Opinion

William Coley v. State of Tennessee

Court: Court of Criminal Appeals of Tennessee
Filed: Nov 29, 2022
Status: Published
On the bench: Judge Camille R. McMullen
Cited by: 0 cases
Authority: More cited than 21.3%

concluding there was no Bruton violation because co-defendant’s jailhouse statement asserting that he told his brother to destroy the murder weapon did not inculpate defendant

How later courts described this case

concluding there was no Bruton violation because co-defendant’s jailhouse statement asserting that he told his brother to destroy the murder weapon did not inculpate defendant
“To warrant assessment under the cumulative error doctrine, there must have been more than one actual error committed in the trial proceedings.”

Written by the judges who cited it.

The opinion

11/29/2022

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs October 27, 2022

WILLIAM COLEY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2009-D-3254 Mark J. Fishburn, Judge

___________________________________

No. M2021-01243-CCA-R3-PC

___________________________________

The Petitioner, William Coley, appeals the denial of his petition seeking post-conviction

relief from his convictions of first-degree felony murder, second degree murder, and

especially aggravated robbery, for which he received an effective sentence of life

imprisonment. The Petitioner argues for the first time on appeal that the post-conviction

court violated his due process rights by conducting his post-conviction hearing jointly with

the post-conviction hearing of his then co-defendant, now Petitioner Markreo Quintez

Springer. He additionally claims ineffective assistance of counsel based on trial counsel’s

failure to file a pretrial severance motion based on Bruton v. United States, 391 U.S. 123,

136-137 (1968), and trial counsel’s failure to challenge the chain of custody regarding the

State’s DNA evidence.1 Upon our review, we affirm.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR., P.J., and ROBERT W. WEDEMEYER, J., joined.

Ana Escobar (at trial) and Kevin McLean Kelly (on appeal), Nashville, Tennessee, for the

Petitioner, William Coley.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant

Attorney General; Glenn R. Funk, District Attorney General; and Sarah Davis and Rob

McGuire, Assistant District Attorneys General, for the Appellee, State of Tennessee.

The Petitioner raised additional issues in his petition for post-conviction relief and before the post-

conviction court. We deem those issues not raised in this appeal to be waived. For clarity, we take these

issues from the argument section of the Petitioner’s brief. The issue presented section has the issue for

review as follows:

Whether the evidence presented in the defendant’s petition for relief from

conviction on grounds that it violates his state and federal constitutional rights

preponderates in favor of the defendant and against the ruling of the trial judge

OPINION

The Petitioner and his then co-defendant, Markreo Quintez Springer, were

implicated in the shooting death of the victim, Sadagh Maleki, in his place of business,

Lucky’s Auto Imports, in Nashville, on July 27, 2009. See State v. Markreo Quintez

Springer and William Mozell Coley, No. M2012-02046-CCA-R3-CD, 2014 WL 2828932,

at *1 (Tenn. Crim. App. June 20, 2014), perm. app. denied (Tenn. Nov. 20, 2014). The

following proof, as relevant to the issues raised in this appeal, was adduced at their joint

trial.

At trial, the victim’s son, Ramin Maleki, testified that his sixty-nine-

year-old father had owned Lucky’s Auto Imports for twenty-three years and

that he habitually closed the business at around 5:00 or 6:00 p.m. during the

summertime. On the day of the victim’s death, the victim had been driving a

Chevy truck; after the homicide, the victim’s pipe and the lunch the victim’s

wife had packed were recovered from the truck. The victim’s son testified

that the victim had a .25 caliber gun which “carried, like, two shots,” and

which the victim routinely took to work. The weapon was never recovered

after the homicide.

State v. Springer, No. M2012-02046-CCA-R3-CD, 2014 WL 2828932, at *1 (Tenn. Crim.

App. June 20, 2014).

Three witnesses who were acquainted with both Petitioners testified regarding

events before and after the crimes which implicated the Petitioners in the robbery and

homicide. Id. Tabitha Reese and Maurice Smith lived in the same boarding house as the

Petitioners. Reese and Smith testified that the Petitioners were in need of money prior to

the day of the homicide.

Ms. Reese testified that prior to the shooting, the property manager had put

a note on the [Petitioners’] door informing them that they were behind in

their rent. On the afternoon of July 27, 2009, Ms. Reese had just returned

from an out-of-town trip. She saw the [Petitioners] return to the boarding

house between 4:00 and 5:00 p.m. They came to her room and spoke with

Mr. Smith. While they were there, [Petitioner] Springer said to her, “If I don’t

see you again, then it was nice to know you.” He did not respond when she

asked what he meant. Ms. Reese testified that the [Petitioners] left with their

friend Ifeanyi “Iffy” Nwaigwe.

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Mr. Smith confirmed that the [Petitioners] were in need of money. According

to Mr. Smith, he saw the [Petitioners] in the early afternoon, and they said

they were broke and needed money for rent. He heard them talking about

committing a robbery. [Petitioner] Springer mentioned that he had talked to

a man about buying a car, and the [Petitioners] later made a plan to rob the

man. Mr. Smith overheard [Petitioner] Springer call Mr. Nwaigwe to bring

him a gun, and Mr. Nwaigwe came to the house and gave [Petitioner]

Springer a black rag with a pistol inside it. Mr. Smith acknowledged having

previously said the [Petitioners] went to Mr. Nwaigwe’s car when retrieving

the gun.

....

According to Ms. Reese, when the [Petitioners] returned to the boarding

house after an absence of twenty to twenty-five minutes, [Petitioner]

Springer was sweating and distraught. [Petitioner] Coley had blood on his

shirt and what appeared to be a bullet wound on his forearm. Ms. Reese

overheard [Petitioner] Springer say, “I don’t know if I killed him or not.” Mr.

Smith accompanied the [Petitioner] to their room, and Ms. Reese later gave

[Petitioner] Coley some band-aids. She and Mr. Smith left the house, and the

[Petitioners] were gone when they returned.

Mr. Smith also testified that the [Petitioners] were gone from the boarding

house about twenty to twenty-five minutes. When they returned, [Petitioner]

Coley had been shot in the arm and was bleeding on his shirt; Mr. Smith

advised him to run cold water on the wound. [Petitioner] Springer was

hysterical and told Mr. Smith that after [Petitioner] Coley was shot,

[Petitioner] Springer shot the man and “watched him take his last breath.”

Mr. Smith saw the [Petitioners] take off their clothes and put them into either

one or two bags. He acknowledged having told police that [Petitioner]

Springer had on a long-sleeved black shirt, black pants and purplish-white

shoes and that [Petitioner] Coley was wearing black shorts, a gray tank top,

a black shirt, and black shoes. On cross-examination, Mr. Smith testified that

the [Petitioners] came back with a .25 caliber chrome weapon which was not

a two-shot derringer. Mr. Smith also testified that [Petitioner] Springer told

him the circumstances under which [Petitioner] Coley had been wounded:

“Bud was supposed to jump him and the guy got the best of him and shot

Bud.” On redirect examination, Mr. Smith testified that he had not seen the

chrome gun prior to the [Petitioners’] return and that they still had the black

.22 revolver when they returned. He also stated that [Petitioner] Springer said

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the .25 caliber weapon belonged to the victim. He testified the [Petitioners]

then left with Mr. Nwaigwe.

***

Mr. Nwaigwe testified that he had played basketball with the [Petitioners]

for one to three hours on the day of the robbery; during which time, the

[Petitioners] discussed “making some money” and “hitting licks,” which he

interpreted as “probably getting the dope boy or something.” The

[Petitioners] also discussed going to Lucky’s to get tags, but Mr. Nwaigwe

did not think that the potential robbery was connected with the car lot. Mr.

Nwaigwe had recently begun his probation and could not legally possess a

weapon; accordingly, he asked if anyone wanted his .22 revolver. No one

said anything, but he gave it to one of the [Petitioners]. Mr. Nwaigwe testified

he did not remember which. He testified the [Petitioners] did not ask for his

gun. According to Mr. Nwaigwe, he went to his house after the game, got the

gun, and took it to the [Petitioners’] boarding house sometime after 4:00 p.m.

but before nightfall. An hour or two later, the [Petitioners] called him, told

him [Petitioner] Coley had been shot, and asked him to come get them.

[Petitioner] Coley’s arm was wrapped up, and [Petitioner] Springer was

“kind of freaking out.” Mr. Nwaigwe agreed [Petitioner] Springer said, “I

think I shot him.” However, he denied overhearing a conversation between

the [Petitioners].

***

The day after the shooting, Ms. Reese was helping the property manager’s

daughter clean the [Petitioners’] room after they had vacated it. She found a

bullet casing and put it in a jewelry case. Although Ms. Reese testified she

was with the manager’s daughter, Mr. Smith testified he helped her clean the

room and was there when she found the casing. On July 29, 2009, Ms. Reese

found a trash bag containing what she recognized as the [Petitioners’] bloody

clothing in the bushes next to a dumpster on the property. She tossed the bag

back into the bushes and told the property manager, who called the police.

She then directed police to the trash bag and gave them the casing. Detective

Brown and Detective Filter responded to the property manager’s call.

***

Detective Brown testified that he was present when an officer named Mace

collected the bag. Detective Filter examined the contents of the bag and

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identified photographs of the items recovered, including a bloody gray tank

top, bloody khakis, two pairs of black shorts, a bandana, a long-sleeved black

t-shirt, a baseball cap, a pair of black shoes, and a pair of mostly white shoes.

***

Agent Laura Staples testified regarding the DNA evidence. The defense

objected at the beginning of her testimony that the prosecution had not

established a proper chain of custody. The prosecution offered to bring in the

receiving clerk at the TBI and the officer who brought the evidence to the

TBI, but [Petitioner] Springer’s counsel objected to any surprise witnesses.

The trial court allowed Ms. Staples to testify. Ms. Staples testified that she

received DNA samples from the victim and [Petitioners]. She also received

various items including blood-stained clothing from the garbage bag, blood

recovered from a gold Blazer, and a stereo with blood evidence from the

crime scene. Ms. Staples testified that many of the items she received did not

contain blood evidence, but she was able to identify [Petitioner] Coley’s

blood DNA on the gray tank top, a black sneaker, the khaki pants, the gold

Blazer, and the stereo recovered near the victim’s body.

During trial, the prosecution sought to introduce testimony that [Petitioner]

Springer had threatened Ms. Reese while they were both incarcerated. The

trial court held a jury-out hearing during which Ms. Reese testified that,

while she was in the holding cell, an officer called out her name to come get

her lunch. She then heard [Petitioner] Springer calling her a “b-tch,” “wh-

re,” and “snitch.” Another inmate, Emily Posey, testified that she was in a

holding cell with Ms. Reese and that she heard [Petitioner] Springer’s

outburst when Ms. Reese’s name was called for a special lunch. She later

went to get a regular lunch and was first in line. She heard someone say “you

stupid, b-tch, I’m going to f-cking kill you.”3 She turned and saw [Petitioner]

Springer, who “was like, my bad, I thought that you was the girl that was

testifying in my case.” The trial court concluded that the testimony was

admissible, and both women testified at trial. [Petitioner] Coley made a

motion to sever, which was denied. [Petitioner] Springer then called Vincent

Feggins and Leonard Johnson, corrections officers who both testified that

they heard [Petitioner] Springer curse at Ms. Reese. However, neither heard

[Petitioner] Springer threaten Ms. Posey, and both testified that Ms. Posey

could not have seen him during the time they were receiving lunches. Both

acknowledged they had not written a report and that “it would be a problem”

if it were determined they hadn’t written up a death threat.

-5-

State v. Springer, 2014 WL 2828932, at *2-6 (Tenn. Crim. App. June 20, 2014).

The jury convicted both Petitioners of first-degree (felony) murder, second degree

murder, and especially aggravated robbery. The trial court merged the second degree

murder conviction into the first-degree murder conviction. The Petitioners received a life

sentence for the felony murder conviction and a concurrent sentence of fifteen years for

the especially aggravated robbery conviction. State v. Springer, No. M2012-02046-CCA-

R3-CD, 2014 WL 2828932, at *7 (Tenn. Crim. App. June 20, 2014) perm. to appeal denied

(for Coley) (Tenn. Nov. 20, 2014).

The Petitioner appealed to this court and argued, as relevant here, that the trial court

erred in refusing to grant severance after the testimony of Petitioner Springer’s threats

against another witness were admitted at trial and that DNA evidence which established

the Petitioner’s presence at the scene of the crime should not have been admitted into

evidence because the chain of custody for the DNA evidence had not been established. In

regard to the chain of custody issue, after a thorough review, this court determined that the

chain of custody was adequately established without the testimony of the receiving TBI

technician because there was no indication of tampering and the State established with

reasonable assurance the identity and integrity of the evidence challenged by the Petitioner.

Springer, 2014 WL 2828932, at *15. With regard to the severance issue, the Petitioner

argued that the introduction of the statements by Petitioner Springer threatening other

witnesses violated his right to confrontation of witnesses, that no limiting instructions were

given, and that the prosecution argued that the guilt of both defendants should be inferred

from the statement. Id. at *18. This court ultimately determined that there was no error

because the trial court provided a limiting instruction at the close of the trial, the

prosecution did not argue that the evidence applied to the Petitioner, and finally, that

because the threats made no mention of the Petitioner, there was no violation of Bruton v.

United States, 391 U.S. 123, 88 S. Ct. 1620 (1968) (concluding there was

no Bruton violation because co-defendant’s jailhouse statement asserting that he told his

brother to destroy the murder weapon did not inculpate defendant). Id., 2014 WL 2828932,

at *19. Petitioner Coley’s application for permission to appeal to the Tennessee Supreme

court was denied on November 20, 2014.

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

the appointment of counsel, multiple amended post-conviction petitions were filed,

alleging in pertinent part that trial counsel was ineffective in failing to file a motion to sever

the Petitioners, in failing to object to the introduction of evidence of threats made by the

co-defendant to a witness, and in failing to challenge the DNA evidence.

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On May 4, 2021, the post-conviction court held an evidentiary hearing for both

Petitioner and Petitioner Springer.2 The court began by stating that it wanted to proceed

with the Petitioners’ cases in alphabetical order. The Petitioner testified that trial counsel

met with him “about seven times” before his trial and that he met with a private investigator

once. During these meetings trial counsel “would bring like tape-recordings from [the

State] cross-examining witnesses or like really just going over what [evidence the State]

had.” He did not remember trial counsel’s making any pre-trial motions. He claimed that

trial counsel brought him one plea offer and told him that it “wasn’t a good offer.” He

refused the offer, and trial counsel said, “[W]e’re going to trial[.]” The Petitioner testified

that he did not discuss a self-defense claim with trial counsel and agreed that he “never

brought it up” with trial counsel. The Petitioner claimed that he was not prepared to testify

on his own behalf, but that he may have chosen to testify if a self-defense claim had been

made at trial. Following a discussion with trial counsel, he recalled “coming [up] with [a]

strategy” and recalled signing a document to waive closing argument. He testified that he

spoke with trial counsel about a severance hearing and asserted that she made a motion for

severance at trial.

The Petitioner asserted that trial counsel told him that some of the statements made

by Petitioner Springer were “hearsay” and that the statements would not be used at trial.

He agreed that the “damaging” statements indicated that Petitioner Springer had shot the

victim and that Petitioner Springer had possession of the victim’s gun following the crime.

Asked specifically about whether “Maurice Smith testif[ied] that [Petitioner Springer] told

him that, after [the Petitioner] got shot, he shot the guy and watched him take his last

breath[,]” the Petitioner replied, “Right, I thought that was hearsay.” The Petitioner

testified that trial counsel explained that the blood found at the crime scene matched his

DNA profile and that “it was important because it could put [the Petitioner] at the scene of

the crime,” but counsel did not hire a DNA expert to testify at trial.

Trial counsel testified that following the conclusion of the Petitioner’s trial, she left

the practice of law and gave her file to another attorney. Since that time, the other attorney

had passed away, and she was without her file at the post-conviction hearing. Trial counsel

obtained the billing records from the Administrative Office of the Courts, the records from

the jail, and emails to “recreate” her representation of the Petitioner. Trial counsel visited

the Petitioner thirteen times, attended all court dates, and had kept in contact with the

Petitioner’s sister during the proceedings. During each of her visits, she recalled that the

Petitioner was unable to focus on his case and had a “big obsession” with reducing the

amount of his bond. She explained that because the Petitioner’s attention was so

unfocused, she had him evaluated to assess his competency and to find potential learning

The record does not include an explanation for the delay in bringing forth the hearing in this

matter.

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disabilities. Trial counsel recalled that the Petitioner refused a plea offer that included

severance and a reduced sentence if the Petitioner agreed to testify against Petitioner

Springer. She did not recall discussing a self-defense argument with the Petitioner.

Trial counsel testified that she hired a private investigator who visited the Petitioner

in jail three times, visited the scene of the crime, visited the Petitioner’s former boarding

house residence, and interviewed various witnesses. Trial counsel waived closing

argument as a strategic decision to avoid opposing counsel’s “flashy second closings.” She

could not recall if she discussed a severance motion with the Petitioner before trial, but she

remembered making a severance motion at the end of trial and that the motion failed.

On cross-examination, trial counsel testified that the Petitioner was hurt while at the

victim’s place of business, but she could not remember why she did not hire a DNA expert

nor why she failed to object to the State’s chain of custody witness. She agreed that DNA

evidence could be persuasive to a jury and acquiesced that the introduction of the

Petitioner’s DNA at trial could have placed him at the scene of the crime. However, she

recalled that prior to the crime “[the Petitioner] had been talking to [] people” at his

boarding home about being “short of money” and that a witness saw the Petitioner in

bloody clothing following the commission of the crime. She collaborated with Petitioner

Springer’s trial counsel and compared notes. She did not object to the admission of

Petitioner Springer’s statements because the statements “made [Petitioner Springer] look

more culpable[.]” Trial counsel secured a limiting jury instruction that only allowed

Petitioner Springer’s threats to a witness to be used against Petitioner Springer.

Following the hearing, the post-conviction court entered a thorough, twenty-page

order denying relief, which included a footnote stating: “These petitioners were tried

together, their appeal was taken up together, and the post-conviction hearing was held at

the same time. This opinion is issued jointly for the sake of judicial efficiency.” The post-

conviction court included a separate finding of facts for each Petitioner. The post-

conviction court outlined the issues presented by Petitioner Coley, as relevant here, as

whether trial counsel was ineffective in failing to file a motion to sever the Petitioners, in

failing to object to the introduction of evidence about threats made by Petitioner Springer

to another witness, and in failing to challenge DNA evidence. In denying relief, the post-

conviction court specifically found as follows:

As listed above, the [P]etitioners have alleged several issues which they

claim their trial counsel was ineffective. However, other than opinion

testimony, [the Petitioners] produced little, if any evidence, that trial

counsel’s performance fell below the standard of effective assistance as

required by law. Petitioners did not introduce any evidence that suggested

there was any basis to challenge the introduction of the DNA evidence.

-8-

Petitioner Coley unsuccessfully attempted to suggest circumstantially an

alibi defense. No exhibits were introduced, or witnesses produced to support

the various claims of ineffective assistance of trial counsel. In fact, Petitioner

Springer pretty much acknowledged that his trial counsel did what is

reasonably expected of an attorney in a similar situation.

The only issue having any substance to it may be Petitioner Coley’s

assertion that trial counsel was ineffective in failing to file for a pretrial

severance motion. However, based on the record before this court, it is

unlikely that counsel would have prevailed. More likely the few

incriminating statements made by the co-defendant would not have been

allowed to be referenced by any witness. Other statements implicating

Petitioner Coley would have been admissible as statements of a co-

conspirator. Nevertheless, Petitioner Coley has failed to show that he was

prejudiced by the few statements that might have been excluded in light of

the strength of the State’s overall case against him, including the powerful

DNA evidence putting him at the crime scene[.]

Additionally, Petitioners have failed to demonstrate how they were

prejudiced by any other alleged deficiency. Petitioners were heard by several

housemates discussing committing a robbery because they were short of

money and rent was due. They borrowed a handgun from a friend, left the

house, and returned a short time later with Petitioner Coley having a gunshot

wound to his arm. DNA evidence from blood was obtained from the crime

scene identifying Petitioner Coley as the contributor. Petitioner Springer

made several statements indicating that they were at the crime scene and

watched the victim “take his last breath” after he was shot, even if

inadmissible against Petitioner Coley. Despite Petitioners’ allegations, there

has been no showing that but for trial counsel’s supposed errors, the outcome

of this case would have been different.

The Petitioner filed a timely notice of appeal, and this case is properly before this

court for review.

ANALYSIS

On appeal, the Petitioner argues that the post-conviction court violated due process

by hearing his post-conviction petition simultaneously with the petition of Petitioner

Springer. The Petitioner also argues that trial counsel was ineffective in failing to file a

pretrial severance motion and in waiving a claim regarding the chain of custody for the

State’s DNA evidence. In response, the State contends that the Petitioner waived his due

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process claim because he failed to object prior to or during the post-conviction hearing.

Alternatively, the State argues that the Petitioner was given the opportunity to be heard and

due process was not violated. The State further contends that the post-conviction court

properly denied relief. We agree with the State.

A claim for post-conviction relief based on alleged ineffective assistance of counsel

and presents mixed questions of law and fact. Mobley v. State, 397 S.W.3d 70, 80 (Tenn.

2013) (citing Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011)). A post-conviction

court’s findings of fact are conclusive on appeal unless the evidence in the record

preponderates against them. Calvert, 342 S.W.3d at 485 (citing Grindstaff, 297 S.W.3d at

216; State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999)). “Accordingly, we generally defer

to a post-conviction court’s finding with respect to witness credibility, the weight and value

of witness testimony, and the resolution of factual issues presented by the evidence.”

Mobley, 397 S.W.3d at 80 (citing Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999)).

However, we review a post-conviction court’s application of the law to its factual findings

de novo without a presumption of correctness. Id. (Grindstaff, 297 S.W.3d at 216; Finch

v. State, 226 S.W.3d 307, 315 (Tenn. 2007); Vaughn v. State, 202 S.W.3d 106, 115 (Tenn.

2006)).

The right to effective assistance of counsel is protected by both the United States

Constitution and the Tennessee Constitution. U.S. Const. amend. VI; Tenn. Const. art. I,

§ 9. In order to prevail on an ineffective assistance of counsel claim, the petitioner must

establish that (1) his lawyer’s performance was deficient and (2) the deficient performance

prejudiced the defense. Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996); Strickland v.

Washington, 466 U.S. 668, 687 (1984). A petitioner successfully demonstrates deficient

performance when the petitioner establishes that his attorney’s conduct fell “below an

objective standard of reasonableness under prevailing professional norms.” Goad, 938

S.W.2d at 369 (citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975)). Prejudice arising therefrom is demonstrated once the petitioner establishes

“‘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 370 (quoting Strickland, 466 U.S. at 694).

However, to establish prejudice in the context of a guilty plea, a petitioner must show that

there is a reasonable probability that, but for counsel’s errors, the petitioner would not have

entered his guilty plea and would have proceeded to trial. Serrano v. State, 133 S.W.3d

599, 605 (Tenn. 2004) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)). “Because 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.”

Goad, 938 S.W.2d at 370.

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In assessing an attorney’s performance, we “must be highly deferential and should

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Burns, 6 S.W.3d at 462 (citing Strickland, 466 U.S.

at 689). In addition, we must avoid the “distorting effects of hindsight” and must “judge

the reasonableness of counsel’s challenged conduct on the facts of the particular case,

viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. 689-90. “No particular

set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of

circumstances faced by defense counsel or the range of legitimate decisions regarding how

best to represent a criminal defendant.” Id. at 688-89. However, “‘deference to matters of

strategy and tactical choices applies only if the choices are informed ones based upon

adequate preparation.’” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (quoting Goad,

938 S.W.2d at 369).

Due Process Claim. First, the Petitioner argues, without analysis, that his due

process rights were violated because the post-conviction court failed to hold an

independent hearing on his petition. He admits that he did not raise this objection prior to

or during the hearing but contends that it did not arise until the order of the post-conviction

court conflated issues that “were presented in a way that was damaging to the Petitioner’s

arguments during the joint hearing.” He claims that the post-conviction court’s order

makes it “impossible in most instances to tell which [Petitioner] the [c]ourt is making

findings on, with specific reference to testimony presented at the hearing[.]” Finally,

without analysis of Rule 14, the Petitioner argues that severance was appropriate under

Tennessee Rule of Criminal Procedure 14 because it “was necessary to achieve a fair

determination of the guilt and innocence of [the Petitioner].” As an initial matter, we agree

with the State, and conclude that the Petitioner has waived review of this issue for failure

to raise it before the post-conviction court. See Tenn. R. App. P. 36(a). We additionally

find the issue is waived based on the Petitioner’s failure to brief Rule 14 and the due process

issue. See Tenn. R. App. P. 27(a)(6), (7); Tenn. Ct. Crim. App. R. 10(b) (“Issues which

are not supported by argument, citation to authorities, or appropriate references to the

record will be treated as waived by this court.”). Waiver notwithstanding, we disagree with

the Petitioner’s characterization of the post-conviction court’s order. The order began with

a notation that the Petitioners were tried together, their appeal was “taken up together,”

and, for the sake of judicial efficiency, the post-conviction hearing was held at the same

time. The order provided a separate section for findings of fact for each Petitioner and a

separate section for issues presented by each Petitioner. While the conclusion of law

section was not separated in the same way, this is because the post-conviction court

concluded that both Petitioners “put forth little, if any evidence” in support of their

ineffective assistance of counsel claims. As outlined above, the post-conviction court

specifically stated,

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The only issue to have any substance to it may be Petitioner Coley’s