                                                                                         02/26/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs July 16, 2019

              CORTNEY R. LOGAN v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                    No. 2009-C-2822 Seth W. Norman, Judge
                     ___________________________________

                           No. M2018-01786-CCA-R3-PC
                       ___________________________________


Petitioner, Cortney R. Logan, was convicted by a Davidson County jury of attempted first
degree murder and employing a firearm during the flight or escape from the attempt to
commit a dangerous felony. Petitioner received consecutive sentences of 25 years and 6
years for a total effective sentence of 31 years. Petitioner’s convictions and sentences
were affirmed on direct appeal. Petitioner sought post-conviction relief, alleging that his
trial counsel was ineffective. Following an evidentiary hearing, the post-conviction court
denied post-conviction relief. Having reviewed the record and the briefs of the parties,
we affirm the judgment of the post-conviction court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ALAN E. GLENN, JJ., joined.

Jay Umerley, Nashville, Tennessee (on appeal) and Elaine Heard Cuthbertson, Nashville,
Tennessee (at trial) for the appellant, Cortney R. Logan.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Dan H. Hamm,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

Trial

       The facts underlying Petitioner’s conviction were summarized by a panel of this
court on direct appeal. See State v. Cortney R. Logan, No. M2014-01687-CCA-R3-CD,
2015 WL 5883187, at *1-6 (Tenn. Crim. App. Oct. 8, 2015), perm. app. denied (Tenn.
Feb. 18, 2016). On June 25, 2009, Petitioner helped his co-defendant, Joseph Leon
Jackson, Jr. (hereinafter “Jackson”), escape from the custody of the CCA Delta
Correctional Institution in Greenwood, Mississippi. That same day, Sergeant Mark
Chestnut, an officer with the Metropolitan Nashville Police Department, initiated a traffic
stop of Petitioner on Interstate 40 in Nashville for a seatbelt violation. During the
encounter, Sergeant Chestnut was shot four times by Jackson using a revolver that had
been stolen from one of the correctional officers during the escape. Id.

Post-conviction hearing

        Petitioner testified at the evidentiary hearing that his court-appointed counsel told
him to “file a post-conviction motion” when Petitioner “got to prison,” and that trial
counsel “would admit that he didn’t do his job.” Petitioner testified that trial counsel
should have challenged the traffic stop for lack of probable cause. He testified that the
traffic stop was illegal because he was wearing his seatbelt. Petitioner testified that trial
counsel should have requested a change of venue. Petitioner testified that he believed
“there was no way [he] could have . . . receive[d] a fair trial” in Davidson County, where
the victim was a police officer.

       Petitioner testified that he would have testified at trial but for trial counsel’s failure
to inform him that he had already been indicted in Mississippi. Petitioner testified that he
chose not to testify based on trial counsel’s advice that if he testified at his trial in
Tennessee, his testimony “would have been used against [him] to obtain an indictment”
in Mississippi. If he had testified at trial, Petitioner would have testified that he was
under duress and, therefore, could not have been criminally responsible for the shooting
of Sergeant Chestnut. Petitioner acknowledged that he had helped Jackson escape from
prison. He testified that he did not know Jackson had a gun. Petitioner testified that he
“had no choice” but to flee the scene because Sergeant Chestnut pulled his gun after
Jackson shot him.

       Trial counsel testified that he could not recall how many times he met with
Petitioner, but his notes indicated that he had “at least eight meetings with [Petitioner]” in
jail. Trial counsel recalled that co-defendant Jackson pleaded guilty to the charges
shortly before Petitioner’s trial began. Jackson received a longer sentence than
Petitioner. Jackson did not testify at Petitioner’s trial. Trial counsel testified that both
Petitioner and Jackson had given statements to police following their arrests. Trial
counsel testified that Jackson stated that after the shooting, he told Petitioner “to get in
the car and drive or [he would] shoot [Petitioner].” Trial counsel testified, however, that
he did not “know how [Jackson’s testimony] could have helped [Petitioner], other than if
he had stuck with his story.”

                                              -2-
        Trial counsel testified that he filed a motion to exclude evidence of Petitioner’s
crimes in Mississippi under Tennessee Rule of Evidence 404(b), and the trial court
denied his motion. Trial counsel advised Petitioner of his right to testify in his defense.
He testified that he sent a letter to Petitioner advising Petitioner of the potential charges
against him in Mississippi. Trial counsel testified that Petitioner “was facing potential
life sentences in the state of Mississippi, more time than he was facing [in Tennessee].”
Trial counsel advised Petitioner that his testimony in this case could be used against him
in a trial on his charges in Mississippi. Trial counsel testified, “[s]o we did have that
discussion, and he decided not to [ ] testify. And that would have been my advice, at that
point, not to have gotten on the stand.”

        Regarding a change of venue, trial counsel testified, “I don’t know if a change of
venue would have helped, I did investigate that. I did collect media reports here.” He
testified that he discussed the issue with Jackson’s trial counsel and other attorneys more
experienced with cases involving requesting a change of venue. He testified, “the
consensus was that [ ] we were likely going to get a jury from an even more conservative
part of the state” if venue was changed. Trial counsel testified that in hindsight, knowing
Defendant would be convicted as charged, he would have had nothing to lose by
requesting a change of venue. Trial counsel testified that “[t]here was a large amount of
media coverage” about the shooting. He testified that he questioned potential jurors
about whether they had seen media coverage and whether they had formed an opinion.
Trial counsel also filed a motion to prohibit the jury from watching news or social media
during the trial. He testified that the media coverage “had kind of died off” by the time
Petitioner’s trial began.

        Trial counsel testified that he had discussions with Petitioner about filing a motion
to suppress. Petitioner stated that the stop was improper because his windows were too
dark for Sergeant Chestnut to have seen whether Petitioner was wearing his seatbelt.
Trial counsel testified, “I’m not sure what a suppression motion would have suppressed.”
Trial counsel stated that there was dashcam video evidence of the shooting, and any items
of evidence that might have been excluded based on an illegal stop were not discovered
until after Sergeant Chestnut had been shot and Petitioner and Jackson had driven away.

        Trial counsel did not recall that Petitioner wanted to assert the defense of duress.
Trial counsel testified that Jackson made a statement to the police that he told Petitioner
after the shooting, “let’s go or I’m going to shoot you.” Trial counsel testified that was
the only evidence of duress, “but that was after the escape and after the shooting.” Trial
counsel testified that he did not recall Petitioner “ever mentioning that there was any
duress” concerning Petitioner’s going to Mississippi, the criminal acts committed in
Mississippi, or driving Jackson through Tennessee.

                                            -3-
Analysis

       On appeal, Petitioner’s only claim of ineffective assistance of counsel is trial
counsel’s failure to make a motion for a change of venue. Accordingly, all other claims
that were raised in Petitioner’s post-conviction petition and asserted by Petitioner at the
post-conviction hearing are waived. Rule 27(a)(7) of the Tennessee Rules of Appellate
Procedure states that the argument section of an appellant’s brief shall contain: “the
contentions of the appellant with respect to the issues presented, and the reasons therefor,
including the reasons why the contentions require appellate relief, with citations to the
authorities and appropriate references to the record (which may be quoted verbatim)
relied on[.]” Tenn. R. App. P. 27(a)(7)(A)-(B). “An issue may be deemed waived, even
when it has been specifically raised as an issue, when the brief fails to include an
argument satisfying the requirements of Tenn. R. App. P. 27(a)(7).” Hodge v. Craig, 382
S.W.3d 325, 335 (Tenn. 2012). Moreover, Rule 10(b) of the Rules of the Court of
Criminal Appeals states, “Issues which are not supported by argument, citation to
authorities, or appropriate references to the record will be treated as waived in this
Court.” Tenn. Ct. Crim. App. R. 10(b).

       Post-conviction relief is available for any conviction or sentence that 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. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his or her factual
allegations by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18
S.W.3d 152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no
serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

        Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In
order to sustain a claim of ineffective assistance of counsel, a petitioner must demonstrate
that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under the two-
prong test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner
must prove that counsel’s performance was deficient and that the deficiency prejudiced
the defense. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that the same standard for determining ineffective assistance of counsel applied in federal
cases also applies in Tennessee). Because a petitioner must establish both elements in
order 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). “Indeed, a court need
                                           -4-
not address the components in any particular order or even address both if the [petitioner]
makes an insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370
(Tenn. 1996) (citing Strickland, 466 U.S. at 697).

        Whether a petitioner has been denied the effective assistance of counsel presents a
mixed question of law and fact. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). This
court will review the post-conviction court’s findings of fact “under a de novo standard,
accompanied with a presumption that those findings are correct unless the preponderance
of the evidence is otherwise.” Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001) (citing
Tenn. R. App. P. 13(d); Henley, 960 S.W.2d at 578). This court will not re-weigh or re-
evaluate the evidence presented or substitute our own inferences for those drawn by the
trial court. Id. at 456. Questions concerning witness credibility, the weight and value to
be given to testimony, and the factual issues raised by the evidence are to be resolved by
the post-conviction court. Id. However, the post-conviction court’s conclusions of law
and application of the law to the facts are reviewed under a purely de novo standard, with
no presumption of correctness. Id. at 458.

       The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. Even if a petitioner shows that
counsel’s representation was deficient, the petitioner must also satisfy the prejudice prong
of the Strickland test in order to obtain relief. The question is “whether counsel’s
deficient performance renders the result of the trial unreliable or the proceeding
fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). A petitioner
must show that there is a reasonable probability “sufficient to undermine confidence in
the outcome” that, “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Burns, 6 S.W.3d at 463 (quoting Strickland, 466 U.S. at
694). “[A]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” Hill v. Lockhart, 474 U.S. 52, 58 (1985).

       The post-conviction court ruled that trial counsel’s performance was not deficient.
The post-conviction court accredited trial counsel’s testimony and concluded that trial
counsel’s decision not to seek a change of venue was a reasonably based strategic
decision based on adequate preparation and investigation. The evidence does not
preponderate against the post-conviction court’s findings. Trial counsel testified that he
considered a motion to change venue because there was a “large amount of media
coverage” about the shooting. He consulted with Petitioner’s co-defendant’s counsel and
other attorneys experienced in cases involving a change of venue. Based on his research
and the facts of Petitioner’s case, trial counsel believed that Petitioner’s risk of conviction
could have been greater if the case was tried before a more conservative jury than in
                                             -5-
Davidson County. Trial counsel also testified that the media coverage had “died off” by
the time Petitioner’s trial began. Trial counsel testified that he questioned potential jurors
during voir dire about their familiarity with the facts of the case. He also filed a motion
to prohibit the jury from watching news or social media during the trial. We conclude
that Petitioner has failed to show that trial counsel’s performance was deficient, and we
need not address whether Petitioner was prejudiced by the alleged deficiency. See Goad,
938 S.W.2d at 370.

       Petitioner also argues on appeal that the post-conviction court erred by relying on
a decision of the Eighth Circuit Court of Appeals in determining that trial counsel was
not ineffective for failing to request a change of venue in Petitioner’s case. In its written
order denying post-conviction relief, the post-conviction court found that trial counsel’s
“decision not to move for a change of venue was a strategic choice and there is no proof
or argument that there would be a more neutral venue for the attempted murder of a law
enforcement officer.” Citing Robinson v. U.S., 448 F.2d 1255, 1256 (8th Cir. 1971), the
post-conviction court stated that it would “not second-guess a logical strategic decision
simply because the petitioner was ultimately convicted.” Petitioner argues that the post-
conviction court “misapplied the law to the facts” by citing a case that is not controlling.
Petitioner argues that his case should therefore be remanded for a new evidentiary
hearing. We disagree.

       While it is true that neither this court nor the post-conviction court is bound by the
decisions of the Eighth Circuit, it is well-settled law in Tennessee that this court must
evaluate the questionable conduct from the attorney’s perspective at the time, Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance,”
Burns, 6 S.W.3d at 462 (Tenn. 1999). This court will not use hindsight to second-guess a
reasonable trial strategy, even if a different procedure or strategy might have produced a
different result. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994);
Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). This deference to
the tactical decisions of trial counsel is dependent, however, upon a showing that the
decisions were made after adequate preparation. Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992).

      Petitioner even acknowledges in his brief that our supreme court in Hellard, cited
Robinson as persuasive authority and quoted the same part of the Robinson decision that
was quoted by the post-conviction court in its order:

        Hindsight can always be utilized by those not in the fray so as to cast
        doubt on trial tactics a lawyer has used. Trial counsel’s strategy will
        vary even among the most skilled lawyers.        When that judgment
                                            -6-
        exercised turns out to be wrong or even poorly advised, this fact alone
        cannot support a belated claim of ineffective counsel. Robinson v.
        United States, 448 F.2d 1255 at 1256 (8th Cir. 1971).

Hellard, 629 S.W.2d at 9.

        Petitioner does not cite any authority, persuasive or binding, to support his
argument that the post-conviction court’s reliance on Robinson entitles him to a new
evidentiary hearing. The holding in Robinson is consistent with our established case law.
The post-conviction court did not err by citing that case for the principle that trial
counsel’s decisions should not be reviewed with the benefit of hindsight. Petitioner is not
entitled to relief.

                                     CONCLUSION

     Following our review of the record and the briefs of the parties, we affirm the
judgment of the post-conviction court.

                                  ____________________________________________
                                  THOMAS T. WOODALL, JUDGE




                                           -7-
