        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  January 8, 2013 Session

                DONALD RAGLAND v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 06-06182     John T. Fowlkes, Jr., Judge


                 No. W2012-00743-CCA-R3-PC - Filed March 8, 2013


The Petitioner, Donald Ragland, appeals as of right from the Shelby County Criminal Court’s
denial of his petition for post-conviction relief. The Petitioner contends (1) that the post-
conviction court erred by not forcing the Petitioner to testify at the post-conviction hearing;
and (2) that the Petitioner received ineffective assistance from his trial counsel because trial
counsel withdrew a motion to suppress a photographic identification of the Petitioner.
Discerning no error, we affirm the judgment of the post-conviction court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J ERRY L. S MITH and
J OHN E VERETT W ILLIAMS, JJ., joined.

Marvin Adams, III, Memphis, Tennessee (on appeal); and Alexander C. Wharton, Memphis,
Tennessee (at post-conviction hearing), for the appellant, Donald Ragland.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Amy P. Weirich, District Attorney General; Reginald Henderson and Muriel
Malone, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                          OPINION

                                FACTUAL BACKGROUND

       In 2008, the Petitioner was convicted of first degree premeditated murder and
sentenced to life, with the possibility of parole. See State v. Donald Ragland, No. W2008-
02065-CCA-R3-CD, 2009 WL 4825182 (Tenn. Crim. App. Dec. 15, 2009), perm. app.
denied, (Tenn. May 11, 2010). The evidence at trial established that, on the afternoon of
December 9, 2005, the Petitioner approached the victim, LaAunzae Grady, outside St.
Elmo’s Market in Memphis and shot the victim four times. Id. at *1, 7. The Petitioner had
quickly become the primary suspect in the victim’s murder when police were informed by
“friends and relatives of the victim” that the Petitioner “had said he intended to kill the
victim” because the victim had killed the Petitioner’s younger brother “a few years before.”
Id. at *1. Several witnesses also noted that the gunman was left-handed like the Petitioner.
Id. at *4-5. Additionally, a witness saw the gunman flee in “a white Jeep Cherokee,” the
same type of vehicle owned by Petitioner. Id. at *1. Based upon this information and “an
outstanding arrest warrant for a traffic offense,” the Petitioner was arrested on December 12,
2005. Id.

       Also on December 12, 2005, police interviewed an eyewitness, Michael Jones, who
had seen a man walking away from St. Elmo’s Market shortly after the shooting with a
“zoned-out look on his face” and “carrying something in his pockets.” Ragland, 2009 WL
4825182, at *5. Mr. Jones was asked to look at a photographic lineup and picked out the
Petitioner’s photograph. Mr. Jones told the police that he had “picked out a guy that [he]
seen [sic] that looked like the guy [he] saw walking” away from St. Elmo’s Market, but that
he was “not 100 percent sure.” Mr. Jones would later admit during cross-examination at trial
that he had never seen the Petitioner before and that he was not “100 percent sure” that the
Petitioner was the person he had seen on December 9, 2005. Mr. Jones testified that he
selected the Petitioner’s picture out of the lineup because “if [he] had [to] pick somebody out,
that was him, you know.” Mr. Jones also admitted that he picked the Petitioner’s picture
without being “100 percent sure” despite having read and signed an “Advice to Witness
Viewing Photographic Display” form that instructed him not to make an identification unless
he was “positive of such identification.”

       After being arrested, the Petitioner spoke with police officers on several occasions.
Ragland, 2009 WL 4825182, at *1-2. At first, the Petitioner denied any involvement in the
victim’s death. Id. at *1. However, the Petitioner “soon changed his story” and during “an
extensive statement . . . admitted his responsibility for killing the victim,” claiming that it
was part of a gang conspiracy. Id. After being presented with evidence that he had lied
about the gang conspiracy, the Petitioner “admitted to sole responsibility for the victim’s
murder.” Id. at *2. The Petitioner filed a motion to suppress his statements to the police
alleging that he had requested a lawyer prior to giving his statements and that “the police
lacked probable cause to arrest him for murder.” Id. at *7. The trial court denied the
Petitioner’s motion to suppress. Id. at *3. On direct appeal, this court affirmed the
Petitioner’s conviction in general and specifically affirmed the trial court’s denial of the
Petitioner’s motion to suppress his statements to the police. Id. at *1, 7-8. Our supreme
court declined to review this court’s opinion.




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        On February 25, 2011, the Petitioner filed a pro se petition for post-conviction relief
alleging, among other issues, that he received ineffective assistance of counsel because his
trial counsel “failed to file a written motion to suppress” Mr. Jones’s identification of the
Petitioner from the photographic lineup. Counsel was appointed to represent the Petitioner,
and an evidentiary hearing was held on September 8, 2011. That same day, the Petitioner
filed a pro se amendment to his petition for post-conviction relief. At the evidentiary
hearing, the Petitioner stated that he had filed the petition for post-conviction relief, but
refused to testify at the hearing because he had a civil rights lawsuit pending in federal court.
The Petitioner further stated that his decision was based upon his “own judgment after
consultation” with counsel. Upon further questioning by the post-conviction court, the
Petitioner stated that he did not want to testify because he had not “received [full] discovery”
and had not “been able to really properly present [his] arguments.” The Petitioner then stated
that he was waiving his right to testify at the hearing freely and voluntarily, without any
coercion, and that he understood that he would not have “a second bite at the apple.”

        Trial counsel testified that he had practiced criminal defense for over twenty years as
an attorney with the Public Defender’s office in Shelby County. Trial counsel further
testified that since he had started practicing law, he had tried over a hundred cases, including
“[s]everal murder twos [and] a handful of murder ones.” According to trial counsel, the
Petitioner “was developed as a suspect almost immediately because the word on the street
. . . was that he was out to avenge his brother’s death at some point.” Trial counsel filed a
motion to suppress the Petitioner’s statements to the police because he felt the police had
lacked probable cause to arrest the Petitioner. Trial counsel testified that the Petitioner’s
statements to the police were the most important evidence against him and that without those
statements, the State would not be able to prosecute the case. Trial counsel denied that Mr.
Jones was “the key witness for the State.” Instead, trial counsel believed that the investigator
who took the Petitioner’s statements was the most important witness for the State.

        Trial counsel testified that he filed a motion to suppress Mr. Jones’s photographic
identification of the Petitioner because Mr. Jones was “equivocal in his identification” and
because Mr. Jones had told trial counsel’s investigator that the police had suggested to Mr.
Jones that he select the Petitioner’s photograph. Trial counsel testified that he had trouble
locating Mr. Jones prior to trial, but eventually spoke with him personally. Trial counsel
asked Mr. Jones if it was “suggested to [him] to pick out [the Petitioner’s] photo.” Trial
counsel testified that Mr. Jones told him the police did not suggest to him that he select the
Petitioner’s photograph. Trial counsel withdrew the motion to suppress because he felt it
was “without merit.” Trial counsel informed the Petitioner that he had withdrawn the motion
because Mr. Jones had “unequivocally told [him] that it was not suggested.” Trial counsel
testified that he cross-examined Mr. Jones “vigorously” at trial about the photographic lineup



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and his identification of the Petitioner. Trial counsel described Mr. Jones as “very
equivocal” at trial about his identification of the Petitioner.

       On March 22, 2012, the post-conviction court entered a written order denying post-
conviction relief to the Petitioner.1 The post-conviction court noted that despite the
Petitioner’s contrary assertions, trial counsel had actually filed a motion to suppress Mr.
Jones’s photographic identification. However, trial counsel withdrew the motion after
speaking with Mr. Jones and learning that his identification was “untainted.” The post-
conviction court concluded that the Petitioner had failed to prove his allegations by clear and
convincing evidence and that trial counsel had “exercised reasonableness and upheld the
standards of the legal profession” in his decision to withdraw the motion to suppress. The
Petitioner filed a timely notice of appeal to this court.

                                               ANALYSIS

               I. Petitioner’s Decision Not to Testify at the Evidentiary Hearing

        The Petitioner contends that the post-conviction court erred by not forcing the
Petitioner to testify, against his will, at the evidentiary hearing. The Petitioner argues that
the Post-Conviction Procedure Act and the rules governing post-conviction evidentiary
hearings require a petitioner to testify at the evidentiary hearing. The Petitioner further
argues that because he was “the only witness who could shed light on his mental state while
in police custody,” he was denied “due process” by the post-conviction court’s acquiescence
regarding his decision not to testify at the evidentiary hearing. The State responds that the
decision whether or not to testify “rests with the petitioner.” The State further responds that
the Petitioner was “in charge of his proof” and had the burden to prove his allegations by
clear and convincing evidence.

       The Post-Conviction Procedure Act provides that a petitioner “shall have the burden
of proving the allegations of fact by clear and convincing evidence” at an evidentiary
hearing. Tenn. Code Ann. § 40-30-110(f). To that end, a petitioner “shall appear and give
testimony at the evidentiary hearing if the petition raises substantial questions of fact as to
events in which the petitioner participated, unless the petitioner is incarcerated out of state.”
Tenn. Code Ann. § 40-30-110(a). Likewise, Tennessee Supreme Court Rule 28 provides that


1
 The Petitioner raised several issues in his pro se petition and amended petition for post-conviction relief.
The post-conviction court denied post-conviction relief on all of the Petitioner’s claims. On appeal, the
Petitioner raises only the issue of ineffective assistance of counsel with respect to Mr. Jones’s photographic
identification. The Petitioner has waived appellate review of all remaining issues by not raising them in his
brief. See Tenn. R. App. P. 13(b).

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a petitioner “has the right to testify” unless the petitioner is incarcerated in another state.
Tenn. R. Sup. Ct. 28, § 8(C)(1)(a). Rule 28 also provides that a petitioner “shall testify at the
evidentiary hearing if the petition raises substantial issues of facts.” Tenn. R. Sup. Ct. 28,
§ 8(C)(1)(b). However, “[u]nder no circumstances shall petitioner be required to testify
regarding the facts of the conviction which the petition attacks unless necessary to establish
the allegations of the petition . . . .” Tenn. R. Sup. Ct. 28, § 8(C)(1)(d).

       “All that due process requires in the post-conviction setting is that the [petitioner]
have the opportunity to be heard at a meaningful time and in a meaningful manner.” Stokes
v. State, 146 S.W.3d 56, 61 (Tenn. 2004) (quoting House v. State, 911 S.W.2d 705, 711
(Tenn. 1995)) (internal quotation marks omitted). To that end, a petitioner receives a full and
fair hearing when “given the opportunity to present proof and argument on the petition for
post-conviction relief.” House, 911 S.W.2d at 714 (emphasis added). A petitioner may
choose “not to avail himself of that opportunity” even if that decision would “effectively
[waive] his right to a post-conviction proceeding.” David Avery v. State, No. M2011-02625-
CCA-R3-PC, 2012 WL 6570737, at *5 (Tenn. Crim. App. Dec. 17, 2012).

        Here, the Petitioner was given an opportunity “to be heard at a meaningful time and
in a meaningful manner.” The Petitioner stated that he was freely and voluntarily waiving
his right to testify at the evidentiary hearing because he had a civil rights lawsuit pending in
federal court and because he felt he had not received full “discovery” from the State. The
post-conviction court explained to the Petitioner that he risked waiving his post-conviction
claims by not testifying and that he would not get a “second bite at the apple.” The Petitioner
stated that he understood and reiterated his decision not to testify at the evidentiary hearing.
Despite this, the Petitioner now argues on appeal that the post-conviction court erred by not
forcing him to testify at the evidentiary hearing.

        The Petitioner’s argument runs contrary to both the letter and the spirit of the Post-
Conviction Procedure Act. The Post-Conviction Procedure Act places a high burden on the
petitioner to prove all allegations of fact by clear and convincing evidence. As such, it
requires a petitioner to testify “if the petition raises substantial questions of fact as to events
in which the petitioner participated.” Tenn. Code Ann. § 40-30-110(a). This requirement
is a logical extension of the burden that petitioners prove their factual allegations by clear and
convincing evidence and it is designed to prevent petitioners from attempting to circumvent
that burden by withholding evidence only they can provide. A petitioner may refuse to testify
and risk the consequences of such a decision. However, a petitioner’s knowing and
voluntary decision not to testify at a evidentiary hearing does not invalidate the entire post-
conviction proceedings. To hold otherwise would require this court to depart from sense and
reason. Accordingly, we conclude that this issue is without merit.



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                          II. Ineffective Assistance of Trial Counsel

       The Petitioner also contends that the post-conviction court erred by dismissing his
petition for post-conviction relief. The Petitioner argues that he received ineffective
assistance of counsel because his trial counsel failed to file a motion to suppress Mr. Jones’s
photographic identification of the Petitioner. The Petitioner further argues that trial counsel’s
reliance on Mr. Jones’s statement that he was not coerced into picking the Petitioner’s
photograph was “inadequate” because Mr. Jones was “a lay witness [asked] to answer a
question which amounts to a conclusion of law.” The Petitioner also argues that he was
prejudiced by trial counsel’s actions because Mr. Jones’s photographic identification of the
Petitioner provided the sole probable cause for the Petitioner’s arrest. The State responds
that the Petitioner failed to show any deficiency in trial counsel’s performance or any
prejudice.

       As stated above, the burden in a post-conviction proceeding is on the petitioner to
prove his allegations of fact supporting his grounds for relief by clear and convincing
evidence. Tenn. Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94
(Tenn. 2009). On appeal, we are bound by the trial court’s findings of fact unless we
conclude that the evidence in the record preponderates against those findings. Fields v. State,
40 S.W.3d 450, 456 (Tenn. 2001). Additionally, “questions concerning the credibility of the
witnesses, the weight and value to be given their testimony, and the factual issues raised by
the evidence are to be resolved” by the post-conviction court. Id. Because they relate to
mixed questions of law and fact, we review the post-conviction court’s conclusions as to
whether counsel’s performance was deficient and whether that deficiency was prejudicial
under a de novo standard with no presumption of correctness. Id. at 457.

        Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland
v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72
(1993). In other words, a showing that counsel’s performance falls below a reasonable
standard is not enough; rather, the petitioner must also show that but for the substandard
performance, there is a reasonable probability that “the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. The Strickland standard has been applied to
the right to counsel under article I, section 9 of the Tennessee Constitution. State v. Melson,
772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       There is nothing in the record before this court to suggest that trial counsel’s
performance was deficient with regards to Mr. Jones’s photographic identification of the
Petitioner. Trial counsel testified that he filed a motion to suppress the photographic

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identification because Mr. Jones was “equivocal” in his identification and because Mr. Jones
had told trial counsel’s investigator that the police had suggested to Mr. Jones that he select
the Petitioner’s photograph. However, Mr. Jones personally told trial counsel prior to trial
that the police had not suggested to him that he select the Petitioner’s photograph. At that
time, trial counsel felt the motion to suppress lacked merit and withdrew it. Trial counsel
testified that he “vigorously” cross-examined Mr. Jones at trial and was able to get Mr. Jones
to admit on cross-examination that he was not “100 percent sure” that the Petitioner was the
person he saw walking away from St. Elmo’s Market on December 9, 2005. The Petitioner
presented no evidence at the post-conviction hearing to contradict trial counsel’s testimony
or to establish that Mr. Jones had been coerced into picking the Petitioner’s photograph out
of the lineup. Accordingly, we agree with the post-conviction court’s conclusion that trial
counsel’s actions did not amount to ineffective assistance of counsel.

        With respect to the Petitioner’s claims that absent Mr. Jones’s photographic
identification the police lacked probable cause to arrest him for the victim’s murder, we note
that the facts are to the contrary. The police did not speak with Mr. Jones until December
12, 2009, the day that the Petitioner was arrested and well after the Petitioner had been
identified as a suspect. The Petitioner was arrested “on the basis of an outstanding arrest
warrant for a traffic offense.” Ragland, 2009 WL 4825182, at *1. In addition to the
outstanding warrant, as this court stated in its opinion on direct appeal, at the time the
Petitioner was arrested the police knew “(1) the [Petitioner] had vowed to kill the victim; (2)
he operated a white Jeep Cherokee, a type of car seen in the area at the time of the murder;
and (3) the [Petitioner] and the victim’s killer were both left-handed.” Id. at *8. Far from
being the only evidence used to provide probable cause for the Petitioner’s arrest, Mr.
Jones’s photographic identification was not mentioned by the trial court or this court in their
determinations that probable cause existed to hold the Petitioner as a suspect in the victim’s
murder. Accordingly, we conclude that the post-conviction court did not err in dismissing
the petition for post-conviction relief.

                                       CONCLUSION

       Upon consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.




                                                    _________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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