         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs July 12, 2005

                  ASHLEY NESBITT v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                             No. P-27737    J. C. McLin, Judge



                   No. W2004-02360-CCA-R3-PC - Filed October 11, 2005


A Shelby County jury convicted the petitioner of several crimes including first degree murder,
attempted first degree murder, attempted first degree premeditated murder and aggravated robbery.
On direct appeal, we reversed and dismissed the conviction for attempted first degree premeditated
murder. The petitioner then filed a petition for post-conviction relief alleging several grounds. The
post-conviction court denied his petition in a written order. We affirm the post-conviction court’s
judgment.

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

JERRY L. SMITH , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR., and
NORMA MCGEE OGLE, JJ., joined.

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Ashley Nesbitt.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Stephanie Johnson, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

       The facts were set out in the petitioner’s direct appeal in State v. Ashley Nesbitt, No. W2001-
01663-CCA-R3-CD, 2003 WL 21338955 (Tenn. Crim. App., at Jackson, May 2, 2003), perm. app.
denied (Tenn. Nov. 3, 2003), in the following manner:


              On the night of April 11-12, 1995, murder victim Kenneth Allen was visiting
       Carl Turner at Turner’s home, an apartment in Memphis, Tennessee. Also at the
       apartment were Aaron Cobb, Dedrick Adams, Taurus Cooper, Demetrius Manning,
       and James Green. The men were playing dice and dominoes in the living
room/kitchen area of the apartment. Carl Turner’s wife, Barbara Turner, was asleep
in one of the bedrooms.

         According to Cobb, the men heard a knock at the front door, and the
Defendant and Ben Mills walked in. Cobb knew the Defendant and Mills because
they had gone to school together. The new arrivals inquired about drugs but were
told that there weren’t any. Cobb testified that Mills then got up from where he was
sitting and walked to the front door as if to leave. He then spun around, “came up
with a gun” and told the men to “Drop it off.” Mills shot his gun once into the
ceiling. The Defendant then raised his gun, stating “You all heard him.” Some of
the assembled men dropped their money on the floor. Cobb also dropped his watch
on the floor. According to Cobb, the Defendant and Mills then “just started
shooting.” Cobb testified that he saw both the Defendant and Mills firing their guns
and described the guns as revolvers. He testified that those were the only guns he
saw and stated that he heard about twelve gunshots. After the shooting began, Cobb
fled through the back door of the apartment. Outside, he saw a gray car and an armed
driver. Cobb testified that, earlier that day, he had seen Mills in that car.

        After the shooting stopped, Cobb returned to the apartment and found Allen,
who had been shot but was still alive. He and others helped Allen to the driveway
to make it easier for the ambulance to pick him up. Allen subsequently died from a
single gunshot wound which penetrated his lung.

         Demetrius Manning arrived at Turner’s apartment with Cobb. He recognized
the Defendant and Mills when they entered the apartment. The Defendant sat down
next to him on the couch and Mills sat on the other couch. Mills and the Defendant
made inquiries about drugs. When told there weren’t any, the robbery commenced.
Mills shot once in the air. Manning testified that the Defendant “had the gun on
[him] then.” When Mills shot in the air, Manning ran down the hall. Subsequently,
he heard “a whole lot of shots going off.” He ran into a bedroom and prepared to
jump out a window but then realized that the shooting had stopped. He returned to
the living room and found Allen lying on the floor, shot. He then saw the Defendant
coming back into the apartment through the back door with his gun. Manning
testified that the Defendant started shooting, and he ran to the bedroom and jumped
out the window.

        Taurus Cooper testified that he was at Carl Turner’s apartment on the night
in question. He and some of his friends were there playing dominoes and shooting
dice. At about two o’clock in the morning, the Defendant and Mills came in. Both
men sat down. After a few minutes, Mills got up and went toward the front door.
As he neared the door, he “spinned around with a gun and shot in the ceiling saying,
‘You all drop the money off.’” Cooper dropped his money on the floor, and so did
Cobb. By this time, the Defendant had also drawn his gun. Cooper testified that


                                        -2-
both guns were revolvers. Cooper stated, “After we dropped the money on the floor,
probably a second or two-five or six seconds later, they went to shooting-started
shooting.” He testified that both guns were being fired. Cobb ran out the back door,
and Cooper hid behind the back door. When the shooting stopped, he and Adams left
the apartment; everyone else except Allen had already left. Allen was lying on the
floor, shot.

        Carl Turner testified that the Defendant and Mills entered the apartment and
inquired about drugs while he and his visitors were playing dice and dominoes.
When told there weren’t any drugs available, Mills walked toward the front door,
“made a quick turn and said, ‘Everybody put your hands up. Drop it off.’” Mills
pulled a pistol, and Turner noticed that the Defendant also had a gun in his hand.
When Mills fired the first shot, Turner ran to a bedroom, jumped out a window and
ran. Turner testified that the only guns he saw in his apartment that night were the
ones fired by the Defendant and Mills.

        Barbara Turner testified that she was asleep on the night in question. She
stated that she didn’t hear anything until her husband came in and woke her up,
telling her to get in the closet. After she was awake, she heard gunshots. Her
husband jumped out the bedroom window, and she got in the closet. After the
gunfire ceased, she left the closet and headed toward the bathroom. On her way, she
looked into the living room and saw a man lying on the floor in a pool of blood.
Another man was standing over him, picking up money. She retreated into the
bathroom and closed the door. She waited a few minutes and then left the apartment.
Officer Robert G. Moore was on his way to the crime scene when he saw a car
matching the description broadcast by the dispatcher in response to the initial call to
the police about the shooting. He followed the car until it stopped. At that point, the
driver got out and started walking away. Officer Moore told him to stop and lay
down and told the other two people remaining in the car to stay inside. A few
seconds later, other officers arrived and took the driver and the occupants of the car
into custody. Officer Moore continued to the crime scene. There, he found eleven
bullet impacts in Carl Turner’s apartment, five on the refrigerator. He testified that
it appeared that bullets had been fired from each end of the apartment. He found no
guns at the scene, and none of the weapons fired at the scene was ever recovered.

        Officer Renwick Cowans assisted in taking the suspects into custody. He
identified the Defendant at trial as the person who had been lying on the ground at
Officer Moore’s direction. He testified that Officer Moore pulled the suspects over
about fifteen minutes after the original dispatch and that the suspects were about two
blocks from the crime scene when they were pulled over. He recovered money from
the Defendant’s pocket.




                                         -3-
               The Defendant was indicted for the first degree murder of Allen, on
       alternative counts of premeditated murder and felony murder. He was also indicted
       for the attempted first degree premeditated murders of Cobb and Turner and for the
       aggravated robbery of Cobb. The jury convicted the Defendant on all of these
       counts, and the trial court merged the two murder convictions into one conviction for
       first degree murder.


Ashley Nesbitt, 2003 WL 21338955, at *1-3. Following his conviction, the petitioner appealed to
this Court. We affirmed the petitioner’s conviction for the first degree murder of Allen, the
attempted first degree murder of Cobb, and the conviction for aggravated robbery. However, we
reversed and dismissed the conviction for the attempted first degree premeditated murder of Turner.
Id. at *4-5. We remanded for the trial court to modify the judgments to reflect that the premeditated
murder and felony murder are merged into one conviction. Id. at *5.

        The petitioner filed a pro se petition for post-conviction relief. The post-conviction court
appointed counsel on November 25, 2003. Post-conviction counsel filed an amended petition on
March 4, 2004. The post-conviction court held hearings on May 28 and June 3 of 2004. The post-
conviction court denied the petition by order dated September 10, 2004. The petitioner filed a timely
notice of appeal on September 22, 2004.

                            Evidence at the Post-Conviction Hearing

         The petitioner, his trial counsel and his appellate counsel testified at the post-conviction
hearings that were held over two (2) days. He stated that his trial counsel visited him in prison six
(6) or seven (7) times. The petitioner told his trial counsel that he had an alibi for the night of the
incident. He asked his trial counsel to base his defense on his alibi. The petitioner stated that one
(1) of his complaints about his trial counsel was that counsel did not interview his potential alibi
witnesses, even though the petitioner admitted that these witnesses could not provide him with an
alibi for that night. The petitioner also admitted in his testimony at the post-conviction hearing that
he did actually go to the house and became involved in a “gun battle.” The petitioner also
complained that his trial counsel did not interview the prosecution’s witnesses.

         Petitioner’s trial counsel testified that he had twenty-eight (28) years’ experience in the
practice of law. He had represented defendants in more than twelve (12) homicide cases. The
petitioner’s trial counsel stated that all the discovery was conducted by the petitioner’s original
counsel and was given to the petitioner. Previous counsel also hired an investigator. Petitioner’s
trial counsel testified that he reviewed the materials created by the investigator. Trial counsel stated
that the investigator spoke with all the witnesses he himself would have spoken to in any
investigation prior to trial. Petitioner’s counsel found out from reviewing the investigator’s materials
that the petitioner’s alibi witnesses could not actually testify to the petitioner’s whereabouts at the
time the crime was committed. They then chose to go with a mistaken identity defense because there
were four (4) men at the house where the incident occurred. One (1) of the men was the victim and


                                                  -4-
another died in a car accident before trial. Therefore, there were only two (2) men available to testify
at the trial. The petitioner’s trial counsel also reviewed the notes prepared by the counsel for the
petitioner’s co-defendant, Ben Mills. The petitioner’s trial counsel testified that before he took over
the case two (2) or three (3) months before trial, the petitioner’s previous counsel had filed sixty-five
(65) pre-trial motions. Petitioner’s trial counsel did not file any additional motions because he
believed the previous counsel had done an excellent job. Trial counsel also testified that he visited
the petitioner many, many times in preparation for trial. Trial counsel stated that he did research
before the trial and there was absolutely no media coverage in the case. He did not consider filing
a motion for change of venue because there was such a lack of media coverage. Trial counsel also
testified that Pshon Swift had originally given a description that did not help or harm the petitioner,
so trial counsel did not call the witness. Petitioner’s trial counsel also stated that he and the
defendant discussed much of the evidence prior to trial. The photograph referred to by the petitioner
is a photo of the victim when he was in high school. Trial counsel did not believe this photo was
inflammatory, so he did not object to it. Trial counsel was also able to have several of the
indictments dismissed with regard to the petitioner because the petitioner was indicted on several
different theories for the results of one (1) discrete incident.

        Petitioner’s appellate counsel also testified at the post-conviction hearing. He stated that he
spoke with the petitioner at least twenty (20) times while preparing the petitioner’s direct appeal.
Petitioner’s appellate counsel stated that many of the issues the petitioner wanted to present on direct
appeal were actually accusations of ineffective assistance of counsel. Appellate counsel did not
include these accusations in the direct appeal because he did not want to take a “shotgun approach”
and he felt that including those would “muddy the waters” with regard to his sufficiency of the
evidence issue. Appellate counsel stated that he felt his appeal was successful because one (1) of
the defendant’s convictions was overturned on appeal.


                                             ANALYSIS

        The petitioner argues that he was afforded ineffective assistance of counsel during both the
trial and appellate phase. He specifically argues that his attorneys failed to properly investigate
witnesses and research all available issues at both the trial and appellate levels. For these reasons,
the petitioner argues that he should be granted post-conviction relief.

        To sustain a petition for post-conviction relief, a defendant must prove his or her factual
allegations by clear and convincing evidence at an evidentiary hearing. See Tenn. Code Ann. § 40-
30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1998). The post-conviction court’s findings
of fact are conclusive on appeal unless the evidence preponderates otherwise. See State v. Burns,
6 S.W.3d 453, 461 (Tenn. 1999). During our review of the issue raised, we will afford those
findings of fact the weight of a jury verdict, and this court is bound by the court’s findings unless the
evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d 572,
578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This Court may
not reweigh or re-evaluate the evidence, nor substitute its inferences for those drawn by the post-


                                                  -5-
conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). All 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 trial judge, not the appellate courts.
See Momon, 18 S.W.3d at 156; Henley, 960 S.W.2d at 578-79. However, the post-conviction
court’s conclusions of law are reviewed under a purely de novo standard with no presumption of
correctness. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

         The petitioner argues in his brief that he was afforded ineffective assistance of counsel at
both the trial and appellate levels. However, the petitioner did not include any argument with regard
to ineffective assistance of his appellate counsel in either his original petition for post-conviction
relief or his amended petition for post-conviction relief. The post-conviction court ruled solely on
the issue of ineffective assistance of trial counsel in its order. An appeal as of right is available from
a trial court’s order denying a petition for post-conviction relief. Tenn. R. App. P. 3(b). Because
the petitioner did not raise the issue of ineffective assistance of appellate counsel in his petition and
the trial court did not rule on this issue, we cannot now address whether the petitioner was indeed
afforded ineffective assistance of counsel on appeal.

        We now turn to the question as to whether the petitioner was afforded ineffective assistance
of counsel at trial. On appeal, the petitioner argues that his trial counsel was ineffective because he
failed to employ an investigator and failed to adequately prepare for the trial. The trial court made
extensive findings with regard to the petitioner’s allegation in the post-conviction court. The trial
court made the following findings of fact and conclusions of law with regard to the petitioner’s
assertions on appeal:


        2. Failure to secure all discoverable materials from the District Attorney
        General’s Office in a timely manner. Counsel further failed to forward copies
        of discovery materials to Petitioner. Due to this failure, Mr. Nesbitt was
        unaware of the possible evidence against him and was unable to assist in his
        defense.
                 The Petitioner alleges that Trial Counsel did not secure all of the discovery
        materials that he was entitled to in a timely manner from the District Attorney’s
        office and when he did receive the information he did not fully discuss this material
        with that Petitioner. At the hearing for Post-Conviction relief, Trial Counsel was
        asked if he was provided with open file discovery from the state. He responded that
        he was given information that he was probably not supposed to have access to prior
        to the trial such as Jencks material. Trial Counsel stated that he took full advantage
        of the open file and he left no stone unturned. He went on to testify that he fully
        discussed this information with the Petitioner and the Petitioner fully understood
        what was happening. In fact, the record revealed that the Trial Counsel and the
        Petitioner had an in depth discussion about a photo and diagram of the crime scene
        that allegedly showed more bullet holes than the Defendants’ guns could have fired.
        This conversation is proof that the Trial Counsel obtained the discovery from the


                                                   -6-
State and fully discussed it with the Petitioner in an effort to form a viable defense.
Therefore, this allegation is without merit and shall be disregarded by this Court.

3. Failure to fully and adequately conduct a pre-trial investigation, including
interviewing potential prosecution witnesses. A more thorough investigation
would have revealed that Petitioner had a viable alibi defense to these charges.
         The Petitioner alleges that the Trial Counsel did not adequately conduct a pre-
trial investigation, including interviewing witnesses that could have provided an alibi
for the Petitioner. Trial Counsel admitted at the hearing that he did not employ a
private investigator to work on Mr. Nesbitt’s case. Trial Counsel stated that he had
taken over the case from a Public Defender and that the previous attorney had used
a private investigator but his work product was complete and there was no need to
do more investigation. The case was three or four years old and there was no need
to attempt to investigate more since the previous investigator had performed a
complete, thorough investigation when the witnesses and evidence were still fresh.

        As to the allegation of Counsel not investigating the Petitioner’s alibi
witnesses, the Trial Counsel testified that Petitioner’s proposed witness would not
have been able to provide an alibi. Trial Counsel did not call the proposed alibi
witness because he could not say with certainty that the gunman was not the
Petitioner. Not withstanding [sic] the fact that later in the trial the Petitioner
admitted to being at the scene of the crime. This defeats the purpose for calling an
alibi witness. Therefore, this allegation is without merit and will be disregarded.

4. Failure to properly advise and consult Petitioner as to the results of pre-trial
investigation. Had petitioner been advised of the results of this investigation he
would have assisted in the process and been able to provide names of witnesses
who would have upheld Petitioner’s theory of an alibi defense.
        The Petitioner alleges that Trial Counsel did not consult with him as to the
results of the pre-trial investigation, he was thus not able to give the attorney the
names of the alibi witnesses that would have been able to corroborate his version of
the story. Trial Counsel testified that after he acquired the discovery from the State
he discussed the evidence fully with the Petitioner whereby they discussed in detail
one of the diagrams of the crime scene and devised a theory that there had to be more
than two weapons being fired to cause all of the bullet holes at the scene.

        As discussed previously, the alibi witness that Petitioner wanted to testify was
not in position to identify the shooter. Also later at the trial, the Petitioner admitted
to being present at the scene of the crime. Therefore calling an alibi witness was
committing perjury, therefore this allegation is without merit and will be disregarded
by this Court.

        ....


                                          -7-
8. Failure to effectively cross-examine prosecution witnesses. Pre-trial
investigation of these witnesses would have revealed that these individuals were
not in position to identify the perpetrators of the crime.
        Witnesses Demetrius Manning and Taurus Cooper identified the Petitioner
as one of the Gunmen. They did not know him personally but they identified the
Petitioner in court as the gunman. The petitioner is alleging that the witnesses that
identified him at trial were not in a position at the time of the shooting to be able to
identify him. It was discovered at trial that the other potential witnesses to the
shooting such as Barbara Turner and Pshon Swift were not actually present when the
shooting took place. Barbara Turner was asleep at the time of the shooting and only
saw a profile view of the gunman when he was picking up the money. Thus she
could not positively identify the gunman. Pshon Swift was not even at the scene of
the crime. He was at his grandmother’s house, which was around the corner from the
house where the shooting took place. It is hard to dispute the witnesses that
identified the Petitioner as the gunman when later in the trial the Petitioner admits
to being at the scene of the crime and actually participated in the shooting. Thus, any
attempt to impeach the witness would have been futile because the Petitioner testified
on the stand that he participated in the shooting. Therefore this allegation is without
merit and shall be disregarded.

9. Failure to investigate possible witnesses, such as Pshon Swift. Petitioner
alleges that had Mr. Swift been investigated by trial counsel, he would have
provided exculpatory testimony at trial.
         The Petitioner alleges that the Trial Counsel did not investigate possible
witnesses such as Pshon Swift. Yet, Trial Counsel testified that Mr. Swift had been
investigated and that he did not feel that there would be any benefit for the Petitioner
in calling Mr. Swift to testify. Mr. Swift was not at the scene when the shooting
occurred rather he appeared in the latter part of the incident. Trial Counsel said that
there was no benefit in calling Mr. Swift to testify because he could not provide the
Petitioner with an alibi or say he wasn’t there. He simply described a person he saw
shooting. That description did not describe the Petitioner but it did not rule him out
either, therefore this witness was not beneficial to the defense. This decision not to
call this witness involved tactical decision-making. Tactical decision-making is
generally viewed as a process under the sole discretion of counsel, and is thus not
generally subject to appellate or post-conviction review. This allegation is without
merit and will be disregarded by this Court.

       ....




                                          -8-
11. Failure to discuss with petitioner the impact of the admission into evidence
of co-defendant Ben Mills’ statement. Counsel did not discuss with Petitioner
the implications of Mr. Mills’ statement on Petitioner’s case.
        The Petitioner alleges that Trial Counsel did not explain to him the effect that
Co-defendant’s statement that was given to the police could have on him. However,
Trial Counsel testified that he discussed all the ramifications that the co-defendant’s
testimony could have on Petitioner’s trial. Trial Counsel stated that he informed
Petitioner that the defense would be made more difficult to establish, in light of the
nature of the statements given by the co-defendant to the police. Trial Counsel
affirmed that he discussed the hazards of this defense with the Petitoner [sic]. This
allegation is a moot point because the statements that the co-defendant gave to the
police were never used as evidence at Petitioner’s trial. Therefore, this allegation is
without merit and should be disregarded by this Court.

12. Failure to properly move for a severance from Mr. Mills’ pre-trial.
Petitioner was prejudiced tremendously when he was tried with Mr. Mills, who
had given incriminating statements to law enforcement.
       The Petitioner alleges that Trial Counsel failed to move for a severance from
the Co-defendant. Trial Counsel testified at the hearing that in fact he did move for
a severance but that it was denied. Trial Counsel felt that this was a moot issue
because the Co-defendant did not testify. In this case it is a moot point because the
co-defendant did not testify and thus his statement he gave to the police was never
entered into the record. Therefore this allegation is without merit and should be
disregarded by the court.

13. Failure to request that the court charge lesser-included offenses to First
Degree Murder.
        The Petitioner alleges that Trial Counsel should have requested that the Court
charge the jury with lesser-included offenses to First Degree Murder. When
questioned regarding this matter, Trial Counsel testified that he recalled that the
judge did in fact give instructions on some lesser-included offenses. Trial Counsel
explained at the hearing that there were many indictments under many different
theories and many possible results. Counsel further elaborated that the charges under
which Petitioner was indicted involved one event. Counsel stated that he was
successful in getting some of Petitioner’s charges dismissed at the outset of the
proceedings. Counsel then testified that there was no way any of the remaining
charges could have been consolidated or reduced. In essence there was apparently
only one indictment, but with multiple counts, which would have had negative
impact on the Petitioner with the jurors upon being read the indictment. Trial
Counsel was successful in having the premeditated murder charge dropped
notwithstanding the fact that the jury had returned a guilty verdict. It is the opinion
of this Court that Trial Counsel has proven that the jury was properly charged,
therefore this allegation is without merit and should be disregarded by this court.


                                          -9-
        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. See Powers v. State, 942
S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the
petitioner must show that the services rendered or the advice given was below “the range of
competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). In order to demonstrate prejudice, the petitioner must show that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding would have
been different. See Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.
2d 674 (1984). “Because a petitioner must establish both prongs of the test to prevail on a claim of
ineffective assistance of counsel, failure to prove either deficient performance or resulting prejudice
provides a sufficient basis to deny relief on the claim.” Henley, 960 S.W.2d at 580.

        As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record preponderates
against the court’s findings. See id. at 578. However, our supreme court has “determined that issues
of deficient performance by counsel and possible prejudice to the defense are mixed questions of law
and fact . . . ; thus, [appellate] review of [these issues] is de novo” with no presumption of
correctness. Burns, 6 S.W.3d at 461.

       Furthermore, on claims of ineffective assistance of counsel, the petitioner is not entitled to
the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). This
Court may not second-guess a reasonably-based trial strategy, and we cannot grant relief based on
a sound, but unsuccessful, tactical decision made during the course of the proceedings. See id.
However, such deference to the tactical decisions of counsel applies only if counsel makes those
decisions after adequate preparation for the case. See Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

        The petitioner first argues that his trial counsel was ineffective because he did not employ
an investigator to prepare for trial. Petitioner’s trial counsel testified that he received all the
investigation materials gathered by the petitioner’s previous attorney. The petitioner’s previous
attorney had hired an investigator. Petitioner’s trial counsel also stated at the post-conviction hearing
that the investigator spoke with the same witnesses with whom he himself would have spoken. As
stated above, when a petitioner alleges ineffective assistance of counsel he must prove that his trial
counsel’s services were both deficient and prejudicial. See Powers, 942 S.W.2d at 558.

        In the case sub judice, we find that the petitioner’s trial counsel’s services were not deficient
with respect to failing to hire a second investigator. When petitioner’s trial counsel began his
representation, three (3) or four (4) years had passed since the incident. In fact, only two (2) of the
four (4) men in the house at the time of the incident were available to testify at the trial. The
petitioner does not point to any specific evidence to be gained from secondary interviews conducted


                                                  -10-
by another investigator. He merely argues that his trial counsel should have secured additional
statements from these witnesses. This is not sufficient to prove that had his trial counsel conducted
additional interviews new, more reliable information would have been gleaned from these interviews
conducted three (3) or four (4) years after the incident. As his trial counsel stated at the post-
conviction hearing, the petitioner’s previous counsel had hired an investigator who did a very
thorough job. The investigator interviewed witnesses much closer to the time of the incident. For
these reasons, the petitioner has not proven that his trial counsel’s representation with regard to
hiring an additional investigator was deficient.

        The petitioner also argues that his trial counsel failed to adequately prepare for his trial. In
addition to not hiring an additional investigator, the petitioner argues that his trial counsel did not
conduct sufficient pre-trial litigation. He specifically argues that his trial counsel should have argued
a motion to suppress and filed a motion to suppress a photo line-up identification by two (2) men
present at the incident. Petitioner’s trial counsel testified at the post-conviction hearing that he did
indeed argue a motion to suppress which was denied by the trial court. Petitioner’s trial counsel
stated that petitioner’s previous counsel had filed sixty-five (65) pre-trial motions.

        We find that the petitioner has not met his burden of proving that his trial counsel’s
performance was both deficient and prejudicial. The petitioner’s previous counsel filed sixty-five
(65) motions which address all relevant pre-trial issues. The petitioner argues specifically that his
trial counsel should have filed a motion to suppress. Trial counsel testified that he did argue a
motion to suppress. The post-conviction court accredited the petitioner’s trial counsel’s testimony.
Therefore, we cannot find that his representation was deficient in this regard. With regard to the
suppression of the identification, the post-conviction court found in its order that the petitioner
actually admitted at trial to being at the scene of the crime and participating in the shooting.
Therefore, the petitioner has been unable to meet his burden with regard to prejudice.

                                           CONCLUSION

        For the foregoing reasons, we affirm the judgment of the post-conviction court.


                                                ___________________________________
                                                JERRY L. SMITH, JUDGE




                                                  -11-
