         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs March 20, 2001

                ROGER M. GARDNER v. STATE OF TENNESSEE

            Post-Conviction Appeal from the Criminal Court for Sullivan County
                          No. C43,548    Phyllis H. Miller, Judge



                                  No. E2000-02270-CCA-R3-PC
                                       November 30, 2001

The petitioner, Roger M. Gardner, appeals the order of the Sullivan County Criminal Court denying
his petition for post-conviction relief. A Sullivan County jury found the petitioner guilty of
attempted aggravated kidnapping, and the trial court subsequently sentenced him to serve eight years
as a Range II multiple offender. The petitioner challenged his conviction on direct appeal, and this
Court affirmed his conviction. State v. Roger Morris Gardner, No. 03C01-9712-CR-00524, 1999 WL
486847, at *1 (Tenn. Crim. App. at Knoxville July 13, 1999). Subsequently, the petitioner filed for
post-conviction relief, alleging ineffective assistance of counsel, prosecutorial misconduct, judicial
misconduct, the trial court’s lack of jurisdiction, and denial of statutory rights. The post-conviction
court denied the petition, and the petitioner now brings this appeal alleging ineffective assistance of
counsel. For the following reasons, we find that none of these allegations merit relief and therefore
affirm the decision of the post-conviction court.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which JOE G. RILEY and ALAN E. GLENN,
JJ., joined.

Roger M. Gardner, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General & Reporter; Mark A. Fulks, Assistant Attorney General;
Greeley Wells, District Attorney General; and Barry P. Staubus, Assistant District Attorney, for
appellee, State of Tennessee.

                                             OPINION

                                       Factual Background

On direct appeal, this Court summarized the facts of the case as follows:
        Beth Davidson testified that on December 5, 1996, she was working as a desk
clerk at the Westside Inn in Kingsport, Tennessee. Shortly after 12:30 a.m.,
Appellant came in the front door and asked to use the telephone to call for a ride
home. Appellant then used the telephone and sat down on a couch when he was
finished.

         Davidson testified that after Appellant sat down on the couch, she went into
the bathroom to hang up a broom. When Davidson attempted to leave the bathroom,
Appellant approached the doorway and put up his hands to block Davidson's way out.
When Davidson tried to go past Appellant, he grabbed both of her arms and held
them in a tight grip. After a brief struggle, Davidson fell to her knees, and Appellant
fell on top of her. Appellant then grabbed one of Davidson's arms and placed one of
his hands over Davidson's mouth and pressed "very hard." Davidson then "kicked
and fought" and managed to crawl out from under Appellant after a struggle which
lasted between three and four minutes. Davidson testified that during this struggle
in the bathroom, she sustained a cut to her hand, bruises to her knees, and muscle
sprains in her neck and back.

         Davidson testified that after she crawled out from under Appellant, she went
to the telephone by the front counter and called 9-1-1. Appellant then picked up his
hat and jacket from off the couch and left through a side door.

        Davidson testified that sometime later that night, the police brought Appellant
to the scene, and she identified him as the man who had attacked her.

        Officer Joe Graham of the Kingsport Police Department testified that at
approximately 1:44 a.m. on December 5, 1996, he responded to a call at the Westside
Inn. After Davidson related the events that had just occurred, Graham went to the
phone registry that recorded outgoing calls in order to determine who Davidson's
assailant had called. Graham then called the last recorded phone number and
received information that Appellant had dialed that number. Graham then put out a
BOLO (be on the lookout) for Appellant. Graham testified that shortly thereafter, he
showed Davidson a photographic line-up, and she immediately identified the
photograph of Appellant as the man who had attacked her.


        Graham testified that Appellant was subsequently apprehended and brought
to the Westside Inn. The police officers then asked Appellant to get out and stand
by the side of the police car. Davidson then identified Appellant as her attacker.

        Officer David Samples of the Kingsport Police Department testified that after
receiving information from Officer Graham on December 5, 1996, he located
Appellant at a house in Kingsport. When Samples asked Appellant if he had been


                                         -2-
        to the Westside Inn on that date, Appellant initially denied being there. When
        Samples told Appellant that he matched the description of a subject who had been
        at that location, Appellant admitted that he had been at the Westside Inn to use the
        telephone.

Id. at *1-*2.
        The petitioner appealed his conviction to this Court, and we affirmed his conviction, finding
that the trial court’s flight instruction constituted harmless error and that all other grounds of appeal
lacked merit. Id. at *5-*8. The petitioner then filed for post-conviction relief on the following
grounds, as summarized by the post-conviction court:

        A. Errors committed by the trial court:

        1. The trial court lacked jurisdiction to convict/sentence the petitioner, as the
        elements of the crime were not proven; the court should have granted a judgment of
        acquittal;

        2. The trial court failed to properly charge the jury as to circumstantial evidence;

        3. The trial court failed to follow statutory sentencing guidelines;

        4. The state committed prosecutorial misconduct primarily in closing argument, and
        the court committed judicial misconduct by allowing the state actions; and

        5. The trial court committed judicial misconduct by:
               a. allowing an “admission against interest,” knowing that such “admission”
               was clearly inadmissible hearsay;
               b. giving an instruction on flight that was clearly improper and bolstered the
               state’s case;
               c. giving an instruction on admission against interest because the petitioner
               asked for an instruction on identification;
               d. improperly charging the jury as to lesser included offenses and lesser
               grades of the offense charged; and
               e. improperly charging the jury as to possible length of sentence for each of
               the lesser included offenses and as to the minimum amount of time a
               convicted person would have to serve before becoming eligible for release.

        B. Ineffective assistance of counsel:

        1. Trial counsel failed to recognize and/or preserve for appeal all grounds listed in
        paragraphs 1 through 5 above;




                                                  -3-
        2. Trial counsel failed to argue (presumably before the trial court) why the flight
        instruction was improper, which allowed the court to bolster the state’s case;

        3. Trial counsel failed to object when the court was apparently assisting the state’s
        case by deciding to give the instruction on admission against interest;

        4. Trial counsel did not cross-examine Officer Graham on the inconsistent
        statements as to “the pretrial evidence where he was clearly not stating the truth;”

        5. Trial counsel did not cross-examine the victim at trial regarding her previous
        testimony at the preliminary hearing that she pushed the petitioner, then she fell, and
        he fell also;

        6. Trial counsel requested that the court charge the jury as to lesser offenses, contrary
        to the petitioner’s written request that lesser offenses not be charged;

        7. Trial counsel did not interview defense witnesses, stated that their testimony was
        not beneficial to the petitioner, and asked questions repeatedly that he did not know
        the answer to; and

        8. Trial counsel did not move to suppress the victim’s identification of the petitioner
        and did not challenge Officer Graham and the victim as to whether the “show-up”
        preceded the photo lineup.

For the following reasons, we find that the petitioner has failed to meet his burden of proving these
allegations by clear and convincing evidence and therefore affirm the post-conviction court’s denial
of the petition.

                                Post-Conviction Standard of Review

         In analyzing the issue raised, we first note that a petitioner bringing a post-conviction petition
for relief bears the burden of proving the allegations asserted in the petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-210(f) (1997); Hicks v. State, 983 S.W.2d 240, 245 (Tenn.
Crim. App. 1998). “Evidence is clear and convincing when there is no serious or substantial doubt
about the correctness of the conclusions drawn from the evidence." Hicks, 983 S.W.2d at 245 (citing
Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Furthermore, the appellate
court is bound by the trial court's findings of fact, unless the record preponderates against those
findings. Id. at 245.

                               Effectiveness of Assistance of Counsel

       The petitioner alleges that several errors were committed at the trial level and that his counsel
was ineffective for failing to raise these issues. However, all of these issues have been waived,


                                                   -4-
because they were not presented to this Court on direct appeal, or previously determined, because
they were presented to this Court on direct appeal and deemed harmless error or meritless. See
Gardner, 1999 WL 486847; Tenn. Code Ann. § 40-30-206(g), (h) (1997). Nevertheless, since the
petitioner claims that his counsel was ineffective by failing to raise these issues on direct appeal,
we must consider the merits of the waived issues to determine whether those issues would have
warranted relief if brought on direct appeal, and therefore whether his counsel’s failure to raise these
issues resulted in prejudice to the petitioner. See Fred Edmond Dean v. State, No. E1998-00135-SC-
R11-PC, 2001 WL 1328491 (Tenn. Oct. 30, 2001). After discussing the issues that were either
waived or previously determined on direct appeal and counsel’s alleged failure to raise these issues
on appeal (the allegations in paragraphs A.1 though B.2 above), we will then discuss the petitioner’s
claims that deal with instances of alleged ineffective representation at trial (the allegations in
paragraphs B.2 through B.8 above).
        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, the petitioner bears the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) that the deficient performance was prejudicial. Powers v. State, 942 S.W.2d
551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient performance, the petitioner
must show that the services rendered or the advice given was below "the range of competence
demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). In
order to demonstrate prejudice, the petitioner must show that there is a reasonable probability that,
but for counsel's deficient performance, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984).
"Because a petitioner must establish both prongs of the test to prevail on a claim of ineffective
assistance of counsel, failure to prove either deficient performance or resulting prejudice provides
a sufficient basis to deny relief on the claim." Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997).
"Moreover, on appeal, the findings of fact made by the trial court are conclusive and will not be
disturbed unless the evidence contained in the record preponderates against them." Adkins v. State,
911 S.W.2d 334, 347 (Tenn. Crim. App. 1994). "The burden is on the petitioner to show that the
evidence preponderated against those findings." Id.


             Whether the Trial Court Had Jurisdiction to Sentence the Petitioner

        The petitioner alleges that the trial court lacked jurisdiction to convict or sentence him
because the state did not prove the elements of the crime beyond a reasonable doubt. However, trial
counsel did challenge the sufficiency of the evidence on direct appeal, alleging that the evidence was
not sufficient to prove the elements of the crime beyond a reasonable doubt. Gardner, 1999 WL
486847, at *2-*3. This Court determined that the evidence was sufficient to support the petitioner’s
convictions. Id.. Therefore, because this issue was presented to this Court by counsel and the Court
determined on direct appeal that the issue is meritless, the petitioner has suffered no prejudice.
Accordingly, we find no ineffective assistance of counsel here.


 Whether The Trial Court’s Instruction Regarding Circumstantial Evidence Was Proper


                                                  -5-
        The petitioner alleges that the trial court improperly instructed the jury regarding
circumstantial evidence because the court gave an instruction on both direct and circumstantial
evidence and the only evidence against the petitioner was circumstantial in nature. However, as the
post-conviction court correctly found, the trial court gave proper instructions, as the jury instructions
were very similar to the instructions set forth in Tennessee Pattern Jury Criminal Instruction 42.03,
which outlines the definitions of and differences between direct and circumstantial evidence. This
instruction was proper because the evidence against the petitioner included direct evidence, as well,
as the victim identified the petitioner as her assailant and testified against him at trial. Therefore,
because this issue would not have warranted relief if presented on direct appeal, we find that the
petitioner was not prejudiced by his counsel’s failure to do so. Accordingly, we find that this issue
lacks merit.


           Whether the Trial Court Followed the Statutory Sentencing Guidelines

        The petitioner alleges that the trial court failed to follow statutory sentencing guidelines, and
that his trial counsel was ineffective by failing to raise this issue on direct appeal. However, the
petitioner fails to make any specific allegations as to how the trial court failed to follow these
sentencing guidelines. First, we find that there is an affirmative showing on the record that the trial
court properly considered the sentencing principles and all relevant facts and circumstances per State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Therefore, we conclude that the trial court followed
the statutory sentencing guidelines. Although the trial court did not consider whether the petitioner
was a suitable candidate for probation or alternative sentencing, we find that the court’s action was
proper because the petitioner clearly informed the trial court that he was waiving his right to be
considered for probation. Because the trial court properly followed the sentencing guidelines, this
issue would not have warranted relief if presented on direct appeal. Therefore, the petitioner was
not prejudiced by his counsel’s failure to do so. Accordingly, we find that counsel was not
ineffective in failing to present this issue on direct appeal.


                    Whether the State Engaged in Prosecutorial Misconduct

        The petitioner argues that the state exceeded the permissible scope of its closing argument
by including in its closing arguments subjects that were neither part of its opening statement or in
the defense’s closing argument and that his counsel was ineffective by failing to raise this issue on
direct appeal. Specifically, the petitioner complains that the state should not have included the
statement that “flight was not explained,” as this statement improperly shifted the burden of proof
from the state to the petitioner, nor the reference to whether the petitioner had intent to make a sexual
assault by asking “when was he going to grab her private parts?”
        Tennessee Rule of Criminal Procedure 29.1(b) provides that:
                The State’s opening argument shall cover the entire scope of the State’s
        theory, and the State’s closing argument shall be limited to the subject matter covered
        in the State’s opening argument and the defendant’s intervening argument.


                                                  -6-
        Defendant’s argument is not limited to the matters actually argued by the State[,] but
        may address any relevant and proper subject.

Tenn. R. Crim. P. 29.1(b). After reviewing the record, for the following reasons we find that trial
counsel was not deficient in his representation of the petitioner by failing to object to these remarks
or raise this issue on direct appeal.
        The state’s remarks regarding whether the petitioner was attempting a sexual assault were
proper because they were made in the state’s rebuttal to the defense’s closing argument. In this
rebuttal argument, the state addressed defense counsel’s argument that the petitioner lacked intent
to commit a sexual assault by countering that the petitioner was too preoccupied with trying to gain
control over the victim to have the opportunity to attempt a sexual assault. Furthermore, the state’s
remarks regarding the petitioner’s flight were predicated on the fact that the trial court was going to
instruct the jury on flight. On direct appeal, this Court found the flight instruction to be erroneous,
but deemed it harmless error, as the petitioner’s guilt was overwhelming and the trial court
instructed the jury that they need not infer flight and that flight alone is insufficient to prove guilt.
Gardner, 1999 WL 486847, at *5. Accordingly, we find that the state’s references to the petitioner’s
flight and the flight instruction were, even if considered erroneous, harmless as well. Because this
issue would not have warranted relief on direct appeal, we find that the petitioner was not prejudiced
by his counsel’s failure to raise this issue on direct appeal. This issue lacks merit.


                   Whether the Trial Court Committed Judicial Misconduct

         The petitioner alleges that the trial court erred by committing several instances of “judicial
misconduct.” First, the petitioner alleges that the trial court erroneously allowed an admission
against interest, despite the fact that it was inadmissible testimony, and that his trial counsel was
deficient by failing to raise this issue on appeal. However, trial counsel did raise this issue on direct
appeal, and this Court deemed it meritless. Id. at *6. Counsel cannot be said to be ineffective with
respect to this issue.
         The petitioner alleges that the trial court’s instruction on flight improperly bolstered the
state’s case and that his trial counsel provided ineffective representation by failing to raise this issue
on appeal. However, trial counsel did raise this issue an appeal, and, as noted above, this Court
previously found the flight instruction to be harmless error. Id. at *5. Therefore, once again, counsel
was not ineffective with respect to this issue.
         The petitioner claims that the trial court erred because it gave the instruction on admission
against interest solely because the petitioner requested an instruction on identity. However, the post-
conviction court concluded that although the state’s attorney suggested that an instruction on identity
should not be given unless an instruction on statements against interest was also given, the trial court
did not make its decision on this basis. Furthermore, this Court previously decided that the
instruction on statements against interest was proper. Therefore, counsel’s actions on appeal
regarding this issue do not constitute ineffective assistance.
         The petitioner alleges (1) that the trial court erred by instructing the jury on the lesser
included offenses of his indicted offense, aggravated kidnapping, despite his objection to such


                                                   -7-
instructions, (2) that the trial court should not have instructed the jury on assault causing bodily
injury and assault by offensive touching, and (3) that his trial counsel deficiently represented him
by not raising these issues on appeal. First, we note that a trial court’s obligation to instruct the jury
on lesser-included offenses of the indicted crime is mandatory if the facts would support a conviction
for the lesser offense. See Tenn. Code Ann. § 40-18-110(a) (1997); State v. Bolden, 979 S.W.2d 587
(Tenn. 1998). Furthermore, we find that there was evidence from which the jury could have found
the petitioner guilty of the lesser offenses of assault. The petitioner touched the victim in an
offensive manner when he restrained her and caused her bodily injury, as evidenced by her testimony
and photographs of her injuries. Therefore, these instructions were both proper and mandatory, the
petitioner was not prejudiced by them. Therefore his attorney acted appropriately in not raising this
issue on appeal.
         The petitioner alleges that the trial court improperly instructed the jury on (1) the possible
length of the sentences for each lesser-included offense and (2) the minimum amount of time that
he would have to serve before becoming eligible for release. The post-conviction court reviewed
this issue and correctly determined that the trial court’s instructions on the ranges of punishment
were proper, as they were in accordance with those ranges set forth in Tennessee Code Annotated
Sections 40-35-111(e) and 40-35-112(b). Furthermore, the post-conviction court also properly
concluded that the trial court instructed the jury regarding release eligibility for the felony offenses
in accord with Tennessee Code Annotated Section 40-35-201(b)(2)(B) and that the misdemeanor
offenses required no instruction on the minimum release eligibility, as the minimum sentence for the
misdemeanors was zero years. Because this issue lacks merit, trial counsel was not deficient in
failing to raise this issue on direct appeal.
         When reviewing the petition, the post-conviction court also considered the impact of the trial
court’s failure to give the mandatory instruction informing the jury that a defendant may not be
released when he or she first becomes eligible for release and may be required to serve his or her full
term. While this issue was not included in the petition itself, it was included in a memorandum of
law attached to the petition. The post-conviction court considered the error because the petitioner
claimed that his trial counsel was ineffective for failing to object to the lack of a release eligibility
instruction at trial or raise the issue on appeal. Admitting error, the post-conviction court ultimately
deemed the error to be harmless in light of the overwhelming evidence of the petitioner’s guilt. We
agree with the post-conviction court that the trial court did err by omitting the statutorily mandated
sentencing instruction in Tennessee Code Annotated Section 40-35-201(b)(2)(A)(ii). We also agree
that the omission constituted error that is harmless beyond a reasonable doubt in light of the
following discussion of relevant legal principles and the overwhelming proof of the petitioner’s
guilt.
         A defendant has a constitutional right to a complete and accurate charge of the law. State
v. Teel, 793 S.W.2d 236 , 249 (Tenn. 1990). When reviewing the charge given by the lower court,
this Court must review the entire charge and only invalidate it if, when read as a whole, it fails to
fairly submit the legal issues or mislead the jury as to the applicable law. State v. Phipps, 883
S.W.2d 138, 142 (Tenn. Crim. App. 1994).
         We find that in the instant case, the jury was not mislead as to the applicable law; the jury
instruction was merely incomplete. Additionally, it seems unlikely that the jury based its verdict on
the petitioner’s release eligibility, as they convicted him of attempted aggravated kidnapping, which


                                                   -8-
carries a six (6) to ten (10) year sentence, instead of convicting him of kidnapping, which carries the
same sentence range and release eligibility date as attempted aggravated kidnapping, or of aggravated
kidnapping, which carries a twelve (12) to twenty (20) year sentence and a minimum release
eligibility date of 10.2 years. Furthermore, we find that the petitioner has not been prejudiced by this
omission. As this Court noted on direct appeal, the evidence of the petitioner’s guilt was
overwhelming. Gardner, 1999 WL 486847, at *5. Therefore, the petitioner has not been prejudiced,
and his counsel cannot be faulted in failing to present this issue on appeal.


                  Whether Trial Counsel Was Ineffective by Failing to Argue
                         Why the Flight Instruction Was Improper

        Th petitioner argues that his trial counsel should have argued at trial that the flight instruction
was improper. However, when the propriety of the flight instruction was raised on direct appeal, this
Court found that the instruction was harmless error. Id. Therefore, the petitioner was not prejudiced
by the instruction and, accordingly, he was not prejudiced by his trial counsel’s failure to argue this
issue before the trial court.


              Whether Trial Counsel Was Ineffective by Failing to Object
   When the Trial Court Decided to Give the Instruction on Admissions Against Interest

        The petitioner argues that his trial counsel was ineffective by failing to object when the trial
court decided to give an instruction on admission against interest, which was objectionable because
the trial court was assisting the state’s case. However, this Court ruled on direct appeal that the
admission against interest instruction was proper. Id. at *6. Therefore, we find that the petitioner
could not have been prejudiced by his counsel’s failure to object to this instruction and accordingly
find that this issue lacks merit.


      Whether Trial Counsel Was Ineffective by Failing to Impeach a State’s Witness
                     Through Use of Prior Inconsistent Statements

         The petitioner argues that his trial counsel was ineffective because the officer failed to cross-
examine Officer Joe Graham, who investigated the victim’s complaint, on the grounds that at trial
he testified that he called the number that the petitioner had previously called while using the hotel’s
telephone, while in the officer’s affidavit of complaint, the officer stated that “Central” called this
number. However, this issue was not material, as the telephone call’s significance was that it
allowed the police to locate the petitioner, who admitted to having been in the motel lobby and to
having made a telephone call from it. The post-conviction court found that trial counsel’s cross-
examination of the petitioner was exhaustive and that trial counsel could have detracted from the
petitioner’s case if counsel had taken additional time to cross-examine the officer regarding this
insignificant issue. We agree with the post-conviction court and find that the petitioner has not


                                                   -9-
demonstrated that he has suffered any prejudice by trial counsel’s failure to cross-examine the
witness on this subject. This issue lacks merit.


       Whether Trial Counsel Was Ineffective by Failing to Impeach the Victim with
                 Her Previous Testimony from the Preliminary Hearing

        The petitioner claims that his trial counsel was ineffective because he failed to cross-examine
the victim regarding her version of the events of the crime, as the victims’ testimony at trial was
inconsistent with her testimony at the preliminary hearing. However, after reviewing the record, we
find that the victim’s testimony at trial was consistent with her earlier testimony, and therefore any
cross-examination of the victim regarding these facts would have only served to bolster the victim’s
testimony. Therefore, trial counsel’s performance was not deficient in failing to cross-examine the
victim on this subject. This issue lacks merit.


        Whether Trial Counsel Was Ineffective for Requesting that the Trial Court
                      Charge the Jury on Lesser-Included Offenses

         The petitioner argues that his trial counsel was ineffective because he filed a request with the
court asking for an instruction on lesser included offenses after the petitioner asked his counsel, in
writing, not to file such a request. At the post-conviction hearing, counsel testified that while the
petitioner did ask, in writing, that the request not be filed, the petitioner must have later agreed to
the submission of the request regarding lesser-included offenses, or counsel would not have filed the
request. The post-conviction court accredited the testimony of counsel, and accordingly, we find
that trial counsel was not deficient by making this request. Moreover, we also note that because the
trial court was required, pursuant to State v. Bolden, 979 S.W.2d 587 (Tenn. 1998) and Tennessee
Code Annotated Section 40-18-110(a) (1997), to instruct the jury on all lesser-included offenses
whose elements are supported by the facts of the case, the petitioner’s objection to such an
instruction is immaterial. Accordingly, we find that the petitioner was not prejudiced by the filing
of this request, and therefore this issue lacks merit.

                Whether Trial Counsel Was Ineffective in His Preparation and
                         Direct Examination of Defense Witnesses

        The petitioner alleges that his counsel was ineffective when handling the defense witnesses,
as he did not interview them, stated that their testimony was not beneficial to the petitioner, or asked
questions of them during direct examination to which he did not know the answer. However,
because the petitioner alleged that his counsel failed to interview witnesses, he had a duty to present
these witnesses at the post-conviction hearing so that this court might determine whether their
testimony might have altered the results of the trial. See Black v. State, 794 S.W.2d 752, 757 (Tenn.
Crim. App. 1990). The petitioner failed to do so. Furthermore, the petitioner also failed to present



                                                  -10-
any proof that counsel asked questions of witnesses at trial to which he did not know the answer.
Accordingly, the petitioner has not met his burden, and therefore we find that this issue lacks merit.



                    Whether Trial Counsel was Ineffective By Failing to
                 Challenge the Identification of the Petitioner as the Assailant

        The petitioner alleges that his counsel was ineffective for failing to question the investigating
officer regarding whether the “show-up,” at which the victim identified the petitioner, preceded the
photo identification, at which she also identified the petitioner, and for failing to move to suppress
the victim’s identification of the petitioner as her assailant on the basis that it was illegally obtained.
However, after reviewing the record, we find that the photo identification preceded the show-up,
not vice versa, and therefore counsel was not deficient for failing to question the officer regarding
this fact or moving to suppress the identification on the basis that it was illegally obtained. This
issue lacks merit.


                                              Conclusion

      For the foregoing reasons, we find that none of the petitioner’s allegations merit relief.
Accordingly, the judgment of the trial court is AFFIRMED.



                                                          ___________________________________
                                                          JERRY L. SMITH, JUDGE




                                                   -11-
