                                                                                            12/19/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 16, 2018

                THOMAS DOWLEN v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Robertson County
                     No. 74CC3-2012-CR-58          Jill Bartee Ayers, Judge


                              No. M2018-00052-CCA-R3-PC


The Petitioner, Thomas Dowlen, appeals the Robertson County Circuit Court’s denial of his
petition for post-conviction relief from his 2014 conviction for first degree murder and
sentence of life imprisonment. The Petitioner contends that he received the ineffective
assistance of counsel. We affirm the judgment of the post-conviction court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL and D. KELLY THOMAS, JR., JJ., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Thomas Dowlen.

Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior
Counsel; John W. Carney, Jr., District Attorney General; and Jason White, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

       The Petitioner’s conviction relates to the June 2011 shooting death of Candice Owens.
This court affirmed the conviction and summarized the facts of the case as follows:

               The proof at trial included a stipulation that the defendant had been in a
       long-term relationship with Lindsey Hankins, and the two had a child together
       in 2009. Ms. Hankins left the defendant in the weeks prior to the homicide,
       and she began a romantic relationship with [David] Owens, the victim’s
       brother. The victim, Mr. Owens, and the defendant exchanged text and voice
       messages regarding Ms. Hankins prior to the shooting. The messages were
       not introduced into evidence, but the stipulation established that the three were
       “squabbling” via text and voice message.
                At the time of the shooting, the victim was in a romantic relationship
        with [Christopher] Williams. The two were habitual users of crack cocaine.
        Mr. Williams and the victim would sometimes stay at a motel, but they also
        occasionally stayed at Kenny Link’s residence, which was the site of the
        shooting. Mr. Link was deceased at the time of trial, but Mr. Williams
        testified that he and the victim would either pay Mr. Link or provide him with
        drugs in exchange for a place to stay. Mr. Link’s home was located on
        Twelfth Avenue, and there was a path from the back of Mr. Link’s house to a
        nearby market. Across the street from the residence was a vacant lot with
        some gravel in it, and beyond the lot was the home of Mr. Randall Holland.

                There was evidence introduced at trial that the defendant had recently
        been to Mr. Link’s home and was aware that Ms. Hankins frequented the
        home. Talisha Harrison testified that she was living at Mr. Link’s [home]
        around the time of the shooting and that the defendant had stopped by Mr.
        Link’s home the morning of the homicide around 10:00 a.m. The defendant,
        who testified in his own defense, stated that three days prior to the shooting,
        he had stopped by the home of Mr. Link looking for Ms. Hankins. The
        defendant had heard that Ms. Hankins was selling medication prescribed for
        the defendant which the defendant used to treat pain for a prior gunshot wound
        to the leg. He did not find Ms. Hankins at Mr. Link’s home on that date.

                On June 30, 2011, the day of the shooting, Mr. Williams and the victim
        were awoken when the victim’s brother, Mr. Owens, came to the motel room
        they had rented. After a discussion, Mr. Williams and the victim decided to
        use their remaining money not to pay for another night at the motel but to
        purchase crack cocaine and spend time with Mr. Owens. The three ate lunch
        and went to Mr. Link’s home at around 10:00 or 10:30 a.m. All four
        consumed crack cocaine at Mr. Link’s residence. Mr. Williams testified that
        there might have been other people who dropped by Mr. Link’s house during
        the day, but he did not recall them. Mr. Williams testified that in the afternoon
        at around 2:50 p.m., Mr. Owens left to go to the market to get beer and
        cigarettes for himself.
                James Pennington1 spent June 30, 2011, with the defendant. Mr.
        Pennington called the defendant sometime after 9:00 a.m. and offered to pay
        for the defendant to get a haircut and to buy the defendant gas if the defendant

1
  Although this witness’s name appeared in the conviction proceedings as Pennington, the post-conviction
hearing transcript reflects Pendleton as the trial witness’s surname. We have not altered the recitation of the
trial facts taken from this court’s previous opinion, and we use the name as it appears in the post-conviction
proceedings.

                                                 -2-
would give him a ride to the house of his cousin, the barber. The defendant
came to pick Mr. Pennington up in the defendant’s mother’s vehicle about
thirty minutes later. Mr. Pennington called his cousin, but his cousin was not
at home. The defendant and Mr. Pennington then went to the house of another
of Mr. Pennington’s cousins, where they smoked some marijuana.

        At some time in the afternoon, the defendant’s mother called and asked
the defendant to bring her some beer. Mr. Pennington offered to pay, and the
defendant drove them to the store. Mr. Pennington testified that as he was
going into the store, a white man came out and kept the door open for him.
Mr. Pennington learned later that this man was Mr. Owens. As Mr. Owens
left the store, he and the defendant immediately began to argue. Mr. Owens
approached the defendant, who put out his hands to distance himself. Mr.
Owens, who had a “built up” physique, then punched the defendant. The
defendant grabbed Mr. Owens and Mr. Pennington separated them. Mr.
Owens then took off running down a path behind the market. Mr. Pennington
testified that the defendant also saw where Mr. Owens was headed. The
defendant’s face was swollen where he had been punched, and he kept saying,
“[L]ook at my face.” The defendant drove off quickly and turned up Twelfth
Avenue. The defendant then saw Mr. Williams and the victim on the porch of
a house and hit the brakes, putting the car into park before it came to rest
partially in the gravel lot and partially in the street.

        The defendant reached under the seat and took out a gun, which he put
into his pocket. Mr. Pennington stated he had not previously known about the
gun. The defendant walked up to the porch and pulled out the gun. He then
shot the victim. Mr. Pennington testified that the defendant shot the victim
twice in the legs. The victim fell, making a motion to indicate “don’t shoot me
[any] more.” The defendant, after a pause of “a couple” of seconds, then fired
several more shots as he stood over the victim. According to Mr. Pennington,
Mr. Williams was off to the defendant’s side when he started shooting, and he
was not near the direction the gun was pointed. On cross-examination, Mr.
Pennington recalled from his prior testimony that Mr. Williams had retreated
into the house while the defendant was shooting. Mr. Pennington did not hear
the victim or defendant say anything.             On cross-examination, he
acknowledged having told police that the defendant asked where Mr. Owens
was and the victim responded, but he testified he no longer recalled the
exchange. The defendant, who had a previous gunshot wound to the leg,
could not run, but he moved as quickly as he could back to the car. Mr.
Pennington asked him what he had just done, and the defendant gave him a
“dead” stare and appeared “daze[d].” The defendant drove off quickly, and

                                  -3-
Mr. Pennington jumped from the car when the defendant slowed to make a
turn. Mr. Pennington testified that he eventually gave a statement to police.
He acknowledged that his statement to police did not indicate that the
defendant shot, paused, and then fired more shots.

        Mr. Williams testified that he, the victim, and Mr. Link were all in the
living room of the home prior to the shooting. Because the front window was
boarded up, they could not see outside without opening the door. Mr.
Williams testified that around 3:15 p.m., he heard a car hit the gravel in the lot
across the street, “like an accident just occurred,” and he and the victim stood
in the doorway to see what had happened. He saw the defendant driving the
defendant’s mother’s car, which was a two-tone Chevy, and he saw James
Pennington in the passenger’s seat. The defendant looked angry, and his jaw
was swollen. The car was facing the house.

        Mr. Williams testified that the defendant got out of the car and asked
where Mr. Owens and Ms. Hankins were. The victim gave a “smart”
response, asking “[W]hat do you want[?]” The defendant then said, “Get
under the wheel, Bro,” to Mr. Pennington. The defendant reached across to
his left pocket with his right hand and pulled out a .357 or .38 caliber silver-
barreled gun. Mr. Williams testified that the defendant, who was on the top
step, then shot the victim, first in the left and then in the right leg, and the
victim fell. When the victim fell, she did not at first fall forward or backward
but her legs came out from underneath her. The defendant then shot the victim
three more times. Mr. Williams testified that the defendant walked with a
quickened pace back to the car and got in the passenger’s side. Mr. Williams
acknowledged that he was focused on the victim at the time. Mr. Williams
“ran around in circles trying to get somebody to call 911.” According to Mr.
Williams, no one threatened the defendant, and no one had any weapons
except the defendant. Mr. Link, who remained in the home, was also not
armed, and the back door to Mr. Link’s home was secured by several knives
jammed in between the frame and door. Mr. Williams acknowledged that he
was currently in jail for violating his probation but stated that he was not
gaining anything from his testimony.

       Talisha Harrison, who was on probation for an unrelated aggravated
burglary, also testified that she witnessed the shooting. According to Ms.
Harrison, the defendant came to the house in the morning and stayed about
five minutes. Sometime after 11:00 a.m., Mr. Williams and the victim arrived.
 The people present in the house all used drugs. Ms. Harrison did not recall
seeing Mr. Owens prior to the shooting. Ms. Harrison testified that she went

                                   -4-
to the market near the house to get a beer for the victim, brought it to the
victim, and began to walk across the empty lot to Mr. Holland’s house. While
she was passing through the vacant lot, a car pulled up ten feet from her, with
the driver’s side facing Mr. Link’s home. She identified a photograph of the
car belonging to the defendant’s mother as the car which pulled up next to her.
Ms. Harrison then heard the victim shout, “Thomas, what are you doing
back?” Ms. Harrison testified that the victim was the only person on the
porch. When the defendant was in front of the steps leading to the porch, he
shot the victim in the left leg. The victim fell backward and screamed. The
defendant moved forward to the top of the steps and after a pause of a few
seconds, he began to shoot again, shooting the victim, who was lying on the
porch, five times. The defendant turned around and moved quickly to the car.
The defendant had an “empty” stare as if “no one was there.” Ms. Harrison
observed that his cheek was injured. After the shooting, Ms. Harrison saw Mr.
Owens outside, around the side of the house, shouting “to tell Cand[i]ce he
was okay.” Ms. Harrison testified that she believed the defendant got in the
driver’s seat and that she saw another person in the car. At the time, she did
not know the other person, but during the course of the trial she recognized
him and discovered it was Mr. Pennington. The car “spun off.” Ms. Harrison
ran to her mother’s house. She did not observe anyone other than the
defendant with a gun.

       Randall Holland testified that he lived one street over from Mr. Link,
on the other side of the vacant lot. Mr. Holland had a privacy fence through
which he could not see Mr. Link’s home. When Mr. Holland returned from
work in the afternoon, his father, the victim’s mother, and another man were in
his back yard. Prior to the shooting, Mr. Holland saw Mr. Owens come into
Mr. Holland’s back yard. Mr. Owens had been running, was “sweaty,” and
was out of breath. Mr. Owens left after three or four minutes. Mr. Holland
was getting a drink of water when he heard five shots. He heard one shot first
and then four back-to-back. Mr. Holland checked on his father and saw the
victim’s mother run up to Mr. Link’s porch. He could see that the victim was
lying on the porch bleeding. The victim’s mother came back, and Mr. Holland
gave her a towel and called 911. He did not see anyone else on the porch but
saw a heavy-set African-American man run out the back door of Mr. Link’s
home and saw the police put the man in a patrol car.

        James Bush was working nearby, thirty-five feet in the air in the bucket
of a truck, fixing an electrical light for the city. He heard three “pops” close
together and saw an African-American man holding something in his hand run
away from a house and get into a two-toned car. He saw the victim lying

                                  -5-
down in the porch but did not see anyone else on the porch. Mr. Bush took a
photograph of the vehicle, which moved off quickly.

       The defendant, testifying on his own behalf, generally confirmed Mr.
Pennington’s account of the morning. He testified that Mr. Pennington called
him around 10:00 a.m. and that they had attempted to get a haircut and spent
some time at Mr. Pennington’s cousin’s home, where the defendant smoked
some synthetic marijuana and the others smoked marijuana. The defendant’s
mother then called and asked him to get her beer. Mr. Pennington offered to
pay for the beer, and so the defendant went to the market of Mr. Pennington’s
choice.

        The defendant testified that as soon as he pulled in, Mr. Owens came
out the door and began to argue with him. The defendant’s window was
down, and Mr. Pennington was still in the car. The defendant confirmed that
Mr. Owens attempted to get close to him and he put his hand out to stop him.
The defendant glanced at Mr. Pennington, and Mr. Owens took the
opportunity to punch him. The defendant grabbed Mr. Owens and Mr.
Pennington separated them. The defendant stated that an egg-shaped knot was
immediately visible on his face in his reflection on the storefront. Mr. Owens
began to come back, but Mr. Pennington “stepped up,” and Mr. Owens then
ran away. The defendant testified that he was angry, out of his mind, and
enraged, and he stated that he drove off the sidewalk as he left the store. He
confirmed that he kept telling Mr. Pennington to look at his face. The
defendant testified that he was not planning to go to Mr. Link’s house but that
he saw the victim and Mr. Williams on the porch and that he then made a
sliding stop in the gravel lot. He testified that he believed Mr. Owens would
be in the house.


       According to the defendant, Mr. Pennington handed him a .357 caliber
chrome gun before he got out of the car. He put the gun in his pocket. As he
walked toward the porch, the victim said, “Thomas, what the f**k are you
coming up here for?” He also stated that he simultaneously asked where Mr.
Owens was. He testified that when he got to the steps as the victim made her
statement, he saw “a person’s shoe start to run across inside the house.” The
defendant stated he did not see who it was, but he could tell it was a white man
and believed it was Mr. Owens. He acknowledged that Mr. Link was also
white and it could have been him. The defendant stated that he was shooting
at the person inside the house and that he heard someone scream as he was
shooting. The defendant testified that he did not realize he had shot the victim

                                  -6-
and that he did not recall much after the first shot. He acknowledged that he
knew that the victim was standing in front of the door that he was shooting at.
He also acknowledged that he did not see anyone at the house with a weapon,
but he speculated that someone could have had a weapon.

        The defendant stated that he drove off after the shooting. Mr.
Pennington took the gun from him and jumped out of the car with the gun.
The defendant acknowledged that he did not seek medical treatment for his
wounds, noting that he was “on the run” and afraid to go to a hospital. The
defendant testified that he regretted shooting the victim. He also testified that
he left because he was scared.

       Officer Charles Haynes was dispatched to the scene at 3:30 p.m. and
saw the victim’s mother, who was deceased at the time of trial, holding the
victim and crying. An ambulance arrived, and the victim was determined to
have died at the scene. Mr. Link, Mr. Williams, and a man named Billy
Harrison were interviewed at the scene.

       Detective Rickie Morris testified that he investigated the crime. He
found the two-toned maroon Caprice parked by an abandoned house and
received the defendant’s mother’s permission to search it. The search turned
up an antique gun which was not involved in the crime and did not appear to
function. The defendant testified that the gun in the back of the car was one he
had found at a house when he moved. Law enforcement searched extensively
for the defendant, and he was eventually put on the Tennessee Bureau of
Investigation’s most wanted list. He was apprehended in Georgia in
September 2011, a few months after the homicide.

        Dr. Sandra Thomas testified that the victim suffered six gunshot
wounds. A wound to the victim’s back which pierced the aorta and pulmonary
artery would have been fatal even with immediate medical attention and would
have caused death within minutes. The victim also suffered another gunshot
wound to her back, which pierced her lung and fractured some ribs. Dr.
Thomas stated that this wound could possibly have been survived if the victim
had received immediate medical attention. The victim had a less serious
gunshot wounds on her upper chest, her upper left leg, and her upper right
thigh. Dr. Thomas testified that all of the victim’s wounds except the one on
her right thigh had stip[p]ling, which would indicate the weapon was fired
from three to six feet away. The wound on the victim’s chest had the most
stip[p]ling, indicating the weapon may have been closer when that wound was
inflicted. Another wound in the victim’s left leg shattered the femur. This

                                   -7-
       wound would be consistent with the victim collapsing and being unable to
       stand. All of the shots had a downward trajectory. A bullet was recovered
       from the victim’s right thigh. The parties stipulated that the bullet recovered
       from the victim was fired from a .38/.357 caliber firearm. The autopsy
       revealed that the victim had cocaine in her system. Dr. Thomas testified that
       the victim died of multiple gunshot wounds and that the manner of death was
       homicide.

               Joshua Caldwell, who was incarcerated with the defendant, testified
       that the defendant had asked for his legal advice while they were housed
       together. The defendant told Mr. Caldwell that a man named J.D. was to
       testify against him and asked Mr. Caldwell if Mr. Caldwell thought that a
       homicide charge that J.D. had pending in Texas would affect J.D.’s credibility.
        The defendant then asked if Mr. Caldwell knew David Owens. He told Mr.
       Caldwell that his case started when he and Mr. Owens “got into it” earlier in
       the day and the defendant went looking for Mr. Owens. He told Mr. Caldwell
       that Mr. Owens’s sister came out and “was talking sh*t” and that he “burnt the
       b*tch.” The defendant then told Mr. Caldwell he wanted to make it seem as
       though the victim had been hit with shots fired from inside the house because
       the victim had been shot in the back and leg. The defendant also stated that
       J.D. had given him the gun used to accomplish the crime. Mr. Caldwell
       acknowledged prior felony convictions and stated that he had testified against
       his gang, the Aryan Nation, as well as against another inmate from Robertson
       County.

State v. Thomas L. Dowlen, No. M2015-01582-CCA-R3-CD, 2016 WL 6581350, *1-5
(Tenn. Crim. App. Nov. 7, 2016), no perm. app. filed.

        The Petitioner filed the instant petition for post-conviction relief, alleging multiple
instances of prosecutorial misconduct, multiple instances of the ineffective assistance of
counsel, insufficient evidence to support his conviction, and violations of his due process
rights. After the appointment of counsel, an amended petition was filed in which counsel
stated that ineffective assistance was the only “post-conviction issue . . . found by appointed
counsel.” On appeal, the sole basis for relief is related to the ineffective assistance of
counsel.

       At the post-conviction hearing, the Petitioner testified that he was age forty and that
he had been in confinement since his October 2011 arrest. He said that he and trial counsel
met twice before the trial and that they spent a total of one and one-half hours together.
When asked what he and counsel discussed at these meetings, the Petitioner stated that
counsel believed at worst the Petitioner faced a conviction for second degree murder. The

                                          -8-
Petitioner said he told counsel about an investigator from Inquisitor, Inc., used by previous
counsel, the attorney who represented the Petitioner in the general sessions court. The
Petitioner said that previous counsel provided discovery materials and that the Petitioner did
not understand the evidence relative to the gunshot wounds to the victim’s back. The
Petitioner said that he asked previous counsel and trial counsel about the wounds but that he
did not know if either counsel investigated the wounds.

       The Petitioner testified that previous counsel provided him with the private
investigator’s report containing “a lot of stuff.” The Petitioner said he told trial counsel that
Christopher Williams, who testified for the State, had been convicted of killing one of the
Petitioner’s family members. The Petitioner said that trial counsel responded to the
Petitioner’s letters.

       The Petitioner testified that he wanted trial counsel to file a motion to dismiss based
upon lost evidence, that counsel filed the motion, and that the Petitioner was unsure whether
the motion was resolved. The Petitioner said that he spoke to counsel once during the week
before the trial. The Petitioner stated that the State initially extended a plea offer for twenty-
five years, that another offer for fifteen years at 85% service was extended, and that he asked
counsel to talk to the prosecutor about a fifteen-year sentence with 30% service. The
Petitioner said that counsel never discussed the plea offer again.

       The Petitioner testified that correction officer Adam Gibbs, whom the Petitioner knew
from his pretrial confinement at the Robertson County Jail, was selected as a juror. The
Petitioner said that Mr. Gibbs did not mention during jury selection that he worked as a
correction officer and that the Petitioner told trial counsel about the relationship. The
Petitioner said that counsel did not question Mr. Gibbs about his employment or whether he
knew the Petitioner.
       The Petitioner testified that trial counsel did not cross-examine Mr. Williams
adequately. The Petitioner said that Mr. Williams testified that he saw the Petitioner walk on
the porch looking for someone, that an argument ensued, and that the Petitioner shot
someone. The Petitioner said that counsel did not question Mr. Williams about killing the
Petitioner’s cousin, about Mr. Williams’s nephew’s shooting the Petitioner previously, and
about the general problems between the two families. The Petitioner said that although Mr.
Williams was not present when Mr. Williams’s nephew shot the Petitioner, Mr. Williams
knew about the incident. The Petitioner noted that everyone in Springfield knew about the
incident. The Petitioner said that had counsel questioned Mr. Williams adequately, the jury
would have known Mr. Williams had a motive to “make it worse than it was.”

       The Petitioner testified that James Pendleton’s preliminary hearing and trial testimony
were inconsistent and that trial counsel did not question Mr. Pendleton about whether he was
lying. The Petitioner stated that Mr. Pendleton testified at the preliminary hearing that the

                                           -9-
Petitioner had the gun when he walked onto the porch but testified at the trial that the
Petitioner grabbed the gun from under the seat. The Petitioner said that Mr. Pendleton
handed the gun to him.

        The Petitioner testified that all of the trial witnesses lied and that the only thing he
could do was tell the truth. He said he should not have testified at the trial “without really
knowing what was going on, really what to say.” He said that during the Momon hearing, he
told the trial judge that he was going to testify but that he and trial counsel had not discussed
the benefits and pitfalls of testifying. He said that if he had more information, he would not
have chosen to testify.

        The Petitioner testified that if he had a complete picture of what to expect at the trial,
he would have accepted the fifteen-year plea offer. He later said, though, that he would not
have accepted the offer because he did not commit premeditated murder. He said he could
have been guilty of second degree murder or manslaughter because he was attacked and not
in a “right frame of mind.” He stated, though, that psychological testing concluded that he
understood the consequences of his actions. He said that a video recording from the
“Discount Tobacco Store” showed the shooting, his being attacked, and Mr. Pendleton with a
firearm. The Petitioner said, though, that he never reviewed the recording and that trial
counsel never obtained it. The Petitioner said he knew of the recording because Mr.
Pendleton told the Petitioner, the Petitioner’s sister, and the Petitioner’s cousin about it. The
Petitioner thought the pretrial Ferguson motion was related to the recording. The Petitioner
said that counsel reported talking to a store employee, who stated the employee would not
testify because the employee did not want “problems” with the police department.

        On cross-examination, the Petitioner testified that the shooting occurred behind the
store but denied that the video recording from the store would have only captured the store
parking lot. He said the recording would have shown his being attacked and Mr. Pendleton
“with the weapon.” The Petitioner agreed that Mr. Pendleton testified at the trial that Mr.
Owens hit the Petitioner and that Mr. Williams testified at the trial that the Petitioner had a
black and puffy eye. The Petitioner agreed that the trial testimony showed that Mr. Owens
hit the Petitioner in the store parking lot and that the Petitioner drove to Mr. Link’s home
looking for Mr. Owens. The Petitioner disputed whether Detective Morris reviewed and
possessed a copy of the video recording from the store.

        The Petitioner testified that Mr. Pendleton handed the firearm to the Petitioner just
before the Petitioner got out of the car parked outside Mr. Link’s home. The Petitioner said
that the video recording was relevant to show that he was attacked in the store parking lot
and that Mr. Pendleton handed him the firearm used during the shooting. The Petitioner did
not dispute that the victim was on the porch and talked to the Petitioner, that “the other
person in the house took off,” and that the Petitioner fired the gun. The Petitioner agreed

                                           -10-
that Mr. Williams wore jail clothes during his testimony and told the jury about his previous
convictions and drug use.

        The Petitioner testified that he and trial counsel did not discuss the benefits and
pitfalls of testifying and that counsel did not advise the Petitioner to stay calm when
testifying. The Petitioner said counsel advised that the offense was second degree murder
and that the Petitioner’s maximum sentence would have been fifteen years. The Petitioner
denied that counsel told him that if the Petitioner were convicted of first degree murder, the
Petitioner would receive a life sentence. He said, though, that he knew and considered the
punishment for first degree murder when deciding whether to accept the State’s plea offer or
to go to trial. He agreed the State was prohibited from asking him about his previous
convictions.

       Telena Stevens, the Petitioner’s sister, testified that she learned about a video
recording of the store parking lot altercation from Mr. Pendleton, who told Ms. Stevens that
police officers laughed at the recording. She did not recall when her conversation with Mr.
Pendleton occurred and said they did not speak anymore. On cross-examination, she stated
that she never viewed the recording from the store.

       Trial counsel testified that he had practiced law since 2007, that he began working for
an experienced attorney, and that he began representing criminal defendants in general
sessions and circuit courts in 2008. The Petitioner stipulated that the experienced attorney
“was a very good attorney,” and counsel stated that he learned how to practice law on his
own but consulted the experienced attorney when needed. Counsel said that between 2008
and 2012, he worked on a few hundred criminal cases and that by 2012, he believed he could
properly advise clients in criminal matters. He said he had four years of criminal defense
experience and that he was confident he could handle a first degree murder charge.

        Trial counsel testified that he began representing the Petitioner in 2012, after the
Petitioner’s arraignment in circuit court. Counsel recalled that previous counsel in general
sessions court “had done a lot of the leg work,” which included hiring a private investigator
to interview witnesses. Counsel said that he obtained all of the information possessed by
previous counsel and that he reviewed the discovery materials and the information obtained
by the private investigator. Counsel said that he and previous counsel reviewed the details of
the preliminary hearing testimony, that he met with the Petitioner at the jail to discuss “some
matters” and to advise the Petitioner of the status of the case, and that, at the time of their
first meeting, counsel and the prosecutor were discussing a possible plea agreement.
Counsel recalled multiple “settlement” court appearances before the trial and said that he met
with the Petitioner before some of these dates if it were “for a serious settlement date.”
Counsel disagreed with the Petitioner’s assertion that counsel and the Petitioner only met
twice before the trial.

                                         -11-
        Trial counsel testified that he and the Petitioner discussed the standard of proof
necessary to secure a conviction, the elements of first degree murder, and the discovery
materials. Counsel recalled the Petitioner’s discussing a video recording from the store and
Mr. Pendleton’s inconsistent statements. Counsel said that he and the Petitioner discussed
the State’s case, the witness statements contained in the discovery materials, and the witness
statements obtained by the private investigator. Counsel noted that the some of the witnesses
provided inconsistent statements to the police and to the private investigator. Counsel said
that the private investigator located a witness, Felisha Harrison, whom the police had not
identified previously. Counsel recalled that Ms. Harrison initially did not want to get
involved in the case but spoke to the private investigator. Counsel recalled that two
witnesses, Mr. Link and the victim’s mother, who provided police statements, had both died
before counsel began working on the case.

        Trial counsel testified that the defense did not dispute that the Petitioner was the
shooter and that counsel and the Petitioner discussed the statements in which three witnesses
and the utility workers saw the Petitioner fire the gun. Counsel said that the crux of the case
was whether the incident was first degree murder, second degree murder, or manslaughter.
Counsel did not believe the killing was first degree murder and said that the victim, the
victim’s brother, and the Petitioner had a troubled history. Counsel said that during a verbal
altercation, the victim’s brother “just straight out struck [the Petitioner] in the face . . . [and]
ran behind the market in the direction of this house,” that the Petitioner and Mr. Pendleton
got in the car and drove to the house, and that the Petitioner was angry. Counsel said that the
Petitioner never had a plan to kill the victim, although the Petitioner might have had “blind
rage.”

        Trial counsel testified that he concluded second degree murder was the worst case
scenario and that he and the Petitioner discussed a plea agreement. Counsel stated that the
victim’s brother’s assaulting the Petitioner made it difficult to show premeditated murder.
Counsel agreed, though, that the victim sustained five gunshot wounds, that nobody other
than the Petitioner was armed, that the Petitioner walked an unspecified distance from the car
to the front porch, that the Petitioner and the victim engaged in a “shouting match,” and that
at some point during the argument, the Petitioner pulled out a firearm and began shooting.
Counsel said that he and the prosecutor discussed second degree murder with a sentence of at
least twenty years and that counsel never received a plea offer in writing. Counsel recalled
the Petitioner thought that twenty years at 85% service was too much prison time and that the
case was more akin to manslaughter than to second degree murder. Counsel said the
Petitioner would have accepted an offer for fifteen years at 30% or 35% service but that,
based upon counsel’s knowledge and experience with the prosecutor, counsel did not think
the prosecutor would have agreed to any sentence requiring less than 85% service. Counsel


                                           -12-
recalled that the prosecutor was not inclined to offer anything less than twenty years when
they discussed the Petitioner’s case.

        Trial counsel testified that he investigated the video recording from the store, although
he received “disjointed” information. Counsel recalled the Petitioner’s sister stated that Mr.
Pendleton told her that he had reviewed the recording with the detective assigned to the case.
Counsel said that he received a report that a sheriff’s deputy obtained a copy of the recording
but that counsel could not verify the information. Counsel said that he went to the store and
talked to the owner, who reported having no video recording and stated he would not testify
even if counsel served him with a subpoena. Counsel said he did not find evidence that the
State possessed a recording. Counsel said that he talked to the investigating detective about
the case and recalled that the detective did not admit reviewing a recording. Counsel said
that although a Ferguson motion was filed relative to the recording and arguments were
made to the trial court, counsel did not “fully litigate the matter” because counsel could not
establish that a recording existed or that the State possessed it.

        Trial counsel testified that he filed almost twenty-four pretrial motions seeking to
exclude various evidence, including the Petitioner’s criminal history, “certain statements
made here or there,” and use of the word “murder.” Counsel said he consulted the private
investigator before the trial in an effort to find Mr. Pendleton but that nobody could find Mr.
Pendleton. Counsel recalled that, at the time, it was unclear whether Mr. Pendleton intended
to testify at the trial because Mr. Pendleton had been arrested relative to a firearm charge.
Counsel said that the firearm involved in Mr. Pendleton’s arrest was analyzed, that the
analysis showed the gun was not involved in the shooting for which the Petitioner was
convicted, and that the prosecutor provided counsel with an analysis report.

        Trial counsel testified that, during jury selection, the Petitioner reported knowing Mr.
Gibbs and that, before the trial, counsel reviewed the juror questionnaires and performed
extensive online research of the potential jurors in an effort to better understand them.
Counsel recalled discussing Mr. Gibbs with the Petitioner and said most of the witnesses in
this case had criminal histories and had been incarcerated at the county jail where Mr. Gibbs
worked as a correction officer and that, based upon this, counsel believed Mr. Gibbs would
have known this when considering the witness testimony. Counsel did not recall specifically
discussing with the Petitioner whether the defense should challenge Mr. Gibbs before jury
selection but that, during jury selection, counsel told the Petitioner, “[W]e have a good jury
up there.” Counsel said that the Petitioner agreed and indicated he was satisfied with the
jury and that the defense made no additional challenges.

       Trial counsel testified that, before the trial, he told the Petitioner that the Petitioner
had the right to testify, that the decision belonged to the Petitioner, and that they would
discuss it more after the State presented its case. Counsel said that after the State’s proof, the

                                           -13-
Petitioner “instantly stated . . . he was going to testify.” Counsel recalled that the Petitioner
believed all of the witnesses had lied and that the Petitioner had to “set it straight.” Counsel
said he told the Petitioner that the decision belonged to the Petitioner, that he needed to stay
calm and not show anger, and that he needed to think about his children. Counsel said that
the Petitioner thought he could “keep [his] temper in check.” Counsel said that he told the
Petitioner that he would ask open-ended questions in order for the Petitioner to tell the jury
what occurred. Counsel said he told the Petitioner, though, that the jury could not hold it
against the Petitioner if he chose not to testify. Counsel said that the trial judge excluded any
reference to the Petitioner’s criminal history. Counsel recalled that during cross-
examination, the Petitioner became angry, “slapp[ed] his hands hard on the podium,” and
insisted he was telling the truth.

        On cross-examination, trial counsel testified that had represented clients in three
previous jury trials, which included felony drug and burglary charges. Counsel said that his
client in the drug-related case was convicted of one count and acquitted of another count.
Counsel said that his client in the burglary case was convicted of both counts. Counsel did
not recall the prosecutor’s extending a fifteen-year plea offer and said his discussions with
the prosecutor made clear that the State would not offer anything below twenty years.
Counsel did not recall extending an offer to the prosecutor and said the prosecutor was not
going to offer anything that did not require 85% service. Counsel agreed second degree
murder as a violent offender would have required 85% service. Counsel testified that he did
not provide the Petitioner with probabilities of being convicted of first degree murder,
second degree murder, and manslaughter. Counsel said he told the Petitioner that the “best
case scenario” was a manslaughter conviction, that the “absolute worst case scenario” was a
first degree murder conviction with a life sentence, and that counsel thought there was a
“strong probability” of a second degree murder conviction.

       Trial counsel testified that the State was prohibited from saying the word murder, that
the prosecutor used the word during his opening statement, and that the prosecutor
immediately corrected himself by telling the jury that he should not have used the word.
Counsel said that he decided not to object and to request a recess during the State’s opening
statement, that he considered requesting a curative instruction from the trial judge, which he
rejected because it would have required the judge to repeat the word, and that he considered
and rejected requesting a mistrial because he knew the comment did not rise to the level
requiring a mistrial. Counsel said that he did not object at the next break in the proceedings
or request a bench conference after the prosecutor finished his opening statement and that he
did not want the jury hearing the word anymore that it already had.

       Trial counsel described the Petitioner’s tapping the witness stand as “a hammer
down” beating and testified that the Petitioner slammed his hands three times during the
testimony. Counsel agreed the firearm was never recovered by the police. Counsel said that

                                          -14-
Mr. Pendleton did not indicate what happened with the firearm and noted that Mr. Pendleton
claimed to have jumped from the Petitioner’s moving car after the Petitioner drove from the
scene. Counsel said that he did not research sentencing disparities based upon the racial
composition of a defendant and a victim.

       Trial counsel thought he asked Mr. Pendleton about whether he had reviewed the
store’s video recording before Mr. Pendleton’s trial testimony. Counsel did not recall Mr.
Pendleton’s acknowledging that he had seen the recording. Counsel did not recall cross-
examining Mr. Williams about his criminal history and said Mr. Williams testified in his
orange jail jumpsuit and admitted habitual drug use and having “been in trouble various
times.”

        The post-conviction court denied relief. The court credited trial counsel’s testimony
relative to “pre-trial issues” and found that counsel met with the Petitioner several times
before the trial to review the case and the discovery materials, including the alleged video
recording from the store. The court found that counsel investigated whether the recording at
the store existed and that counsel could not file a Ferguson motion because the existence of
the recording could not be verified. The court found that the trial testimony showed an
altercation occurred between the Petitioner and the victim’s brother before the shooting and
that this was consistent with what the Petitioner believed the recording might have shown.
The court found regardless of what the recording might have shown relative to Mr.
Pendleton and a firearm, the Petitioner admitted having a gun when he left the car.

       The post-conviction court found that the State offered the Petitioner a twenty-five-
year sentence in exchange for a guilty plea to second degree murder and that the Petitioner
rejected it. The court found that the Petitioner would not have accepted twenty-five years
and that he knew of the first degree murder charge and potential life sentence. The court
found that trial counsel and the prosecutor discussed a possible plea agreement and that even
if counsel did not discuss a fifteen-year sentence, counsel knew, based upon their previous
discussions, that the prosecutor would not have extended or accepted it.

        The post-conviction court found that “the undisputed testimony” showed that the
Petitioner did not object to Adam Gibbs serving as a juror. The court found that trial counsel
impeached Mr. Williams “with admissible evidence” and determined that the trial court
excluded evidence that Mr. Williams had killed the Petitioner’s family member. The court
found that counsel cross-examined Mr. Pendleton about inconsistencies between his
preliminary hearing and trial testimony. The court found that the Petitioner knew the risks of
testifying at the trial and made an informed decision to testify.

       The post-conviction court found that the prosecutor’s use of the word murder during
his opening statement was addressed in the previous appeal, that the prosecutor corrected

                                         -15-
himself and told the jurors that it was their job to determine whether the Petitioner was guilty
of any classification of homicide. The court found that counsel’s failures to object and to
request a mistrial were not ineffective assistance of counsel.

      The post-conviction court determined that the Petitioner failed to present evidence
showing trial counsel provided deficient performance and that even if counsel’s performance
were deficient, the Petitioner failed to establish prejudice. This appeal followed.

        The Petitioner contends the post-conviction court erred by denying relief. His
argument focuses generally on his having “very little contact” with trial counsel, counsel’s
having “little experience in jury trials,” and counsel’s lack of advice about the Petitioner’s
testifying, plea negotiations, and “trial considerations.” The State responds that the post-
conviction court did not err by denying relief. We agree with the State.

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

       To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364,
368-72 (1993); Hill v. Lockhart, 474 U.S. 52 (1985). The Tennessee Supreme Court has
applied the Strickland standard to an accused’s right to counsel under article I, section 9 of
the Tennessee Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
deficient performance prong, a petitioner must show that “the advice given, or the services
rendered . . . , are [not] within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at 690.
The post-conviction court must determine if these acts or omissions, viewed in light of all of

                                          -16-
the circumstances, fell “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of hindsight, may not
second-guess a reasonably based trial strategy by his counsel, and cannot criticize a sound,
but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 2008). This deference, however,
only applies “if the choices are informed . . . based upon adequate preparation.” Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). To establish the prejudice prong, a
petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.

A.     Pretrial Preparation and Pretrial Motions

        The Petitioner alleges that trial counsel spent little time on pretrial preparation. The
Petitioner asserts that he and counsel only met once before the trial and that counsel offered
little guidance about testifying, plea negotiations, and “trial considerations.”

        As a preliminary matter, the Petitioner complains that trial counsel also failed to file
pretrial motions but does not state with specificity which motions should have been filed nor
explain the merits of these motions. Although trial counsel’s credited testimony reflects that
he filed almost twenty-four pretrial motions seeking to exclude various evidence, including
the Petitioner’s criminal history, use of the word murder, and various pretrial statements, we
will not speculate about which motions the Petitioner now argues should have been filed and
how they might have benefitted the defense. See T.R.A.P. 27(a)(7)(A). The Petitioner is not
entitled to relief on this basis.

       Relative to pretrial preparation, trial counsel’s credited testimony reflects that
previous counsel hired a private investigator and participated in the preliminary hearing.
Trial counsel obtained all of the information possessed by previous counsel, which included
information from the private investigator. Trial counsel and previous counsel reviewed the
details of the preliminary hearing testimony, and afterward, trial counsel met with the
Petitioner at the jail to discuss the case. Counsel said that at the time of the first meeting, he
and the prosecutor were engaged in plea negotiations. Counsel said that multiple
“settlement” court appearances occurred and that he and the Petitioner sometimes met before
a hearing if the hearing involved a “serious settlement date.” The Petitioner rejected the
plea offer of twenty years for second degree murder. Counsel disagreed with the Petitioner’s
assertion that he and counsel only met twice before the trial. Counsel and the Petitioner
discussed the standard of proof, elements of the offenses, discovery materials, witness
statements obtained by the private investigator, and the State’s case, generally.


                                           -17-
        After evaluating the evidence, trial counsel believed that the facts supported a second
degree murder conviction, and he discussed this with the Petitioner. They discussed the
prosecutor’s plea offer of twenty years, which the Petitioner rejected because of the length of
service requirement and because the Petitioner believed the appropriate conviction offense
was manslaughter. Counsel investigated the alleged video recording from the store showing
the altercation between the Petitioner and Mr. Owens just before the shooting but could not
establish that the recording existed or that if it existed, the police knew about or possessed it.
 Counsel attempted to locate Mr. Pendleton before the trial, but the private investigator could
not locate him. Likewise, counsel advised the Petitioner that he had the right to testify and
that the decision belonged to the Petitioner. After the State’s proof, the Petitioner
immediately told counsel that he wanted to testify because the witnesses lied and that he
needed to tell the jury the truth. After the Petitioner chose to testify, counsel advised that he
would ask open-ended questions in order for the Petitioner to tell the jury what occurred, that
the Petitioner needed to stay calm during his testimony and not become angry, and that the
jury could not penalize him if he chose not to testify. We note that the Petitioner disregarded
counsel’s advice about staying calm and slapped his hands on the witness stand repeatedly.

        The record supports the post-conviction court’s determinations that the Petitioner
failed to establish counsel provided deficient performance and to show that any deficiency
resulted in prejudice to the Petitioner. He is not entitled to relief on this basis.

B.     Correction Officer Gibbs

      The Petitioner argues that trial counsel failed to explain to the Petitioner why Mr.
Gibbs was not challenged as a potential juror because the Petitioner told counsel that Mr.
Gibbs was a Robertson County correction officer who guarded the Petitioner.

        The record reflects that before the trial, trial counsel reviewed the juror questionnaires
and performed extensive online research on the potential jurors in an effort to better
understand them. Counsel and the Petitioner discussed Mr. Gibbs, and counsel testified that
he told the Petitioner that most of the witnesses had criminal histories and had been
incarcerated in the jail in which Mr. Gibbs worked and that Mr. Gibbs would have known
this when considering the witness testimony. During jury selection, counsel told the
Petitioner that counsel liked the jurors, and the Petitioner agreed and indicated he was
satisfied with the selected jurors. The record supports the post-conviction court’s
determinations that the Petitioner failed to establish counsel provided deficient performance
and to show that any deficiency resulted in prejudice to the Petitioner. He is not entitled to
relief on this basis.

C.     Christopher Williams Bias


                                           -18-
        The Petitioner argues that “cross-examination issues of witness bias . . . [were] not
presented” by trial counsel. The Petitioner asserts that Mr. Williams had previously killed
the Petitioner’s cousin but that counsel made the “unilateral decision to forego” presenting
this information to the jury. The Petitioner also notes that a family member of Mr. Williams
had shot the Petitioner but that counsel did not present this evidence to the jury. The
Petitioner asserts that had the jury known of the personal issues between the Petitioner and
Mr. Williams, the jury might have reached a different verdict.

        The record reflects that trial counsel did not recall questioning Mr. Williams about his
criminal history but that Mr. Williams wore an orange jail jumpsuit during his testimony and
admitted habitual drug use and having multiple legal troubles. The post-conviction court
determined that the trial court excluded evidence at the trial of Mr. Williams’s killing the
Petitioner’s family member and of a member of Mr. Williams’s family having shot the
Petitioner. The Petitioner did not present evidence at the hearing showing that this evidence
was admissible, and the record does not preponderate against the post-conviction court’s
determination that the trial court excluded the evidence. As a result, counsel was prohibited
from questioning Mr. Williams about the killing. We note, though, that a stipulation at the
trial showed “squabbling” between the people involved in this incident. The record supports
the post-conviction court’s determinations that the Petitioner failed to establish counsel
provided deficient performance and to show that any deficiency resulted in prejudice to the
Petitioner. He is not entitled to relief on this basis.

D.     Alleged Video Recording

        The Petitioner’s assertions relative to the alleged video recording of the store parking
lot are as follows: “[A] video tape of the beginning of this encounter occurred which clearly
showed [the Petitioner] being unarmed when he was assaulted. While the police claimed
they never had this videotape, or it was ‘lost’; that claim was disputed.” We interpret the
Petitioner’s argument as an allegation that trial counsel provided ineffective assistance by
failing to obtain and to present the recording as evidence.

        Trial counsel and the Petitioner discussed the video recording during their meetings,
and although counsel received “disjointed” information, counsel attempted to obtain a copy
of the alleged recording. Counsel said that Mr. Pendleton reported to the Petitioner’s sister
that he viewed the recording with the detective assigned to the case. Counsel also received
an unverified report that a sheriff’s deputy obtained a copy of the recording. Counsel went
to the store and spoke to the owner, who said that no recording existed and that he would not
testify at the trial. Counsel spoke to the detective, who “did not admit” viewing the
recording. Although a Ferguson motion was filed, counsel did not “fully litigate” the motion
because counsel could not establish that the recording existed and that the State possessed it.
 Counsel thought he questioned Mr. Pendleton about whether he had viewed the recording,

                                          -19-
and Mr. Pendleton did not acknowledge viewing the recording. The evidence does not
reflect that the recording existed, and the Petitioner did not present the alleged recording at
the evidentiary hearing. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

       In any event, the witness testimony at the trial was that Mr. Owens assaulted the
Petitioner in the store parking lot just before the shooting occurred, and the Petitioner
admitted that he had a firearm when he left his car outside Mr. Link’s home. The record
supports the post-conviction court’s determinations that the Petitioner failed to establish
counsel provided deficient performance and to show that any deficiency resulted in prejudice
to the Petitioner. He is not entitled to relief on this basis.

      Based upon the foregoing and the record as a whole, the judgment of the post-
conviction court is affirmed.
                                     ____________________________________
                                     ROBERT H. MONTGOMERY, JR., JUDGE




                                         -20-
