                                                                                     03/24/2020
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                       Assigned on Briefs February 12, 2020

  HAROLD D. DOSS, JR., AND JOHNATHAN LAMAR HATHAWAY v.
                    STATE OF TENNESSEE

               Appeal from the Criminal Court for Davidson County
                   No. 2010-D-3315 Mark J. Fishburn, Judge
                    ___________________________________

                          No. M2019-00238-CCA-R3-PC
                      ___________________________________

Harold D. Doss, Jr., and Johnathan Lamar Hathaway filed separate petitions for post-
conviction relief. Because Petitioners were tried together, the post-conviction court
conducted a single post-conviction hearing and denied relief as to both Petitioners.
Discerning no error, we affirm.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT W. WEDEMEYER, JJ., joined.


David M. Hopkins, Murfreesboro, Tennessee, for the appellant, Harold D. Doss, Jr., and
Kara Everett Bellar, Carthage, Tennessee, for the appellant, Johnathan Lamar Hathaway.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Assistant Attorney General; Glenn R. Funk, District Attorney General; and Janice
Norman, Assistant District Attorney General, for the appellee, State of Tennessee.


                                      OPINION


                                 Factual Background

       This case arose from the October 2010 robbery and shooting of Jiro Kanazawa, the
victim, who was found dead in Room 118 of America’s Best Value Inn in Nashville,
Tennessee. State v. Harold D. Doss, Jr., and Johnathan Lamar Hathaway, No. M2012-
02201-CCA-R3-CD, 2014 WL 2592736, at *1 (Tenn. Crim. App. June 10, 2014), perm.
app. denied (Tenn. Oct. 15, 2014).

        Metropolitan Police Department Officer Isaac Wood testified that on October 5,
2009, he was dispatched to America’s Best Value Inn. Officer Wood entered the motel
Room 118 and observed the deceased victim lying on the floor. Id. at *3. He obtained an
address for the person who rented the room from the motel registration form and
proceeded to the address, which was associated with Petitioner Doss, but was not able
locate the suspect. Id. at *9. Detective Wood then obtained bank records for the victim’s
accounts and was able to trace transactions to a Mapco convenience store and an Exxon
convenience store. He obtained video surveillance footage from both stores. In one of
the videos, a female and male could be seen walking out of the store, and the victim’s
vehicle could be seen driving away. Id. at *9. Detective Wood obtained still
photographs from the video footage and released them to news media. He received a
phone call identifying the female from the surveillance video as Courtney Hambric. Id.
at *10.

       The police picked up Ms. Hambric. She identified Christopher Doss and both
Petitioners in a photographic lineup and assisted detectives in recording a telephone call
with Christopher Doss, in which he told her “to stop telling people what had happened”
and “this is something that [they] should take to the grave.” At trial, Detective Wood was
able to identify Courtney Hambric and Christopher Doss in the videos played for the jury.

        Courtney Hambric testified that she worked as an escort and received a telephone
call from the victim inquiring about her “rates.” Ms. Hambric explained that she was
unavailable because she did not have transportation to meet the victim. About an hour
later, Christopher Doss called Ms. Hambric, and she asked him to give her a ride to “get a
room” in order to meet with the victim. She called the victim and arranged to meet at
America’s Best Value Inn. Christopher Doss and Petitioners picked up Ms. Hambric.
On the way to the motel, Christopher Doss indicated that they were going to rob the
victim. Petitioner Doss rented Room 118. Petitioner Doss hid in the bathroom,
Petitioner Hathaway hid behind the door, and Christopher Doss remained in the vehicle.
When the victim entered the room, Petitioner Hathaway stepped out and pointed a gun at
the victim. After getting the victim’s billfold and car keys, Petitioner Doss made the
victim give him the PIN numbers for two ATM cards. Petitioner Doss told Ms. Hambric
to go with Christopher Doss and Petitioner Hathaway in the victim’s car to get money.
After obtaining a total of $600.00 from two locations, they returned to the motel. She
and Petitioner Hathaway got back into Christopher Doss’s vehicle. Petitioner Doss came
out of the motel room and got into the vehicle. As they drove away, Petitioner Doss said
he shot the victim three times because he tried to escape. Id. at *4-8.

                                          -2-
        Petitioner Doss fled to Texas where he was arrested in March 2010. The police
were ultimately able to locate Petitioner Hathaway. They obtained fingerprints from
Petitioner Hathaway which they were able to match with a thumbprint obtained from an
interior door of Room 118. Michael Frizzell, a TBI special agent in the technical services
unit, testified “that [he] helped prepare the visual presentation in this case as a testimonial
aid for a particular [C]ricket phone number.” He explained that he used a cell tower map
for Davidson County that included information from the “call detail records” of the
Cricket phone and the locations of the Mapco convenience store, Exxon convenience
store, and America’s Best Value Inn at issue in this case. Detective Russell Thompson
testified that the locations of the cell towers used to route calls were consistent with Ms.
Hambric’s version of the events and Laquisha Hughes’s statements that Petitioner Doss
spent the night at her home. Id. at *12-16.

        Following the trial, a jury convicted Petitioner Doss of first degree felony murder,
second degree murder, especially aggravated robbery, and especially aggravated
kidnapping. The trial court sentenced Petitioner Doss to life plus thirty years. The jury
convicted Petitioner Hathaway of first degree felony murder, especially aggravated
robbery, and especially aggravated kidnapping. The court sentenced Petitioner Hathaway
to life. The judgments of the trial court were affirmed on direct appeal. Id. at * 1.

                                 Post-conviction Petitions

       On January 16, 2015, Petitioner Doss and Petitioner Hathaway filed separate pro
se petitions for post-conviction relief. After appointment of counsel for each Petitioner,
amended petitions were filed. The post-conviction court held a joint hearing and issued a
consolidated order addressing the issues raised in both petitions and denying relief to
both Petitioners.

                                  Issues Raised on Appeal

         On appeal, Petitioner Doss claims the post-conviction court erred in dismissing his
petition because trial counsel was ineffective for (1) failing to object to the introduction
of a letter written by Petitioner Doss and agreeing instead to redaction of parts of the
letter, (2) failing to obtain an independent cell phone tower expert, and (3) failing to raise
jury misconduct on appeal.

       Petitioner Hathaway claims that the post-conviction court erred in dismissing his
petition because trial counsel was ineffective in (1) failing to regularly meet with him and
establish an appropriate attorney-client relationship, and (2) failing to properly advise
him whether or not to testify. He also claims the cumulative effect of the two
deficiencies listed above justify relief.
                                             -3-
       Although all claims in the petitions were addressed by the post-conviction court
and denied, we will limit our discussion of the proceedings in the post-conviction court to
matters relevant to the issues raised on appeal.

                                 Post-conviction Hearings

        Petitioner Doss testified that he was incarcerated for approximately one year
before trial and that could not remember how many times he met with trial counsel. He
claims counsel’s performance was deficient because he failed to object to introduction of
a letter Petitioner Doss wrote after he was arrested in Texas. Concerning the letter,
Petitioner Doss claimed that the letter was “just talking about family” and talked about
him making some “mistakes.” He said the letter had nothing to do with his case. On
cross-examination, he admitted that he could not recall if trial counsel objected to the
letter being introduced. He said that he did not remember the letter found on his person
referencing the fact that he was “on the run.” He conceded that the letter may have been
relevant to the issue of flight.

        Petitioner Doss claimed that the State introduced an expert in cell towers, whose
testimony placed him or some of the co-defendants near the location of the murder, and
that trial counsel should have retained an expert to rebut that testimony. In support of
this claim, he testified, “I feel like that we should get [a cell phone tower expert] because,
in effect, the State did theirs and we should get one because the State did not do the
ground work on it.” He could not remember if he discussed getting an expert with trial
counsel.

        Petitioner Doss claimed that it “came out” after trial that the trial judge and one of
the jurors knew each other. He said that trial counsel should have raised jury misconduct
on appeal. During cross-examination, Petitioner Doss admitted that he did not know if
trial counsel had raised the jury misconduct issue on appeal.

      In response to several questions posed during cross-examination, Petitioner Doss
avoided answering by stating, “What I said earlier to my lawyer, that’s what it was” or
something to that effect.

       Trial counsel was retained by Petitioner Doss’s family. Counsel testified that he
was licensed to practice in 1980 and served as an Assistant District Attorney and then an
Assistant United States Attorney prosecuting federal crimes, first in Florida and then in
Tennessee. In 1990, he went into private practice as a criminal defense attorney in both
state and federal courts. When asked to estimate the number of criminal cases that he had
handled, counsel stated: “That would be very difficult. I’m a very busy lawyer and I’ve
                                            -4-
handled many, many, many federal and state criminal cases and tried many, many, many
state and federal criminal cases.” He said he had prosecuted and defended homicide
cases. When asked if he had “received multiple awards” for his “work as a defense
counsel,” he responded, “I have.”

       Trial counsel testified that he represented Petitioner Doss from February 10, 2010,
through a petition for Writ of Certiorari to the United States Supreme Court which was
denied on or about June 26, 2015. According to his records, counsel met with Petitioner
Doss at the detention center thirty-three times before trial and another seven or eight
times during the appeals.

       Trial counsel filed a motion in limine seeking to exclude the cell tower evidence
which the trial court denied. He said that he was, however, able to bring out through
cross-examination of the State’s expert that the locations provided from the cell phone
tower vary “anywhere from a half a mile to two or three miles” and that cell phones do
not always connect to the closest cell tower. Counsel testified that after the release of
certain federal cases concerning cell towers, he filed a petition to rehear with our supreme
court.

        Trial counsel said that he received the letter, which Petitioner claimed was not
relevant, as part of the State’s discovery. He said the State intended to introduce the
letter to prove Petitioner Doss’s flight to Texas. Counsel objected to introduction of the
letter, and the trial court held a jury-out hearing. Counsel said that it became apparent
that the trial court was going to admit the letter, so he focused on having the letter
redacted to “take out the things that [he] thought were particularly harmful[.]”

       Trial counsel testified that he raised jury misconduct in his motion for new trial.
The trial court granted counsel for Petitioner Hathaway and him permission to talk to the
jurors. He said that they interviewed all jurors and determined that the issue was not
meritorious, so he decided not to raise the issue on appeal.

       Over the objection of post-conviction counsel for Petitioner Hathaway, trial
counsel for Petitioner Doss was found to be qualified as an expert in criminal defense.
Counsel opined that counsel for Petitioner Hathaway was “extremely effective, and . . .
did an excellent job at trial.”

        Petitioner Hathaway testified that he was arrested in December 2010 and that he
initially hired private counsel to represent him. His original counsel met with him and
provided discovery. Trial counsel was retained in March 2011 after Petitioner Hathaway
dismissed original counsel. When led without objection during direct examination,
Petitioner Hathaway agreed that trial counsel did not explain the essential elements of the
                                           -5-
offenses, direct and circumstantial evidence, that a co-defendant would be testifying
against him, criminal responsibility, or the evidence the State planned to introduce. He
said that trial counsel did not go over the discovery with him and that he was not ready
for trial. He said that his first significant meeting with trial counsel was a late-night, 107-
minute meeting on the night before trial. He claimed that the first time trial counsel
talked to him about his right to testify or not was on the morning of the trial. He stated
that trial counsel did not object to testimony or to “inflammatory statements” during the
State’s closing argument. During cross-examination, Petitioner Hathaway identified a
signed waiver of his right to testify. He could not remember discussing it with trial
counsel or being put under oath and questioned during the trial about his right to testify or
not testify.

        Trial counsel for Petitioner Hathaway testified that he had been practicing law for
twenty years and had handled hundreds of criminal defense cases, including “at least
thirty” homicide cases. He met with Petitioner Hathaway shortly after he was retained.
He said that he had already gone over some general things with Petitioner Hathaway over
the phone. He said that, at the first meeting, he went over Ms. Hambric’s statements to
the police, the theory of criminal responsibility, the cell tower information, the essential
elements of the charged offenses, and the applicable range of punishments. Counsel
received additional discovery, including information that Petitioner Hathaway’s
thumbprint was found on the inside of the door to Room 118. He discussed this with
Petitioner Hathaway and, based on what Petitioner Hathaway told him, formulated a trial
strategy to claim that the print was left when Petitioner Hathaway went to Room 118 to
sell drugs to Ms. Hambric. He said that he spent a lot of time with counsel for Petitioner
Doss working on trial strategy. He said that he visited the jail to see Petitioner Hathaway
a second time in March or April, again in October, and again about a week before trial.
He said that he spoke to Petitioner Hathaway by phone and kept Petitioner Hathaway’s
mother up to date on developments. He said that he talked to Petitioner Hathaway about
his right to testify or not testify both before and at trial.

      On February 4, 2019, the post-conviction court issued a thirty-four page
Memorandum Opinion, recapping the testimony and making numerous findings of fact.
Concerning Petitioner Doss, the post-conviction court found:

       1. Petitioner Doss retained trial counsel at trial and appeal.

       2. [Petitioner Doss] did not make bond while his trial was pending.

       3. [Petitioner Doss] and his attorney discussed discovery, strategies, and
       defenses many times.

                                             -6-
4. The court did give a jury charge regarding accomplice testimony.

5. Trial counsel for [Petitioner] Doss had [thirty] years of experience as a
criminal attorney at the time of trial.

6. Trial counsel met with his client at least [thirty] times prior to trial and
several times while the appeal was pending.

7. Trial counsel interviewed several people related to co-defendant Hambric
who was going to testify for the State at trial.

8. The court denied trial counsel’s motion to exclude from evidence
Petitioner Doss’[s] letter.

9. A White instruction was not requested during the trial because that
opinion had not yet issued. The White issue was addressed at the motion
for new trial and on appeal.

10. Trial counsel did not address all of the issues on appeal that he raised in
his motion for new trial.

11. The issue of potential juror bias was litigated by trial counsel. The
court did not find any bias.

12. Trial counsel did not hire an expert regarding the phone records because
he felt the issue was covered favorably by the statement from the phone
provider.

Concerning Petitioner Hathaway, the post-conviction court found:

1. Petitioner [Hathaway] was represented by retained [trial counsel].

2. The jail records show that trial counsel met with [Petitioner] Hathaway
[three] times at the jail before his trial. It does not reflect how many times
and for how long they spoke at his court dates.

3. Trial counsel met with Petitioner Hathaway for almost [two] hours on the
eve of his trial.

4. Petitioner Hathaway did not feel prepared to go to trial.

                                     -7-
      5. Petitioner Hathaway signed a waiver of his right to testify at trial.

      6. At the time of trial, trial counsel had been a criminal defense attorney for
      over [twenty] years. He had tried at least [fifteen] murder cases.

      7. Trial counsel discussed the charges, the range of punishment, criminal
      elements, criminal responsibility, and the evidence with Petitioner
      [Hathaway].

      8. The strategy at trial was to claim that Petitioner [Hathaway] was only at
      the crime scene to sell drugs to [Ms.] Hambric.

      9. Petitioner Hathaway’s fingerprints and DNA were found at the crime
      scene.

      10. Trial counsel for Petitioners worked together on several aspects of the
      case.

      11. Petitioner Hathaway chose not to testify due to his numerous
      convictions.

      12. Trial counsel for [Petitioner] Hathaway did not hire an expert on the
      cell phone tower evidence as they were not contesting Petitioner
      [Hathaway]’s presence at the crime scene.

      13. A jury charge was given on accomplice testimony.

      14. An instruction pursuant to State v. White was not requested as the case
      had not yet been decided at the time of this trial.

      15. Trial counsel for [Petitioner] Hathaway joined in objecting to the
      District Attorney’s closing argument made by counsel for [Petitioner] Doss.

       The post-conviction court addressed all issues raised in both petitions. Concerning
the issues raised by Petitioner Doss on appeal, the post-conviction court determined:

                      Failure to object to introduction of letters.

      Petitioner [Doss] alleges that his attorney should have moved to exclude
      letters found on his person when he was arrested in Texas. Although
      Petitioner [Doss] alleges the letters harmed his case, he offers no evidence
                                            -8-
      to show, precisely, how he was prejudiced by their introduction. The letters
      were redacted to omit references to prior jail time, and, as the State pointed
      out at the hearing, Petitioner [Doss] referred to himself as being “on the
      run” in those letters. This reference was legitimately relevant to the issue
      of flight. The Petitioner is not entitled to any relief on this issue.

                   Failure to raise the issue of potential juror bias.

             [Petitioner Doss] alleges that his attorney did not object to the fact
      one of the jurors had an acquaintance with the trial judge. At hearing, trial
      counsel testified that this issue was raised in the motion for new trial, and
      that based on that motion the court held an evidentiary hearing regarding
      potential juror bias. After the hearing, the court found no misconduct had
      occurred. This issue is without merit.

      Failure to engage the services of an expert on cell tower transmissions.

              Finally, Petitioner Doss alleges counsel was ineffective because he
      did not retain an independent expert who could testify on the cell phone
      tower transmission evidence. At the post-conviction hearing, trial counsel
      testified that he had filed a motion to exclude testimony regarding cell
      phone tower transmission, and the motion was denied. He also testified
      that during trial he was able to point out to the jury that cell phone towers
      are not reliable locators of persons. Further, he believed that the statement
      provided by the cell phone provider was actually favorable to his client.
      Besides, a petitioner who claims ineffective assistance of counsel based on
      a failure to call a witness must bring in a witness to testify at the post-
      conviction hearing, for it is not the trial court’s prerogative to speculate as
      to what the witness would say. State v. Black, 794 S.W.2d 752, 758 (Tenn.
      Crim. App. 1990). Petitioner has not shown that trial counsel was deficient
      in this area.

      Concerning the issues raised by Petitioner Hathaway on appeal, the post-
conviction court determined:

                                     Failure to investigate.

              Petitioner Hathaway alleges his trial counsel was ineffective for
      failure to investigate the facts of his case. However, in his petitions and at
      hearing, Petitioner [Hathaway] failed to put forth any evidence to show any
      additional favorable evidence that would have been uncovered had trial
                                           -9-
counsel conducted any further investigation. Trial counsel testified that he
had reviewed the discovery in this matter, reviewed the evidence; and he
conferred with co-defendant counsel who had already done extensive
investigation into and conducted interviews with potential witnesses.
Petitioner [Hathaway] has not shown trial counsel to have been deficient in
this matter.

 Failure to meet regularly with Petitioner [Hathaway] and failure to
properly advise Petitioner [Hathaway] regarding his right to testify at
                                trial.

       Petitioner [Hathaway] claims that trial counsel was ineffective
because he did not meet with him on a more frequent basis and because of
that, he failed to establish the attorney-client relationship that would have
been necessary to properly represent him. Petitioner [Hathaway] claims
that he was never properly informed as to the evidence against him, trial
strategy, trial procedure, his right to testify, and the law involved in his
case. Petitioner [Hathaway] alleges his trial counsel met with him in jail
only [three] times prior to trial. The jail records appear to support this
assertion.

       The small number of jail visits to Petitioner [Hathaway] is troubling,
especially considering the severity and complexity of Petitioner
[Hathaway]’s charges. Effective communications between the attorney and
the client are the hallmark of the attorney-client relationship for obvious
reasons. A client’s belief that his or her attorney is acting in the client’s
best interest is not [] innately instilled in defendants, but is the product of
adequate and effective communications. If a defendant does not trust the
attorney then meaningful communications are unlikely. Well-informed
trial strategies cannot be developed absent adequate and effective
communication, and decisions only the defendant can make may be
involuntarily or unintelligently conceived.

       However, the jail records do not reflect the phone calls between
Petitioner [Hathaway] and his attorney. Although the content of these
conversations may have been intentionally limited, they were not devoid of
substantive discussions. Likewise, documented jail visits do not account
for how many meetings they may have had at Petitioner [Hathaway]’s court
dates. Trial counsel testified that he discussed all aspects of the case with
Petitioner [Hathaway] and that Petitioner [Hathaway] understood the nature
of the charges against him, the applicable law, and his rights as a criminal
                                    - 10 -
       defendant. He testified that their trial strategy was to acknowledge
       Petitioner had been at the crime scene, but only to sell drugs to Ms.
       Hambric. This approach was reasonable considering the forensic and other
       evidence that placed Petitioner [Hathaway] at the scene. Additionally, trial
       counsel testified that he discussed the pros and cons of testifying with
       Petitioner [Hathaway], and that Petitioner [Hathaway] chose not to testify
       due to his numerous criminal convictions. Finally, trial counsel was able to
       obtain significant insight into the strengths and weaknesses of the State’s
       case through the shared investigative undertakings of counsel for the co-
       defendant.

              The court is troubled by the lack of documented communications
       that occurred between Petitioner [Hathaway] and trial counsel. However,
       the court accredits the testimony of trial counsel that Petitioner [Hathaway]
       was adequately and properly aware of the law and the evidence applicable
       to him and the case. Therefore, the court finds that this issue is without
       merit. Assuming, arguendo, that Petitioner [Hathaway] had shown counsel
       was deficient in this area, he has failed to submit to the court any evidence
       to establish how he was prejudiced by the insufficiency of the
       communications.

       Following issuance of the post-conviction court’s Memorandum Opinion, both
Petitioners filed a timely notice of appeal. This court ordered the appeals consolidated
unless Petitioners objected, which neither did.

                                         Analysis

                                   Standard of Review

       In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Tenn. Code. Ann. § 40-30-
110(f); Jaco v. State, 120 S.W.3d 828, 830 (Tenn. 2003). Post-conviction relief cases
often present mixed questions of law and fact. See Fields v. State, 40 S.W.3d 450, 458
(Tenn. 2001). Appellate courts are bound by the post-conviction court’s factual findings
unless the evidence preponderates against such findings. Kendrick v. State, 454 S.W.3d
450, 457 (Tenn. 2015). When reviewing the post-conviction court’s factual findings, this
court does not reweigh the evidence or substitute its own inferences for those drawn by
the post-conviction court. Id.; Fields, 40 S.W.3d at 456 (citing Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997)). Additionally, “questions concerning the credibility of
the witnesses, the weight and value to be given their testimony, and the factual issues
raised by the evidence are to be resolved by the [post-conviction court].” Fields, 40
                                           - 11 -
S.W.3d at 456 (citing Henley, 960 S.W.2d at 579); see also Kendrick, 454 S.W.3d at 457.
The trial court’s conclusions of law and application of the law to factual findings are
reviewed de novo with no presumption of correctness. Kendrick, 454 S.W.3d at 457.

                             Ineffective Assistance of Counsel

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee
cases). Both factors must be proven in order for the court to grant post-conviction relief.
Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,
370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is
no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)
(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of
counsel’s performance “requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

        As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.

        Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, the 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. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).
                                            - 12 -
       Regarding claims of ineffective assistance of counsel on appeal, our supreme court
has provided:

       Appellate counsel are not constitutionally required to raise every
       conceivable issue on appeal. Indeed, experienced advocates have long
       emphasized the importance of winnowing out weaker arguments on appeal
       and focusing on one central issue if possible, or at most a few key issues.
       The determination of which issues to raise on appeal is generally within
       appellate counsel’s sound discretion. Therefore, appellate counsel’s
       professional judgment with regard to which issues will best serve the
       appellant on appeal should be given considerable deference.

Carpenter, 126 S.W.3d at 887 (internal quotation marks and citations omitted).

        When a petitioner alleges that counsel was deficient for failing to raise an issue on
direct appeal, the reviewing court must determine the merits of that issue. Id.
“Obviously, if an issue has no merit or is weak, then appellate counsel’s performance will
not be deficient if counsel fails to raise it.” Id. Further, when an omitted issue is without
merit, the petitioner suffers no prejudice from appellate counsel’s failure to raise the issue
on appeal and cannot prevail on an ineffective assistance of counsel claim. Id. at 887-88.
Counsel’s professional judgment is entitled to considerable deference with regard to
which issues best served the petitioner on appeal. Id. at 887.

         Claims of Ineffective Assistance of Counsel Raised by Petitioner Doss

                Failure to Object to a Letter Written by [Petitioner] Doss

        Trial counsel did object to the letter being introduced. When counsel determined
during the jury-out hearing that his objection was going to be denied, he made a strategic
decision to seek redaction of the letter. We will not second-guess a reasonable trial
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Granderson, 197 S.W.3d at 790. Petitioner Doss has completely failed
to show that trial counsel’s performance was in any deficient in his handling of the letter,
and he is not entitled to relief on this issue.




                                            - 13 -
               Failure to Obtain an Independent Cell Phone Tower Expert

        We agree with the post-conviction court that “[t]rial counsel did not hire an expert
regarding the phone records because he felt the issue was covered favorably by the
statement from the phone provider.” We will not second-guess a reasonable trial
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Id. Petitioner Doss is not entitled to relief on this issue.

                       Failure to Raise Jury Misconduct on Appeal

        Trial counsel raised the issue of a juror knowing the trial judge in the motion for
new trial. The trial court allowed counsel for both Petitioners to interview the jurors.
Counsel interviewed all jurors and determined that the issue was not meritorious, so he
decided not to raise the issue on appeal. This issue is without merit, and Petitioner Doss
is not entitled to relief.

      Claims of Ineffective Assistance of Counsel Raised by Petitioner Hathaway

                                Failure to Regularly Meet

       Although the post-conviction court found the “small number of jail visits”
troubling, the court noted a number of telephone calls between Petitioner Hathaway and
counsel. The court found that trial counsel had been a criminal defense attorney for over
twenty years and tried at least fifteen murder cases. The court also found that counsel
“discussed the charges, the range of punishment, criminal elements, criminal
responsibility, and the evidence with Petitioner [Hathaway].” The court accredited the
testimony of trial counsel “that Petitioner [Hathaway] was adequately and properly aware
of the law and the evidence applicable to him and the case.” The court stated that
“[a]ssuming, arguendo, that Petitioner [Hathaway] had shown counsel was deficient in
this area, he has failed to submit to the court any evidence to establish how he was
prejudiced by the insufficiency of the communications.” We agree that Petitioner
Hathaway failed to submit to the post-conviction court any evidence proving how he was
prejudiced. Petitioner Hathaway is not entitled to relief on this issue.

                   Failure to Properly Advise Whether or Not to Testify

        Trial counsel testified that he explained to Petitioner Hathaway, both pretrial and
at trial, his right to testify and his right not to testify. Petitioner Hathaway signed a
waiver of his right to testify as part of the Momon hearing after the State presented its
proof. Petitioner Hathaway failed to submit to the post-conviction court any believable

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proof that he was not advised about his right to testify or not testify. We agree with the
post-conviction court that the issue is without merit.

                          Cumulative Effect of the Deficiencies

       Petitioner Hathaway has failed to prove any deficiencies, so there is no cumulative
effect. Petitioner Hathaway is not entitled to relief on this issue.

                                       Conclusion

       The judgment of the post-conviction court denying relief as to Petitioner Doss and
Petitioner Hathaway is affirmed.


                                             ____________________________________
                                             ROBERT L. HOLLOWAY, JR., JUDGE




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