        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 18, 2013

             DAVID ENRIQUE LEON v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Dickson County
                  No. 22CC-2012-CR-371      Robert E. Burch, Judge


                No. M2013-00519-CCA-R3-PC Filed October 18, 2013


The petitioner, David Enrique Leon, appeals the denial of his petition for post-conviction
relief from his first degree felony murder and aggravated robbery convictions, arguing that
he received the ineffective assistance of counsel. After review, we affirm the denial of the
petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
J EFFREY S. B IVINS, J., joined.

Hilary H. Duke, Dickson, Tennessee (on appeal); and Talmage Woodall, Franklin, Tennessee
(at hearing), for the appellant, David Enrique Leon.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Senior Counsel; Dan
M. Alsobrooks, District Attorney General; and Billy H. Miller, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                           FACTS

      On direct appeal, this court recited the underlying history and facts of the case as
follows:

               A Dickson County Circuit Court jury convicted the [petitioner], David
       Enrique Leon, of first degree felony murder and aggravated robbery, and the
       trial court sentenced him to consecutive sentences of life and ten years,
       respectively. . . .
                  At trial, Ridia Padilla testified that the victim, Rodolfo Padilla, was her
           father. The victim and his family operated the La Estrella Grocery Store on
           Highway 46 in Dickson, and an Auto Zone was beside the store. Ridia 1 often
           worked at the store and was familiar with its layout. She said that a person
           standing near the thermostat in the store would not have been able to see the
           cash register at the front because shelves blocked the view. However, a person
           standing between the shelves would have been able to see the front of the
           store. About 7:30 p.m. on March 25, 2006, Ridia telephoned her parents at the
           store and spoke with them. About 10:30 p.m., she learned something had
           happened to the victim. She went to Vanderbilt Hospital about 11:00 p.m., and
           the victim was still alive.

                  Dr. Feng Li, the Assistant Medical Examiner for Metropolitan
           Nashville and Davidson County, testified that he witnessed the victim’s
           autopsy on March 27, 2006. The victim had a gunshot wound near his left
           eyebrow and died of a gunshot wound to the head. Powder tattooing around
           the wound indicated that the muzzle of the gun was two and one-half to three
           feet away from the victim when it was fired. The bullet, a small to medium
           caliber, traveled front to back, upward, and slightly left to right. It penetrated
           the victim’s left eyelid, traveled into the brain, and came to rest behind the
           victim’s left eye. On cross-examination, Dr. Lee testified that the muzzle of
           the gun could have been only inches away from the victim when it was fired.

                  Madel Padilla testified through an interpreter that she married the
           victim in 1982 and that he opened the La Estrella Grocery Store in 2003. On
           March 25, 2006, Madel and the victim were working at the store. About 6:30
           p.m., Madel went to a small room in the back of the store to take a nap. The
           victim woke her at 7:50 p.m., and she went to the front of the store with him.
           She said that at 8:00 p.m., the victim told her, “[L]et’s go it’s late.” Madel
           walked to the thermostat toward the back of the store in order to turn off the
           air conditioner. She said she heard the front door open and heard a voice say
           in English, “[T]his is a robbery.” She could not see the victim because shelves
           were blocking her view, but she could see the robber’s hand holding
           something. She said that she heard a gunshot “practically at the same time as
           the words” and that she tried to get out of the store because she was afraid the
           robber would shoot her too. She went out the back door and re-entered the
           store through the front door. The victim was lying on the floor behind the


           1
               Because some of the witnesses share a last name, we will refer to them by their first names for
clarity.

                                                        -2-
sales counter, and blood was coming out of his nose. Madel telephoned 911,
and the police and paramedics arrived.

         At first, Madel testified that she only saw the robber’s arm, not his face.
However, she later said she saw “a little bit of him on his face on the side, just
a little.” The robber took the money the store had collected that day, $6,700
to $6,800, and part of the previous day, $5,000 to $5,500. The victim was
disconnected from life support on March 26.

        On cross-examination, Madel testified that she heard only one voice and
saw only one robber. However, she said she thought more than one person
was involved in the robbery because “if he had been the one who fired the
gunshot and then gathered together the money I would have seen him upon my
return to the store and leaving the store.” She acknowledged that she told the
police she saw one black male. However, she explained, “Yes, I told them, but
I was in panic but I did tell them that it was like a person with a dark skin, dark
skin.” She said she meant the robber was dark-skinned, not black. She said
that when the police asked her if the robber could have been Hispanic, she told
them “no or I didn’t know.” She said the robber had a large arm, was tall, and
had a “plump” face. Defense counsel requested that the [petitioner] stand up
and asked Madel, “[I]s this a tall, large framed person?” Madel answered, “He
might have been larger but if he was as thin as he is now, no.” Defense
counsel also asked, “So you’re saying this is a tall, dark man?” Madel said,
“Well, more of a tan skinned-more of my color but, maybe, more darker.” She
denied telling the police that she was stocking shelves at the time of the
robbery.

        Deputy Paul Montgomery of the Dickson County Sheriff’s Department
testified that on the night of March 25, 2006, he was on patrol and was stopped
at the traffic light in front of the Auto Zone on Highway 46 in Dickson. He
said he could see the La Estrella Grocery Store and heard a “priority one call”
for the City of Dickson Police Department. Deputy Montgomery pulled up to
the store, looked inside, and saw a distraught woman behind the sales counter.
He went inside and saw a man lying behind the counter. He could not
understand what the woman was saying but saw that the man had a wound to
his upper face or forehead. The store’s back door was partially open, and a
spent bullet casing was on the floor near the front entrance. Deputy
Montgomery also saw money on the counter and on the floor. He said that it
would have taken the robber only three to four seconds to have traveled from
the front door to the sales counter and back to the front door. On

                                        -3-
cross-examination, Deputy Montgomery testified that a person could have
fired the gun and exited the store within seconds.

       Special Agent Dan Royce of the Tennessee Bureau of Investigation’s
Firearms and Tool Mark Identification Unit testified that he went to the La
Estrella store in the early morning hours of March 26. Upon entering the store,
the front sales counter was to the left and seven feet from the front door. A
Winchester .25 caliber automatic spent cartridge case, a telephone calling card,
and money were on the floor. The location of the cartridge case was consistent
with someone’s having fired the gun over the counter. Agent Royce tested the
cartridge case. However, he was unable to match the cartridge case or the .25
caliber bullet recovered from the victim to any particular gun because no
weapon was recovered. He said that a person standing one meter west of the
thermostat would have had “a direct line of sight to some of the front door.”

        Twenty-eight-year-old Alex “Diablo” Gonzales testified through an
interpreter that on March 25, 2006, he and the [petitioner] were in an
apartment in Nashville. Sergio Hernandez arrived, and the three of them
decided to rob the La Estrella Grocery Store. They got into Hernandez’s green
four-door vehicle and drove to Dickson. Hernandez parked behind the Auto
Zone, and Gonzales and the [petitioner] got out and walked to the grocery
store. The [petitioner] had a .25 caliber gun, and Gonzales had a .38 caliber
gun. The [petitioner] walked into the store first. Gonzales said he entered the
store just as the [petitioner] was telling the store owner “that it was a robbery.”
Gonzales said he saw the [petitioner] lean over the counter and shoot the
victim, who was standing behind the counter and was counting money.
Gonzales said the gun was one and one-half to two feet away from the victim
when the [petitioner] shot the victim. The victim fell to the floor, and
Gonzales asked the [petitioner], “[W]hat have you done?” The [petitioner]
wanted to run, but Gonzales stopped him. Gonzales went behind the counter
and started picking up money. By the time Gonzales finished gathering the
money, the [petitioner] was gone. Gonzales said that he only picked up the
money that fell out of the victim’s hands, $3,300, and that he was in the store
for only a few seconds. He returned to Hernandez’s truck, where Hernandez
and the [petitioner] were waiting. He said that the three of them returned to
the apartment in Nashville, that they “split” the money, and that he received
$1,100. After the robbery, the [petitioner] shaved his head.

      Gonzales testified that his gun was in his pocket when he entered the
grocery store and that he never took it out of his pocket because “it wasn’t

                                        -4-
necessary.” He and the [petitioner] entered and exited the store through the
front door, and Gonzales did not see anyone other than the victim in the store.
When Gonzales returned to Hernandez’s vehicle after the robbery, the
[petitioner] told him the shooting had been an accident. Gonzales was angry
with the [petitioner] for the shooting, took the [petitioner]’s gun, and returned
the gun to the [petitioner] when they got back to the apartment in Nashville.
Gonzales was charged in federal court for his involvement with the La Estrella
robbery and other crimes. He pled guilty but had not been sentenced at the
time of the [petitioner]’s trial. He said that as part of his federal plea
agreement, he was required to tell the truth.

        On cross-examination, Gonzales testified that the [petitioner] was about
three feet away from the victim at the time of the shooting. After the shooting,
the [petitioner] waited for Gonzales by the front door. Gonzales said that he
walked behind the counter to get the money and that the [petitioner] “took
off.” He said he did not know before the robbery that the victim was going to
be shot, and he denied shooting the victim. He also denied giving the .25
caliber gun to the [petitioner] after the robbery and telling the [petitioner] to
take the blame for the shooting. He acknowledged that in addition to being
charged in this case, he was convicted of robbing and shooting the owner of
the Express Market in Madison with “Acapulco” Carlos Fernandez and Sergio
Fernandez. He also acknowledged that he [had] been charged with crimes for
his involvement in the robberies of the La Espiga Bakery, the Discoteca
Mexico, and the Tienda Mexicana. He denied putting his hand up to his head
and motioning like a pistol during a recess in the [petitioner]’s trial.

       Sergio Reyes Hernandez testified through an interpreter that on March
25, 2006, he, Alex Gonzales, and the [petitioner] were at a friend’s home in
Nashville. They were using cocaine and marijuana and drinking alcohol.
They decided to rob the La Estrella Grocery Store, and Hernandez drove them
to Dickson in his 1995 Ford Explorer. He said that he parked beside the Auto
Zone and that they “shot some cocaine and stayed there a few minutes.” Then
the [petitioner] and Gonzales went into the grocery store while Hernandez
waited in his vehicle. The [petitioner] and Gonzales returned to the Explorer
two or three minutes later, and Hernandez did not remember which man
returned first. He said that they got into his vehicle, that he drove them back
to Nashville, and that no one said anything about the robbery at that time. At
some point, the [petitioner] said he accidentally shot the victim. Gonzales
appeared to be mad at the [petitioner] for the shooting. The three men divided
the money and used it to buy drugs. The next morning, Hernandez saw the

                                       -5-
[petitioner], and the [petitioner] had cut his hair or his mustache. Hernandez
acknowledged that he had been charged in federal court with five crimes
related to robberies, kidnappings, and carjackings. He pled guilty to the crimes
but had not been sentenced at the time of the [petitioner]’s trial. He said that
in exchange for testifying truthfully against the [petitioner], he was hoping to
spend less time in prison.

        On cross-examination, Hernandez testified that at the time of the
robbery, he had known Gonzales since they were small boys in Mexico but had
known the [petitioner] for only one month or less. Before the robbery,
Hernandez, Gonzales, and the [petitioner] had been at Acapulco Carlos’
apartment. He said Carlos was about six feet tall. Hernandez acknowledged
that he told the [petitioner] and Gonzales that he thought the La Estrella store
would be a good place to rob.

        Special Agent Bret Curtis of the Federal Bureau of Investigation
testified that he was fluent in Spanish and interviewed the [petitioner] on
September 4, 2007, about the [petitioner]’s involvement with the La Estrella
robbery. Agent Curtis read Miranda warnings to the [petitioner], and the
[petitioner] signed a waiver of rights form. He said that the [petitioner] was
very cooperative during the interview and that the [petitioner] apologized for
killing the victim. The [petitioner] wrote a statement in Spanish, and Agent
Curtis translated it into English. He read the translated statement to the jury.
According to the [petitioner]’s statement, Sergio “Chato” Hernandez told the
[petitioner] and Alex “Diablo” Gonzales about a store “that would be very easy
to rob.” The [petitioner], Hernandez, and Gonzales drove to the store in
Hernandez’s green Ford Explorer. The [petitioner] entered the store, followed
by Gonzales, and told the owner it was a robbery. The [petitioner] said in the
statement that “‘without wanting to and without thought a bullet got away from
me and the man fell to the ground.’” The [petitioner] was scared and ran while
Gonzales picked up the money. They returned to Hernandez’s vehicle, drove
back to Nashville, and “split” the money. The [petitioner] said in the statement
that they never intended to hurt anyone and that he was sorry for shooting the
victim. Agent Curtis said that the interview lasted about one hour, that he did
not promise the [petitioner] anything in return for the confession, and that he
did not threaten the [petitioner].

        On cross-examination, Agent Curtis testified that he thought the
[petitioner]’s story was true. He said he did not tell the [petitioner] that the
[petitioner] was facing the death penalty. He said that he was nice to the

                                      -6-
[petitioner] and that he did not use any tactics to get the [petitioner] to confess.
He did not video- or audio-record the [petitioner]’s interview.

        Deputy Robert Estes of the Dickson County Sheriff’s Department
testified that in August 2009, he was working as a corrections deputy in the
Dickson County Jail. He said that during a security check on August 18 or 19,
he discovered that the security bar on the [petitioner]’s cell window had been
“sawed out” and that the window had been cracked and broken. He said that
the [petitioner] was the only person in the cell and that he found a hacksaw
blade hidden in a crack in one of the cell’s walls. On cross-examination, Estes
testified that the window in the [petitioner]’s cell was eighteen inches tall and
about thirty-six inches long.

        Virginia Knox, a translator for the City of Dickson Police Department,
testified for the [petitioner] that Madel Padilla gave a statement to a police
officer soon after the robbery and that she translated Madel’s statement into
English. Knox reviewed the statement with Madel, and Madel signed it.

       On cross-examination, Knox testified that she and Madel were sitting
in a police car when Madel gave the statement and that Madel was crying and
shaking. Knox stated that Madel told her the following:

       “[S]he was going back to the refrigerator, she was getting some
       cold drinks or something like that; and then she heard a noise in
       the front of the store, and she heard a shot. After the shot then
       she came around and she hid in the back, she was afraid. And
       she hid in the back. She went around the counter and she saw
       a heavy set . . . man with dark skin that appeared to be black or
       black in color. He was bending over the counter and she said I
       did not see his face. And so, she went to the back door and ran
       around the building to see if she could see because she was
       afraid to go into the front door. She thought she was going to be
       shot herself, so she was really afraid.”

Knox stated that Madel did not tell her Madel heard someone say, “[T]his is
a robbery.” Knox acknowledged that some people from Mexico had very dark
skin. Madel told Knox the robber appeared to be black, but Madel did not
know if the robber was black.

       [Co-counsel], one of the [petitioner]’s trial attorneys, testified for the

                                        -7-
       [petitioner] that at the conclusion of Alex Gonzales’ testimony, she saw
       Gonzales gesture to the [petitioner] in what she thought was a “very
       threatening [manner].” She said that Gonzales “gestured with his hand like
       this to his head” and that she immediately reported the incident to the
       prosecutor.

              On cross-examination, [co-counsel] acknowledged that Gonzales’s
       hands were shackled together and to his waist. She said that the incident
       occurred as the jury was exiting the courtroom and that three or four deputies
       were around Gonzales at the time. She said that Gonzales was sitting down,
       raised up his hand, put his head down, and made the gesture.

               [Counsel], another trial attorney for the [petitioner], testified that he
       also saw Gonzales “with his hands making a pistol gesture towards his head.”
       He said that Gonzales looked directly at the [petitioner] when Gonzales made
       the gesture and that Gonzales “glared” at the [petitioner]. As Gonzales left the
       witness stand and was being led out of the courtroom, he continued to glare at
       the [petitioner]. [Counsel] said Gonzales walked by the [petitioner], looked
       at the [petitioner], and “did his finger like a pistol towards him.” He said
       Gonzales also “mouthed” something to the [petitioner].

               Steven Rychlik testified on rebuttal for the State that he was the court
       officer responsible for security during the [petitioner]’s trial. He said he had
       been present throughout the trial, including while Alex Gonzales was testifying
       and being escorted out of the courtroom. He said he did not see Gonzales
       make any gestures toward the [petitioner]. On cross-examination, Rychlik
       testified that he saw Gonzales look toward the [petitioner] a couple of times
       but that he did not see Gonzales mouth anything. The jury convicted the
       [petitioner] of first degree felony murder and aggravated robbery.

State v. David Enrique Leon, No. M2010-00513-CCA-R3-CD, 2011 WL 3630127, at *1-6
(Tenn. Crim. App. Aug. 18, 2011). This court affirmed the petitioner’s convictions. Id. at
*7.

       On June 11, 2012, the petitioner filed a pro se petition for post-conviction relief,
which was amended twice following the appointment of counsel. The court conducted an
evidentiary hearing on November 30, 2012, at which the petitioner, through an interpreter,
acknowledged that he was read his Miranda rights before he confessed to his role in the
incident. However, he asserted that he was under a lot of pressure to confess because his co-
defendants had threatened his family if he told anyone who had killed the victim. He said

                                              -8-
that he told counsel that he had been threatened to confess, but counsel told him “that was
not going to be a material point - that we needed to move ahead with the case” and did not
file a motion to suppress the confession. He stated that counsel did not hire a false
confession expert.

       The petitioner testified that he told counsel that he wanted to testify at trial, but
counsel told him “that it was not necessary.” The petitioner recalled that he testified at the
sentencing hearing. The petitioner stated that counsel told him that the State intended to
present evidence of his attempted escape from jail at trial, but he did not recall whether
counsel challenged the admissibility of that evidence.

      The petitioner testified that he “received papers” from counsel regarding his appeal,
but counsel did not explain the appeal process to him. Counsel did not mention that he
would appeal the consecutive sentence imposed by the trial court, and the petitioner did not
know if that issue was appealed.

         On cross-examination, the petitioner acknowledged that he spoke English fairly well
and, at the time he gave his statement, could read it and understand most things. When he
gave his confession, he had been in custody of the Department of Correction for a year and
a half, since shortly after the crime. The petitioner said that his co-defendants threatened him
right “after the incident happened.” He elaborated that they threatened to kill his family “[i]f
[he] . . . divulge[d] who had killed that person who had died.” He said that he had not seen
the co-defendants since a week after the incident. He learned when he confessed to the
crimes that the co-defendants were in federal custody but admitted that he did not tell anyone
about the threats he received. The petitioner denied being the shooter but admitted that he
was with the co-defendants. He said that the co-defendants made him shave his mustache
afterwards.

        The petitioner acknowledged that counsel talked to the jury about false confessions
in his opening and closing statements. The petitioner also acknowledged that the decision
whether to testify at trial was his and that he decided not to testify. The petitioner agreed that
he was in the courtroom when they had a hearing about the admissibility of evidence of his
attempted escape from jail and that counsel was successful in suppressing a poem entitled
“Almost,” that was written at the time of his attempted escape.

        The petitioner admitted that counsel talked to him about appealing but did not believe
that counsel talked to him about the specific issue of sentencing. He acknowledged that, at
the sentencing hearing, although saying that he did not shoot the victim, he testified that he
participated in the events that led to the victim’s death and received a portion of the proceeds
of the robbery. Thus, he essentially confessed to felony murder.

                                               -9-
        Counsel testified that he reviewed the petitioner’s confession and talked to the officers
about the circumstances surrounding the confession, and he noted that the petitioner did not
mention to the officers that he was in fear for himself or his family. The petitioner told him
that he was afraid of one or both of the co-defendants but did not “mention fear for his family
or that he made the confession based on that.” Counsel considered whether to pursue a
motion to suppress “but based on the fact that [the petitioner] initially told [him] he was the
shooter and . . . later advised that he was not shooter; but that he was present and only took
part in the robbery,” counsel decided that it was not “prudent to pursue a motion to suppress,
put [the petitioner] on to testify and have him confess to felony murder on the witness stand.”
Counsel elaborated:

               I made a tactical decision based on the investigation of the confession,
       based on the fact that the agents advised that he was able to show them where
       he was standing when both the bullet got away from him, when the [victim]
       was shot, the detail that he gave, the circumstances under which . . . it was
       given, it was not a situation where he was taken into custody and held for
       hours and hours and hours. He pretty much just broke down crying and told
       them that he had done it. And based on that I made the decision[] . . . not to
       pursue a motion to suppress. I didn’t think that it would be a valid basis to try
       to get it suppressed.

       Counsel testified that the petitioner testified at the sentencing hearing, over his
objection, and essentially ended up confessing to felony murder on the stand. He said that
the petitioner “just could not understand why he should be held guilty of a murder if he was
not the one, as he maintained later, that pulled the trigger.”

        Counsel testified that, prior to trial, he requested from the State any surveillance
videos from the store or the surrounding businesses and was advised that “there were no such
videos[.]” He recalled that the store did have a surveillance system, but “it was not on or not
working at the time.” Counsel said that, although he did not have an independent
recollection of Special Agent Dan Royce’s testimony, he would not dispute that Agent Royce
testified that there was no footage on the surveillance system.

       Counsel testified that he investigated the issue of the petitioner’s attempted escape
from jail and advised the petitioner of the implications of the proof and what a flight or
attempted flight jury instruction would be. Counsel and the prosecution agreed to have a
jury-out hearing regarding the petitioner’s attempted escape and what evidence the State
could present, and they did have “a full blown jury-out hearing.” Counsel was successful in
suppressing a poem written by the petitioner. He said that filing a motion in limine would
have accomplished nothing more than what was accomplished in the jury-out hearing.

                                              -10-
        Counsel testified that he made a strategic decision not to appeal the petitioner’s
consecutive sentences because the petitioner had testified at the sentencing hearing and
“given as good a confession to felony murder as you can get.” Counsel “didn’t want the
Appella[te] Judge reading a full blown confession to felony murder in court at his sentencing
hearing and that even being in their mind as they consider[ed] the strength of the evidence
against [the petitioner] at trial.” He said that, even though relief “would not have been
likely,” he would have raised the issue on appeal and argued that the trial court “did not apply
the appropriate factors in regard to consecutive sentencing” had the petitioner not testified
at the sentencing hearing.

       Counsel acknowledged that he did not pursue hiring a false confession expert but
noted that he discussed the issue throughout trial, from voir dire to closing argument.
Counsel felt that he raised doubt that the petitioner was the shooter through his cross-
examination of the victim’s wife and her physical description of the shooter. In any event,
counsel said that a false confession expert would have only been able to say whether the
petitioner was lying with regard to whether he was the shooter, which would not negate the
petitioner’s guilt for felony murder.

      After the hearing, the post-conviction court entered a written order concluding that
none of the petitioner’s allegations had merit.

                                         ANALYSIS

       The petitioner raises five allegations of ineffective assistance of counsel. He asserts
that counsel was ineffective for failing to file a motion to suppress his confession; failing to
investigate and/or obtain surveillance video from the grocery store where the offenses
occurred; failing to file a motion in limine to exclude evidence of the petitioner’s attempted
escape from jail; failing to procure the services of a false confession expert; and failing to
argue on appeal that the trial court’s imposition of consecutive sentences was in error.

                           I. Ineffective Assistance of Counsel

        The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary hearing
is held in the post-conviction setting, the findings of fact made by the court are conclusive
on appeal unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d
497, 500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate
court should not reweigh or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572,
578 (Tenn. 1997). However, review of a post-convictions court’s application of the law to
the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978

                                              -11-
S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents
mixed questions of fact and law, is reviewed de novo, with a presumption of correctness
given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

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

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

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
Moreover, the reviewing court must indulge a strong presumption that the conduct of counsel
falls within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690,
and may not second-guess the tactical and strategic choices made by trial counsel unless
those choices were uninformed because of inadequate preparation. See Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a
reasonable probability, i.e., a “probability sufficient to undermine confidence in the
outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694.

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

                             A. Motion to Suppress Confession

                                               -12-
      The petitioner argues that counsel was ineffective for failing to file a motion to
suppress his confession.

       Counsel testified that he investigated the circumstances surrounding the confession,
and he noted that the petitioner did not mention to the officers that he was in fear for himself
or his family, even after learning that the co-defendants were in federal custody. The
petitioner told counsel that he was afraid of one or both of the co-defendants but did not
“mention fear for his family or that he made the confession based on that.” We cannot
conclude that counsel performed deficiently because the petitioner gave no reason for
counsel to file a motion to suppress, and the proof at the evidentiary hearing did not justify
suppression.

                                   B. Surveillance Video

       The petitioner argues that counsel was ineffective for failing to investigate and/or
obtain surveillance video from the grocery store where the offenses occurred.

        Although counsel did not conduct an independent investigation into whether
surveillance video from the store existed, he requested such information from the State and
was informed that there was none. Counsel recalled that the store’s surveillance system was
either not on or not working at the time. We discern no deficiency in counsel’s performance.
Moreover, at the evidentiary hearing, the petitioner offered no proof that there was a
surveillance video available and that the contents of the hypothetical video would have raised
a reasonable probability that the result of the proceeding would have been different. As such,
the petitioner has failed to show that he was prejudiced by counsel’s “failing to investigate
and[/]or obtain the surveillance video from La Estrella Grocery Store.”

                              C. Attempted Escape from Jail

       The petitioner argues that counsel was ineffective for failing to file a motion in limine
to exclude evidence of his attempted escape from jail.

       As to this issue, counsel testified that he and the prosecution agreed to have a jury-out
hearing during the trial regarding the petitioner’s attempted escape and what evidence the
State could present. At that hearing, counsel was successful in suppressing a poem entitled
“Almost” written by the petitioner. Had counsel filed a motion in limine to have the same
hearing pretrial, the result would not have been any different. The petitioner argues that
counsel “would have been more adequately prepared to argue the prejudicial versus probative
effect”; however, he offered no proof as to how counsel would have been more adequately
prepared. We cannot conclude that counsel was deficient for addressing this issue in a jury-

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out hearing rather than a motion in limine, or that the petitioner suffered any prejudice as a
result.

                                D. False Confession Expert

        The petitioner argues that counsel was ineffective for failing to procure the services
of a false confession expert.

        At the evidentiary hearing, counsel testified that even though he did not pursue hiring
a false confession expert, he discussed the issue throughout trial from voir dire to closing
argument. Counsel raised doubt that the petitioner was the shooter through his cross-
examination of the victim’s wife and her physical description of the shooter. We cannot
conclude that counsel performed deficiently. In any event, a false confession expert would
have only been able to say whether the petitioner was lying with regard to whether he was
the shooter, which would not have negated the petitioner’s guilt for felony murder.
Therefore, the petitioner suffered no prejudice.

                                 E. Consecutive Sentences

        The petitioner argues that counsel was ineffective for failing to argue on appeal that
the trial court’s imposition of consecutive sentences was in error.

        At the evidentiary hearing, counsel testified that he made a strategic decision not to
appeal the petitioner’s consecutive sentences because the petitioner had testified at the
sentencing hearing and “given as good a confession to felony murder as you can get.”
Counsel “didn’t want the Appella[te] Judge reading a full blown confession to felony murder
in court at his sentencing hearing and that even being in their mind as they consider[ed] the
strength of the evidence against [the petitioner] at trial.” Had the petitioner not insisted on
testifying at the sentencing hearing against his advice, counsel said that he would have
argued on appeal that the trial court “did not apply the appropriate factors in regard to
consecutive sentencing,” even though he thought relief would be unlikely. As found by the
post-conviction court, “Since [the] [p]etitioner testified at the sentencing hearing and
essentially confessed to felony murder, trial counsel was of the opinion that this would
damage his chances on appeal of obtaining a reversal of [the] [p]etitioner’s adjudication of
guilt.” However, we need not decide whether counsel performed deficiently because the
petitioner entirely failed to prove that he was prejudiced in that he provided no argument to
support his contention that ordering that he “serve the two convictions consecutively did not
satisfy the requirements laid out in Tenn. Code Ann. § 40-35-115.”




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                               CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the denial of the petition.




                                            _________________________________
                                            ALAN E. GLENN, JUDGE




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