                                                                                           01/02/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 21, 2018

           JEROME MAURICE TEATS v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                     No. 2009-D-2955 Steve R. Dozier, Judge
                     ___________________________________

                           No. M2017-00855-CCA-R3-PC
                       ___________________________________


The Petitioner, Jerome Maurice Teats, filed for post-conviction relief from his conviction
of one count of aggravated robbery and four convictions of especially aggravated
kidnapping. The Petitioner alleged that based upon the advice of trial counsel, he
rejected plea offers and decided to go to trial. The Petitioner further alleged that
appellate counsel was ineffective by failing to include a suppression issue in the
application for permission to appeal to the supreme court. The post-conviction court
found that the Petitioner failed to prove that either trial counsel or appellate counsel were
ineffective. On appeal, the Petitioner challenges this ruling. Upon review, we affirm the
judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and CAMILLE R. MCMULLEN, JJ., joined.

Elaine Heard, Nashville, Tennessee, for the Appellant, Jerome Maurice Teats.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Glenn R. Funk, District Attorney General; and J. Wesley King, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

      In October 2009, the Petitioner and his co-defendant, Tirrone Akillia Simpkins,
were indicted on one count of aggravated robbery and four counts of especially
aggravated kidnapping. State v. Jerome Maurice Teats, No. M2012-01232-CCA-R3-CD,
2014 WL 98650, at *1 (Tenn. Crim. App. at Nashville, Jan. 10, 2014), aff’d, 468 S.W.3d
495 (Tenn. 2015). On direct appeal, our supreme court summarized the factual and
procedural trial history as follows:

                     Shortly before six o’clock on the morning of May 18,
             2009, [the Petitioner] and Tirrone Akillia Simpkins (“the
             accomplice”) forced their way into the back door of a
             Shoney’s restaurant in Nashville. Armed with guns, they
             threatened four employees in the kitchen area, forced them to
             gather in a storage area in the back of the kitchen, and told
             them to put their heads down and not to move. As the
             accomplice guarded these employees, the [Petitioner] forced
             the Shoney’s manager to take him to the restaurant’s money
             drawer. After taking the money, the intruders fled on foot but
             were soon apprehended by police. A grand jury indicted the
             [Petitioner] for aggravated robbery of the Shoney’s manager
             and four counts of especially aggravated kidnapping of the
             four Shoney’s employees.

State v. Teats, 468 S.W.3d 495, 496 (Tenn. 2015).

       At trial, the proof revealed that shortly after the offense, the police found the
Petitioner hiding in a crawl space under a nearby house. Id. at 498. He was arrested and
taken to the police station where he gave a statement, claiming that Simpkins approached
him a few days before the robbery and convinced him to participate in the crime. Id. at
498-99. The Petitioner said that on the morning of the robbery, he and Simpkins drove to
a parking lot near the restaurant and parked. Id. at 499. The Petitioner told Simpkins that
he would do whatever Simpkins did. Id. They rushed into the restaurant when the back
door opened. Id. The Petitioner had a .357 magnum revolver, and Simpkins had a BB
gun. Id. The Petitioner made the store owner put the money in the bag while Simpkins
secured the employees. Id. Afterward, they ran out of the restaurant, the Petitioner threw
his gun in some bushes, and he hid in a crawl space under a house until he was found by
the police. Id. The defense presented testimony from several of the Petitioner’s family
members and friends about the Petitioner’s emotional problems leading up to the robbery.
Id. The defense also presented the testimony of an expert witness, Dr. Murray Smith,
about the Petitioner’s mental condition at the time of the robbery. Id. Dr. Smith
diagnosed the Petitioner with Grave’s disease, explaining that his body over-produced the
thyroid hormone thyroxine. Jerome Maurice Teats, No. M2012-01232-CCA-R3-CD,
2014 WL 98650, at *7. Dr. Smith stated that the Petitioner was physically and mentally
ill due to thyroxine, which rendered the Petitioner unable to understand the situation,
make good choices, or appreciate the consequences of his behavior. Id.

                                           -2-
       At the conclusion of the proof, the jury convicted the Petitioner of one count of
aggravated robbery and four counts of especially aggravated kidnapping. Teats, 468
S.W.3d at 499-500. The trial court sentenced the Petitioner as a Range II, multiple
offender to seventeen years for the aggravated robbery conviction and to thirty-three
years for each especially aggravated kidnapping conviction. Jerome Maurice Teats, No.
M2012-01232-CCA-R3-CD, 2014 WL 98650, at *9. The trial court ordered the
especially aggravated kidnapping sentences to be served concurrently with each other but
consecutively to the aggravated robbery sentence for a total effective sentence of fifty
years. Id.

       The Petitioner appealed his convictions, arguing:

              (1) the trial court erred in denying his motion to suppress; (2)
              the trial court erred in denying his motion to disqualify the
              district attorney general’s office; (3) his convictions for
              especially aggravated kidnapping must be reversed on due
              process and double jeopardy grounds [because the trial court
              failed to give an instruction pursuant to State v. White, 362
              S.W.3d 559, 578 (Tenn. 2012)]; (4) the trial court improperly
              instructed the jury on criminal responsibility; (5) the evidence
              was not sufficient to support his convictions; (6) cumulative
              error; and (7) his sentence is excessive.

Jerome Maurice Teats, No. M2012-01232-CCA-R3-CD, 2014 WL 98650, at *1. This
court affirmed the Petitioner’s convictions and sentences. Id. Our supreme court granted
permission to appeal in order “to determine whether a White jury instruction must be
given when a defendant is charged with the kidnapping and robbery of separate victims.”
Teats, 468 S.W.3d at 500. Our supreme court held that a White instruction was not
required in such a situation and affirmed the Petitioner’s convictions. Id.

        Thereafter, the Petitioner, acting pro se, filed a timely petition for post-conviction
relief. Counsel was appointed and amended petitions were filed. In the petitions, the
Petitioner alleged numerous claims of ineffective assistance of counsel, including (1) that
his first counsel, who represented him at the preliminary hearing and the arraignment,
gave him erroneous advice about a plea offer that resulted in the Petitioner rejecting the
offer and proceeding to trial; (2) that both trial counsel and co-counsel failed to convey
plea offers to the Petitioner; and (3) that co-counsel was ineffective by failing to ensure
that the appellate record contained all necessary materials for appellate review of the trial
court’s denial of his motion to suppress.




                                            -3-
        At the post-conviction hearing,1 the Petitioner testified that his trial occurred in
2011 and that he was represented by trial counsel and co-counsel. Trial counsel began
representing the Petitioner in 2010. Approximately three months prior to trial, the
Petitioner retained co-counsel, who he thought had “a better rapport” with the State than
trial counsel and could obtain more favorable plea offers. Additionally, the Petitioner
thought co-counsel had appellate experience and could ensure that issues were preserved
for appeal.

       The Petitioner thought trial counsel was going to pursue a theory of diminished
capacity, which would help get his statement suppressed. However, the trial court denied
his suppression motion.

       The Petitioner recalled that in 2009, after he was indicted by the grand jury, he
received a plea offer that included a sentence of fifteen years with 100 percent of the
sentence to be served in confinement. The Petitioner first heard the offer while he was
represented by his first counsel. The Petitioner had “no intention[]” of accepting the
offer. The Petitioner’s family was not satisfied with the representation of first counsel
and retained trial counsel. On one occasion, trial counsel advised the Petitioner of the
same fifteen-year offer the Petitioner had received from his first counsel. The Petitioner
rejected the plea offer based upon trial counsel’s advice that the defense would be
successful in getting his statement suppressed and the especially aggravated kidnapping
charges dismissed, either at trial or on appeal.

       The Petitioner said that approximately two or three weeks before trial, he told trial
counsel and co-counsel to solicit other plea offers from the State. He told them that if
they could obtain an offer that was “a little bit” more favorable, he would “[m]ore than
likely” accept it. Both counsel “promised” to obtain a more favorable plea offer, but they
never advised the Petitioner of any such offer. The Petitioner said that during a meeting
before “some last minute pretrial motions were filed,” co-counsel mentioned that multiple
offers were on the table, but the Petitioner was never advised of those offers.

       The Petitioner said that he hired co-counsel to handle his direct appeal but that he
was not satisfied with the appeal. From his reading of this court’s opinion, the Petitioner
discerned that co-counsel “dropped the ball” and failed to file all of the necessary
transcripts and paperwork regarding the suppression issue.2 The Petitioner thought many
of the “implications” made by this court on direct appeal regarding the suppression issue
were contrary to the trial court’s rulings. In the Petitioner’s opinion, co-counsel “messed
up” and damaged his Rule 11 application by failing to include the suppression issue. The
Petitioner denied that he and co-counsel discussed raising only one issue on appeal to the

       1
           We have chosen to limit our recitation of the facts to those pertinent to the Petitioner’s issues.
       2
           We can find no such reference in this court’s opinion.
                                                      -4-
supreme court; instead, the Petitioner said that he asked co-counsel to raise the
suppression issue in addition to the White instruction issue. The Petitioner thought this
court had ruled incorrectly regarding the suppression issue and that if co-counsel had
pursued the suppression issue, he “would have gotten some relief on this because Judge
Tipton was already in my favor.”3

      On cross-examination, the Petitioner conceded that he was on parole for drug
possession at the time of the offenses for which he was on trial. The Petitioner’s prior
felony convictions were the result of guilty pleas. Therefore, the Petitioner had no
previous trial experience.

         The Petitioner met with trial counsel while he was incarcerated and continued to
meet with trial counsel after he was released on bail in October 2010. The trial occurred
in November 2011. The Petitioner recalled that initially, he was charged with only one
count of aggravated robbery. First counsel, who was representing the Petitioner at the
time, advised him of a plea offer that included a sentence of twelve years with potential
release eligibility after serving 35 percent of his sentence. The Petitioner was afraid and
“kind of” wanted to accept the offer. However, first counsel would not let him accept the
plea offer because the Petitioner was “bad off,” was on medication, and was awaiting the
results of a competency evaluation. After the Petitioner was found competent to stand
trial, the State indicted the Petitioner on four counts of especially aggravated kidnapping.
At that point, first counsel advised the Petitioner that the first plea offer had been revoked
and that a second offer had been made, namely fifteen years at 100 percent.

        Trial counsel testified that he had practiced law for twenty-five years. He spent
thirteen years as a prosecutor and twelve years as a defense attorney. The Petitioner’s
case was pending when he was retained by the Petitioner and his girlfriend. Trial counsel
was not aware of any offers conveyed by first counsel. Trial counsel had multiple
meetings with the Petitioner during the time he represented the Petitioner. Some of the
meetings occurred when the Petitioner was incarcerated and some were after he was
released on bond. The Petitioner’s girlfriend “was a constant presence” at the meetings.
They discussed trial strategy, the evidence against the Petitioner, and the “pros and cons”
of proceeding to trial or accepting a plea offer. Trial counsel said that the Petitioner was
intelligent and opinionated and that they did not always agree on strategy.



        3
         We note that in this court’s opinion on direct appeal, Judge Joseph M. Tipton stated in his
dissent that he “believe[d] the trial court’s ruling regarding the admissibility of the [Petitioner’s]
statements [was] insufficient for us to conduct a proper review of the suppression issue.” Jerome Maurice
Teats, No. M2012-01232-CCA-R3-CD, 2014 WL 98650, at *30 (Tipton, J., dissenting). Judge Tipton
observed that “[t]he inferences made by [his] collegues may be correct, but there may be findings the trial
court made that do not readily support its ultimate holding.” Id. at *31.
                                                   -5-
       Trial counsel was sure the State made plea offers during his representation, but he
could not recall the nature of the offers. Trial counsel recalled that “early on,” the State
made a plea offer that included release eligibility after serving 30 percent, but the
Petitioner refused the offer. Thereafter, the grand jury indicted the Petitioner on four
counts of especially aggravated kidnapping, which statutorily mandated 100 percent
service of the sentence in confinement,4 which was “not acceptable” to the Petitioner.
Trial counsel said that he would have informed the Petitioner of the State’s offers
although the Petitioner was never inclined to accept the State’s offers.

        Trial counsel said that the defense strategy was to weaken the State’s case by
suppressing the Petitioner’s statements and establishing the Petitioner’s diminished
capacity. Regarding the suppression issue, trial counsel recalled that after the Petitioner
was arrested, an officer told the Petitioner “you are going to tell this detective everything
he wants.” Trial counsel thought the officer’s statement was a good basis for suppression
at trial or on appeal, but he never guaranteed that the Petitioner would be successful on
the suppression issue. Moreover, neither trial counsel nor co-counsel promised to obtain
a better plea offer from the State. Trial counsel explained that due to the strength of the
State’s case, he felt that no better offer would be forthcoming.

        Trial counsel said that at the time of the Petitioner’s trial, he told the Petitioner and
his girlfriend that the State was “trying to wrap a kidnapping around an armed robbery
and that’s going to be the crux of the case.” Trial counsel advised them that the
Petitioner’s case was “not really a factual case, it’s a legal argument case.”

       On cross-examination, trial counsel said that he did not recall how many times he
met with the Petitioner and his girlfriend, but he recalled “they were high maintenance.”
Trial counsel was surprised when the Petitioner hired co-counsel near the time of trial,
but he knew co-counsel and appreciated the help.

       Trial counsel did not know whether the Petitioner’s decision to reject a plea offer
was influenced by his counsel’s advising the Petitioner that the denial of the suppression
motion was a good issue for appeal. Trial counsel acknowledged that the Petitioner may
have said he would accept a plea if the proposed sentence were reduced. Trial counsel
thought he must have conveyed that message to the State, but he had no independent
recollection of doing so. To trial counsel’s knowledge, the Petitioner never considered
accepting the fifteen-year offer because he did not want to serve 100 percent of the
sentence.

      Trial counsel said that he and co-counsel discussed the Petitioner’s direct appeal.
Co-counsel argued the suppression issue in this court and decided on which issues the

       4
           See Tenn. Code Ann. § 40-35-501(i)(1), (i)(2)(C).
                                                   -6-
supreme court would be more likely to grant review. Trial counsel was not disappointed
by co-counsel’s failure to raise the suppression issue to the supreme court because the
supreme court generally granted permission to appeal only when a question had not been
addressed previously, and this court had addressed the Petitioner’s suppression issue.

       Co-counsel testified that he was licensed to practice law in 1982 and that his
practice was primarily criminal defense. The Petitioner hired him in late 2011, one or
two months prior to trial. Because trial counsel had prepared much of the case, co-
counsel did not think a continuance was necessary. Co-counsel met with the Petitioner
frequently, sometimes alone and sometimes with trial counsel. Co-counsel and trial
counsel did not disagree on trial strategy. Co-counsel said the motion to suppress had
been filed before he was retained. Co-counsel, trial counsel, and the Petitioner discussed
the case, and co-counsel was comfortable and prepared to go to trial.

        Co-counsel and trial counsel discussed the Petitioner’s direct appeal. Trial counsel
“felt strongly” that they could prevail on the suppression issue whereas co-counsel “was
more enthusiastic” that they could obtain relief on the issue of the kidnapping instruction.
Co-counsel acknowledged that he handled the direct appeal and that he raised numerous
issues in this court. He “made a calculated decision that the best way” to convince the
supreme court to grant the Petitioner’s Rule 11 application was to focus on “one really
good issue,” which co-counsel thought was the White instruction. Co-counsel did not
think the supreme court would entertain the suppression issue because of the amount of
deference “given to the trial court and certainly the Court of [C]riminal [A]ppeals who
reviewed the evidence and everything.” Co-counsel exchanged letters with the Petitioner
regarding why pursuing a single issue to the supreme court was the best strategy. Co-
counsel thought the Petitioner agreed with the strategy, noting that the Petitioner did not
insist that co-counsel raise the suppression issue or any other issues on appeal to the
supreme court.

       Co-counsel did not recall having conversations with the prosecutor regarding plea
offers and denied promising the Petitioner he would obtain a better offer from the State,
noting that he left plea negotiations to trial counsel. Co-counsel recalled having
discussions with trial counsel and the Petitioner about whether to accept offers that were
made but could not recall any “particulars” regarding the offers. Co-counsel reiterated
that the Petitioner would not have accepted any plea offer because he wanted to go to
trial.

       Co-counsel stated that upon discovering that the transcript of the March 10, 2011
suppression hearing was not included in the appellate record, he supplemented the record
with the transcript. Co-counsel had no reservations about the completeness of the
appellate record. Co-counsel noted that this court made no mention of an incomplete

                                           -7-
record. He noted that Judge Tipton had filed a dissent stating that the trial court’s
findings of fact were insufficient, thus precluding appellate review.

        Co-counsel said he was familiar with appellate practice and had appealed cases to
the Tennessee Supreme Court. Co-counsel asserted that a defendant had no appeal as of
right to the supreme court and that the supreme court rarely granted an application for
permission to appeal. Co-counsel did not want to “dilute the matter” in the application
for appeal.

        The post-conviction court found that the Petitioner had failed to prove that his trial
counsel or his appellate counsel were ineffective. On appeal, the Petitioner challenges
this ruling.

                                        II. Analysis

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

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

        When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel’s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner must show that “there is a reasonable probability that, but for counsel’s
                                            -8-
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Moreover,

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

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). The same test is used to
determine the effectiveness of trial counsel and appellate counsel. See Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).

        On appeal, the Petitioner contends that trial counsel and co-counsel gave him
“incorrect advice” by promising to obtain a better plea offer and to be successful on
appeal. The Petitioner relied on their advice, rejected the State’s offer, and decided to go
to trial. The Petitioner further contends that co-counsel was ineffective by failing to
include the suppression issue in the Rule 11 application, arguing that Judge Tipton’s
dissent in this court’s opinion reflects a disagreement in the lower court about how to
address the issue, making it ripe for supreme court review.

       Initially, we note that the Petitioner did not raise the foregoing issues in his post-
conviction petitions. “Generally, with respect to those seeking post-conviction relief, this
court will not address post-conviction issues that were not raised in the petition or
addressed in the post-conviction court.” Rickman v. State, 972 S.W.2d 687, 691 (Tenn.
Crim. App. 1997). We acknowledge that the Petitioner briefly mentioned the issues
when he testified and that his post-conviction counsel questioned trial counsel and co-
counsel regarding the issues; however, post-conviction counsel made no arguments
concerning the issues, and the post-conviction court made no specific rulings on the
issues. See David E. Breezee v. State, No. W2015-02251-CCA-R3-PC, 2017 WL
1907738, at *6 (Tenn. Crim. App. at Jackson, May 9, 2017), perm. to appeal denied,
(Tenn. Sept. 22, 2017). Accordingly, these issues are waived. Elza Evans III v. State,
No. M2016-02332-CCA-R3-PC, 2017 WL 3600474, at *13 (Tenn. Crim. App. at
Nashville, Aug. 21, 2017), perm. to appeal denied, (Tenn. Oct. 4, 2017)

       Regardless, the post-conviction court accredited the testimony of both trial counsel
and co-counsel, who stated that they did not promise the Petitioner they would obtain a
more favorable plea offer from the State nor did they guarantee success on appeal.
Moreover, trial counsel and co-counsel agreed that the Petitioner did not want to plead
guilty and instead wanted to go to trial. The record does not preponderate against the
                                            -9-
post-conviction court’s finding that trial counsel and co-counsel were credible witnesses.
See Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). We conclude that the Petitioner
failed to establish that trial counsel and co-counsel were deficient.

       Regarding co-counsel’s failure to pursue the suppression issue in his Rule 11
application, this court has previously observed:

             “[F]ailure to preserve and/or assert all arguable issues on
             appeal is not per se ineffective assistance of counsel, since the
             failure to do so may be a part of the counsel’s strategy of
             defense. Counsel is not constitutionally required to argue
             every issue on appeal, or present issues chosen by his client.
             The determination of which issues to present on appeal is a
             matter of counsel’s discretion.”

State v. Matson, 729 S.W.2d 281, 282 (Tenn. Crim. App. 1986) (quoting State v.
Swanson, 680 S.W.2d 487, 491 (Tenn. Crim. App. 1984)). Moreover, “[a]ppellate
counsel are not constitutionally required to raise every conceivable issue on appeal.”
Carpenter, 126 S.W.3d at 887. Generally, “appellate counsel’s professional judgment
with regard to which issues will best serve the [Petitioner] on appeal should be given
considerable deference[, and this court] should not second-guess such decisions, and
every effort must be made to eliminate the distorting effects of hindsight.” Id.

      Our supreme court has set forth the following “non-exhaustive list” of factors
which “is useful in determining whether an attorney on direct appeal performed
reasonably competently in a case in which counsel has failed to raise an issue”:

             1) Were the omitted issues “significant and obvious”?
             2) Was there arguably contrary authority on the omitted
             issues?
             3) Were the omitted issues clearly stronger than those
             presented?
             4) Were the omitted issues objected to at trial?
             5) Were the trial court’s rulings subject to deference on
             appeal?
             6) Did appellate counsel testify in a collateral proceeding as
             to his appeal strategy and, if so, were the justifications
             reasonable?
             7) What was appellate counsel’s level of experience and
             expertise?
             8) Did the petitioner and appellate counsel meet and go over
             possible issues?
                                          - 10 -
              9) Is there evidence that counsel reviewed all the facts?
              10) Were the omitted issues dealt with in other assignments
              of error?
              11) Was the decision to omit an issue an unreasonable one
              which only an incompetent attorney would adopt?

Id. at 888. “A petitioner alleging ineffective assistance of appellate counsel must prove
both that (1) appellate counsel was objectively unreasonable in failing to raise a particular
issue on appeal, and (2) absent counsel’s deficient performance, there was a reasonable
probability that the petitioner’s appeal would have been successful.” Michael Fields v.
State, No. E2015-01850-CCA-R3-PC, 2016 WL 5543259, at *8 (Tenn. Crim. App. at
Knoxville, Sept. 29, 2016) (citing Smith v. Robbins, 528 U.S. 259, 285-86 (2000)), perm.
to appeal denied, (Tenn., Jan. 19, 2017).

        Again, we note that the post-conviction court accredited the testimony of co-
counsel, who testified that he and the Petitioner discussed the strategy to focus on the
White instruction, and the Petitioner appeared to agree with the strategy. Our supreme
court granted permission to appeal. This court has stated that, “[w]hen reviewing trial
counsel’s actions, this court should not use the benefit of hindsight to second-guess trial
strategy and criticize counsel’s tactics.” Irick v. State, 973 S.W.2d 643, 652 (Tenn. Crim.
App. 1998). Accordingly, the Petitioner has failed to prove either deficiency or prejudice
in this regard.

                                     III. Conclusion

       The judgment of the post-conviction court is affirmed.



                                                    _________________________________
                                                    NORMA MCGEE OGLE, JUDGE




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