        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs June 29, 2010

          ALFRED EUGENE BRADLEY v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Hamilton County
                       No. 254328    Rebecca J. Stern, Judge




                No. E2009-02503-CCA-R3-PC - Filed October 27, 2010


The Petitioner, Alfred Eugene Bradley, filed a petition for post-conviction relief, raising
numerous claims of ineffective assistance of counsel. After a hearing, the post-conviction
court denied the petition, finding that trial counsel was not ineffective, and the Petitioner
timely appealed. We affirm the judgment of the post-conviction court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and D. K ELLY T HOMAS, J R., J., joined.

Ardena J. Garth and Richard Kenneth Mabee (on appeal) and Jonathan Turner (at trial),
Chattanooga, Tennessee, for the appellant, Alfred Eugene Bradley.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; William H. Cox, III, District Attorney General; and Bates Bryan, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       The Petitioner was convicted by a jury of four counts of attempted first degree murder,
aggravated arson, false imprisonment, assault, and theft under $500. After a sentencing
hearing, the trial court imposed a total effective sentence of twenty-two years and six months
in the Tennessee Department of Correction. On February 5, 2004, this court affirmed his
convictions, summarizing the proof at trial as follows:
        The convictions in this case stem from three separate
indictments issued by the Hamilton County Grand Jury against
the [Petitioner], Alfred Eugene Bradley, in which he was
charged with the May 23, 2000, theft of property from the
duplex of his former girlfriend, Audrey Thompson; the May 25,
2000, kidnapping and assault of Thompson; and the June 3,
2000, aggravated arson of Thompson’s duplex and attempted
first degree murder of Thompson’s three children and her male
friend, Blevins Espey.

       ....

The evidence at trial showed that the [Petitioner] was angry at
Thompson for ending their relationship and jealous at the
thought of her with another man. Approximately one week
before the fire, the [Petitioner] threatened Thompson’s children
in a conversation with Thompson’s next-door neighbor [Latiki
Pankey]. At roughly the same period of time, on May 25, 2000,
the [Petitioner] forced Thompson into his car and drove her
around against her will, at the same time telling her that he loved
her and wanted a chance to start over with her. On the evening
before the fire, the [Petitioner] telephoned Thompson’s house
over twenty times and, in one of his conversations with her,
threatened to kill her if he discovered that she was with another
man. Approximately five minutes after Thompson left the house
[at 3:00 or 4:00 a.m.], someone standing outside the house broke
a window in Thompson’s bedroom, where her male friend was
staying, and a window in a second bedroom, where two of
Thompson’s three children were sleeping, and threw or poured
a gasoline range product inside, setting the house on fire.
Broken glass and blood found at the scene suggested that the
arsonist cut himself in the process of setting the fire.

        The [Petitioner] was found shortly after the fire lying on
a nearby street with a severely cut arm. A trail of blood led from
the pools of blood where the [Petitioner] was found back toward
the scene of the fire. The [Petitioner] told the paramedic who
treated him that he had cut his arm on glass and twice answered
in the affirmative when asked, first by a police officer and then
by the fire investigator, if he had cut himself starting the fire.

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               Finally, a gasoline range product was present on the
               [Petitioner’s] clothing.

State v. Alfred Eugene Bradley, No. E2002-02840-CCA-R3-CD, 2004 WL 223399, at **1,
8 (Tenn. Crim. App. at Knoxville, Feb. 5, 2004). On September 7, 2004, our supreme court
denied permission to appeal.

        Subsequently, the Petitioner filed a timely petition for post-conviction relief, post-
conviction counsel was appointed, and an amended post-conviction petition was filed. In the
amended petition, the Petitioner claimed that counsel failed to properly investigate his case,
failed to impeach two state witnesses with their prior convictions for crimes of dishonesty,
failed to investigate an alibi defense, failed to object to hearsay evidence, failed to question
Thompson about her motive for committing the arson, failed to submit a written
memorandum concerning mitigating evidence and to develop mitigation evidence at the
sentencing hearing, failed to challenge the Petitioner’s convictions for attempted first degree
murder and aggravated arson on double jeopardy grounds, and failed to argue that the trial
court’s application of enhancement factors violated Blakely v. United States, 542 U.S. 296
(2004).

        At the post-conviction hearing, the Petitioner’s trial counsel testified that although the
Petitioner was initially represented by other attorneys, she represented him in general
sessions court and at trial. She could not recall how many times she met with the Petitioner
prior to trial, but she opined that the number of meetings was sufficient for the preparation
of the case.

       Counsel recalled that the Petitioner’s prior attorneys had a mental evaluation
performed on the Petitioner and that he was found competent to stand trial. Counsel said the
Petitioner did not provide much information to assist in his defense of the aggravated arson
and attempted first degree murder charges. He said he did not recall how he came to be two
blocks from the fire at the end of a trail of blood leading back to the crime scene or why he
smelled of gasoline. Counsel maintained that she did not detect any “mental defect” which
would have impeded the Petitioner’s memory, and she questioned the Petitioner’s candor and
willingness to tell her what transpired on the night of the arson.

       Counsel stated that the Petitioner told her that earlier on the evening of the fire, he
smoked crack and went to two bars, the Player’s Club and Dagwoods, where he sang karaoke
and consumed a beer, a White Russian cocktail, and several other drinks. However, she was
unable to definitively establish the Petitioner’s presence at either bar at the time the arson
was committed. Counsel stated that she would have pursued an alibi defense had one been
available. Counsel noted that an alibi defense was compromised by the discovery of the


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Petitioner, not long after the arson, passed out, bloody, and with gasoline on his clothes. The
Petitioner was found at the end of a trail of blood leading back to the scene. Counsel stated
that the Petitioner faced “pretty tough facts” that were difficult to overcome.

       Counsel recalled that she interviewed witnesses and extensively cross-examined the
witnesses at the preliminary hearing and at trial. She said that she routinely performed
“background checks” on trial witnesses, which would have revealed that Thompson had a
prior conviction for criminal impersonation and that Pankey had a prior conviction for
misdemeanor theft. She said she could not specifically recall why she chose not to impeach
either witness with their prior convictions. However, she recalled that her cross-examination
of both witnesses was so “contentious” that she feared she was dangerously close to
alienating some members of the jury. She surmised that she abandoned impeachment to
focus on more substantive matters to avoid further problems with the jury and that she was
able to discredit the victim without the impeachment evidence.

        Counsel said that she was aware that Thompson had some money that was burned in
the fire and that Thompson wanted to go into the house to get the money. Counsel stated that
the Petitioner was not able to substantiate his claim that Thompson was involved in “money
laundering.”

        Counsel admitted that she did not submit a written sentencing memorandum to the
trial court, but she opined that the lack of a memorandum did not affect the trial court’s
decision in sentencing the Petitioner. Counsel acknowledged that she did not pursue a
Blakely claim, explaining that Blakely was not released until well after the Petitioner’s
sentencing hearing. Counsel stated that she did not believe the Petitioner’s double jeopardy
claim had merit.

       The Petitioner’s sister, Mary Smith, testified that at counsel’s request, she testified for
the Petitioner at his sentencing hearing. Smith stated that she had never met or spoken with
counsel until the day of the sentencing hearing and that counsel did not prepare her to testify.
Smith said she testified about the Petitioner’s traumatic childhood.

       The Petitioner testified that he had been in custody since June 2001 and that his trial
was held in May 2002. During that time, he had two or three meetings with counsel, and
each meeting lasted less than thirty minutes. He did not recall going over the evidence with
counsel. The Petitioner stated that he was aware of only the witnesses who were listed on
the true bill and that counsel never asked him if there were other witnesses she should
interview. The Petitioner maintained that counsel did not discuss the sentencing hearing with
him and did not contact him in the interim between trial and the sentencing hearing.



                                               -4-
       The Petitioner told counsel “that [he] was at Player’s Club first then [he] wound up
at Dagwoods and that was [his] alibi and next thing [he knew he] was in the hospital.” He
told counsel the names of the songs he sang during karaoke and described the people with
whom he sang. The Petitioner said he had no memory of the events which occurred from the
time he was at Dagwoods and the time he was hospitalized. The Petitioner maintained that
both bars had gone out of business since his incarceration.

        The Petitioner said, “At the time me and [counsel] discussed anything I was under
medication for depression and I really just don’t remember just talking about [being found
bloody near the scene] at all.” The Petitioner stated that he was probably in the area of the
fire to purchase drugs. When asked if he ever gave counsel an explanation for his presence
at the end of a trail of blood leading from the scene of the fire, the Petitioner responded that
“they never determined it was my blood.”

       At the end of the hearing, the post-conviction court found that counsel was not
ineffective and dismissed the petition. The Petitioner appealed to this court, and we
remanded to the post-conviction court “to permit the post-conviction court to enter a final
order or memorandum addressing all grounds presented with factual findings and legal
conclusions in compliance with Tennessee Code Annotated section 40-30-111(b).” Alfred
Eugene Bradley v. State, No. E2008-00829-CCA-R3-PC, 2009 WL 2870178, at *2 (Tenn.
Crim. App. at Knoxville, Sept. 3, 2009).

       On remand, the post-conviction court entered an order, again finding that the
Petitioner failed to prove that his counsel was ineffective. Specifically, the post-conviction
court found that the Petitioner had no proof of his whereabouts at the time of the fire;
therefore, an alibi defense was not viable. The court also found that there was sufficient
evidence to corroborate Thompson’s testimony, noting that “there was reason to accept her
account, despite the prior conviction for criminal impersonation, as reliable.” The post-
conviction court stated that the evidence of the Petitioner’s guilt was overwhelming;
therefore, “any deficiency in counsel’s performance . . . was not prejudicial.” The post-
conviction court noted that proof presented at the sentencing hearing was “not complex and
was comprehensible and credible” and that a sentencing memorandum was not necessary.
The court found that there was no merit to the Petitioner’s double jeopardy argument.
Further, the court found that counsel was not ineffective in failing to raise a Blakely issue,
noting that Blakely was released while the Petitioner’s application for permission to appeal
was pending and because “the broad implications of Blakely [were] not . . . immediately
apparent and [were] only apparent with further developments in the law.” The Petitioner
appeals the post-conviction court’s ruling.

                                         II. Analysis

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       To be successful in his claim for post-conviction relief, the petitioner must prove all
factual allegations contained in his post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). “‘Clear and convincing evidence
means evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled to
substantial deference on appeal unless the evidence preponderates against those findings.
See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001). However, we will review the post-conviction
court’s conclusions of law purely de novo. Id.

       When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, “the petitioner bears the burden of proving both that counsel’s performance was
deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To establish
deficient performance, the petitioner must show that counsel’s performance was below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). To establish prejudice, 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. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Moreover,

                       [b]ecause a petitioner must establish both prongs of the
              test, a failure to prove either deficiency or prejudice provides a
              sufficient basis to deny relief on the ineffective assistance claim.
              Indeed, a court need not address the components in any
              particular order or even address both if the [petitioner] makes an
              insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).




                                              -6-
        On appeal, the Petitioner raises eight claims of ineffective assistance of counsel. First,
the Petitioner alleges that “[t]rial counsel was ineffective in that she was not adequately
prepared to defend Petitioner on said charges nor did she conduct a proper investigation
which unduly prejudiced Petitioner.” We note that the Petitioner did not present any new
evidence at the post-conviction hearing which could have been discovered upon further
investigation. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Moreover,
trial counsel testified that, considering the abundance of proof against the Petitioner and his
purported memory failure concerning his whereabouts at the time of the fire, defending the
Petitioner against the charges was extremely difficult. The Petitioner has not established that
counsel’s performance was deficient.

         Next, the Petitioner contends that “[t]rial counsel was ineffective in that she did not
impeach a state’s witness where the record clearly reflects that counsel had knowledge of her
impeaching crime.” Specifically, the Petitioner maintains that trial counsel should have
impeached both Thompson and Pankey with their prior crimes of dishonesty. The post-
conviction court found that Thompson’s testimony was sufficiently corroborated at trial so
that impeaching her with a prior conviction for criminal impersonation would have had an
imperceptible effect on the trial. Specifically, the court noted that the victim’s testimony
regarding the Petitioner’s jealous anger after their relationship ended was consistent with the
Petitioner’s ejection from her home, his theft of property, and his subsequent telephone calls.
There is nothing in the record to preponderate against the court’s finding. The court noted
that Pankey’s testimony “though corroborative, [was] not . . . critical to the state’s theory,
[therefore] . . . the impeachment of the witness [was not] critical.” Additionally, trial counsel
testified that she did not pursue impeachment for fear that she would alienate the jury by
attacking the witnesses and that she was able to discredit the victim without using the prior
conviction. On appeal, this court may not second-guess the tactical or strategic choices of
counsel unless those choices are based upon inadequate preparation, nor may we measure
counsels’ behavior by “20-20 hindsight.” See State v. Hellard, 629 S.W.2d 4, 9 (Tenn.
1982). Moreover, “[a]llegations of ineffective assistance of counsel relating to matters of
trial strategy or tactics do not provide a basis for post-conviction relief.” Taylor v. State, 814
S.W.2d 374, 378 (Tenn. Crim. App. 1991). Therefore, the Petitioner is not entitled to relief
on this basis.

        The Petitioner contends that “[t]rial counsel was ineffective in that she did not
investigate the alibi of the Petitioner when he informed her he was at two different bars
singing karaoke when the crimes were committed.” Essentially, the Petitioner claims that
trial counsel should have investigated and pursued an “alibi” defense. However, he
acknowledged that he did not know how he got from Dagwoods to the hospital and that he
was unable to substantiate his whereabouts at the time of the fire. Moreover, trial counsel
stated that she questioned the Petitioner’s candor in claiming his memory of the night in

                                               -7-
question was faulty. Additionally, the Petitioner, after being found passed out near the fire,
acknowledged to two officers that he was involved in the fire. The Petitioner presented no
witnesses at the post-conviction hearing to support his alibi claim. The post-conviction court
found that the Petitioner was not entitled to relief. We agree.

       The Petitioner maintains that “[t]rial counsel was ineffective in that she did not
properly object to hearsay during direct examination.” Specifically, the Petitioner states that
counsel should have objected when Pankey testified that the Petitioner cut Thompson’s
waterbed, an event of which Pankey could not have first-hand knowledge. The post-
conviction court observed that the Petitioner did not pursue at the post-conviction hearing
the issue of Pankey’s hearsay testimony. The record reflects that this testimony also came
in during the testimony of Thompson and Officer Weary. Therefore, any objection to
Pankey’s testimony would have had a negligible effect on the trial. The Petitioner has failed
to establish that counsel was ineffective in this regard.

        The Petitioner argues that “[t]rial counsel was ineffective in that she did not properly
develop motive testimony during cross-examination of Audrey Thompson.” The Petitioner
alleges that trial counsel should have developed through cross-examination that Thompson
had motive to set fire to her own home because of her involvement in money laundering.
However, the Petitioner presented no evidence to support this allegation and has therefore
failed to establish trial counsel’s ineffectiveness regarding this issue.

       The Petitioner maintains that “[t]rial counsel was ineffective in that she did not submit
any written reports of the [Petitioner’s] mitigating evidence for the sentencing phase of trial
nor did trial counsel properly develop mitigation evidence at the sentencing hearing.” The
post-conviction court observed that trial counsel’s performance during the sentencing hearing
was sufficient and that written sentencing memoranda would not have changed the outcome
of the hearing. There is no evidence in the record to preponderate against this finding.

        The Petitioner contends that “[t]rial counsel was ineffective in that she did not raise
a Double Jeopardy issue at any stage of this case which in turn cause the Petitioner to waive
this issue.” He asserts that counsel should have challenged his convictions for aggravated
arson and attempted murder on double jeopardy grounds. Counsel testified that the double
jeopardy argument was meritless. The post-conviction court agreed, stating “that the
offenses are not the same for double jeopardy purposes.” We agree and conclude that the
Petitioner has not established that trial counsel was ineffective.

       Finally, the Petitioner argues that trial counsel’s failure to raise a Blakely claim on
appeal was ineffective. A brief recitation of the chronology of events is necessary to our
analysis of this issue.

                                              -8-
        The Petitioner was convicted on November 4, 2002. This court’s opinion in the
Petitioner’s direct appeal was issued on February 5, 2004. On February 23, 2004, trial
counsel’s motion to withdraw from representation pursuant to Rule 14 of the Rules of the
Supreme Court of Tennessee was granted. On April 6, 2004, the Petitioner, acting pro se,
filed an application for permission to appeal to our supreme court. On June 24, 2004, while
the application was pending, the United States Supreme Court released its opinion in Blakely,
holding that “the ‘statutory maximum’ . . . is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”
Blakely, 542 U.S. at 304. Our supreme court denied the Petitioner’s application on
September 7, 2004.

        The Petitioner’s complaint is that counsel failed to “raise a Blakley issue” and that as
a result of counsel’s failure, the issue was waived. However, in his post-conviction petition
and in his appellate brief, the Petitioner acknowledges that he acted pro se in filing his Rule
11 petition to the supreme court. Further, in his post-conviction petition, the Petitioner stated
that he raised a Blakely issue in his Rule 11 application, thereby preserving the issue.
Moreover, we note that counsel had already withdrawn from representation at the time
Blakely was released. Accordingly, we conclude that counsel was not ineffective in this
regard.

                                       III. Conclusion

       Based upon the foregoing, we affirm the judgment of the post-conviction court.


                                            ___________________________________
                                                  NORMA McGEE OGLE, JUDGE




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