        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs August 4, 2015 at Jackson

              RIVERA L. PEOPLES v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                   No. 2010-A-459    Cheryl Blackburn, Judge


             No. M2014-02441-CCA-R3-PC – Filed September 17, 2015


The petitioner, Rivera L. Peoples, appeals the denial of his petition for post-conviction
relief, arguing that he received the ineffective assistance of counsel. After 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

ALAN E. GLENN, J., delivered the opinion of the court, in which ROGER A. PAGE and
ROBERT H. MONTGOMERY, JR., JJ., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Rivera L. Peoples.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Bret T. Gunn, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                        FACTS

       Following a jury trial in November 2011, the petitioner was convicted of five
counts of aggravated robbery and five counts of especially aggravated kidnapping as a
result of his participation with three co-defendants in two home invasions. He received
an effective sentence of 100 years in the Tennessee Department of Correction. His
convictions and sentences were affirmed by this court on direct appeal, and the Tennessee
Supreme Court denied his application for permission to appeal. State v. James L.
Dowell, III & Rivera L. Peoples, No. M2012-00520-CCA-R3-CD, 2013 WL 1804191, at
*1 (Tenn. Crim. App. Apr. 30, 2013), perm. app. denied (Tenn. Oct. 16, 2013).
The underlying facts were recited by this court on direct appeal as follows:

        At the trial on these charges, the parties presented the following
evidence: Ronald Jones testified that he and his wife, Ann Jones, lived in
Antioch at the time of the home invasion. Mr. Jones recalled that, around
6:40 p.m. on November 23, 2008, four black men, all carrying pistols,
entered his home wearing bandanas that covered their faces, gloves, and
hats pulled down to their eyebrows. Mr. Jones estimated that the men were
in their late teens to mid-twenties.

       Mr. Jones testified that he picked up his wife from work at 6:30
p.m., and they drove the short distance to their home. After exiting their
car, as they were walking to the front door, Mr. Jones heard a man say,
“[G]et in the house, mother f***ker.” Mr. Jones turned around to find four
men pointing pistols at Mr. Jones and his wife. Surprised, Mr. Jones asked
the men if this was a joke, to which one of the men responded, “It’s not a
joke, mother f***ker, get in the house.” The men pushed Mr. Jones up
against the front door where he fumbled for the house key and eventually
opened the door. The men pushed Mr. Jones and his wife inside the house
and onto the floor where two of the men held Mr. Jones and his wife down.
Once inside the house, Mr. Jones said it “just seemed like chaos” with the
men demanding various items and their location from the Joneses and
“tearing the place up.” The men were most interested in “guns, money, and
PIN numbers.”

       Mr. Jones testified that he lived in a three-bedroom house and the
men went through every room of the house. The men took several antique
guns. One of the men took Mr. Jones’s billfold and, after going through it,
demanded Mr. Jones’s PIN numbers for his bank cards. One of the men,
who was sitting on Mr. Jones’s back, hit Mr. Jones in the back of his head
with what Mr. Jones believed to be the butt of a gun. The men were in the
house for approximately forty minutes. Toward the end of this period of
time, two of the men went to a nearby Regions Bank ATM to access bank
funds. During this time, Mr. Jones and his wife remained on the floor at
gunpoint while the two remaining men were in cellular phone contact with
the two men at the ATM.

       Mr. Jones testified that the two men who went to the ATM returned
and “were jumping around [and] carrying on.” Mr. Jones overheard one of
the men, who was talking on his cellular phone, instruct someone to “pull
the car up.” One of the men then told the others to leave and said he was
                                      2
going to put the Joneses behind the couch. Mr. Jones said that, when he
heard this, he thought, “this is it.” The man stood over Mr. Jones holding
Mr. Jones’s .45 automatic. Mr. Jones recalled that, “He was standing over
me jacking shells, pointing that gun at my head,” when finally the man
reached down, picked up the shells and ran out the door. Mr. Jones jumped
up and slammed and locked the door behind the man.

       Mr. Jones said that, after locking the front door, he went to the back
door to let his dogs in the house. While doing so, he noticed police and an
ambulance next door. Mr. Jones ran next door and asked if anyone had
seen the men leaving his house, but medical personnel and police officers
were busy attending to an unrelated medical emergency and did not notice
the men. Mr. Jones told the police officers what had occurred and the
officers followed Mr. Jones back to his house where they called for
additional police support to assess the crime.

       Mr. Jones testified that the rooms of his house were “torn all to
pieces.” He said that he was not free to move about while the men were in
his home. He recalled that, at one point, one of the men asked who wanted
to be shot first, and Mr. Jones volunteered, “Shoot me.”

      On cross-examination, Mr. Jones testified that police showed him a
photographic line up, and he was unable to make an identification of any of
the men. Mr. Jones explained that it was difficult to see the intruders
because his head was flat on the ground.

       Ann Jones testified consistently with her husband’s testimony
regarding the home invasion. She recalled that one of the men wore a
“brand spanking new” pair of white tennis shoes. She said that the men
took a laptop, a camera, her son’s gaming system, and guns. After going
through Ms. Jones’s purse, the men began inquiring about her bank
account. Ms. Jones said that it did not appear the men had intended to use
her bank card initially but decided to try to access her money through the
bank once inside her home. She recalled that, as the men decided whether
the ATM card was of any benefit, they forced her to call the bank’s
automated system to confirm the balance in the account. Ms. Jones wrote
down the PIN number associated with her bank card and then two of the
men left. Ms. Jones said that the men accessed either $500.00 or $600.00
through the Regions Bank ATM with her bank card. The men who went to
the ATM and the men who remained with the Joneses in the house
communicated by cellular phones. Ms. Jones recalled that the men
                                     3
threatened her saying, if her son, who lived with the Joneses, walked
through the door, they would kill him.

       On cross-examination, Ms. Jones testified that police showed her
several photographic line ups. She identified one picture and told the
detective she was “eight[y]-five percent” sure he was one of the intruders.
She explained that “it was virtually impossible for us to identify
somebody’s looks when we couldn’t see them because they were covered
up and our heads were held to the floor with a gun.” Even so, as to the one
photograph, she said she had “a strong feeling” and there was “something
about his look.”

        James Stadler testified that, on the night of November 23, 2008, he
was at home with his daughter, Blake Stadler, and her boyfriend, Sloan
Sanders. Stadler explained that the front door to his home had both a glass
door and a “regular” door. At the time of these events, the “regular door”
was opened, and the glass door was closed. Stadler recalled that, at around
8:30 p.m., while he and his daughter were in the “den” and Sanders was in
the kitchen getting ice cream, four men entered the house through the front
door. The men wore bandanas, skull caps, and gloves. Stadler said the
men were black, and he estimated their ages were between “late teens” and
“early twenties,” based on their mannerisms. Stadler noticed a mark, he
later learned was a little tattoo, near one of the intruder’s eyes. One of the
men walked over to Stadler and pointed a pistol at his head. Stadler,
surprised by the men’s entrance, pushed the gun away thinking it was “a
joke.” The man pulled the gun back and fired the gun into the chair in
which Stadler was seated.

       Stadler testified that the man ordered him to lay on the ground on his
stomach. The men asked the location of Stadler’s safe containing guns and
money. Stadler told the men that he did not have a “safe full of cash” or
any pistols. Instead, Stadler gave the men the only cash he had, $70.00 or
$80.00 from his wallet. After repeated questioning, Stadler told the men
that he had a safe downstairs where he kept shotguns and a small safe that
contained a penny collection.

        Stadler testified that the men ordered him and Sanders downstairs to
open the safes. Stadler retrieved the key to the lock on the door and the
combinations to the safes for the men. Stadler said that the men appeared
“fairly disappointed” upon opening the safe and finding no pistols or cash.
The men then pointed a gun at Stadler’s head and asked where the “cash”
                                      4
was, to which Stadler responded that his money was in the bank. One of
the men asked if Stadler had his ATM card and, when he told the man yes,
the man said, “all right, let’s go.”

        Stadler testified that the men ordered him, his daughter, and Sanders
to get into his daughter’s Toyota Highlander, which was parked in front of
the house. The man who shot into Stadler’s chair in the house drove the
car, the shortest of the intruders sat in the passenger seat while Stadler and
Sanders sat in the backseat with Stadler’s daughter lying on the floorboard.
A third man sat in the “back area” and held a gun to Stadler’s head. The
fourth man followed the Highlander in a gray Buick. First, they drove to a
Bank of America approximately five minutes from Stadler’s house. On the
way to the ATM, the driver received a phone call during which he gave the
caller directions to the bank. When they arrived at the ATM, the driver
attempted to withdraw $5,000.00 which is more than the daily maximum
allowed for withdrawals. The driver then successfully withdrew $500.00.
He attempted to withdraw money in lowering amounts, all of which were
denied until he selected $100.00, for a total of $600.00.

       Stadler testified that they next went to his daughter’s bank, which
was nearby. The Regions Bank ATM was not a drive-through, so the
driver parked the car and walked up to the ATM. After some difficulty, he
returned to the car and asked Stadler’s daughter for her ATM number again.
She provided it, and he returned to the ATM. After some time, the man in
the passenger seat appeared to be frustrated with the delay and got out of
the vehicle and withdrew the money from the ATM.

       Stadler testified that, after retrieving the money from both of the
ATMs, he asked the men several times to take the car and let Stadler, his
daughter, and Sanders go. The men ignored Stadler’s repeated requests and
drove to a “little subdivision.” Stadler again urged the men to take his
daughter’s car and leave them behind. The men agreed and instructed
Stadler, his daughter, and Sanders to stay in the car and count to twenty.
The men exited the car and walked to the Buick which was behind the
Toyota Highlander. All four men then returned, got into the Highlander,
and announced there was a “change of plan.” One of the men drove the
Highlander about a hundred yards, stopped the car, and told the victims to
get out and “don’t look back.” Stadler, his daughter, and Sanders got out of
the Highlander and laid on the ground while the men drove away.



                                      5
      Stadler testified that he went to a nearby house and asked for
someone to call police. When police arrived they inspected the Buick,
which had the lights still illuminated and was out of gas.

       Stadler testified that throughout this event the men were aggressive
and threatening. He said the men poked him in the back of the head with
the barrel of the gun, kicked him while he was on the floor, and threatened
multiple times to kill him. Stadler recalled that the man doing most of the
talking and demanding was noticeably shorter than the other three men.
Stadler said that the men took a laptop computer, some coins, a hunting
bag, a hunting knife, a silverware carving knife, and cash. Stadler said that,
during the course of these events, he was held at gunpoint and not free to
leave or move about at his own will.

        Stadler testified that he was most concerned for the safety of his
daughter and Sanders. He recalled that as they were driving to the first
ATM, his daughter, who was on the floorboard, pulled at his pant leg.
Stadler said he tried to get her to stop, but it was “like she was trying to tell
[him] something or, . . . show [him] something.” He told her not to move.
Later, he asked his daughter why she was pulling at his pant leg and she
said, “I wanted to tell you I loved you in case we die tonight.”

       On cross-examination, Stadler agreed that, shortly after the home
invasion, he told a police officer that there were five to six black men who
entered his home. He said that he had “debated back and forth” but
believed there were four. On recross examination, he confirmed that there
were three men in . . . his daughter’s Highlander and one man in the Buick
following them.

        Blake Stadler testified that she was at home with her father and
boyfriend on the night of November 23, 2008. Ms. Stadler recalled the
events of the night consistently with her father’s testimony. She added that,
after she told the men where her father’s wallet was located, one of the men
took her to find the wallet, which contained $100.00. The man then forced
Ms. Stadler to go through the drawers in the bedroom, demanding to know
where money was kept in the house. Ms. Stadler described the man as
“pretty violent” toward her. Ms. Stadler led the man through the house
hunting for money, but was unable to find more than about $2.00. Once
Ms. Stadler’s father told the men that his money was in the bank, the men
began discussing how they would get to the bank and access the money.

                                       6
        Ms. Stadler testified that, when they were getting into her car to go
to the bank, one of the men shoved her to the floorboard where she
remained until she was released. Because of this position, she was unable
to tell where they were driving. Based upon the conversation in the car, she
knew when they were stopped at a bank but did not know which bank or
the bank’s location. The men asked Ms. Stadler for her PIN number
multiple times and ultimately withdrew approximately $200.00 from her
bank account.

       Ms. Stadler testified that, at one point while in the house, she lost
sight of her father and Sanders. When she attempted to look for them, one
of the men yanked her back by her hair. She said that, during the
encounter, the men threatened to kill her, shoved her on the ground, kicked
her, and pulled her up off the ground by her hair.

       Sloan Sanders testified that he was at the Stadlers’ home on the night
of November 23, 2008. Sanders said that he was in the kitchen getting a
bowl of ice cream when he heard what sounded like the television
exploding. He then heard Ms. Stadler screaming, “take whatever you want,
take whatever you want” and realized someone was in the house with a
gun. He walked toward the living room and was met by a man pointing a
gun at him. The man ordered Sanders onto the ground next to Stadler. The
men began cursing and screaming at the victims, demanding to know where
they kept guns and money. Sanders offered that there was a hunting safe
downstairs. The men ordered him and Stadler to go downstairs and show
them the hunting safe. As they walked downstairs, one of the men pressed
a gun into Sanders[’] spine while another man drug Ms. Stadler upstairs.
Once in the basement, Sanders was told to get on the floor again while
Stadler helped the men open the safe. Sanders said that, at this point, the
men threatened to kill him, and he believed he was going to die.

        Sanders testified that eventually the men led him and Stadler back
upstairs. He described the men as not having a “solid plan” and “arguing.”
The men took Sanders’[] cellular phone and wallet. Sanders recounted the
trip to the banks and their release consistently with S[t]adler and Ms.
S[t]adler’s testimony. He confirmed that three men exited the Highlander
and then, shortly thereafter, four men entered the Highlander, and they
drove a short distance before allowing Stadler, Ms. Stadler, and Sanders to
exit the Highlander.



                                     7
              On cross-examination, Sanders testified that there were four or five
       men in the Stadler[s’] home. He explained it was hard to tell how many
       because he was lying on the floor. He said the men all wore knit hats and
       had bandanas covering their faces. The men wore gloves and dark clothing
       with long-sleeves. From the gap between the bandana and the hat, Sanders
       could see that the men were black.

Id. at *3-8. The petitioner was subsequently developed as a suspect, and police officers
found evidence linking the petitioner to the crimes in a Chevrolet Impala that the
petitioner purchased the day after the crimes were committed. Id. at *12.

       The petitioner filed a pro se petition for post-conviction relief on December 2,
2013, and following the appointment of counsel, an amended petition was filed on March
25, 2014. In his petitions, the petitioner alleged numerous claims of ineffective
assistance of trial counsel.

       At the May 14, 2014 evidentiary hearing, the petitioner testified that he was
currently incarcerated at the Northwest Correctional Facility in Tiptonville and that his
only meeting with trial counsel was at the Charles B. Bass Correctional Facility in
Nashville. He acknowledged that trial counsel hired an investigator who came with
counsel to their meeting. The petitioner said that he contacted the Tennessee Board of
Professional Responsibility about trial counsel’s lack of communication with him. He
wrote trial counsel a letter regarding several witnesses he wanted subpoenaed to testify at
trial. The petitioner said he informed trial counsel that he “wasn’t comfortable with
going to trial with Mr. Dowell as a codefendant because Mr. Dowell had previously
spoken with the prosecutor and had . . . told information that wasn’t true, wasn’t accurate,
and it implicated [the petitioner] in[] the crime.” The petitioner sent trial counsel a
motion he drafted to sever his case from Mr. Dowell’s, but he did not receive a response.
The petitioner said he informed trial counsel that Mr. Dowell was “a very important
witness” and would have testified “to the fact that [the petitioner] wasn’t involved in that
crime.” Asked why Mr. Dowell was not present at the evidentiary hearing, the petitioner
responded, “I can’t – I don’t put in subpoenas.”

        The petitioner said that he had wanted certain phone records introduced at trial
because he “had an account with a phone service provider that wasn’t the one that was
used against [him] at trial.” He claimed that those records could have established his
innocence and provided an alibi defense for him. He said that he wrote trial counsel a
letter asking him to obtain the records, but counsel never did so. He said that his cell
phone account was with Cricket or T-Mobile. The petitioner claimed that the prepaid cell
phone the State linked to him was not his. However, he admitted that the cell phone
number that the State linked to him was the same number he provided to the used car
                                             8
dealer when he purchased his vehicle. In response to questioning from the post-
conviction court, the petitioner acknowledged that he did not have his phone records for
the date of the offenses.

       Trial counsel testified that he had been a licensed attorney since 1975 and that
100% of his practice had been criminal defense since 1995. He said that when he was
appointed to represent the petitioner in the home invasion cases, the petitioner had
already been tried and convicted on a murder case. He met with the petitioner on the
days that he appeared in court. Counsel reviewed the discovery he received from the
State with the petitioner. Counsel recalled that an investigator was retained by the
petitioner’s first counsel to assist in the petitioner’s cases, and the investigator made at
least one trip to Tiptonville to meet with the petitioner. The petitioner gave the
investigator the names of people he wanted interviewed, and the investigator interviewed
them. However, the investigator reported that the people “either didn’t want to testify, or
they said they didn’t know anything that would be helpful to [the petitioner].” Trial
counsel had the investigator inquire about the petitioner’s phone records, but the records
had been deleted by the phone carrier.

       Trial counsel said that because the State advised him that it was not going to use
any of Mr. Dowell’s statements, there was no legal basis for a severance. Trial counsel
spoke to Mr. Dowell’s attorney who advised him that Mr. Dowell was not going to testify
on the petitioner’s behalf because “that would open him up to possible perjury charges
based on statements he had already made to the contrary.” Counsel said that ski masks
matching the descriptions of the masks used by the perpetrators were found in the
petitioner’s car and that the petitioner’s case “was a very strong circumstantial case.”
Counsel said he could not “think of a thing [he] could have done that would have altered
the outcome given the State’s proof.”

       On cross-examination, trial counsel said that the petitioner was “pretty adamant
there would be some phone records that showed that phone was on the other side of town
and this sort of thing.” Counsel said that the phone number introduced by the State was
linked to the petitioner as a result of the petitioner’s writing in that number on the
contract for the car he purchased. Counsel acknowledged that the petitioner filed a
complaint with the Board of Professional Responsibility but said it had been resolved.

       At the conclusion of the hearing, the post-conviction court advised post-conviction
counsel he could have a few weeks to try to obtain the petitioner’s phone records and
submit them as a late-filed exhibit. The post-conviction court subsequently entered an
order on November 18, 2014, denying the post-conviction petition. In its order, the post-
conviction court noted that no phone records had been filed with the court and that the
petitioner’s counsel in his other post-conviction proceeding had been “unable to locate
                                             9
some records. As Petitioner acknowledged during his testimony, the phone records
obtained by his other counsel were for a different date than the date of the offenses.”

                                      ANALYSIS

      On appeal, the petitioner argues that trial counsel was ineffective for failing to
adequately communicate with him, call Mr. Dowell to testify on his behalf, “file for a
severance of defendants, subpoena key phone records, or otherwise mount a meaningful
defense.”

       The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely
factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s
application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de
novo, with a presumption of correctness given only to the post-conviction court’s
findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6
S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.
Crim. App. 1997) (noting that same standard for determining ineffective assistance of
counsel that is applied in federal cases also applies in Tennessee). The Strickland
standard is a two-prong test:

      First, the defendant must show that counsel’s performance was deficient.
      This requires showing that counsel made errors so serious that counsel was
      not functioning as the “counsel” guaranteed the defendant by the Sixth
      Amendment. Second, the defendant must show that the deficient
      performance prejudiced the defense. This requires showing that counsel’s
      errors were so serious as to deprive the defendant of a fair trial, a trial
      whose result is reliable.

466 U.S. at 687.
                                           10
        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The prejudice prong of the test is satisfied by showing a reasonable probability, i.e., a
“probability sufficient to undermine confidence in the outcome,” that “but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694.

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

      In denying the petition, the post-conviction court concluded:

             The Court finds Trial Counsel’s testimony to be credible and finds
      that Trial Counsel had more than sufficient interaction with Petitioner to
      properly prepare for trial. Petitioner has not provided evidence of
      ineffectiveness or that he was prejudiced by any alleged deficiencies;
      Petitioner acknowledged that he had received discovery, was aware of the
      phone record evidence and Co-Defendant’s statements, and had already
      been to trial on his related case.

             Assuming, in arguendo, however, that counsel’s visits were as
      substantively minimal [as] Petitioner alleges, Petitioner has still failed to
      show that the number of meetings he had with counsel was so deficient as
      to constitute ineffective assistance of counsel. Nothing in the record
      indicates that Trial Counsel failed to meet with the [P]etitioner and keep
      him informed of the proceedings. . . . Accordingly, the Court finds that the
      Petitioner has not shown by clear and convincing evidence that Trial
      Counsel’s representation was deficient nor has he shown that he was
      prejudiced by the alleged deficiency.

             ....

             Petitioner testified at length during the evidentiary hearing about the
      State’s phone records and how he was improperly linked to the mobile
      phone introduced at trial. Trial Counsel testified that when he came on the
                                            11
case, he inquired about the phone records and was informed they were no
longer available. Since the phone [company] advised that the records had
been destroyed, Trial Counsel inquired with the State whether it had
obtained any other phone records, but the State had no additional phone
records in its custody. Petitioner alleges that these phone records would
show that a phone registered under his name was in use in another location
during the time the State alleged the pre-paid phone was used during the
robbery. Petitioner did not provide said phone records during his
evidentiary hearing.1 Likewise, although Petitioner alleged during the
hearing that Trial Counsel was ineffective for failing to retain a defense
phone expert, Petitioner has not presented any potential witness. (footnote
omitted).

       If Petitioner, however, had been able to supply the phone records or
a phone expert, the Court finds that it would not have changed the outcome
of his trial. The State had proof that Petitioner used the number for the
prepaid phone as his contact number when he purchased his vehicle thereby
associating Petitioner with the phone. The fact Petitioner may have had
another phone is irrelevant; records for Petitioner’s alternate phone would
not negate the phone record evidence introduced at trial. Further, all issues
of concern were able to be addressed via the cross-examination of State
witness Agent Littlehale.

        ....

       Although not explicitly raised in the Amended Petition, at the
evidentiary hearing, Petitioner testified that he requested Trial Counsel to
file a motion to sever his trial from Co-Defendant James Dowell, but Trial
Counsel failed to do so. Trial Counsel testified that when he spoke with the
State, the Assistant District Attorney advised him that the State was not
using any of the Co-Defendant’s statements in its case-in-chief, negating
any legal basis to justify a severance. Further, Petitioner was unable to
articulate a legal basis for severance. Reviewing the facts of this case, this
        1
         The Court allowed Post-Conviction Counsel two to three weeks to provide any
phone records. None were filed with the Court. The Court, however, takes judicial
notice that counsel in Petitioner’s other post-conviction proceeding, case no. 2010-B-
1777, was unable to locate some records. As Petitioner acknowledged during his
testimony, the phone records obtained by his other counsel were for a different date than
the date of the offenses. As the Court set forth in its October 21, 2014 Order denying
post-conviction relief in case no. 2010-B-1177, even if the phone records had been
admitted at trial, they would not have altered the outcome of the trial for all the reasons
addressed in this Court’s October 2014 Order.
                                            12
      Court finds no basis to sever the defendants for trial under Rule 14 of the
      Tennessee Rules of Criminal Procedure. Petitioner has failed to meet his
      burden as to this issue.

             ....

             For the reasons set forth above, the Court finds that Petitioner’s
      request for post-conviction relief is hereby DENIED. Petitioner raised
      several grounds within his ineffective assistance of counsel claim; however,
      he failed to establish by clear and convincing evidence that Trial Counsel
      was ineffective or that he was prejudiced by any alleged deficiency. Any
      grounds raised by Petitioner but not specifically addressed by this Order are
      found to be without merit.

       We conclude that the record supports the post-conviction court’s finding that trial
counsel provided effective representation. Trial counsel testified that he met with the
petitioner on the days that he appeared in court and reviewed the discovery he received
from the State with the petitioner. The post-conviction court determined that trial counsel
“had more than sufficient interaction with Petitioner to properly prepare for trial.” Trial
counsel testified that he spoke to Mr. Dowell’s attorney who advised him that Mr. Dowell
was not going to testify on the petitioner’s behalf because “that would open him up to
possible perjury charges based on statements he had already made to the contrary.” Trial
counsel further testified that because the State advised him that it was not going to use
any of Mr. Dowell’s statements, there was no legal basis for a severance. The post-
conviction court agreed that there was “no basis to sever the defendants for trial under
Rule 14 of the Tennessee Rules of Criminal Procedure.” Trial counsel said he had the
investigator inquire about the petitioner’s phone records, but the records had been deleted
by the phone carrier. The petitioner did not present any phone records at the evidentiary
hearing, and the post-conviction court allowed post-conviction counsel two to three
weeks to provide such records, but none were ever filed with the court. The post-
conviction court determined that even if the petitioner “had been able to supply the phone
records or a phone expert, . . . it would not have changed the outcome of his trial.”

       In sum, the petitioner has failed to show that trial counsel was deficient in his
representation. We conclude, therefore, that the petitioner is not entitled to post-
conviction relief on the basis of his claim of ineffective assistance of counsel.




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                                 CONCLUSION

      Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.


                                             _________________________________
                                             ALAN E. GLENN, JUDGE




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