        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs April 18, 2012

             JAMIEL D. WILLIAMS v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Williamson County
                     No. CR114557       Timothy Easter, Judge


                 No. M2011-01316-CCA-R3-PC - Filed May 30, 2012


The petitioner, Jamiel D. Williams, appeals the denial of his petition for post-conviction
relief, arguing that the post-conviction court erred in finding that he received effective
assistance of counsel. Following our review, we affirm the denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which N ORMA M CG EE O GLE and
R OGER A. P AGE, JJ., joined.

Christina Ferrell Daugherty, Franklin, Tennessee, for the appellant, Jamiel D. Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Kim R. Helper, District Attorney General; and Derek K. Smith, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                         FACTS

        Following his transfer from juvenile court, the petitioner was convicted by a
Williamson County Circuit Court jury of first degree premeditated murder and was sentenced
to life imprisonment. His conviction was affirmed by this court on direct appeal, and our
supreme court denied his application for permission to appeal. State v. Jamiel D. Williams,
No. M2007-01666-CCA-R3-CD, 2008 WL 2200008, at *1 (Tenn. Crim. App. May 27,
2008), perm. to appeal denied (Tenn. Dec. 8, 2008).

       Our direct appeal opinion reveals that the defendant’s conviction was based on his
April 26, 2005 shooting of the victim, Aaron Jones, on Ninth Avenue in Franklin. According
to the State’s proof at trial, a group of individuals, including the defendant, who was
seventeen at the time, gathered outside the home of Trent Covington to watch the victim and
Cory Esmon fight. Id. at *2-4. The victim and Esmon had been in an earlier altercation over
a girl, and there was testimony that the victim had pulled a knife on Esmon and that the
defendant had threatened to “get [his] folks” so that the parties could “have this out.” Id. at
*3. In the physical fight that followed at Covington’s home, the victim jumped on Esmon
and beat him until Esmon conceded defeat. Eyewitnesses testified that the victim stopped
fighting and was about to get up from the ground when the defendant suddenly jumped from
the porch of Covington’s home and fired multiple gunshots at the victim, killing him. Id. at
*4.

        On November 20, 2009, the petitioner filed a pro se petition for post-conviction relief
in which he raised a claim of ineffective assistance of counsel. Following the appointment
of post-conviction counsel, he filed an amended petition on October 27, 2010, in which he
alleged that trial counsel was deficient, thereby prejudicing his case, in the following ways:
by failing to file a motion in limine to exclude Tennessee Rule of Evidence 404(b) evidence
of the petitioner’s possible gang affiliation; by failing to object to the introduction of
Covington’s statement as impeachment of his in-court testimony; by failing to adequately
investigate the case or call essential witnesses at trial; by failing to inform the petitioner of
his right to testify at his juvenile transfer hearing or to adequately explain to him the elements
of first degree murder and the consequences of a first degree murder conviction; by failing
to object to the introduction of physical evidence; and by failing to argue the facts against
premeditation to the jury.

        At the evidentiary hearing, the petitioner testified that trial counsel, who was retained
by his family, visited him about six times while he was in juvenile detention and another
three times after he had been transferred to circuit court. He said that counsel explained what
a juvenile transfer hearing was but never told him that he had the right to testify and call
witnesses at the hearing. The petitioner stated that he would have chosen to testify on his
own behalf at the hearing had he been given a chance to do so.

        The petitioner testified that he maintained from the beginning that he was not guilty
and provided counsel with the names of several eyewitnesses, including Marquis Grayson,
who could have testified that he was not the person who shot the victim. Counsel, however,
told him that his witnesses’ status as gang members would only hurt his case. Counsel also
talked him out of testifying in his own defense by telling him that he would not be able to
withstand cross-examination. The petitioner complained that counsel’s failure to call his
witnesses or to let him testify resulted in his conviction for first degree murder despite the
fact that he was innocent of the crime. The petitioner claimed that he “followed [counsel’s]
influence” and therefore had not understood what he was doing when he assured the trial

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court that he understood his rights and that it was his decision not to testify.

        The petitioner acknowledged that an “Affidavit of Jamiel Williams,” which was
admitted as an exhibit at the evidentiary hearing, contained his signature. He claimed,
however, that he had no memory of signing it, did not understand what it contained, and must
have signed solely because counsel told him to do so. The affidavit stated, among other
things, that the petitioner had met with counsel “for many hours”; that he and counsel had
“thoroughly discussed” the evidence against him, the charge he faced, and his defense theory;
that he understood that he would spend the rest of his life in prison if convicted of the
offense; that the petitioner maintained he did not kill the victim and wished to proceed with
an identity defense, despite counsel’s having informed him that the facts suggested that a
defense of self-defense or at least a mitigation of the culpable mental state might be available
to him; and that the petitioner was pleased with counsel’s representation. The affidavit also
stated that the petitioner had rejected a plea deal of fifteen years for second degree murder.

        Trial counsel, who was licensed to practice law in 1998, testified that he had
participated in several first degree murder trials and handled several juvenile transfer
hearings by the time he took the petitioner’s case. He said he took great care in explaining
things to the petitioner, including the transfer proceedings, his right to testify at the transfer
hearing, and the consequences of his transfer to circuit court. Counsel stated that he
essentially treated the transfer hearing as a preliminary hearing because he believed, based
on his experience and the facts of the case, that the probability of transfer was very high. He
said that the petitioner’s “manner and affect” were not always appropriate, but he saw no
reason to request an independent mental evaluation because the petitioner had been found
competent in an evaluation performed as part of his “JCCO,” and neither the petitioner’s
brother nor mother ever indicated that the petitioner was unable to understand the
proceedings or help in his own defense.

        Trial counsel testified that the petitioner’s brother was very helpful in his investigation
and preparation of the case, arranging for the petitioner’s potential witnesses, including
Marquis Grayson and Lorez Murray, or “Gizmo,” to meet with counsel. However, although
Grayson volunteered to “say whatever [counsel] want[ed] [him] to say” in the petitioner’s
defense, each of the potential witnesses told counsel that he had not seen the actual shooting
and did not know who was responsible for the victim’s death. Counsel, therefore, saw no
point in calling them as witnesses. Counsel stated that he called Jarvis Brown as a witness
at the transfer hearing but that he evaded every question and was a “disaster,” so he did not
call him at trial.

       Counsel testified that he saw no need to hire an investigator because all the witnesses
were readily accessible to him, either through personal interviews arranged by the petitioner’s

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brother or through the statements they had given to the police. He also saw no reason to file
a motion in limine to exclude gang references. Part of his defense strategy was to attempt
to discredit one of the State’s eyewitnesses by showing his membership in a gang.
Furthermore, he did not remember the petitioner’s ever having been identified at trial as a
gang member. Counsel said he did not think the typical lay juror, unfamiliar with the
criminal justice system, would automatically associate the petitioner’s comment about “his
folks” with membership in a gang. As for the admission of Trent Covington’s statement to
police, counsel testified that although he initially objected to it and perhaps, in hindsight,
should have fought harder to keep the actual statement out of evidence, he did not want to
“make a bigger deal out of it than it was” because Covington testified at trial that the
statement was inaccurate and the trial court issued a limiting instruction to the jury regarding
its use.

       Trial counsel testified that their defense theory was that Cory Esmon, and not the
petitioner, shot the victim. To that end, he not only vigorously cross-examined Esmon, but
also called as a witness Tonya Thomas, who testified that Esmon, covered in blood and
carrying the murder weapon, came running into the house after the shooting saying that he
had to “pull the bullet” because it had his fingerprints on it. Counsel said that the petitioner
maintained from the beginning that he was not the shooter but, for over a year prior to trial,
insisted that he did not know who the actual shooter was. The petitioner changed his story
shortly before trial, saying that he had seen Esmon shoot the victim. Because the petitioner
had never before identified Esmon as the shooter, including during hours of police
interrogation, counsel advised him that the prosecutor would be “a formidable opponent” to
him if he took the stand in his own defense to testify that Esmon was the shooter. Counsel
said that both he and the trial court took great care during the colloquy to ensure that the
petitioner understood his rights with respect to testifying and that it was his own decision not
to take the stand.

       Trial counsel testified that he did not think it was a first degree murder case and
believed that there was evidence to mitigate against its being a premeditated killing but that
the petitioner was adamant that he did not want him to pursue that argument, despite
counsel’s best advice to the contrary. Counsel explained the post-conviction process to the
petitioner, read the affidavit to him, and advised him to think about it and sign it if he wished
to do so. According to counsel, the petitioner protested that he would never file an
ineffective assistance of counsel claim against him and willingly signed the affidavit.

       The petitioner’s older brother, twenty-six-year-old Phillip Williams, testified that he
offered his assistance to counsel and brought witnesses to him to be interviewed. Counsel
did not, however, ever ask him to go into the community to knock on doors in an attempt to
locate other witnesses, and counsel never discussed hiring a private investigator to help with

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the case.

       Marquis Grayson testified that he told trial counsel that he saw Cory Esmon shoot the
victim. He said he expected to be called as a witness at trial, but counsel told him his
testimony was unnecessary. Grayson adamantly denied having ever told counsel that he did
not witness the shooting and claimed that counsel must have gotten him confused with
someone else.

      Trial counsel, recalled as a witness for the State, reiterated that Grayson never told
him that he had seen Esmon shoot the victim but instead offered to say whatever counsel
wanted him to say in the petitioner’s defense.

       On May 9, 2011, the post-conviction court entered an order denying the petition.
Accrediting the testimony of trial counsel over that of the petitioner, and finding Grayson’s
testimony not to be credible, the court concluded that the petitioner failed to meet his burden
of showing that counsel was in any way deficient in his performance, or that he was
prejudiced as a result of counsel’s alleged deficiencies.

                                        ANALYSIS

                         I. Post-Conviction Standard of Review

        The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v. State,
922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual issues,
the appellate court should not reweigh or reevaluate the evidence. See Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997). However, review of a post-conviction court’s application
of the law to the facts of the case is de novo, with no presumption of correctness. See Ruff
v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel,
which presents mixed questions of fact and law, is reviewed de novo, with a presumption of
correctness given only to the post-conviction court’s findings of fact. See Fields v. State, 40
S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

                           II. Ineffective Assistance of Counsel

      To establish a claim of ineffective assistance of counsel, the petitioner has the burden
to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.

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668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that same standard for determining ineffective assistance of counsel that is applied in federal
cases also applies in Tennessee). The Strickland standard is a two-prong test:

               First, the defendant must show that counsel’s performance was
       deficient. This requires showing that counsel made errors so serious that
       counsel was not functioning as the “counsel” guaranteed the defendant by the
       Sixth Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial whose
       result is reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The
prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a “probability
sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

        The petitioner argues that trial counsel was deficient for not filing a motion in limine
to exclude any reference to his possible gang affiliation, for failing to object to the
introduction of Trent Covington’s statement, for failing to adequately investigate the case,
for failing to instruct the petitioner of the consequences of a first degree murder conviction,
for failing to argue against premeditation to the jury, and for failing to call essential
witnesses.

         The record, however, fully supports the findings and conclusions of the post-
conviction court that the petitioner failed to show that he received ineffective assistance of
counsel. As the post-conviction court noted, many of counsel’s decisions, such as whether
to call certain witnesses or to object to the introduction of evidence, were matters of sound
trial strategy that were based on counsel’s experience and preparation for the case. See
Strickland, 466 U.S. at 689; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In addition,
counsel’s testimony, which was specifically accredited by the post-conviction court,
established that counsel met with the petitioner on a number of occasions, took great care to
explain to the petitioner the court proceedings, the evidence against him, his rights to testify,
the consequences of a murder conviction, and the possible defense theories he believed they
might advance. Trial counsel’s testimony, as well as the affidavit, further establishes that

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counsel ultimately proceeded with the identity defense that the petitioner maintained from
the beginning and which he instructed counsel to pursue. We conclude, therefore, that the
petitioner has not shown that counsel was deficient in his representation or that he suffered
any deficiency as a result.

                                     CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the denial of the petition
for post-conviction relief.


                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE




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