

specifically stated in a motion for a new trial; otherwise such issues will be treated as

waived.”).

The petitioner filed a petition for post-conviction relief claiming, inter alia, that trial

counsel was ineffective for failing to timely file a motion for new trial within the required

30 days. The motion claimed that trial counsel’s failure prevented the petitioner “from

pursuing meritorious issues on appeal, thereby failing to subject the states [sic] case to

adversarial scrutiny on appeal.”2

Indeed, at the hearing on the post-conviction petition, trial counsel testified that he

failed to timely file the motion for new trial in the petitioner’s case due to a mistake in

keeping his own calendar. Counsel explained that, on the day he marked in his calendar to

file the motion, “I showed up that day with my motion for a new trial in hand.” He learned,

however, that the deadline had passed and admitted that his failure resulted in the waiver

of several issues on direct appeal. Those additional issues, he acknowledged, were

therefore only subject to review for plain error by the appellate court. Even so, on cross-

examination, trial counsel testified that, in his opinion, “at the end of the day – the proof in

the matter was so overwhelming that [review under the lower standard] wouldn’t have

made a difference.” The petitioner’s post-conviction counsel argued that the petitioner

“was denied three possible grounds” out of the five issues he raised on appeal and that the

petitioner was therefore prejudiced by trial counsel’s deficiency. The State, however,

posited that the additional issues concerning the admission of witness testimony would not

have entitled the petitioner to relief even if they had been properly raised in a motion for

new trial.

2

The record indicates that petitioner filed his initial petition pro se. Therein, he raised several

additional issues that are not relevant to this appeal, and he requested relief in the form of a new trial.

Although he was later appointed counsel, petitioner opted to file a pro se amended petition, which again

raised additional issues that are not relevant to our discussion here.

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The post-conviction court denied relief. It concluded that trial counsel was deficient

for failing to file a timely motion for new trial; however, it also concluded that the petitioner

was not prejudiced by the deficiency. Specifically, the trial court noted the weight of the

proof against the petitioner at trial, explaining that trial counsel “was placed in a position

where he had no defense. I mean, [the lack of] DNA [evidence] was the only thing he had.

. . . [T]hree female[] [victims] pointed the finger at [the petitioner] and the traumatic

experience they were put through. And then he had codefendants testifying against him.

The chances of being acquitted here were slim and nil.” The post-conviction court also

relied on the fact that the petitioner received a direct appeal of his conviction despite the

waiver of certain issues.

The Court of Criminal Appeals agreed with the post-conviction court’s assessment

that the petitioner’s trial counsel was deficient for failing to timely file a motion for new

trial. Howard v. State, No. W2018-00786-CCA-R3-PC, 2019 WL 328419, at *3 (Tenn.

Crim. App. Jan. 24, 2019), perm. app. granted (Tenn. June 24, 2019). However, the

intermediate appellate court disagreed with the conclusion that the petitioner was not

prejudiced by the deficiency. Id. Citing this Court’s opinion in Wallace v. State, 121

S.W.3d 652, 656-58 (Tenn. 2003), the Court of Criminal Appeals determined that, because

it was apparent from the record that the petitioner intended to file a motion for new trial,

the petitioner was presumptively prejudiced by trial counsel’s deficient performance.

Howard, 2019 WL 328419, at *3-4. Accordingly, the intermediate court reversed the post-

conviction court’s judgment denying relief and remanded for the entry of an order granting

the petitioner a delayed appeal and allowing him to file a new motion for new trial. Id. at

*4.

We granted the State’s ensuing application for permission to appeal to address

whether the Court of Criminal Appeals correctly determined that the petitioner was

presumptively prejudiced under these circumstances.

II. ANALYSIS

Tennessee’s Post-Conviction Procedure Act is codified at Tennessee Code

Annotated sections 40-30-101 to -122 and notably provides as follows: “Relief under this

part shall be granted 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.” Tenn. Code Ann. § 40-30-103 (2018). “The deprivation of effective

assistance of counsel is a constitutional claim cognizable under the Post-Conviction

Procedure Act.” Moore v. State, 485 S.W.3d 411, 418 (Tenn. 2016) (citing Mobley v. State,

397 S.W.3d 70, 79-80 (Tenn. 2013)). Pursuant to the Act, a defendant seeking post-

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conviction relief “shall have the burden of proving the allegations of fact by clear and

convincing evidence.” Tenn. Code Ann. § 40-30-110(f).

“Claims for post-conviction relief based on alleged ineffective assistance of counsel

present mixed questions of law and fact.” Mobley, 397 S.W.3d at 80 (citing Calvert v. State,

342 S.W.3d 477, 485 (Tenn. 2011)). The post-conviction court’s factual findings are

conclusive on appeal unless evidence in the record preponderates against them. Tenn. R.

App. P. 13(d); Calvert, 342 S.W.3d at 485 (citing Grindstaff v. State, 297 S.W.3d 208, 216

(Tenn. 2009); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). However, “[w]hen

reviewing the application of law to the post-conviction court’s factual findings, our review

is de novo, and the post-conviction court’s conclusions of law are given no presumption of

correctness.” Grindstaff, 297 S.W.3d at 216 (citing Dellinger v. State, 279 S.W.3d 282,

293 (Tenn. 2009); Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001)).

Concerning the standard employed in considering claims of ineffective assistance

of counsel, this Court has previously explained:

Both the United States and Tennessee Constitutions provide for the

assistance of counsel to criminal defendants. U.S. Const. amend. VI; Tenn.

Const. art. I, § 9. These constitutional provisions guarantee not only the

assistance of counsel, but also the reasonably effective assistance of

counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); see also Baxter v. Rose, 523 S.W.2d 930, 934-36

(Tenn.1975). Counsel’s representation is constitutionally ineffective when it

“so undermine[s] the proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result.” Strickland, 466

U.S. at 686, 104 S.Ct. 2052.

To prevail on a claim of ineffective assistance of counsel, a defendant

must establish that 1) counsel’s performance was deficient; and 2) the

deficient performance prejudiced the defense. Id. at 687, 104 S.Ct.

2052; Goad v. State, 938 S.W.2d 363, 370 (Tenn.1996). A court need not

address both requirements if the defendant’s proof fails to support either

prong. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Goad, 938 S.W.2d at

370.

Bryant v. State, 460 S.W.3d 513, 521-22 (Tenn. 2015), overruled on other grounds

by Moore, 485 S.W.3d at 421.

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This two-prong test, which we refer to as the “Strickland analysis,” was established

by the United States Supreme Court in Strickland v. Washington, 466 U.S. at 687. In the

case before us, the question of whether trial counsel’s performance was deficient is not at

issue. Rather, at issue here is the second prong—whether the petitioner was prejudiced by

the deficiency. The prejudice prong requires the petitioner to “establish a reasonable

probability that but for counsel’s errors the result of the proceeding would have been

different.” Vaughn v. State, 202 S.W.3d 106, 116 (Tenn. 2006), abrogated on other

grounds by Brown v. Jordan, 563 S.W.3d 196 (Tenn. 2018) (citing Strickland, 466 U.S. at

694). Indeed, “[a]n error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” Strickland, 466 U.S. at 691. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id. at 694.

Though uncommon, in certain instances, a different standard is employed. In United

States v. Cronic, an opinion released on the same day as the Strickland opinion, the

Supreme Court described three situations in which prejudice should be presumed because

these circumstances “are so likely to prejudice the accused that the cost of litigating their

effect in a particular case is unjustified.” United States v. Cronic, 466 U.S. 648, 658 (1984).

Those circumstances include: (1) “the complete denial of counsel”; (2) when “counsel

entirely fails to subject the prosecution’s case to meaningful adversarial testing”; and (3)

when circumstances are such that “the likelihood that any lawyer, even a fully competent

one, could provide effective assistance is so small that a presumption of prejudice is

appropriate without inquiry into the actual conduct of the trial.” Id. at 659-60. In these

instances, the process is presumptively unreliable and proof of actual prejudice is not

required. Cronic, therefore, carved out a limited exception3 to the general test set forth in

its companion case of Strickland.

Several years later, in Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme

Court again revisited the question of when prejudice should be presumed in an ineffective

assistance of counsel case. The petitioner, after pleading guilty to second-degree murder,

3

In the Cronic case, the defendant faced mail fraud charges related to a “check kiting” scheme.

Cronic, 466 U.S. at 649-50. The defendant’s attorney withdrew shortly before trial, and a young lawyer

with only real estate experience was appointed. Id. at 649. The new attorney was given only 25 days to

prepare for the trial involving complex criminal charges that the government had spent over four years

investigating. Id. The defendant was convicted and received a 25-year sentence. Id. at 650. Given these

facts, the United States Court of Appeals for the Tenth Circuit reversed the defendant’s conviction without

inquiry into the actual performance of trial counsel or a showing of the effect counsel’s performance had

on the trial. Id. The Supreme Court, however, found that, even under these facts, the Tenth Circuit had

erred, and it remanded for consideration under the Strickland analysis. Id. at 666-67, and n.41.

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sought federal habeas corpus relief because his trial counsel had failed to file a notice of

appeal after she allegedly promised to do so. Id. at 473. The Court noted that “counsel’s

alleged deficient performance arguably led not to a judicial proceeding of disputed

reliability, but rather to the forfeiture of a proceeding itself. According to [the petitioner],

counsel’s deficient performance deprived him of a notice of appeal and, hence, an appeal

altogether.” Id. at 483. It held that “when counsel’s constitutionally deficient performance

deprives a defendant of an appeal that he otherwise would have taken, the defendant has

made out a successful ineffective assistance of counsel claim entitling him to an appeal.”

Id. at 484. As the Court explained, the loss of the “entire [appellate] proceeding itself,

which a defendant wanted at the time and to which he had a right, . . . demands a

presumption of prejudice. Put simply, we cannot accord any ‘presumption of reliability’ to

judicial proceedings that never took place.”4 Id. at 483 (citation omitted) (citing Smith v.

Robbins, 528 U.S. 259, 286 (2000)); see also Garza v. Idaho, 139 S.Ct. 738, 744-46, 203

L.Ed.2d 77 (2019) (extending Flores-Ortega’s presumption of prejudice to apply

regardless of whether the defendant signed an appeal wavier); Penson v. Ohio, 488 U.S.

75, 88 (1988) (distinguishing between the complete denial of counsel on appeal, when

prejudice should be presumed, from the ineffective assistance of counsel on appeal, when

prejudice should not be presumed). The Court further observed that Cronic’s presumption

of prejudice where there is a complete denial of counsel during a critical stage of judicial

proceedings supported its holding. Flores-Ortega, 528 U.S. at 483.

In another particularly relevant United States Supreme Court opinion, Bell v. Cone,

535 U.S. 685 (2002), the Court again discussed the Cronic standard and when it should

apply. In Cone, a capital case originating in Tennessee, the defendant was convicted of two

counts of first-degree murder, among other crimes. Id. at 690. On post-conviction review,

the defendant asserted that his counsel was constitutionally ineffective by failing to present

mitigating proof and by failing to give a closing argument during the sentencing phase of

trial. Id. at 692. Concerning the sentencing hearing, the proceeding at issue, the Supreme

Court described it as follows:

During its opening statement, the State said it would prove four

aggravating factors: that (1) respondent had previously been convicted of one

or more felonies involving the use or threat of violence to a person; (2) he

4

Notably, the Supreme Court rejected a per se rule that would presume prejudice anytime trial

counsel failed to file a notice of appeal. Flores-Ortega, 528 U.S. at 484. Rather, proof is required that the

defendant would have appealed. Id. (“[T]o show prejudice[,] . . . a defendant must demonstrate that there

is a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he

would have timely appealed.”).

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knowingly created a great risk of death to two or more persons other than the

victim during the act of murder; (3) the murder was especially heinous,

atrocious, or cruel; and (4) the murder was committed for the purpose of

avoiding lawful arrest. In his opening statement, defense counsel called the

jury’s attention to the mitigating evidence already before them. He suggested

that respondent was under the influence of extreme mental disturbance or

duress, that he was an addict whose drug and other problems stemmed from

the stress of his military service, and that he felt remorse. Counsel urged the

jury that there was a good reason for preserving his client’s life if one looked

at “the whole man.” He asked for mercy, calling it a blessing that would raise

them above the State to the level of God.

The prosecution then called a records custodian and fingerprint

examiner to establish that respondent had three armed robbery convictions

and two officers who said they tried unsuccessfully to arrest respondent for

armed robbery after the jewelry store heist. Through cross-examination of

the records custodian, respondent’s attorney brought out that his client had

been awarded the Bronze Star in Vietnam. . . . The junior prosecuting

attorney on the case gave what the state courts described as a “low-key”

closing. Defense counsel waived final argument, preventing the lead

prosecutor, who by all accounts was an extremely effective advocate, from

arguing in rebuttal. The jury found in both murder cases four aggravating

factors and no mitigating circumstances substantial enough to outweigh

them.

Id. at 691-92 (citations and footnote omitted).

Our Court of Criminal Appeals denied post-conviction relief, applying the

conventional Strickland analysis and requiring proof of actual prejudice. Id. at 692. Later,

the defendant sought a federal writ of habeas corpus, again asserting ineffective assistance

of counsel. Id. at 692-93. The United States District Court for the Western District of

Tennessee denied the petition; however, the Sixth Circuit issued a writ as to the defendant’s

sentence. Id. at 693. The Sixth Circuit concluded that prejudice should have been presumed

under Cronic. Id. The Supreme Court reversed the Sixth Circuit and held that the state court

properly applied the Strickland analysis, explaining as follows:

Respondent argues that his claim fits within the second exception

identified in Cronic because his counsel failed to “mount some case for life”

after the prosecution introduced evidence in the sentencing hearing and gave

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a closing statement. We disagree. When we spoke in Cronic of the possibility

of presuming prejudice based on an attorney’s failure to test the prosecutor’s

case, we indicated that the attorney’s failure must be complete. We said “if

counsel entirely fails to subject the prosecution’s case to meaningful

adversarial testing.” Cronic, supra, at 659, 104 S.Ct. 2039 (emphasis added).

Here, respondent’s argument is not that his counsel failed to oppose the

prosecution throughout the sentencing proceeding as a whole, but that his

counsel failed to do so at specific points. For purposes of distinguishing

between the rule of Strickland and that of Cronic, this difference is not of

degree but of kind.

The aspects of counsel’s performance challenged by respondent—the

failure to adduce mitigating evidence and the waiver of closing argument—

are plainly of the same ilk as other specific attorney errors we have held

subject to Strickland’s performance and prejudice components.

Id. at 696-98.

Against that backdrop, this Court considered, in Wallace v. State, 121 S.W.3d 652

(Tenn. 2003), whether the Strickland analysis was appropriate where trial counsel failed to

file a timely motion for new trial—the precise question at issue in the case before us. In

Wallace, the defendant was convicted of first-degree murder. Id. at 654. The agreement

with retained counsel provided only for representation at trial but nothing beyond. Id. After

conviction, trial counsel sent a letter to the defendant instructing him on how to prepare a

motion for new trial, but counsel did not seek to withdraw as counsel of record. Id. at 654-

55. The defendant filed a timely pro se motion for new trial, but because his attorney had

not withdrawn, the trial court refused to consider the motion. Id. at 655. Trial counsel then

filed an untimely motion for new trial. Id. The defendant claimed on post-conviction review

that his counsel was constitutionally ineffective by failing to file a timely motion for new

trial, which resulted in all issues being waived on appeal except for sufficiency of the

evidence. Id. The post-conviction court granted the defendant relief in the form of a delayed

appeal; however, the Court of Criminal Appeals reversed, concluding that relief was not

appropriate because the defendant did receive a direct appeal, albeit only on the one issue.5

Id.

5

It does not appear that the defendant in Wallace challenged his sentence on his first direct appeal,

though he did later challenge his sentence after his case was remanded for re-sentencing for second degree

murder. Wallace, 121 S.W.3d at 655.

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Nevertheless, this Court reversed, concluding that trial counsel’s failure to file a

timely motion for new trial was presumptively prejudicial. Id. at 658. The Wallace Court

explained that “[c]ounsel’s abandonment of his client at such a critical stage of the

proceedings resulted in the failure to preserve and pursue the available post-trial remedies

and the complete failure to subject the State to the adversarial appellate process.” Id. (citing

Cronic, 466 U.S. at 659). It further described counsel’s failure as “a complete failure to

subject the State’s case to appellate scrutiny.” Id. at 660. While the Wallace Court

“decline[d] to adopt a per se rule regarding a trial counsel’s failure to file a motion for new

trial,” it instead held that “a petitioner in a post-conviction proceeding must establish that

he or she intended to file a motion for new trial and that but for the deficient representation

of counsel, a motion for new trial would have been filed raising issues in addition to

sufficiency of the evidence.” Id. at 659.

The central issue raised in the State’s application for permission to appeal in this

case is whether this Court’s decision in Wallace provides the correct framework for

assessing prejudice on post-conviction review when trial counsel failed to file a timely

motion for new trial.6 Certainly, the Court of Criminal Appeals correctly applied Wallace,

controlling precedent in this state, when it reversed the post-conviction court’s decision to

deny post-conviction relief. The intermediate court concluded, and we do not disagree, that

[b]ecause an appeal was in fact filed raising additional issues on behalf of the

Petitioner, and because trial counsel testified that he arrived in court with a

motion for new trial in hand, it is apparent from the record that the Petitioner

“intended to file a motion for new trial, and that but for the deficient

representation of counsel, a motion for new trial would have been filed

raising issues in addition to sufficiency of the evidence.”

Howard, 2019 WL 328419, at *4 (quoting Wallace, 121 S.W.3d at 659). The State,

however, urges this Court to reconsider Wallace. It contends that in cases where there was

a complete denial of an appeal, prejudice should be presumed, but where, as here, a

petitioner received meaningful review from a circumscribed direct appeal, the petitioner

should be required to demonstrate prejudice under the Strickland analysis. Our review leads

us to agree with the State’s position.

6

The State also argues, citing Tennessee Code Annotated section 40-30-113(a)(3), that a delayed

appeal was not appropriate in this case because the petitioner was not unconstitutionally denied an appeal.

However, because we agree with the State that the post-conviction court was correct in denying the petition

for relief, we need not consider this additional argument.

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We must admit our own consternation towards the approach adopted in Wallace.

The facts presented in Wallace, which are very similar to the pertinent facts in the case

before us, do not compare to the facts of, for example, Flores-Ortega. Trial counsel in

Flores-Ortega failed to file a notice of appeal resulting in the complete forfeiture of a direct

appeal. Flores-Ortega, 528 U.S. at 474. There, the United States Supreme Court found a

presumption of prejudice to be appropriate. Id. at 483. Here, however, as in Wallace, the

petitioner complains of waiver of certain issues on direct appeal, not the denial of an appeal

altogether as in Flores-Ortega. We recognize that the Wallace Court used Flores-Ortega

to justify its decision, notably stating that “the key issue is the failure of trial counsel to file

the specified pleading resulting in the defendant being deprived of complete appellate

review on direct appeal.” Wallace, 121 S.W.3d at 659. The Wallace Court’s focus was on

the defendant receiving something less than full appellate review of the issues the

defendant wished to raise. In our view, however, a less-than-full review of the issues

attempted to raise on appeal is not equivalent to the “forfeiture of a proceeding itself”

discussed in Flores-Ortega. Flores-Ortega, 528 U.S. at 483. Neither the defendant in

Wallace, nor the petitioner in the case before us, was denied a direct appeal.

Nor can we fit this situation—the failure to file a timely motion for new trial—

neatly into one of the exceptions outlined in Cronic. Particularly, we cannot say that trial

counsel’s failure equals “the complete denial of counsel,” Cronic, 466 U.S. at 659

(emphasis added), nor that his deficiency “entirely fail[ed] to subject the prosecution’s case

to meaningful adversarial testing.” Id. (emphasis added). Rather, we are persuaded by the

analysis employed by the United States Supreme Court in Bell v. Cone concerning the

application of a presumption of prejudice. Here, the attorney’s failure was far from

complete. See Cone, 535 U.S. at 696-97 (“When we spoke in Cronic of the possibility of

presuming prejudice based on an attorney’s failure to test the prosecutor’s case, we

indicated that the attorney’s failure must be complete.”). The failure to file a timely motion

for new trial limited the scope of the petitioner’s direct appeal, but again, it did not deprive

him of his right to a direct appeal.

We also find it persuasive that appellate counsel is not required to raise all issues

that a defendant desires to raise on appeal. See Carpenter v. State, 126 S.W.3d 879, 887

(Tenn. 2004). It follows that the failure to have plenary review of certain issues does not

result in a complete failure to subject the State’s case to adversarial testing as the defendant

is still permitted to seek plain error review on additional issues not properly raised in a

motion for new trial.7 Moreover, we note that, at least in the case before us, the post-

7

On direct appeal, the Court of Criminal Appeals failed to apply the plain error doctrine to the

waived issues. We have explained that if an issue is waived, an appellate court on direct appeal may consider

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conviction court was perfectly equipped to apply the Strickland analysis because the

precise claims the petitioner wanted to raise are known. As the intermediate court noted,

trial counsel testified that he arrived in court with a motion for new trial in hand and an

appeal was indeed filed on the petitioner’s behalf raising additional issues. It would not be

overly burdensome for the post-conviction court to review those additional claims and to

determine whether the petitioner was prejudiced by counsel’s failure.

For these reasons, we expressly overrule our holding in Wallace that trial counsel’s

failure to file a timely motion for new trial is presumptively prejudicial so long as the

petitioner indicates a desire to appeal. See Frazier v. State, 495 S.W.3d 246 (Tenn. 2016)

(noting that stare decisis “is not an inexorable command” and “does not compel this Court

to maintain erroneous, ‘unworkable,’ or ‘badly reasoned’ precedent” (quoting Payne v.

Tennessee, 501 U.S. 808, 827-28 (1991)). Returning to the language of Cronic, such a

deficiency is not a situation “so likely to prejudice the accused that the cost of litigating

their effect in a particular case is unjustified.” Cronic, 466 U.S. at 658. Where a failure by

trial counsel of this type occurs, a subsequent claim of ineffective assistance of counsel

should be analyzed under the Strickland analysis. See e.g., Butcher v. United States, 368

F.3d 1290, 1294 (11th Cir. 2004) (analyzing the failure to file a timely motion for new trial

under the Strickland standard); United States v. Hilliard, 392 F.3d 981, 986 (8th Cir. 2004)

(same); United States v. Young, No. 09-CR-152-01, 2013 WL 2392902, at *9 (E.D. Pa.

May 31, 2013) (same); Dorsey v. State, 156 S.W.3d 825, 830-33 (Mo. Ct. App. 2005)

(same); Ken v. State, 267 P.3d 567, 574-75 (Wyo. 2011) (same); see also Commonwealth

v. Grosella, 902 A.2d 1290, 1293-94 (Pa. Super. Ct. 2006) (“Where a petitioner was not

entirely denied his right to a direct appeal and only some of the issues the petitioner wished

to pursue were waived, the reinstatement of the petitioner’s direct appeal rights is not a

proper remedy. In such circumstances, the appellant must proceed under the auspices of

the [Post-Conviction Relief Act], and the [Post-Conviction Relief Act] court should apply

the traditional . . . test for determining whether appellate counsel was ineffective.”)

(internal citations omitted).

Given our holding, we conclude that the post-conviction court properly considered

both prongs of the Strickland analysis, rather than analyzing the petitioner’s claim of

ineffective assistance of counsel under the Cronic standard. The court first determined—

and the parties have conceded—that trial counsel’s performance was deficient. Next, the

application of the plain error doctrine and determine whether a defendant is entitled to relief. State v. Minor,

546 S.W.3d 59, 70 (Tenn. 2018). Plain error review is a path defendants are permitted to pursue on appeal,

and the failure to properly raise an issue in a motion for new trial does not entirely close the door on a

defendant’s ability to obtain relief on direct appeal.

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post-conviction court appropriately considered whether the petitioner was actually

prejudiced by trial counsel’s failure to timely file a motion for new trial, and we find no

error in the court’s conclusion that the petitioner was not prejudiced. We agree with the

post-conviction court that the evidence against the petitioner at trial was overwhelming.

All three victims and two of his co-defendants testified against the petitioner at trial with

remarkable consistency concerning his heinous crimes. On direct appeal, the petitioner

attempted to raise additional issues related to witness testimony, including a co-defendant

testifying in street clothing rather than jail attire, a victim testifying that she led the other

victims in a prayer during the commission of the crime, and the limitation of the petitioner’s

cross-examination of a detective concerning the substance of her report. A review of the

record on direct appeal8 reveals that these claims did not directly impact the fairness of the

trial, and we agree with the post-conviction court that it is clear that full consideration of

these issues on direct appeal would not have changed the outcome given the weight of the

evidence against the petitioner.

We, therefore, reverse the Court of Criminal Appeals’ decision that the petitioner

was presumptively prejudiced under these circumstances and its order granting the

petitioner a delayed appeal. Accordingly, the judgment of the trial court is reinstated.

III. CONCLUSION

For the foregoing reasons, we expressly overrule our holding in Wallace v. State,

121 S.W.3d 652 (Tenn. 2003), that trial counsel’s failure to file a timely motion for new

trial is presumptively prejudicial when the petitioner indicates a desire to appeal.

Accordingly, we conclude that the post-conviction court properly denied the petitioner’s

request for post-conviction relief. The judgment of the Court of Criminal Appeals is

reversed and the judgment of the post-conviction court is affirmed. It appearing that the

petitioner Antonio Howard is indigent, the costs of this appeal are taxed to the State of

Tennessee.

_________________________________

ROGER A. PAGE, JUSTICE

8

Like the Court of Criminal Appeals, we take judicial notice of the appellate record from

petitioner’s direct appeal. See Tenn. R. App. P. 13(c).

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