           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE               FILED
                                JULY 1996 SESSION             August 19, 1997

                                                             Cecil Crowson, Jr.
                                                             Appellate C ourt Clerk



WAYNE DILLARD CARVER                   )       C.C.A. NO. 03C01-9703-CR-00096
                                       )
      Petitioner/Appellant             )       POLK COUNTY
                                       )
v.                                     )       HON. RICHARD BAUMGARTNER,
                                       )       JUDGE
                                       )
STATE OF TENNESSEE,                    )       Post-conviction
                                       )       felony-murder
      Respondent/Appellee              )



For the Appellant:                             For the Appellee:

Laura Rule Hendricks                           John Knox Walkup
606 W. Main Street, Suite 350                  Attorney General & Reporter
P.O. Box 84
Knoxville, TN 37901-0084                       Peter M. Coughlin
                                               Assistant Attorney General
                                               425 Fifth Avenue North
                                               2d Floor, Cordell Hull Building
                                               Nashville, TN 37243-0493

                                               Randall E. Nichols
                                               District Attorney

                                               Ms. Marsha Selecman
                                               Assistant District Attorney General
                                               District Attorney General’s Office
                                               City-County Building
                                               Knoxville, TN 37902



OPINION FILED ________________________


AFFIRMED.



JOHN K. BYERS
SENIOR JUDGE




                                           1
                                         OPINION


         The petitioner was convicted of murder during the commission of a felony on

April 9, 1987 by jury trial, and he was sentenced to life in prison for this crime. On

March 5, 1991, he filed a petition for post-conviction relief claiming incompetence of

counsel. The trial judge denied the petition of the Appellant.

         Petitioner alleged that his attorney was ineffective by: 1) forcing the

defendant to testify on his own behalf; 2) not objecting when one of the police

officers testified that the Appellant had been previously convicted of a felony and

had served time in the state penitentiary; 3) failing to move for judgment of acquittal

at the end of the State’s case in chief; 4) failing to ascertain through discovery when

the Appellant first became a suspect; 5) failing to question the expert on the effects

of ritalin and demerol on the mind when taken in combination; 6) failed to object or

adequately cross examine the State’s witness when the testimony suggested the

Appellant had forged the victim’s name on a car title, and, by inference, that the

Appellant murdered the victim in order to facilitate the theft of the vehicle.

         We affirm the decision of the trial court.

         In a post-conviction relief proceeding, the burden is upon the petitioner to

prove the allegations in his petition by a preponderance of the evidence. State v.

Kerley, 820 S.W.2d 753, 755 (Tenn. Crim. App. 1991); Bratton v. Kerley, 477

S.W.2d 754 (Tenn. Crim. App. 1971). On review of the post conviction proceedings,

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

preponderates against the judgment. Cooper v. State, 849 S.W.2d 744, 746 (Tenn.

1993).

         In the post-conviction hearing, the trial court heard the testimony of the

petitioner and his former counsel. After considering the testimony, the trial judge

found that the petitioner failed to prove his allegations by a preponderance of the

evidence, and denied the petition for post-conviction relief. We find that the

evidence does not preponderate against the findings of the trial judge in this case.

We affirm the judgment of the trial court.

                                              2
                           John K. Byers, Senior Judge


CONCUR:




David H. Welles, Judge




Thomas T. Woodall, Judge




                            3
