        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs May 13, 2014

             JAMAR ED-WAE SCOTT v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                       No. 2006-A-419     Seth Norman, Judge




                  No. M2013-01724-CCA-R3-PC - Filed June 9, 2014


The petitioner, Jamar Ed-Wae Scott, appeals the denial of his petition for post-conviction
relief, which challenged his Davidson County Criminal Court jury convictions of first degree
murder and attempted robbery. Discerning no error, we affirm the denial of relief.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which JOHN E VERETT
W ILLIAMS and R OGER A. P AGE, JJ., joined.

Kara Everett, Nashville, Tennessee, for the appellant, Jamar Ed-Wae Scott.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Dan Hamm, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                A Davidson County Criminal Court jury convicted the petitioner of two counts
of felony murder, two counts of second degree murder, and two counts of attempted robbery
related to the shooting deaths of Gregory Miles and Andrea McFee on September 11, 2005.
On direct appeal, this court affirmed the convictions and accompanying sentence of life plus
eight years’ imprisonment. See State v. Jamar Ed-Wae Scott, No. M2010-00809-CCA-R3-
CD, slip op. at 1 (Tenn. Crim. App., Nashville, Dec. 15, 2011). The evidence adduced at the
petitioner’s trial, as summarized by this court on direct appeal, established that on September
10, 2005, the petitioner’s girlfriend, Francine Goss, announced plans to commit a robbery to
obtain money and that she selected the victims when she went to the store with a friend
during the early morning hours of September 11, 2005. See id., slip op. at 4. Ms. Goss
brought the victims to her home, where five children lay sleeping in a back bedroom. One
of the children testified that she had seen the petitioner inside Ms. Goss’s residence with a
gun in his waistband. At some point, “a ‘shootout’ occurred in Goss’s home,” id., slip op.
at 6, and the victims died as a result of multiple gunshot wounds sustained during the
shootout, see id., slip op. at 7. Telephone records established that Ms. Goss and the
petitioner spoke to each other 28 times between 2:32 a.m. and 4:38 a.m. Other evidence
established that the shootings occurred after 4:00 a.m. The petitioner admitted to two of his
friends that he had shot two people, see id., slip op. at 2, and threatened the life of a potential
State witness, see id., slip op. at 4.

                The petitioner did not file an application for permission to appeal to the
supreme court but instead filed a timely petition for post-conviction relief, alleging that he
was deprived of the effective assistance of counsel at trial and on appeal. The petitioner
claimed that his trial counsel performed deficiently by failing to secure the services of an
investigator, by failing to interview potential witnesses prior to trial or present those
witnesses at trial, by failing to protect the petitioner’s right to a speedy trial, by failing to
interview the potential witnesses for the State, by failing to obtain discovery from the State,
by failing to make numerous objections at trial, by failing to adequately inform the petitioner
of his right to testify at trial, and by failing to adequately communicate with the petitioner.1
The petitioner also claimed that his trial counsel performed deficiently during jury selection
and during opening statement. The petitioner claimed that his appellate counsel performed
deficiently by failing to raise a number of issues on appeal. Following the appointment of
counsel, the petitioner filed an amended petition for post-conviction relief, adding claims that
counsel performed deficiently by failing to adequately prepare for trial and apprise
themselves of the applicable law and by failing to file a motion to suppress the petitioner’s
statement to police and that the evidence was insufficient to support his convictions.

               At the April 2013 evidentiary hearing, trial counsel testified that she undertook
representation of the petitioner just before the preliminary hearing and that her representation
continued through the filing of one motion for new trial. She said that she obtained the
services of an investigator to investigate the case and interview all of the potential witnesses.
Additionally, she secured the assistance of another attorney to act as co-counsel. Trial
counsel recalled that the petitioner’s first trial ended in a hung jury. Trial counsel said that
she met with the petitioner numerous times prior to the first trial and “multiple times” before
the second trial. She said that she shared discovery materials with the petitioner and that the
two discussed the elements of the offenses, trial strategy, and potential witnesses and


        1
         The petitioner also claimed, inexplicably, that misinformation received from trial counsel led the
petitioner “to plea[d] guilty to an offense . . . to which [the p]etitioner was not guilty; and cause [the
p]etitioner to plea[d] outside of his recognized range.”

                                                   -2-
defenses. She recalled the petitioner’s providing information regarding a potential alibi
witness but said that the potential witness “would not confirm that [the petitioner] had been
there.”

               Trial counsel testified that she discussed with the petitioner the circumstances
surrounding his giving a statement to police, but she did not recall any issue with the
statement that would have prompted her to file a motion to suppress the statement. She said
that the statement did not contain any inculpatory information. Trial counsel said that she
discussed with the petitioner the benefits and costs of his choosing to testify at trial and that
“it was ultimately his decision.”

               Appellate counsel testified that she was appointed to represent the petitioner
following the filing of his motion for new trial. She said that she argued the motion for new
trial and then represented the petitioner on direct appeal to this court. She recalled that she
chose to present on direct appeal only those issues she believed to have merit rather than
repeating all of the issues raised in the motion for new trial. After this court affirmed the
convictions and sentence, appellate counsel forwarded a copy of this court’s opinion to the
petitioner. The two then spoke over the telephone, and appellate counsel told the petitioner
that she believed obtaining relief from the supreme court would be “a longshot” and that such
an appeal would be time-consuming. She said she told the petitioner that she believed the
issues he wanted to raise would best be raised in a petition for post-conviction relief and
advised him of the time limit for filing. She recalled that based upon their discussion, the
petitioner initially agreed to forego an appeal to the supreme court. Later, however, he
contacted her and expressed a desire to file an application for permission to appeal. She did
not say, however, whether the time for filing the application had passed.

              The petitioner testified that trial counsel visited with him while he was
incarcerated to discuss the case, that the investigator also visited with him, and that trial
counsel explained the legal elements of the offenses with which he was charged.
Nevertheless, he claimed that he “didn’t have a real clear understanding” of the case
“because like I was coming about a certain way and . . . my response to certain stuff wasn’t
right.” The petitioner said that he explained to trial counsel that he was in custody when he
provided a statement to the police about the shooting. He said that he wanted counsel to seek
suppression of the statement.

               The petitioner testified that he asked trial counsel to interview Alyssa Polk,
whom he described as “a female friend” with whom he “just was cool,” because she could
provide alibi testimony. He said that, as far as he knew, trial counsel did not interview Ms.
Polk.



                                               -3-
               The petitioner testified that he wanted appellate counsel to file an application
for permission to appeal to the supreme court and that he never told appellate counsel
otherwise. He admitted that appellate counsel told him that the likelihood of success on an
appeal to the supreme court was slim and that he would be better served by filing a petition
for post-conviction relief. He said that he did not understand from their conversation that
appellate counsel was not going to file an application for permission to appeal. He denied
receiving any notice that counsel intended to withdraw from representing him.

               During cross-examination, the petitioner admitted that he did not provide any
inculpatory information in his statement to the police and that his statement was not admitted
into evidence at trial. He nevertheless claimed that “73 percent of [the] trial was based about
[his] statement but it was just edited from [his] statement.” He then said, “Everyone avoided
my statement.” The petitioner claimed that counsel’s failure to seek suppression of his
statement had a chilling effect on his right to testify because he feared that he would be
impeached with the contents of the statement should he testify in a manner inconsistent with
the statement. He conceded, however, that he participated in a full Momon colloquy and that
he told the trial court, under oath, that he had personally made the decision not to testify.

               At the conclusion of the hearing, the post-conviction court took the petition
under advisement. In a written order, the court denied relief, finding that the petitioner had
failed to establish his claims by clear and convincing evidence. The post-conviction court
accredited the testimony of both trial and appellate counsel that each had fully explained the
law and procedure applicable to his case to the petitioner. The court concluded that trial
counsel “zealously cross-examined witnesses and researched every potential defense to the
charges.” The court opined that “trial counsel represented the [p]etitioner with the utmost
competence and zeal at both trials in this matter.” The post-conviction court also concluded
that appellate counsel’s advice that he would be better served by filing a petition for post-
conviction relief than by filing an application for permission to appeal did not divest the
petitioner of his right to file an application for permission to appeal. The court accredited
appellate counsel’s testimony that the petitioner agreed to forego second-tier appellate
review.

                In this timely appeal, the petitioner reiterates his claim of ineffective assistance
of counsel, claiming that his trial counsel performed deficiently by failing to file a motion
to suppress his statement to the police and by pressuring him into waiving his right to testify
at trial and that his appellate counsel performed deficiently by misinforming the petitioner
regarding appellate procedure and by failing to file an application for permission to appeal.
The State contends that the petitioner failed to establish any of his claims by clear and
convincing evidence.



                                                -4-
              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” T.C.A.§ 40-30-103 (2006). A post-conviction petitioner
bears the burden of proving his or her allegations by clear and convincing evidence. Id. §
40-30-110(f). On appeal, the post-conviction court’s findings of fact are conclusive unless
the evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79
(Tenn.1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast,
the post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

                To establish entitlement to post-conviction relief via a claim of ineffective
assistance of counsel, the post-conviction petitioner must affirmatively establish first that
“the advice given, or the services rendered by the attorney, are [not] within the range of
competence demanded of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an
adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other
words, the petitioner “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
Should the petitioner fail to establish either deficient performance or prejudice, he is not
entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn.1996). Indeed, “[i]f
it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

               When reviewing a claim of ineffective assistance of counsel, we will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

             In our view, the record supports the decision of the post-conviction court
denying post-conviction relief because the petitioner failed to establish any of his claims by
clear and convincing evidence.

                                     Motion to Suppress

             The petitioner contends that his trial counsel performed deficiently by failing
to seek suppression of the statement he provided to the police following his arrest. The

                                              -5-
petitioner concedes that the statement was not admitted at trial but claims that “the potential
for it to be introduced has an indelible impact on all other evidentiary aspects of the trial
strategy.” In our view, however, the petitioner waived any claim for relief related to this
statement by failing to introduce it at the evidentiary hearing. Additionally, the petitioner
failed to cite any authority in support of his assertion that trial counsel’s failure to seek
suppression of a statement that was never admitted at trial resulted in prejudice to his case,
and we find none.2 The petitioner failed to establish this claim for post-conviciton relief.

                                             Right to Testify

                 The petitioner claims that his trial counsel “pressured him” to waive his right
to testify at trial. The petitioner’s own testimony at the evidentiary hearing, however, belies
his claim. Although the petitioner testified that he initially wanted to testify at trial, he said
that by the conclusion of the State’s proof, he no longer wanted to take the stand because he
did not believe that his testimony would make sense without the context that would have
been provided had his counsel asked certain questions of the State’s witnesses. The
petitioner also acknowledged telling the trial court during the Momon colloquy that he did
not want to testify and that he had made the decision of his own volition. He said, “I did say
that I didn’t want to testify because, like, at the end there was nothing I could have done
because all of the witnesses had already been put up there. . . . I couldn’t get up there and
testify to nothing.” Absolutely no evidence supports the petitioner’s claim that trial counsel
pressured him into waiving his right to testify or his more audacious claim that his Momon
“waiver was not intelligently given.” Accordingly, this claim for relief fails.

                                Application for Permission to Appeal

               The petitioner claims that appellate counsel not only failed to explain his right
to file an application for permission to appeal to the supreme court following this court’s
ruling on direct appeal but also that appellate counsel “in fact misinformed” him “regarding
appellate procedure.” The record simply does not support this claim. Appellate counsel’s
accredited testimony established that she provided the petitioner with a copy of this court’s
opinion on direct appeal and then spoke with him by telephone regarding his right to file an
application for permission to appeal. She said that she told the petitioner that although she
believed his issues had some merit, obtaining relief via second-tier appellate review was not
likely and that the procedure was time consuming. She candidly admitted that she told the


        2
         The single case cited by the petitioner, Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App.
1996), does not, in any way, support his claim. That case addresses a claim of ineffective assistance of
counsel in the context of a guilty plea and does not contain any issue with regard to motions to suppress, the
potential admission of evidence, or trial strategy.

                                                     -6-
petitioner that she believed he would be better served by pursuing post-conviction relief. The
post-conviction court accredited counsel’s testimony that the petitioner agreed to forego
filing an application for permission to appeal. Although it appears that the petitioner later
changed his mind, it is not clear from the record whether his change of heart occurred before
or after the time for filing an application for permission to appeal had passed. Importantly,
no proof suggested that appellate counsel abandoned the petitioner following this court’s
opinion. Instead, the record establishes that counsel fully explained the process to the
petitioner along with his chances of success and that the two arrived at a decision to forego
further review.3 The petitioner is not entitled to relief on this issue.

              Because the petitioner failed to establish his claims by clear and convincing
evidence, the judgment of the post-conviction court is affirmed.


                                                           _________________________________
                                                           JAMES CURWOOD WITT, JR., JUDGE




        3
          Reference was made at the evidentiary hearing and in the post-conviction court’s order to the change
in Tennessee Rule of Appellate Procedure 11 regarding the 60-day time limit for filing an application for
permission to appeal. Previously, this time limit had not been subject to enlargement. Effective July 1, 2012,
the rule was amended to provide that the 60-day time limit could be waived in criminal cases in the interest
of justice.

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