                                                                                            01/19/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 October 3, 2017 Session

                  ANDRE BENSON v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 09-05910       Glenn Ivy Wright, Judge
                      ___________________________________

                            No. W2016-02346-CCA-R3-PC
                        ___________________________________


The Petitioner, Andre Benson, was convicted of aggravated robbery after a jury trial and
was sentenced to serve fifteen years in prison. The Petitioner filed a timely post-
conviction petition, and the post-conviction court denied the petition without a hearing
for failure to state a colorable claim. The Petitioner then filed a second petition, raising a
claim of ineffective assistance of counsel. The post-conviction court held a hearing on
the second petition, which it proceeded to deny. On appeal, the Petitioner contends that
he received the ineffective assistance of his counsel at trial and that, as a result, he is
entitled to post-conviction relief. The State counters that the post-conviction court lacked
jurisdiction to hear a second post-conviction petition when a prior petition was decided
on the merits. Alternatively, the State argues that the petition was without merit and that
the denial should be affirmed. We conclude that the post-conviction court was required
by statute to dismiss the second or subsequent petition, and we affirm the denial of post-
conviction relief.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which NORMA
MCGEE OGLE and ALAN E. GLENN, JJ., joined.

Patrick E. Stegall, Memphis, Tennessee, for the appellant, Andre Benson.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior
Counsel; Amy P. Weirich, District Attorney General; and Austin Scofield, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                            OPINION

                       FACTUAL AND PROCEDURAL HISTORY

       The Petitioner was charged with aggravated robbery and especially aggravated
kidnapping, and he was convicted as charged after a jury trial. State v. Andre Benson,
No. W2011-02566-CCA-R3-CD, 2013 WL 3991820, at *1 (Tenn. Crim. App. Aug. 2,
2013) perm. app. denied (Tenn. Dec. 11, 2013). The victim of the crimes identified the
Petitioner as the perpetrator at a preliminary hearing, but she suffered from progressive
dementia. Id. Accordingly, prior to trial, the trial court held a competency hearing in
which the victim’s doctor, Dr. Robert Burns, testified that in his medical opinion, the
victim was competent to testify at the time of the preliminary hearing but no longer
competent to testify in court. Id. at *1-2. Trial counsel objected to the admission of the
victim’s prior testimony but did not object to the admission of Dr. Burns’s testimony
despite the fact that he was never qualified as an expert by the trial court. Id. at *2, 9.

        On direct appeal, this court affirmed the aggravated robbery conviction. Id. at *1.
In doing so, this court concluded that the Petitioner waived any claim that the failure to
qualify Dr. Burns as an expert mandated the exclusion of his testimony. Id. at *8-9. This
court reversed the conviction for especially aggravated kidnapping because the trial court
failed to give an instruction pursuant to State v. White, 362 S.W.3d 559 (Tenn. 2012).1
Andre Benson, 2013 WL 3991820, at *12.

       The Petitioner filed a post-conviction petition on September 25, 2014. The post-
conviction court denied the petition on October 30, 2014, for failure “to state a colorable
claim that has not been previously determined to be without merit.” In its order, the post-
conviction court noted that “[t]he only issue that could be determined by a
post[-]conviction evidentiary hearing would be the actual declaring of Dr. Burns as an
expert based on his credentials,” and that “[t]here is nothing new for any jury to
determine that has not already been litigated both at trial and on appeal.”

       The Petitioner then filed a second post-conviction petition on December 4, 2014,
still within the statutory limitations period. This petition reflects that, in addition to
claims that were previously litigated or waived, the Petitioner raised a claim that trial
counsel was ineffective in failing to object to the use of Dr. Burns’s testimony. The
petition averred that the Petitioner had not filed a prior petition for post-conviction relief.


       1
          According to the post-conviction court, the Petitioner subsequently pled guilty to attempted
especially aggravated kidnapping on February 27, 2014. The petition does not raise a challenge to the
subsequent guilty plea.
                                                -2-
        The Petitioner did not file a timely appeal from the denial of his first petition.
Instead, on January 27, 2015, he filed a motion requesting permission to file a late notice
of appeal. This court entered an order directing the Petitioner to supplement the record
with “any information regarding his convictions and … the post-conviction court’s order
denying his petition.” On February 19, 2015, the Petitioner filed additional material with
this court, including what appears to be a copy of his second petition for post-conviction
relief, with a certificate of service dated December 4, 2014. The Petitioner ultimately
supplemented the record with the post-conviction court’s order denying relief and a hand-
written document that appears to be his original petition for relief. This document makes
no claims regarding ineffective assistance of counsel. On March 25, 2015, this court
denied the motion to accept a late-filed notice of appeal related to the first petition. This
court concluded that the Petitioner was seeking relief under the theories that “(1) the
victim’s absence at a competency hearing and at trial violated his federal and state
constitutional rights and (2) the trial court erred in failing to qualify the State’s expert
witness and in failing to provide an instruction to the jury regarding the expert witness.”
Having determined that all issues raised were either waived or previously determined,
this court declined to waive the timely filing of the notice of appeal.

        Meanwhile, the second petition proceeded to march forward under a different
judge. The Petitioner was appointed counsel, who filed an amended petition on July 21,
2015. The State subsequently conceded that the Petitioner was entitled to a hearing on
his claim of ineffective assistance of counsel. On July 7, 2016, the post-conviction court
held a hearing. Because trial counsel was deceased at the time of the hearing, post-
conviction counsel presented only the testimony of Dr. Burns, who testified regarding his
academic qualifications, his nearly thirty years of practice in geriatric medicine, and his
prior court appearances, in which he was qualified as an expert approximately six to ten
times in civil proceedings and one to two times in criminal cases.

       The post-conviction court denied relief, finding that while “trial counsel arguably
should have objected” to the failure to qualify Dr. Burns as an expert, the failure to object
did not rise to deficiency; the post-conviction court also found that the Petitioner could
not show prejudice because any objection would have led to the “inevitable certification”
of Dr. Burns as an expert witness. The Petitioner appeals.

                                       ANALYSIS

       On appeal, the State contends that the post-conviction court lacked jurisdiction to
consider a second petition. The State argues that once an initial petition had been
dismissed on the merits, the trial court has no jurisdiction to entertain a subsequent
petition, and that consequently neither the trial court nor this court have jurisdiction over
the case. The State reasons that the dismissal of the first petition for failure to state a
                                            -3-
colorable claim was an adjudication on the merits and that the trial court was required by
statute to dismiss a subsequent petition. In the alternative, the State argues that the
petition lacked merit and that the post-conviction court correctly denied it. The Petitioner
contends that the first dismissal was not an adjudication on the merits and that he was
entitled to bring a second petition within the limitations period.

                                 I. Appellate Jurisdiction

       The State asserts that this appeal must be dismissed because the post-conviction
court had no jurisdiction over a second petition for post-conviction relief. The State also
urges this court to determine “whether it in fact has jurisdiction in this case.” Whether
this court has subject matter jurisdiction over a case is a question of law reviewed de
novo with no presumption of correctness. Morgan Keegan & Co. v. Smythe, 401 S.W.3d
595, 602 (Tenn. 2013).

        We first observe that this court’s appellate jurisdiction under Rule 3(b) of the
Tennessee Rules of Appellate Procedure extends to “a final judgment in a criminal
contempt, habeas corpus, extradition, or post-conviction proceeding.” Tennessee Code
Annotated section 40-30-116 also provides that “[t]he order granting or denying relief
under this part shall be deemed a final judgment, and an appeal may be taken to the court
of criminal appeals.” Likewise, Tennessee Code Annotated section 16-5-108(a)(2)
provides that this court may review final judgments in post-conviction actions.
Moreover, this court has routinely reviewed dismissal of a second or subsequent post-
conviction petition. See, e.g., Jack Layne Benson v. State, No. M2012-02041-CCA-R3-
PC, 2013 WL 4772996, at *5 (Tenn. Crim. App. Sept. 6, 2013) (“Because his prior
petition was resolved on the merits by a court of competent jurisdiction, summary
dismissal of the second petition was appropriate.”); Maria Maclin v. State, No. W2010-
00123-CCA-R3-PC, 2011 WL 890935, at *3 (Tenn. Crim. App. Mar. 15, 2011) (“We
agree with the State that the Petitioner’s first post-conviction petition was resolved on its
merits and that the lower court acted properly in summarily dismissing her second post[-
]conviction petition on that basis.”); Bobby Lee Jeffries v. State, No. W2008-00948-
CCA-R3-PC, 2008 WL 4170263, at *1 (Tenn. Crim. App. Sept. 8, 2008) (affirming
dismissal on the sole ground that “the post-conviction court properly dismissed the
petition because the petitioner has previously filed numerous petitions for post-conviction
relief”). We conclude that we have the jurisdiction to review the post-conviction court’s
final judgment in this post-conviction matter.

                           II. Second or Subsequent Petition

     The State contends that the petition should have been dismissed because the record
demonstrates that it was the Petitioner’s second petition for post-conviction relief. The
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State argues that the dismissal of the first petition was a ruling on the merits barring the
filing of a subsequent petition. The State also contends that the use of the word “shall” in
mandating dismissal evinces a legislative intent to remove the case from the trial court’s
jurisdiction. The Petitioner argues that the dismissal of his first petition did not constitute
a ruling on the merits, and that he was consequently entitled to file a second petition. He
contends that his petition was denied in error.

        Issues of statutory construction present questions of law that this court reviews de
novo without a presumption of correctness. State v. Edmonsond, 231 S.W.3d 925, 927
(Tenn. 2007). This court should give effect to the legislative intent without unduly
restricting or expanding a statute’s coverage beyond its intended scope. State v.
Sherman, 266 S.W.3d 395, 401 (Tenn. 2008). When construing a statute,

       we focus initially on the statute’s words, giving these words their natural
       and ordinary meaning in light of their statutory context. We avoid any
       forced or subtle construction that would limit or extend the meaning of the
       language. Every word in a statute is presumed to have meaning and
       purpose. If the statutory language is clear and unambiguous, we apply the
       statute’s plain language in its normal and accepted use. We need look no
       further than the statute itself, enforcing it just as it is written.

Morgan Keegan & Co., 401 S.W.3d at 602 (quoting Keen v. State, 398 S.W.3d 594, 610
(Tenn. 2012)). “Like any legislation, the [Post-Conviction Procedure] Act is to be
construed in pari materia to achieve its intended purposes.” Laney v. State, 826 S.W.2d
117, 118 (Tenn. 1992) (quoting Swanson v. State, 749 S.W.2d 731, 733 (Tenn. 1988)).

                       A. Prior Dismissal as Ruling on the Merits

       The State argues that the dismissal of the first petition for failure to state a
colorable claim was a decision on the merits precluding the filing of a second petition. In
support, the State cites to the statutory language mandating dismissal for failure to state a
colorable claim. The Petitioner responds that the dismissal was not on the merits and that
there was no bar to the post-conviction court considering his second petition so long as it
was not filed outside the limitations period.

       The Post-Conviction Procedure Act allows for relief when a conviction or
sentence is void or voidable due to the violation of a constitutional right. T.C.A. § 40-30-
103. When filing for post-conviction relief, a petitioner must include “allegations of fact
supporting each claim for relief” and explaining why the ground was not raised in any
earlier proceeding. T.C.A. § 40-30-104(e). When faced with a petition for post-
conviction relief, the post-conviction court is directed to examine the allegations of fact
                                             -5-
contained in the petition. T.C.A. § 40-30-106(a). “If the facts alleged, taken as true, fail
to show that the petitioner is entitled to relief or fail to show that the claims for relief
have not been waived or previously determined, the petition shall be dismissed.” T.C.A.
§ 40-30-106(f).

        In the Petitioner’s case, the post-conviction court dismissed his first petition
pursuant to this provision, concluding that the petition did not allege any colorable claims
and that all issues raised were either waived or previously determined. A colorable claim
is a claim that, “if taken as true, in the light most favorable to petitioner, would entitle
petitioner to relief under the Post-Conviction Procedure Act.” Arnold v. State, 143
S.W.3d 784, 786 (Tenn. 2004) (quoting Tenn. Sup. Ct. R. 28, § 2(H)). A post-conviction
court may also dismiss the petition later in the process but still prior to a hearing, after
reviewing the petition, the State’s response, and the records and files associated with the
petition, on the basis that a petitioner is conclusively not entitled to relief. T.C.A. § 40-
30-109(a).

       “[I]f a prior petition has been filed which was resolved on the merits by a court of
competent jurisdiction, any second or subsequent petition shall be summarily dismissed.”
Matthew Dixon v. State, No. W2015-00130-CCA-R3-PC, 2015 WL 6166604, at *4
(Tenn. Crim. App. Oct. 21, 2015) no perm. app. filed. Conversely, “a petitioner may file
a successive petition if the first petition has not been resolved on the merits.” Shelley
Denise Blair v. State, No. M2014-02506-CCA-R3-PC, 2015 WL 9257167, at *4 (Tenn.
Crim. App. Dec. 17, 2015) no perm. app. filed. A dismissal with prejudice is a “final
judgment” and any grounds raised are previously determined, while grounds that could
have been raised are waived. State v. Ralph Eddie Wishon, No. 94, 1991 WL 76390, at
*3 (Tenn. Crim. App. May 14, 1991).

        In Blair v. State, the petitioner alleged various grounds for post-conviction relief,
and the post-conviction court dismissed the petition without a hearing or appointment of
counsel, concluding that the issues were waived, previously determined, or did not assert
a ground for relief as a matter of law. 969 S.W.2d 423, 423-24 (Tenn. Crim. App. 1997).
This court recognized that the petitioner would only have one opportunity to present his
claims to the court and that a pro se petitioner may have a meritorious claim extinguished
as a result of the change in the new Act. Id. at 425. We nevertheless concluded that
“the trial court did not dismiss the petition for lack of form, but considered the merits of
the petition and ruled that the issues were either waived, previously determined, or
without merit.” Id.; see Runako Q. Blair v. State, No. W1999-01847-CCA-R3-PC, 2000
WL 277138, at *1 (Tenn. Crim. App. Jan. 12, 2000) (concluding, in a subsequent
petition, that “[s]ince the petitioner previously filed a petition that was resolved on the
merits by the trial court and by this Court on appeal, the petitioner’s present petition was
properly dismissed”).
                                            -6-
        Likewise, in Rudd v. State, a petitioner filed a post-conviction petition which was
dismissed when the trial court, having reviewed the trial transcripts but without holding a
hearing or appointing counsel, found that the petitioner did not receive ineffective
assistance of counsel. 531 S.W.2d 117, 118 (Tenn. Crim. App. 1974). On appeal of a
subsequent petition, this court concluded that the trial court had conducted a “full and fair
hearing on the question raised in the prior petition,” and we accordingly denied relief. Id.
(citation omitted). The same result was reached in Curtis Wren v. State, when the first
petition was dismissed for failure to state the grounds for relief or a full statement of the
factual basis for the challenge. No. W2017-00500-CCA-R3-PC, 2017 WL 4331054, at
*2 (Tenn. Crim. App. Sept. 28, 2017), perm. app. denied (Tenn. Dec. 8, 2017). This
court concluded that the dismissal of the first petition, which took place after a review of
the petition, the State’s motion to dismiss, and the entire record, mandated the dismissal
of the second. Id.; see Terrance B. Burnett v. State, No. W2014-00314-CCA-R3-PC,
2014 WL 4697628, at *4 (Tenn. Crim. App. Sept. 22, 2014) (concluding that prior
petition, which was dismissed for failure to allege facts which would entitle the petitioner
to relief, rendered the issues “previously litigated” and that subsequent petition was
properly dismissed under statute barring a second or subsequent petition); Duane Michael
Coleman v. State, No. M2008-02180-CCA-R3-CD, 2010 WL 2890676, at *2 (Tenn.
Crim. App. July 23, 2010) (concluding that second petition should be dismissed when
first petition was resolved on the merits and citing Duane Coleman v. State, No. M2003-
00512-CCA-R3-PC, order dismissing appeal, (Tenn. Crim. App. Dec. 29, 2005)
(describing trial court’s “dismissal” of the first petition and Petitioner’s failure to appeal
the dismissal)); Phedrek T. Davis v. State, No. M2009-01616-CCA-R3-PC, 2010 WL
1947379, at *4 (Tenn. Crim. App. May 14, 2010) (concluding that “the merits of the
petition, not the form, … permit its summary dismissal” when petition was dismissed on
finding that the issue was previously determined). A case which reaches the opposite
conclusion, Tracy Lynn Harris v. State, was designated “Not for Citation” by the
Tennessee Supreme Court. No. W2011-01578-CCA-R3-PC, 2011 WL 6747474, at *2
n.3 (Tenn. Crim. App. Dec. 21, 2011) (noting that the petitioner’s initial petition, which
had been dismissed for failure to state a colorable claim, “was not resolved on the
merits”), perm. app. denied, designated “Not for Citation” (Tenn. Apr. 12, 2012).

       Accordingly, we determine that the weight of authority leads to the conclusion that
a post-conviction court’s dismissal for failure to state a colorable claim is a judgment on
the merits.2

        2
           We note that this conclusion is bolstered by a review of analogous provisions, cited by the State,
which provide for dismissal when a complaint fails to state a colorable claim and which are treated as
decisions on the merits. See Tenn. R. Civ. P. 12.02(6) (providing for dismissal when the claim for relief
fails to state a claim upon which relief can be granted); Creech v. Addington, 281 S.W.3d 363, 378 (Tenn.
2009) (noting that “an order granting a motion to dismiss for failure to state a claim upon which relief can
be granted under Tennessee Rule of Civil Procedure 12.02(6) is an adjudication on the merits”); 28
                                                   -7-
        We note also that the Act specifically provides for circumstances in which the
filing of a first petition does not preclude a second petition. The statute provides that a
petitioner “may withdraw a petition at any time prior to the hearing without prejudice to
any rights to refile.” T.C.A. § 40-30-109(c) (emphasis added) (noting however that such
voluntary dismissal does not affect the running of the statute of limitations); see Williams
v. State, 831 S.W.2d 281, 282 (Tenn. 1992) (concluding that under the prior act,
voluntary dismissal of a petition was not an adjudication and that issue was not waived
“where a defendant is permitted to withdraw a post-conviction petition before it is heard
on the merits”). The inclusion of this language regarding dismissal without prejudice
implies that dismissal not pursuant to this subsection is a dismissal with prejudice to the
right to refile.

       We accordingly conclude that the post-conviction court’s dismissal of the first
petition for failure to state a colorable claim was a ruling on the merits. The Petitioner
did not file a timely notice of appeal, and this court ultimately denied permission to
appeal, concluding that the Petitioner’s allegations would not in any event entitle him to a
new trial. The Petitioner’s second petition was accordingly barred under Tennessee Code
Annotated section 40-30-102(c), which provides that “[i]n no event may more than one
(1) petition for post-conviction relief be filed attacking a single judgment. If a prior
petition has been filed which was resolved on the merits by a court of competent
jurisdiction, any second or subsequent petition shall be summarily dismissed.” The
mandatory nature of dismissal for a second petition is reiterated in Tennessee Code
Annotated section 40-30-106(b), which states that if it plainly appears that “a prior
petition was filed attacking the conviction and was resolved on the merits, the judge shall
enter an order dismissing the petition.” The Petitioner’s second petition should have been
summarily dismissed pursuant to the mandates of the statute.

                            B. Post-Conviction Court’s Jurisdiction

       In this case, the post-conviction court did not dismiss the second petition, but
instead held a hearing on the Petitioner’s claims of ineffective assistance of counsel. The
State asserts that the post-conviction court had no jurisdiction over the matter and that the
proceeding was accordingly a nullity. In support, the State cites to the statutory language
mandating dismissal of a second petition. The statute at issue provides that when it
“plainly appears from the face of the petition … that a prior petition was filed attacking
the conviction and was resolved on the merits, the judge shall enter an order dismissing
the petition.” T.C.A. § 40-30-106(b) (emphasis added). Likewise, “[i]f a prior petition

U.S.C.A. § 2254, Rule 4 (providing for dismissal “[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief”); Borden v. Allen, 646 F.3d 785, 810 (11th
Cir. 2011) (concluding that a dismissal pursuant to Rule 4 is a ruling on the merits).
                                                   -8-
has been filed which was resolved on the merits by a court of competent jurisdiction, any
second or subsequent petition shall be summarily dismissed.” T.C.A. § 40-30-102(c)
(emphasis added).

        The same statutory provision notes in subsection (a) that an action filed outside the
limitations period “shall be barred.” T.C.A. § 40-30-102(a) (emphasis added). In
addressing the limitations period, however, the Legislature went on to note that the
limitations period is “an element of the right to file the action” and that the right to file is
extinguished at the end of the limitations period. Id. Moreover, the statute then states
with specificity: “No court shall have jurisdiction to consider a petition filed after the
expiration of the limitations period….” T.C.A. § 40-30-102(b). This clear statement
barring jurisdiction based on the limitations period, and the omission of a like statement
related to subsequent petitions in the same section, is telling. See, e.g., S. Cent. Bell Tel.
Co. v. Tennessee Pub. Serv. Comm’n, 675 S.W.2d 718, 719 (Tenn. Ct. App. 1984)
(noting that in statutory construction, inclusio unius est exclusio alterius).

        Moreover, the language regarding mandatory dismissal is also included in other
provisions, including those related to dismissal for failure to state a colorable claim.
T.C.A. § 40-30-106(d) (“Failure to state a factual basis for the grounds alleged shall
result in immediate dismissal of the petition.” (Emphasis added)); T.C.A. § 40-30-106(f)
(“If the facts alleged, taken as true, fail to show that the petitioner is entitled to relief or
fail to show that the claims for relief have not been waived or previously determined, the
petition shall be dismissed.” (Emphasis added)); T.C.A. § 40-30-109(a) (“If, on
reviewing the petition, the response, files, and records, the court determines conclusively
that the petitioner is entitled to no relief, the court shall dismiss the petition.” (Emphasis
added)). This court previously issued a ruling finding a lack of jurisdiction for a second
petition, but that ruling rested on additional grounds and was vacated by an order
remanding to the trial court. State v. Marcus L. Branner, No. E2006-00939-CCA-R3-
CD, 2007 WL 1559248, at *1 (Tenn. Crim. App. May 31, 2007) (concluding that courts
were “without jurisdiction to consider a second petition, given that statute’s specific
directive that a petitioner be allowed only one post-conviction petition” and also finding
lack of jurisdiction under the limitations period and because there was no final order
granting a delayed motion for a new trial or appeal), order vacating and remanding
(Tenn. Nov. 5, 2007) (concluding that the trial court must clarify record regarding
whether a delayed appeal was granted in order to settle jurisdictional questions).

       The statute provides that an action may be commenced by filing a petition in “the
court in which the conviction occurred.” T.C.A. § 40-30-104(a). We conclude that the
statutory language mandating dismissal falls short of the clear statement which the State
acknowledges is necessary to remove the action from a trial court’s jurisdiction. See
Haley v. University of Tennessee-Knoxville, 188 S.W.3d 518, 522 (Tenn. 2006) (noting
                                             -9-
that subject matter jurisdiction is conferred by the constitution and statutes).
Accordingly, we conclude that the post-conviction court had jurisdiction to rule on the
second petition.

       By the plain terms of the statute, however, the post-conviction court was required
to dismiss the petition rather than holding a hearing. Curtis Wren, 2017 WL 4331054, at
*2 (“Thus, even though the post-conviction court below did not rely upon this ground,
summary dismissal of the present petition, Petitioner’s second, was not only appropriate
but mandatory.”). Consequently, we conclude that the post-conviction court was required
to dismiss the petition, and we affirm the denial of relief. While the State raised the
possibility of waiver at oral arguments, we note that the second petition erroneously
stated that no prior petitions had been filed, and we likewise note that the Petitioner has
never asserted that the State waived its objection to a hearing. The post-conviction court
was required to dismiss the petition because the petitioner had previously filed for post-
conviction relief.

       We observe that, in any event, the post-conviction court found that the Petitioner
could not establish prejudice because the qualification of the State’s expert was
“inevitable.” In order to obtain relief under the Post-Conviction Procedure Act, a
petitioner must show that his conviction or sentence is void or voidable due to the denial
of a constitutional right, including the right to counsel. T.C.A. § 40-30-103; see Vaughn
v. State, 202 S.W.3d 106, 116 (Tenn. 2006). In order to establish that he received the
ineffective assistance of counsel, the petitioner must show both that his lawyer’s
performance was deficient and that the deficiency resulted in prejudice. Pylant v. State,
263 S.W.3d 854, 868 (Tenn. 2008). Prejudice is shown by demonstrating a reasonable
probability that, absent the errors, the result of the proceeding would have been different.
Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009). Because the record supports the
post-conviction court’s conclusion that the certification of the expert, who had testified as
an expert numerous times in civil and criminal trials, was “inevitable,” the Petitioner
cannot show that the failure to object had any effect on the results of the proceeding.

                                     CONCLUSION

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



                                                    _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE



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