                                                                                          05/07/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 14, 2017

             ANTONIO L. FREEMAN v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Sumner County
                     No. 149-2016       Dee David Gay, Judge
                     ___________________________________

                           No. M2017-00036-CCA-R3-PC
                       ___________________________________

The Petitioner, Antonio L. Freeman, appeals the Sumner County Criminal Court’s denial
of his petition for post-conviction relief from his conviction of possessing contraband in a
penal facility and resulting sentence of ten years in confinement. On appeal, the
Petitioner contends that he received the ineffective assistance of counsel on direct appeal
of his conviction. Based upon the record and the parties’ briefs, we affirm the judgment
of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and ALAN E. GLENN, JJ., joined.

Christopher V. Boiano, Hendersonville, Tennessee, for the appellant, Antonio L.
Freeman.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Lawrence Ray Whitley, District Attorney General; and Lytle Anthony
James, Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       In July 2010, the Petitioner was being housed in the Sumner County Jail while
awaiting trial in another case. During a search of his cell on July 9, officers found Xanax
and Soma pills hidden in a package of Ramen Noodles. In November 2010, the Sumner
County Grand Jury indicted the Petitioner for one count of possessing contraband in a
penal facility, a Class C felony. The trial court appointed counsel, and trial counsel filed
two motions to recuse: one before trial and one before the Petitioner’s sentencing
hearing. Both motions alleged that recusal was necessary because the Petitioner had
named the trial judge as a defendant in two, pro se federal civil lawsuits. State v. Antonio
Freeman, No. M2012-02691-CCA-10B-CD, 2013 WL 160664, at *1 (Tenn. Crim. App.
at Nashville, Jan. 15, 2013). The trial court denied the motions. A Sumner County
Criminal Court Jury convicted the Petitioner as charged, and the trial court sentenced him
as a Range II, multiple offender to ten years in confinement.

       Trial counsel filed a motion for new trial. Trial counsel later filed a motion to
withdraw when he learned that the Petitioner wanted to include the ineffective assistance
of trial counsel in the motion for new trial. The trial court granted the motion to
withdraw, and newly-appointed counsel (hereinafter “appellate counsel”) filed a third
motion to recuse. In addition to the Petitioner’s claim that recusal of the trial judge was
necessary due to the federal civil lawsuits, appellate counsel alleged that recusal was
necessary because the trial judge was the prosecutor in a criminal case against the
Petitioner in 1999. Id. Again, the trial judge denied the motion. Id. The Petitioner filed
an interlocutory appeal to this court, and this court affirmed the trial court’s denial of the
third motion to recuse. Id. at *4-5. Subsequently, appellate counsel filed an amended
motion for new trial. That same day, the trial court held a hearing on the Petitioner’s
motion for new trial and amended motion for new trial and denied the motions.

       On direct appeal of his conviction to this court, the Petitioner raised various issues,
including that he received the ineffective assistance of counsel at trial and that “nine
issues required the trial judge to recuse himself and that the cumulative effect of [those]
issues also required recusal.” State v. Antonio Lamont Freeman, No. M2013-01813-
CCA-R3-CD, 2014 WL 5307461, at *11 (Tenn. Crim. App. at Nashville, Oct. 16, 2014),
perm. app. denied, (Tenn. Feb. 12, 2015). This court affirmed the Petitioner’s conviction.
In finding that the Petitioner was not entitled to relief on the recusal issue, this court
explained as follows:

                      In this court’s opinion on the defendant’s interlocutory
              appeal, we held that the filing of a federal lawsuit against a
              judge and a judge’s former role as a prosecutor did not
              require the judge to recuse himself from the case. State v.
              Antonio Freeman, 2013 WL 160664, at *4-5. Because this
              court decided issues one through four and six on the merits,
              the defendant may not raise them again on direct appeal. The
              defendant also contends that the trial court questioned
              appellate counsel regarding the motive and purpose of the
              filing of the motion to recuse during parts one and two of the
              motion, doing so in part one “in a tone that was elevated.”
              However, the defendant knew of these grounds for recusal
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             prior to filing his interlocutory appeal; thus, the grounds
             should have been raised in the interlocutory appeal. Id. at *4
             (stating that a failure to include known grounds for recusal
             results in waiver).

                     The defendant claims that the post-trial Facebook
             postings of Officers Gilley and Lewis created the appearance
             of partiality and bias that required the trial judge to recuse
             himself; however, the defendant cites to neither the record nor
             any authority to support his contention. See Tenn. Ct. Crim.
             App. R. 10(b) (“Issues which are not supported by argument,
             citation to authorities, or appropriate references to the record
             will be treated as waived in this court.”). Accordingly, this
             issue is waived.

                     The defendant’s sole remaining issue is the court’s
             statement during the motion for new trial that it ejected the
             defendant from the courtroom [during the trial] due to the
             previous filings of pro se motions and his conduct in prior
             hearings. Specifically, he contends that the trial court
             introduced documents and transcripts from prior proceedings
             that were not relevant and that indicated that the court
             investigated and prepared discovery evidence. Because we
             concluded that the introduction of these documents was
             proper and did not constitute an independent investigation on
             the part of the court, we also conclude that these actions did
             not demonstrate bias toward the defendant that required the
             judge to recuse himself. The defendant is entitled to no relief
             as to this issue.

Id.

       After our supreme court denied the Petitioner’s application for permission to
appeal, the Petitioner filed a pro se petition for post-conviction relief claiming, in
pertinent part, that he received the ineffective assistance of appellate counsel because
appellate counsel failed to preserve and raise certain issues on direct appeal. The post-
conviction court appointed counsel, and post-conviction counsel did not file an amended
petition.

       At the evidentiary hearing, the Petitioner testified that appellate counsel began
representing him during the motion for new trial. She also represented him on direct
                                          -3-
appeal of his conviction but did not include all the issues he wanted her to raise. The
Petitioner said that during a discussion with appellate counsel, she “made a comment”
that caused him to think she “wasn’t putting her all into it.” Appellant counsel told the
Petitioner, “Well, Mr. Freeman, I got to live in this town so I can’t just file all these
things that you want.” The Petitioner filed the petition for post-conviction relief based on
counsel’s failure to include those issues on direct appeal.

        Relevant to this appeal, the Petitioner testified that he had three jury trials prior to
his trial in this case and that the juries acquitted him in two of those trials. The Petitioner
wanted to present proof of those acquittals at his trial in this case. However, the State
filed a “ring of the bell” motion1, arguing that the trials and acquittals were not relevant.
The trial court agreed with the State. The Petitioner said appellate counsel should have
raised the issue on direct appeal of his conviction because “I didn’t get to exercise my 6th
Amendment Right like I had wanted, to tell the whole truth and nothing but the truth.”
He said that if the jury had heard about the acquittals, then “the jury would have been
like, maybe he’s not this bad person.”

       The Petitioner testified that appellate counsel also should have properly preserved
issues on direct appeal regarding the trial court’s refusal to recuse. Addressing the post-
conviction court directly, the Petitioner stated,

                 I felt like . . . we had a history all the way from 1999. There
                 was an accusation you made in court when my mother was
                 going through the drug stuff, you know what I’m saying. She
                 lied and had me arrested one day, and you made an
                 accusation at a sentencing hearing, “Anybody that touches
                 their mother is a person that don’t need to be in society; and if
                 I was the judge, I would give you 100 years and raise your
                 bond to a million dollars and throw away the key.”

                        I feel like, instead of as a juvenile or teenager, you
                 know, trying to find out or assist them with any type of help,
                 you know, whatever, I felt like my first time ever being in
                 trouble, you wanted to give me 100 years and raise my bond
                 to a million dollars because of my momma got a substance


        1
         Before trial, the State filed a motion requesting that the trial court make pretrial rulings on the
relevance of evidence the Petitioner wanted to present at trial, including that the Petitioner had been tried
and acquitted in two previous jury trials. The State argued in the motion that “defining parameters of the
proof prior to trial is in the interest of judicial economy and prevents the parties from ‘ringing the bell’ on
contested issues before the jury.”
                                                    -4-
              abuse problem and made a fabricated statement because I
              wouldn’t give her no money to go get her drugs.

        Appellate counsel testified for the State that the trial court appointed her to
represent the Petitioner after trial counsel filed the Petitioner’s motion for new trial.
Appellate counsel filed the Petitioner’s third motion to recuse. The trial court denied the
motion and gave appellate counsel the option to file an interlocutory appeal, which she
did. However, this court denied the Petitioner relief. Appellate counsel amended the
Petitioner’s motion for new trial and represented him at the hearing on the motion. The
trial court denied the Petitioner’s motion and amended motion for new trial.

       Appellate counsel testified that she discussed the Petitioner’s direct appeal of his
conviction with him and that their consultations were “rather extensive.” She said that
they had several conference calls and that she made sure he understood why she was
raising some issues on appeal but not others. She stated that she had to “narrow” the
issues for the appellate brief and that she could not address an issue on appeal if the trial
record did not contain information about the issue. Appellate counsel described the
Petitioner as “a delightful young man” and said she was committed to making sure he
received a fair trial and a fair disposition of his case. Regarding her failure to preserve
recusal issues for direct appeal, she stated, “So in my investigation, as I stated to him, my
appeal -- the last appeal that I did included the issues with recusal, everything where I, in
essence, had to attack [the trial judge]. So even with that, my motion for new trial,
everything is inclusive and had to be narrowed.” She acknowledged that she chose the
issues to raise on direct appeal “based on [her] judgment as an attorney.” She said that
the Petitioner was “very aware” of every issue she was going to raise and that she told
him on numerous occasions, “I am the lawyer, and he is the client.” She said that if the
Petitioner disagreed with her, “this is the first time that I’ve known of it.”

       On cross-examination, appellate counsel acknowledged that she talked with the
Petitioner about the State’s “ring of the bell” motion. However, she did not think the
issue was raised in the Petitioner’s motion for new trial. Therefore, she could not raise it
on direct appeal. She said, though, that even if the issue was properly preserved for
direct appeal, her decision not to raise the issue was “[t]actical strategy again.” She
further stated, “I had to narrow the issues. I had to use whatever that was in the record.
That’s what I did.” As to her failure to preserve recusal issues properly for direct appeal,
she stated that she thought she “hit” all the recusal issues in the third motion to recuse
and the interlocutory appeal. She presented all of the recusal issues on direct appeal that
she thought warranted a new trial.

     Upon being questioned by the trial court, appellate counsel testified that she
became licensed to practice law in 2009 and that she practiced criminal, family, and some
                                            -5-
administrative law. The trial court appointed appellate counsel to represent the Petitioner
in March 2012. At that time, she had been practicing law about two years. She said that
she had concerns about the Petitioner’s “well being mentally” and that she encouraged
him to get counseling “because he had been through a lot.” She said she thought they had
a good working relationship. The Petitioner wrote her letters often and telephoned her on
a regular basis, and she collaborated with counsel in the Petitioner’s civil case. Appellate
counsel said she tried to “micromanage” the Petitioner because he would file pro se
pleadings even though he was represented by counsel, and she acknowledged that she had
to “streamline” the issues she raised on direct appeal. She said that although the
Petitioner may not have liked everything she told him, he agreed with her and trusted her
decisions.

       At the conclusion of the evidentiary hearing, the post-conviction court orally
denied the petition for post-conviction relief. At the outset, the court accredited the
testimony of appellate counsel and found that the Petitioner’s testimony was “repetitive
of many things that have been raised during the course of the motions that took place and
the hearing that took place after the trial was conducted.” The post-conviction court
noted that appellate counsel filed a motion to recuse and that she filed an interlocutory
appeal when the trial court denied the motion. She then raised the recusal issue again in
the motion for new trial and on direct appeal. Regarding her not raising the “ring of the
bell” motion on direct appeal, the post-conviction court said that it was “extremely
impressed by what she said about good faith and the ethical obligation and rules that must
be followed and ethical choices that must be made.” The court found that the Petitioner
failed to show that appellate counsel was deficient or that he was prejudiced by any
deficiency.

                                       II. Analysis

        On appeal, the Petitioner contends that he received the ineffective assistance of
counsel because appellate counsel failed to raise on direct appeal of his conviction that
the trial court improperly granted the State’s relevance motion, which he refers to as the
“Ringing of the Bell” motion. He also contends that she properly failed to preserve
recusal issues. The State argues that the Petitioner is not entitled to post-conviction
relief. We agree with the State.

       To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
                                           -6-
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

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

        When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel’s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Generally, [b]ecause a petitioner must establish
both prongs of the test, a failure to prove either deficiency or prejudice provides a
sufficient basis to deny relief on the ineffective assistance claim. Indeed, a court need not
address the components in any particular order or even address both if the [petitioner]
makes an insufficient showing of one component. Goad, 938 S.W.2d at 370 (citing
Strickland, 466 U.S. at 697).

       As to the State’s “Ringing of the Bell” motion, the Petitioner argues that appellate
counsel failed to raise the issue on direct appeal because she mistakenly believed the
issue was not raised in the motion for new trial. He argues that because the issue was
raised in the motion and amended motion for new trial, “appellate counsel’s actions
should be looked upon as presumptively prejudicial.” The State asserts that we should
not consider this issue because the Petitioner did not introduce his direct appeal record
into evidence at the post-conviction hearing or ask this court to take judicial notice of the
record; thus, the motion for new trial and amended motion for new trial are not before
this court. The State also argues that regardless, appellate counsel testified that she made
strategic decisions on what issues to raise on direct appeal.

                                            -7-
        The Petitioner did not introduce the motion for new trial or the amended motion
for new trial into evidence at the evidentiary hearing. It is the Petitioner’s duty to provide
an adequate record on appeal. Tenn. R. App. P. 24(a). Moreover, he has not asked us to
take judicial notice of the record from his direct appeal of his conviction. Nevertheless,
this court may take judicial notice of a direct appeal record when reviewing a post-
conviction court’s denial of a petition for post-conviction relief. See State ex rel.
Wilkerson v. Bomar, 376 S.W.2d 451, 453 (Tenn. 1964). We choose to do so in this
case.

         Our review of the direct appeal record shows that trial counsel alleged in the
motion for new trial that “the Court erred in failing to grant the Defendant’s motion to
allow into evidence the fact that he was acquitted on both of the charges for which he was
incarcerated at the time that he was charged with possession of contraband in the Sumner
County Jail.” Similarly, appellate counsel alleged in the amended motion for new trial
that “[t]he Court erred in granting the State’s ‘Ringing of the Bell Motion,’ in that doing
so prevented the Defendant from having a fair trial and thus crippled the defense’s case
and prevented the Defendant from presenting the whole story to the jury.” Thus,
appellate counsel was mistaken when she testified at the evidentiary hearing that she did
not think the issue was properly preserved for direct appeal. In any event, appellate
counsel testified that even if the issue was properly preserved, her decision not to raise it
on direct appeal was “[t]actical strategy.” This court has stated that “[w]hen reviewing
trial counsel’s actions, this court should not use the benefit of hindsight to second-guess
trial strategy and criticize counsel’s tactics.” Irick v. State, 973 S.W.2d 643, 652 (Tenn.
Crim. App. 1998). Moreover, “[a]llegations of ineffective assistance of counsel relating
to matters of trial strategy or tactics do not provide a basis for post-conviction relief.”
Taylor v. State, 814 S.W.2d 374, 378 (Tenn. Crim. App. 1991).

       In any event, even if appellate counsel was deficient for failing to raise the issue
on direct appeal, the Petitioner has failed to demonstrate that he was prejudiced by the
deficiency. The State argued in its “Ringing of the Bell” motion that the Petitioner’s
previous acquittals were irrelevant to any issue at his trial for possessing contraband in a
penal facility. The Petitioner has failed to make any legal argument as to why the
acquittals were relevant and, thus, that the trial court erred by prohibiting him from
presenting the evidence to the jury. Furthermore, any contention that the Petitioner’s
being allowed to present the evidence at trial would have changed the jury’s verdict is
pure speculation. Thus, he is not entitled to post-conviction relief on this issue.

       As to the Petitioner’s claim that he received the ineffective assistance of counsel
because appellate counsel failed to preserve recusal issues for direct appeal properly, we
note that appellate counsel raised nine recusal issues on direct appeal. This court

                                            -8-
summarized the nine issues in a footnote of its opinion affirming the Petitioner’s
conviction, stating as follows:

              The defendant’s grounds for recusal are as follows: (1)-(4)
              the defendant filed a federal lawsuit naming the judge and
              several of his staff as parties, which gave the appearance of
              impartiality and bias; (5) the post-trial Facebook postings by
              Officers Gilley and Lewis indicated impartiality and bias; (6)
              the trial judge formerly prosecuted the defendant; (7) during
              the first part of the third motion for recusal hearing, the trial
              court questioned appellate counsel’s filing of the motion, and
              the court used an inappropriate tone of voice; (8) during the
              second part of the third motion for recusal hearing, the trial
              court again questioned appellate counsel’s motive for filing
              the motion; and (9) during the motion for new trial, the trial
              court stated that he ejected the defendant from the courtroom
              based upon his prior filing of pro se motions and his conduct
              at previous hearings, and the court introduced transcripts and
              documents from prior hearings.

Antonio Lamont Freeman, No. M2013-01813-CCA-R3-CD, 2014 WL 5307461, at *11
n.3. This court held that the Petitioner waived issue five because he failed to cite to the
record or any authority to support his claim and waived issues seven and eight because he
should have raised them in the interlocutory appeal. Id.

       Again, even if appellate counsel was deficient for failing to preserve properly the
three recusal issues, the Petitioner has failed to demonstrate that he was prejudiced by the
deficiency. The Petitioner has made no argument as to how any of the issues warranted
recusal of the trial judge. Accordingly, he has failed to show that he is entitled to relief.

                                     III. Conclusion

      Based upon the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.


                                                  _________________________________
                                                  NORMA MCGEE OGLE, JUDGE




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