        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 March 29, 2011 Session

                  JAMES DANIELS v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Cocke County
                              No. 1063 Rex H. Ogle, Judge



                   No. E2010-01443-CCA-R3-PC-FILED-JUNE 2, 2011


Petitioner, James Daniels, was convicted by a Cocke County jury of first degree murder and
attempted second degree murder. He was sentenced to concurrent sentences of life in prison
and twelve years, respectively. Petitioner’s convictions were affirmed on direct appeal and
the supreme court denied permission to appeal. State v. James Wesley Daniels, No. E2006-
01119-CCA-R3-CS, 2007 WL 2757636 (Tenn. Crim. App., at Knoxville, Sept. 24, 2007),
perm. app. denied, (Tenn. Feb. 4, 2008). Subsequently, Petitioner sought post-conviction
relief on the basis of ineffective assistance of counsel. After a hearing on the petition, the
post-conviction court dismissed the petition for relief. Petitioner appeals. After a review,
we determine that Petitioner has failed to present clear and convincing evidence that he
received ineffective assistance of counsel. Accordingly, the judgment of the post-conviction
court is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.
and J.C. M CL IN, JJ., joined.

Heather N. McCoy, Sevierville, Tennessee, for the appellant, James Daniels.

Robert E. Cooper, Jr., Attorney General and Reporter; Matthew Bryant Haskell, Assistant
Attorney General; Al Schmutzer, Jr., District Attorney General, and James B. Dunn,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                    Factual Background

       On direct appeal, this Court summarized the facts at trial as follows:
        Lisa Mathis testified that on May 31, 2004, she lived in a mobile home
at 115 Horn Way in Newport. Charles Adams and Jamie Cox were visiting
with Ms. Mathis when [Petitioner] first came to the residence on May 31. Ms.
Mathis did not know [Petitioner]. When [Petitioner] saw Cox, [Petitioner]
stated, “[W]e have a problem.” Ms. Mathis asked [Petitioner] to leave as she
held a baseball bat. [Petitioner] replied that he would be back with something
more than a stick. According to Ms. Mathis, [Petitioner] and Charles McGaha,
the co-defendant, returned that evening at approximately 10:15 p.m.
[Petitioner] had a handgun, and McGaha had a rifle. Mathis and Adams were
in the living room when [Petitioner] entered the home. Cox, Mike Benson,
and David Shults were in a bedroom in the rear of the mobile home.
[Petitioner] ignored Mathis’ request that he leave and proceeded toward the
rear bedroom. Mathis had called 9-1-1 when McGaha entered. McGaha
pointed the rifle at Mathis’ head and told her to drop the phone; he then asked
her “where the s.o.b. was.” Mathis stated that she heard a gunshot; McGaha
then went toward the rear bedroom. As Mathis ran to her neighbor’s house,
she heard another gunshot.

       Michael Benson testified that he had gone to Mathis’ home with David
Shults on the day of the shooting. Benson, Shults, and Cox were in a rear
bedroom preparing to smoke cocaine when [Petitioner] came in with a
handgun, yelling at Cox. Benson ran outside and hid behind a tree. On his
way out, he saw McGaha with a rifle. From his hiding place, Benson heard
two gunshots. He saw two cars leave; Benson identified the driver of one car
as Shults but could not identify the occupants of the other car. Benson had
never seen [Petitioner] or McGaha previously.

        Eryn Wilds worked at the Eastport BP in Newport. She testified that
she knew [Petitioner] and had seen him twice on May 31. He was at the store
the first time at approximately 3:00-3:30 p.m. and was there a second time at
approximately 10:15 p.m. Ms. Wilds said that [Petitioner] was driving a
Subaru and that he was accompanied by another man. [Petitioner] first asked
to get gas, but the station was closed. [Petitioner] next asked to borrow five
dollars, and she refused. Ms. Wilds stated that [Petitioner] was acting “sort of
hyper.”

        Derrick Woods, a detective for the Cocke County Sheriff’s Department,
arrived at the scene at approximately 11:00 p.m. Other officers directed him
to the bedroom where the deceased Jamie Cox was lying on the floor. A rifle

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cartridge, 7.62 caliber, was found beside a night stand on the floor. A .40
caliber handgun cartridge was found in the bedding. Detective Woods
described observing a bullet hole which went through a pillow, a mattress, and
through a wall in the mobile home. Another bullet hole, exiting the trailer, was
observed on the left wall. No weapons were recovered. The detective drove
three possible routes between the Eastport BP and the Mathis home. In
distance and time elapsed, they were measured as follows: route one: 3.27
miles and six minutes, thirteen seconds; route two: 3.76 miles and ten minutes,
forty-four seconds; route three: 3.48 miles and eight minutes, forty-two
seconds.

       Certain stipulations were introduced into the record. The TBI found no
evidence of blood in [Petitioner’s] Subaru automobile. The deceased was
analyzed for alcohol content, and the test results were: blood-.19; urine-.25;
vitreous-.21. The toxicology tests reflected that the deceased’s blood had
marijuana metabolites of 23.3 ng/ml. The urine sample was negative for
barbiturates, benzodiazepine, cocaine, and opiates. A white powder substance
and plant material were submitted for testing by the TBI. The white powder
was negative for controlled substances, and the plant material was identified
as marijuana residue.

       Kim Fine was the victim’s girlfriend at the time of his death. She had
previously lived with [Petitioner]. She stated that [Petitioner] had a problem
with the victim and had told her four years previously that, if [Petitioner] saw
the victim, one of them would die.

        Charles Adams stated that he was visiting with Ms. Mathis on May 31.
Adams was present when [Petitioner] first came to the home. He heard
[Petitioner] tell Mathis that he would return with something more than a bat.
When [Petitioner] returned a second time, Adams and Mathis were in the
living room. Adams saw [Petitioner] and McGaha arrive and went to the
bedroom to warn the victim. [Petitioner] and McGaha came to the bedroom.
[Petitioner] had a handgun, and McGaha held a rifle. [Petitioner] fired the
handgun; [Petitioner] and the victim then began to wrestle for possession of
the gun. [Petitioner] told McGaha to “shoot this s.o.b.” McGaha shot the
victim from a distance of three to five feet, and the victim fell to the floor.
[Petitioner] pointed the pistol at Adams and “acted like” he pulled the trigger
but the gun did not fire. [Petitioner] told McGaha to shoot Adams, but
McGaha refused. As [Petitioner] was leaving the bedroom, he said, “[S]ay it



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       was self defense.” Adams watched [Petitioner] and McGaha leave in a Subaru
       vehicle.

               Dr. Darinka Mileusnic-Polehan, a forensic pathologist, testified
       concerning the findings of her autopsy of the victim. The cause of death was
       a single gunshot that entered the victim’s back, perforated his left lung, tore his
       heart, and exited through his chest. The residue of the wound indicated that
       it was a contact wound or was fired from very close range.

               [Petitioner] was indicted in a two-count indictment for premeditated
       first degree murder of James Quinton Cox and attempted premeditated first
       degree murder of Charles Adams.

Id. at *1-3. At the conclusion of the proof, Petitioner was convicted of first degree murder
and attempted second degree murder. He was sentenced to life imprisonment for the
premeditated first degree murder conviction and twelve years for the attempted second
degree murder; the sentences were ordered to run concurrently. Petitioner appealed his
convictions, raising the following issues on appeal: “1) the evidence was insufficient to
support the convictions; 2) the trial judge erred in refusing to recuse himself after a challenge
to his impartiality; and 3) error was committed by failure to take curative action or declare
a mistrial after some jury members viewed [Petitioner] handcuffed and shackled.” Id. at *3.


        On appeal, this Court determined that “the evidence supports the convictions beyond
a reasonable doubt; [Petitioner] waived the issue as to recusal by the trial judge; and
[Petitioner] has not demonstrated undue prejudice due to jury members inadvertently
observing [Petitioner] in restraints. Id. at *6. The supreme court denied permission to
appeal.

       Subsequently, Petitioner filed a timely pro se petition for post-conviction relief. In
the petition, the following issues were raised: (1) Petitioner was prejudiced at trial by not
being allowed to discuss the victim’s violent history; (2) trial counsel was ineffective; and
(3) prosecutorial misconduct impaired Petitioner’s ability to defend himself. As to
ineffective assistance of counsel, Petitioner specifically claimed that trial counsel failed to
effectively cross-examine witnesses, failed to interview witnesses, and failed to file timely
objections. Counsel was appointed, and an amended petition was filed. The amended
petition added allegations of ineffective assistance of counsel, including that trial counsel
failed to move to sever Petitioner’s trial from his co-defendant, failed to obtain an
independent expert, failed to object to photographs, and failed to present a defense.
Petitioner also alleged that he received an excessive sentence. Prior to the post-conviction

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hearing, Petitioner filed another amendment to the petition for post-conviction relief to
include an allegation that Petitioner was not properly given credit for all time served prior
to his conviction.

                          Evidence at the Post-conviction Hearing

       At the post-conviction hearing, Petitioner testified that he had a history of conflict
with the victim. According to Petitioner, he and the victim had been fighting since 1998 or
1999. Petitioner even testified that the victim robbed him at gunpoint when they met because
Petitioner was planning on renting a trailer from the victim. Petitioner stated that he could
recount “numerous amounts of stages” of conflict involving him and the victim where
weapons were involved. Petitioner “took a warrant” out on the victim after the robbery.
Petitioner recounted a separate incident that happened when Petitioner was helping to pick
up garbage. During this incident, the victim stopped his vehicle, got out with a lug wrench,
and spat at Petitioner.

       Petitioner testified that trial counsel did not come to see him until four months prior
to the trial. According to Petitioner, the two only met twice prior to the trial. Petitioner
recalled that the first visit lasted about twenty minutes and the second visit lasted no longer
than forty-five minutes. Petitioner claimed that he met with and saw his co-defendant’s
attorney more that his own.

       Prior to trial, Petitioner reported trial counsel to the Board of Professional
Responsibility and to the trial court. Petitioner alleged that trial counsel failed to meet with
him to discuss the case.

        Petitioner remembered telling trial counsel prior to trial that he was present at the
crime scene on the night that the victim was killed. Petitioner told trial counsel that the
victim came to his house and threatened him on the day that the murder took place. The
victim stopped outside Petitioner’s house and got guns out of the back of his car. He gave
trial counsel a list of potential witnesses, including David Dollar, whom Petitioner thought
was involved with Lisa Mathis. On the day of the crime, Petitioner took Mr. Dollar to Ms.
Mathis’s trailer, not knowing that the victim was there at the time. According to Petitioner,
trial counsel gave the list back to Petitioner and told him that there was “another plan” for
the defense. Petitioner again gave a list of witnesses to trial counsel on the eve of trial.
Petitioner was disappointed that trial counsel did not contact any of these witnesses and did
not present any evidence to corroborate Petitioner’s version of the events.

      Petitioner testified that trial counsel advised him not to testify because his testimony
would conflict with the defense theory that Petitioner was not at the crime scene. Petitioner

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recalled that there were four witnesses placing him at the crime scene. Trial counsel did not
present any witnesses at trial.

        Petitioner admitted at the hearing that he always carried a gun with him, in part
because his arm was injured and he was afraid of the victim. Petitioner testified that he felt
threatened on the night of the murder. Petitioner admitted that there were four people in the
room when the victim was shot: Petitioner, the victim, Charles Adams, and Petitioner’s
uncle. Petitioner claimed that he told the victim to leave him alone and that he wanted the
conflict to be over. At that time, the victim jumped up and grabbed Petitioner. Petitioner
tried to get his gun out of his pants, and the gun fired. Petitioner claimed that the first shot
went into the air and that he and the victim continued to wrestle. Petitioner stated that both
men had their hands on the gun and he felt his life was threatened. Petitioner claimed that
he did not shoot the victim and did not know who was responsible for shooting the victim.
 Petitioner also denied asking his uncle to shoot the victim. Petitioner also denied that he was
run out of the house earlier by Ms. Mathis and told her that he would return with something
larger than a stick.

       Stephanie Phillips testified at the hearing that she and Petitioner were robbed at
gunpoint by the victim several years prior to the murder. According to Ms. Phillips, during
the robbery the victim demanded Petitioner’s money and then fired a gun. Petitioner ended
up giving the victim his money. Ms. Phillips recalled that she and Petitioner went to the
police after being robbed but that the warrant was later dismissed. Ms. Phillips testified
about several other occasions during which the victim drove past Petitioner’s aunt’s house
and pointed a gun out the window at them. Ms. Phillips denied that she was a violent person
but admitted that she pled guilty to second degree murder. Ms. Phillips insisted that trial
counsel did not contact her prior to trial even though she was being housed in the Cocke
County Jail awaiting her own trial at the time.

       Benjamin Daniels, the brother of Petitioner, testified that the victim told him and
Petitioner about six years prior to the incident to leave town or there would be trouble. Mr.
Daniels remembered that about one year later the victim threatened to fight and hurt
Petitioner. Mr. Daniels testified that he took Mr. Dollar to Ms. Mathis’s house prior to the
murder.

       Petitioner’s father also testified at the hearing. He claimed that he witnessed an
incident during which the victim told Petitioner he was going to “cut his guts out.” This took
place about one month prior to the victim’s death. Petitioner’s father testified that he was
not contacted by the defense team prior to the trial.




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       Anthony Baxter testified that he had witnessed several confrontations between
Petitioner and the victim prior to the victim’s death. Mr. Baxter stated that during one
incident in particular, Mr. Baxter, Petitioner, and a third man got into a fight with the victim
and some other men.

        Petitioner’s trial counsel testified that he was appointed in January of 2005 to
represent Petitioner. Trial counsel was not Petitioner’s first attorney. Trial counsel recalled
that Petitioner reported him to the Board of Professional Responsibility and testified that he
met with Petitioner prior to trial but that he could not recall how many times. Trial could not
recall whether the meetings took place before or after the complaint was made to the Board
of Professional Responsibility. Trial counsel responded to Petitioner’s complaint by
compiling a detailed listing of his activity on the case. Trial counsel specifically recalled two
visits “that were more than four or five hours in length.” Trial counsel estimated that he met
with Petitioner for “better” than ten hours prior to trial.

        During their meetings prior to trial, Petitioner and trial counsel discussed trial strategy.
Petitioner explained to trial counsel that there was a history of bad blood between him and
the victim including prior gun fire. Petitioner even told trial counsel that one of them was
“going to end up dead sooner or later.” Trial counsel was told by Petitioner that it was “self-
defense.” Trial counsel explained to Petitioner that the circumstances did not justify self-
defense. Trial counsel was told by Petitioner that there was an initial encounter between
Petitioner and the victim on the day of the murder. Then Petitioner left for a period of time
before returning with a gun and an armed friend. Trial counsel did not feel after hearing
Petitioner’s version of the events that they could “close the loop and meet the legal burden
of self-defense.” Trial counsel was satisfied that he had explained to Petitioner that they
could not meet the legal burden to satisfy self-defense. Trial counsel explained that his
strategy was to “fight the State at every step of this, to question each one of their witnesses
at length, to question their conclusions, to question the timeline, to question what little
physical evidence there was” but that there was not “an affirmative legal defense” that they
could rely upon at trial. Trial counsel thought that Petitioner understood that they would not
pursue self-defense as a theory at trial.

       Trial counsel worked with co-defendant’s attorney prior to trial. Trial counsel
explained that there was “no reason” to sever the cases. The attorneys divided up the cross-
examination of the State’s witnesses and prepared for trial together. Prior to trial, trial
counsel recalled reviewing the State’s witness list and meeting with Petitioner’s father. Trial
counsel testified that he attempted to contact the potential witnesses that Petitioner suggested
but that a lot of the witnesses would have helped to “attempt to establish a self-defense
defense” and that was not the direction that would be taken at trial. Further, a lot of the
telephone numbers provided by Petitioner were incorrect.

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       Trial counsel testified that he spoke and discussed with Petitioner the circumstances
surrounding his decision to testify and recalled that Petitioner decided not to testify after
being questioned by the trial court.

       Trial counsel denied that he claimed Petitioner was not at the scene of the crime
during the trial. Counsel “did not put on [this] affirmative proof . . . because we didn’t have
any proof like that.” In fact, trial counsel recalled that the State’s proof was very similar to
Petitioner’s version of the events.

       Trial counsel thought that the jury could have seen Petitioner in handcuffs if they were
looking out of the window when Petitioner was brought to the courtroom. However,
Petitioner was not in handcuffs in the courtroom. Finally, trial counsel agreed that the issue
was raised in court and admitted that he did not seek a curative instruction because he did not
want to draw attention to the issue.

        At the conclusion of the hearing, the post-conviction court determined that there was
“no evidence” of ineffective assistance of counsel, no proof that would have supported the
severance of the cases, and no proof that a self-defense instruction was warranted. As a
result, the post-conviction court denied the petition for post-conviction relief.

       Petitioner filed a timely notice of appeal.

                                         Analysis
                            Post-Conviction Standard of Review

       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 issues raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the post-conviction 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 re-weigh or re-evaluate the evidence, nor substitute its inferences for those
drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.
2001). However, the post-conviction court’s conclusions of law are reviewed under a purely
de novo standard with no presumption of correctness. See Shields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).




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                              Ineffective Assistance of Counsel

        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 (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 v. State,
960 S.W.2d 572, 580 (Tenn. 1997).

       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. 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).

        On appeal, Petitioner complains that the post-conviction court improperly denied his
petition for post-conviction relief. Specifically, Petitioner argues that he received ineffective
assistance of counsel because counsel: (1) failed to investigate pertinent facts and interview
witnesses; (2) failed to file a motion to sever; (3) failed to move for a mistrial or seek a
curative instruction when the jury saw him in handcuffs; and (4) failed to assert a self-
defense claim at trial. Petitioner also insists that the ineffective assistance of counsel he
received at trial led to an excessive sentence and a failure to receive proper sentence credits
for his pretrial jail time.



                                               -9-
        The record supports the post-conviction court’s findings. With regard to trial
preparation and interviewing witnesses, the record shows that trial counsel met with
Petitioner several times at length prior to trial. Trial counsel felt that he was prepared for the
case in advance of trial. Further, trial counsel testified at length regarding the theory of the
defense, which was formulated only after discussions with Petitioner. Trial counsel did not
feel that the proof that could be offered at trial could support a self-defense theory and
explained this to Petitioner. Trial counsel thought that Petitioner understood this explanation.
Additionally, trial counsel testified that he discussed potential witnesses with Petitioner,
received a list of those witnesses, and attempted to contact some of them prior to trial.
Petitioner has not shown any prejudice in this regard. Petitioner did not present witnesses
at the hearing that would have established a clear case of self-defense or that offered any
evidence that was unknown to trial counsel prior to trial. Petitioner must present witnesses
at the post-conviction hearing to prevail on a claim of deficient representation for failing to
call a witness at trial. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). A
post-conviction court may not speculate, “on the question of . . . what a witness’s testimony
might have been if introduced at trial.” Id.

        Petitioner also alleges that trial counsel was ineffective for failing to sever his case
from his co-defendant’s case. He notes that there was no response to the State’s motion for
joinder but fails to mention that the motion was filed several months prior to trial counsel’s
appointment. The only testimony at the hearing regarding joinder came from trial counsel
who explained that there was “no reason” to sever the cases. Petitioner complains that his
case should have been severed because co-defendant’s theory of the defense was “mutually
antagonistic” but offered no evidence at the post-conviction hearing to support his argument.
The post-conviction court noted that there was “no reason that these cases should not have
been tried together.” Petitioner has presented no evidence to show that he was prejudiced
by trial counsel’s actions.

        Petitioner also complains that there not a motion for mistrial or curative instruction
after the jury potentially saw Petitioner in handcuffs. This issue was raised on direct appeal,
and this Court found that there was no prejudice because Petitioner was seen outside the
courtroom. James Wesley Daniels, 2007 WL 2757636, at *6. In other words, this issue has
been previously determined. Further, trial counsel testified that he purposefully did not seek
a curative instruction in order to avoid drawing attention to the matter. As stated above, we
may not second-guess a reasonably-based trial strategy. Adkins, 911 S.W.2d at 347.

       Petitioner also argues on appeal that trial counsel was ineffective for failing to present
a self-defense theory at trial. Trial counsel testified that Petitioner did not present any
evidence to him prior to trial that would have supported a self-defense theory. Further,
Petitioner did not present witnesses at the post-conviction hearing that would have

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established that his version of the events was that different from the State’s version of the
events. As stated above, trial counsel testified that he and Petitioner discussed the fact that
the theory of self-defense was not viable at trial. Petitioner has shown no prejudice resulted
from trial counsel’s decision to exclude self-defense as a theory.

        Petitioner complains that trial counsel was ineffective for failing to object when the
trial court sentenced Petitioner to the maximum sentence in the range. Petitioner has not
cited authority for this argument and has failed to cite to the record. This issue is waived.
See Tenn. Ct. Crim. App. Rule 10(b); State v. Sanders, 842 S.W.2d 257 (Tenn. Crim. App.
1992).

        Finally, Petitioner argues that his pre-trial jail credit was improperly calculated. This
is not an appropriate ground for post-conviction relief. This issue is without merit.

                                          Conclusion

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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