        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 29, 2014

                TERRY D. SANDERS v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Houston County
                          No. 5130 George Sexton, Judge


                No. M2014-00236-CCA-R3-PC - Filed October 31, 2014


The Petitioner, Terry D. Sanders, appeals the Houston County Circuit Court’s denial of his
petition for post-conviction relief from his convictions for two counts of the sale of less than
0.5 gram of cocaine and his effective thirty-year sentence. The Petitioner contends that the
trial court erred in denying a mistrial when the State’s confidential informant testified that
the Petitioner was on community corrections, that he received the ineffective assistance of
counsel, and that he was denied a fair trial due to cumulative errors in the conviction
proceedings. We affirm the judgment of the post-conviction court.

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

R OBERT H. M ONTGOMERY, JR., J., delivered the opinion of the court, in whic H J OHN E VERETT
W ILLIAMS and R OGER A. P AGE, JJ., joined.

Kelly Jackson Smith, Dickson, Tennessee, for the appellant, Terry D. Sanders.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Senior Counsel; Ray
Crouch, District Attorney General; and Sarah Whitney Wojnarowski, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                  Conviction Proceedings

       The Petitioner’s convictions relate to two sales of crack cocaine to a confidential
informant. The Petitioner was charged with three counts involving two informants, and the
counts in this case were severed from the count involving the other informant. The first trial
for these counts resulted in a mistrial after discovery of the existence of a video recording of
which the prosecutor had been unaware. The Petitioner was convicted at the second trial.
        The transcript of the second trial reflects that before the proof began, the trial judge
stated the following:

       Of course, we mentioned from the previous trial there was a ruling apparently
       when the informant goes to Mr. Sanders’ house and Mr. Sanders gave him the
       [shh] be quiet sign, pointed to the monitor on his leg because he was on
       community corrections. I recall my ruling to be – the witness can testify to
       him being told to be quiet and pointing to the monitor but obviously not to
       mention anything about community corrections.

The record does not reflect whether the informant was in the courtroom during the judge’s
remarks. During cross-examination of the informant, trial counsel questioned the informant
about whether he and the Petitioner discussed the drug deals by telephone before the
informant went to the Petitioner’s house. The informant testified that no arrangements were
made by telephone, although he might have called the Petitioner to let him know he was on
his way. The following exchange then took place:

       Q.     With no phone call ahead of time to even know that he was home.

       A.     Terry Sanders had to be home.

       Q.     He had to be home?

       A.     He was on community corrections.

        In the Petitioner’s appeal of the convictions, this court determined that the trial court
did not abuse its discretion in denying a mistrial after the informant testified about the
Petitioner’s being on community corrections. This court also determined that the court did
not err in denying the motion for a new trial based upon the discovery after the trial that a
juror’s sister was the community corrections program director. This court concluded that the
issue regarding trial counsel’s legal representation of a juror was waived because it was not
raised in a written motion for a new trial but that in any event, no plain error existed. See
State v. Terry Sanders, No. M2011-00426-CCA-R3-CD, 2012 WL 5948885 (Tenn. Crim.
App. Nov. 15, 2012), perm. app. denied (Tenn. Mar. 5, 2013).

                                Post-Conviction Proceedings

        Assistant District Attorney General Craig Monsue, the prosecutor at the trial, testified
that on the morning of the second trial, he counseled the confidential informant not to testify
about the Petitioner’s being on community corrections. He said that when he questioned the

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informant on direct examination, though, he thought the informant was about to say
something about the Petitioner’s being on community corrections, and he directed the
informant’s testimony to other matters.

       The prosecutor testified that his standard practice was to question prospective jurors
to discover bias or prejudice. He said he typically questioned them about whether they knew
or had been represented by defense counsel or had friends or family who were represented
by defense counsel.

        Cynthia Camp, a juror at the trial, testified that her sister, April Clark, was a probation
officer. She thought Ms. Clark was the community corrections program director. She said
that she did not know the identity of Ms. Clark’s clients. She said they discussed family, not
Ms. Clark’s employment, when they spent time together. Ms. Camp said she knew before
the trial that ankle monitors were worn by people on house arrest, but she did not say she
knew this because of any conversation with Ms. Clark.

        Ms. Camp recalled the trial judge’s instruction to disregard testimony of the
Petitioner’s being on community corrections. She said the judge’s curative instruction had
the intended effect and did not bring more attention to the evidence. She thought she was
able to follow the instruction.

       Ms. Camp testified that before the trial, Ms. Clark asked an attorney to assist Ms.
Camp with a civil matter by writing a letter. Ms. Camp did not know the attorney’s name at
the time and did not find out until after the trial that trial counsel had been the attorney who
had written the letter. She did not recall requesting to speak with trial counsel after the
verdict was returned.

       Trial counsel testified that his practice was almost exclusively criminal defense and
that he had practiced for thirty-two years. He said that relative to the Petitioner’s case,
discrediting the confidential informant was the only viable defense. He said the Petitioner
could not be heard on the recordings of the transactions. He wanted to show that the
informant fabricated the transactions in order to make money from successful buys.

        Trial counsel testified that the Petitioner called him and that he visited the Petitioner
at the jail a couple of times. He did not recall how many times he visited the Petitioner
between the first and second trials but said the trial strategy did not change. He recalled
questioning the officers about whether the informant could have hidden the drugs the
informant claimed to have purchased from the Petitioner.




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       Trial counsel testified that he did not think the Petitioner had a fair trial after the
confidential informant testified about the Petitioner’s being on community corrections. He
said that despite the court reporter’s transcribing his statement as a question, he had repeated
what the informant said, not asked a question. He did not think the informant’s testimony
was responsive. He said his style was not to be so aggressive as to cause a witness to
disregard a court’s limiting instructions. He said he requested a mistrial and a curative
instruction.

        Trial counsel testified that after the verdict was returned, someone told him a juror
wanted to speak with him. He said he went to the clerk’s office and met Ms. Camp, who
introduced herself as Ms. Clark’s sister. He said Ms. Camp connected his name as being that
of the attorney who helped her. He said he never met Ms. Camp before the trial and wrote
the letter on Ms. Camp’s behalf at Ms. Clark’s request. He thought his representation of Ms.
Camp in an unrelated matter was insignificant. He thought Ms. Camp’s familial relationship
with the community corrections program director was significant, and he raised the issue on
appeal. He said he raised the issue of his representing Ms. Camp orally but not in his written
motion for a new trial. He acknowledged that this court concluded the issue was waived
because it was not raised in a written motion. He did not know why he did not subpoena Ms.
Camp for any post-trial hearings and said he probably should have, although he did not think
it would have made a difference.

       Trial counsel testified that he thought a fair and impartial jury was selected. He said
the Petitioner was well known in the community, and he wanted jurors who knew nothing
about the Petitioner. He would not have questioned the prospective jurors about probation
or community corrections because he would not have wanted them to assume the Petitioner
was subject to supervision.

       Regarding the appellate record, trial counsel thought the delay in transcript
preparation was due to a payment issue. He acknowledged that completing the appellate
record was difficult in this case but said it was completed eventually.

        Trial counsel did not recall if he considered whether the trial judge had a conflict of
interest because the judge had previously prosecuted the Petitioner in other matters. He did
not think he knew the judge had prosecuted the Petitioner. He did not recall if the Petitioner
wanted him to raise an issue regarding a conflict. He said that he had raised a similar issue
in another case and that this court concluded that no conflict existed. He did not think the
trial judge had any bias or prejudice relative to the Petitioner.




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       Trial counsel did not know why two identical presentence reports were filed or why
they were not signed. He said his policy was not to have a client give a statement for the
“Defendant’s Version” section of the report unless counsel was present. He said he was
unconcerned about the presentence report’s listing the Petitioner’s juvenile adjudications.
He said he knew from his experience in the judge’s courtroom that the Petitioner would
receive minimum consecutive sentences. He said consecutive sentences were required
because the Petitioner was on community corrections when he committed the offenses.

      The Petitioner did not testify in support of his allegations. The State did not offer
proof. After receiving the evidence, the post-conviction court took the matter under
advisement and later filed a detailed written order denying relief. This appeal followed.

                                           Analysis

       Post-conviction relief is available “when the conviction or sentence is void or voidable
because of the abridgement of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” T.C.A. § 40-30-103 (2012). A petitioner has the burden
of proving his factual allegations by clear and convincing evidence. Id. at § 40-30-110(f)
(2012). A post-conviction court’s findings of fact are binding on appeal, and this court must
defer to them “unless the evidence in the record preponderates against those findings.”
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); see Fields v. State, 40 S.W.3d 450, 456-
57 (Tenn. 2001). A post-conviction court’s application of law to its factual findings is
subject to a de novo standard of review without a presumption of correctness. Fields, 40
S.W.3d at 457-58.

                                                I

       The Petitioner contends that the trial court abused its discretion in denying his motion
for a mistrial after the confidential informant testified about the Petitioner’s being on
community corrections and that the admission of this testimony denied him due process of
law. As the State notes, this court considered the trial court’s ruling on the motion for a
mistrial in the Petitioner’s direct appeal. See Terry Sanders, 2012 WL 5948885, at *3
(addressing the merits of the issue in the Petitioner’s direct appeal). The Post-Conviction
Procedure Act provides as follows:

       A ground for relief is previously determined if a court of competent
       jurisdiction has ruled on the merits after a full and fair hearing. A full and fair
       hearing has occurred where the petitioner is afforded the opportunity to call
       witnesses and otherwise present evidence, regardless of whether the petitioner
       actually introduced any evidence.

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T.C.A. § 40-30-106(h) (2012). Because the issue of whether a mistrial was required to
protect the Petitioner’s constitutional rights was fully litigated in the direct appeal, it has been
previously determined and is not a proper basis for post-conviction relief. The post-
conviction court did not err in denying relief.

                                                 II

       The Petitioner contends that trial counsel provided ineffective assistance in several
respects. To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364,
368-72 (1993). The Tennessee Supreme Court has applied the Strickland standard to an
accused’s right to counsel under article I, section 9 of the Tennessee Constitution. See State
v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

          A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services rendered
. . . , are [not] within the range of competence demanded of attorneys in criminal cases.”
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at 690. The
post-conviction court must determine if these acts or omissions, viewed in light of all of the
circumstances, fell “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of hindsight, may not
second-guess a reasonably based trial strategy by his counsel, and cannot criticize a sound,
but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 2008). This deference, however,
only applies “if the choices are informed . . . based upon adequate preparation.” Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). To establish the prejudice prong, a
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.” Strickland,
466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.

A.     Pretrial Investigation

       The Petitioner contends that trial counsel provided ineffective assistance because he
failed to conduct any meaningful pretrial investigation. He argues generally that the

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investigation was inadequate, but the only specific item he has identified is counsel’s failure
to require the State to prove that the substance the Petitioner allegedly sold the informant was
cocaine. As the State notes, the Petitioner failed to offer proof at the post-conviction hearing
that the substance was not cocaine. We note, as well, that the defense theory was that no sale
took place. The post-conviction court found that the Petitioner failed to prove by clear and
convincing evidence that counsel’s investigation was inadequate. Upon review, we conclude
that the evidence does not preponderate against the court’s determination.

B.     Communication with the Petitioner Before the Trial

       The Petitioner contends that trial counsel provided ineffective assistance because he
failed to communicate adequately with the Petitioner before the trial. To support his
argument, he points to his sworn statement in the pro se petition that counsel only visited him
once at the jail, that the jail visit was about a year before the trial, that counsel ignored his
telephone calls, and that counsel failed to discuss strategy and to prepare him for the trial.
Counsel testified that the Petitioner called him and that he visited the Petitioner at the jail a
couple of times. He did not recall the extent of his communication with the Petitioner
between the first and second trials, but he said the trial strategy did not change.

       In denying relief, the post-conviction court noted the Petitioner’s failure to testify at
the hearing and found that he failed to prove his claims by clear and convincing evidence.
The Petitioner’s allegations in his petition are not a substitute for evidentiary proof. We note,
as well, that post-conviction counsel’s questioning of trial counsel about the extent of the
communications was brief and that trial counsel’s testimony conflicted with the Petitioner’s
factual allegations. By failing to offer any proof that trial counsel’s pretrial communication
with the Petitioner constituted deficient performance, the Petitioner failed to prove his
ineffective assistance claim. The evidence does not preponderate against the court’s
determination.

C.     Jury Selection

        The Petitioner contends that trial counsel provided ineffective assistance by failing
to screen the prospective jurors adequately, which resulted in an “unconstitutionally selected
and empaneled” jury. He argues that counsel failed to discover that Ms. Camp knew before
the trial that a person with an ankle monitor was on house arrest, which became significant
when proof was introduced of the Petitioner’s having an ankle monitor. He also argues that
counsel failed to question the prospective jurors about friends or family who were involved
in the criminal justice system. Counsel testified that he did not ask questions about probation
or community corrections because doing so would have caused the jury to assume the
Petitioner was subject to supervision. When he learned about Ms. Camp’s family

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relationship with Ms. Clark after the trial, he raised the issue in post-trial motions and on
appeal. Although Ms. Camp testified that she knew about ankle monitors being involved in
house arrest, she did not attribute this knowledge to her sister. She said she and Ms. Clark
discussed family matters, not Ms. Clark’s employment and clientele.

        The post-conviction court found that trial counsel could reasonably assume, given the
trial court’s ruling about the inadmissibility of evidence of the Petitioner’s being on
community corrections, that an issue would not arise. The court also found that a prospective
juror’s relation to the community corrections director was not something that reasonably
could have been anticipated. The court found that counsel did not provide ineffective
assistance. Upon review, we conclude that the evidence does not preponderate against the
post-conviction court’s determination.

D.     Recusal of the Trial Judge

        The Petitioner contends that trial counsel was ineffective because he failed to request
the trial judge recuse himself based on the judge’s previous prosecution of the Petitioner
when the judge was an assistant district attorney general. After reviewing documents that
had been offered as sentencing exhibits, trial counsel agreed at the post-conviction hearing
that the judge had prosecuted the Petitioner previously during the judge’s tenure as an
assistant district attorney general and had presided as the judge in previous conviction and
revocation proceedings involving the Petitioner. Counsel did not think he knew at the time
of the trial that the judge had prosecuted the Petitioner. He said that when he had raised an
issue in a similar case, the Court of Criminal Appeals determined that no conflict existed.

       The record contains a 1992 judgment signed by George C. Sexton, attorney for the
State, community corrections violations warrants from 2006 and 2007 signed by George
Sexton as circuit court judge, and a 2008 amended community corrections violation warrant
signed by George Sexton as circuit court judge. The record reflects that the present offenses
occurred in 2007, and the Petitioner’s trial was in 2010.

        The post-conviction court found that the trial judge had been on the bench since 2003
and that the judge could not have been involved in prosecuting the current offenses, which
occurred later. The court also found that the Petitioner failed to offer any evidence that the
trial court was prejudiced against the Petitioner and that trial counsel could not be faulted for
making a motion that would not have been granted.

       The Petitioner argues, “Here there was no investigation of judicial bias; and therefore
can be no assurances that the [Petitioner] was tried by an impartial Judge.” In order to
prevail on this claim, the Petitioner must show that trial counsel should have requested the

                                               -8-
trial judge to recuse himself and that the Petitioner was prejudiced by the failure. However,
he has cited no authority requiring automatic recusal of a judge who has previously
prosecuted a defendant in another case or has presided as a judge in another case, nor has he
shown any prejudice from the judge’s past involvement as a judge in the Petitioner’s other
cases. See, e.g., Smith v. State, 357 S.W.3d 322, 341 (Tenn. 2011) (“Recusal has been held
not to be required when nothing more was shown than that the trial judge had previously
prosecuted a defendant on an unrelated case.”); State v. Reid, 213 S.W.3d 792, 815 (Tenn.
2006) (“A trial judge is not disqualified because that judge has previously presided over legal
proceedings involving the same defendant.”). The evidence does not preponderate against
the post-conviction court’s conclusion that Petitioner failed to prove his claim by clear and
convincing evidence.

E.     Community Corrections Evidence

       As a component of his ineffective assistance of counsel argument, the Petitioner
contends in his brief that trial counsel and the trial judge denied him due process of law by
inducing or allowing the jury to hear testimony about the Petitioner’s being on community
corrections. As we noted in section I, the trial court’s ruling on the motion for a mistrial was
reviewed by this court on direct appeal and cannot be relitigated in this post-conviction
action. We will consider whether counsel provided ineffective assistance.

        The post-conviction court found that trial counsel’s question prompted the
confidential informant’s statement but that the Petitioner failed to show that counsel’s
performance was below the threshold of competent representation in a criminal case. A
criminal defendant “is not entitled to perfect representation, only constitutionally adequate
representation.” Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). We note
that after counsel inadvertently elicited the testimony, he requested, and the trial court gave,
a curative instruction. As this court noted in the Petitioner’s direct appeal, the jury was
aware from other testimony that the Petitioner “shushed” the informant and pointed to the
ankle monitor, and the testimony about the Petitioner’s being on community corrections
“‘provided little new information to the jury.’” Terry Sanders, 2012 WL 5948885, at *3
(quoting State v. Reid, 91 S.W.3d 247, 279 (Tenn. 2002)). As this court held in the direct
appeal, the informant’s testimony did not create a manifest necessity for a mistrial. Although
the question in the direct appeal was not an ineffective assistance of counsel claim, this
court’s conclusion in the direct appeal opinion regarding the mistrial issue is relevant to the
question of whether the Petitioner was prejudiced by counsel’s eliciting the testimony. We
conclude that the evidence does not preponderate against the post-conviction court’s
determination that Petitioner failed to prove his claim by clear and convincing evidence.




                                              -9-
F.     Post-Trial Investigation of Jurors

       The Petitioner contends that trial counsel provided ineffective assistance by failing
“to properly and thoroughly investigate the biases and deliberative behaviors of the
improperly seated jurors post-trial.” The only juror identified is Ms. Camp, and we will limit
our consideration to counsel’s actions or inactions relative to Ms. Camp. The Petitioner
notes that counsel did not subpoena Ms. Camp for any post-trial hearings after discovering
that Ms. Clark was her sister and that he had performed legal work for Ms. Camp. Counsel
acknowledged he should have subpoenaed Ms. Camp, although he doubted the Petitioner
would have received a new trial. As we have stated previously, Ms. Camp testified at the
post-conviction hearing that she and Ms. Clark did not discuss Ms. Clark’s work or clientele.
Ms. Camp and counsel testified that his prior legal work for Ms. Camp was of a limited
nature, came about through Ms. Clark, and occurred without counsel and Ms. Camp speaking
or meeting before the Petitioner’s trial.

        Relative to trial counsel’s post-trial efforts, the post-conviction court found that
counsel raised post-trial issues regarding his prior legal work for Ms. Camp and her
relationship with Ms. Clark. The court found that counsel’s post-trial investigation was
adequate. The evidence presented at the post-conviction hearing does not preponderate
against the court’s determination. The Petitioner did not present proof that counsel failed to
discover, after the trial, the existence of anything that prevented Ms. Camp from serving as
a fair and impartial juror or that her testimony in post-trial hearings would have resulted in
his obtaining a new trial.

G.     Completion of the Appellate Record

       The Petitioner contends that trial counsel was ineffective by failing to “suitably review
and perfect” the record in the direct appeal to the Court of Criminal Appeals. He argues
generally that “multiple problems” existed. He notes that an issue was raised orally in a
motion for a new trial but was not submitted in writing and that this court could not properly
consider it. Although his brief does not identify the issue he claims was not raised in writing,
we presume that the Petitioner refers to the issue of counsel’s previous attorney/client
relationship with Ms. Camp.

        As the post-conviction court noted, this court considered the issue of trial counsel’s
prior representation of Ms. Camp to have been waived in the direct appeal because it was not
raised in the trial court in writing. See id. at *5-6. We acknowledge that counsel should have
raised the issue in writing. The post-conviction court noted that despite the waiver, this court
reviewed the issue for plain error and determined that none existed. See id. at *6. The post-
conviction court found that the Petitioner failed to show prejudice from counsel’s failure to

                                              -10-
raise the issue in writing and that he did not prove his ineffective assistance of counsel claim.
The transcript of the motion for a new trial reflects that the trial court considered the issue
on its merits when it was raised orally and that it denied relief. We conclude that the
evidence does not preponderate against the post-conviction court’s determination.

H.     Receipt and Review of the Presentence Report

       The Petitioner contends that trial counsel provided ineffective assistance by failing
to ensure the Petitioner received and reviewed the presentence report before the sentencing
hearing. We note, again, that the Petitioner did not testify at the sentencing hearing. Counsel
could not specifically recall sending the presentence report to the Petitioner, but he assumed
he did. Counsel said he discussed sentencing with the Petitioner and told the Petitioner he
thought the trial court would impose a thirty-year sentence. Counsel said he anticipated that
the court would impose minimum fifteen-year sentences and that the court would impose
them consecutively. He said he discussed this with the Petitioner.

       The post-conviction court found that the Petitioner failed to offer any proof that he
did not receive his presentence report. In light of the Petitioner’s failure to testify or offer
other proof that he did not receive a copy of the presentence report and that trial counsel did
not review it with him, we conclude that the record supports the court’s determination.

        The Petitioner has failed to establish ineffective assistance of counsel. He is not
entitled to relief on this basis.

                                               III

        The Petitioner contends that he was denied due process and a fair trial in the
conviction proceedings because of cumulative errors. He cites the lack of a request for the
trial judge to recuse himself, the lack of an investigation into judicial bias, inadequate review
of the presentence report and its admission as evidence, the seating of a juror with
particularized knowledge of community corrections, a juror’s connection to trial counsel, the
lack of a written motion for a new trial regarding the juror’s connection to counsel, the
failure to subpoena the juror for post-trial hearings, poor communication between counsel
and the Petitioner, failure to litigate sentencing issues, and failure to perfect the appellate
record. We note that no cumulative error issue was raised in the petition or amended
petition, and no such issue was considered by the post-conviction court. This court will not
consider post-conviction issues that are raised for the first time on appeal. See, e.g., Cone
v. State, 747 S.W.2d 353, 356 (Tenn. Crim. App. 1987); see also Tenn. R. Crim. P. 36(a)
(stating that “relief may not be granted in contravention of the province of the trier of fact”).
To the extent that the Petitioner raised these concerns individually in his petition, litigated

                                              -11-
them at the hearing, and raised them in his brief to this court, we have addressed them
previously.

      In consideration of the foregoing and the record as a whole, the judgment of the post-
conviction court is affirmed.




                                          ____________________________________
                                          ROBERT H. MONTGOMERY, JR., JUDGE




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