                                                                                       12/19/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                          Assigned on Briefs July 16, 2019

               JUSTIN C. HOWELL v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Williamson County
                       No. 170128 Michael Binkley, Judge
                    ___________________________________

                          No. M2018-02050-CCA-R3-PC
                      ___________________________________


The Petitioner, Justin C. Howell, appeals the Williamson County Circuit Court’s denial
of his petition for post-conviction relief, arguing he received 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

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL
and NORMA MCGEE OGLE, JJ., joined.

Matthew J. Crigger, Brentwood, Tennessee, for the appellant, Justin C. Howell.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; and Kim R. Helper, District Attorney General, for the appellee, State
of Tennessee.


                                       OPINION

                                        FACTS

       The Petitioner was indicted for three counts of aggravated kidnapping, one count
of especially aggravated kidnapping, four counts of aggravated robbery, four counts of
aggravated assault, one count of aggravated burglary, and one count of theft over $1000
arising out of his involvement in a home invasion during which the occupants were
threatened with weapons and property was stolen. The Petitioner entered a negotiated
plea agreement whereby he pled guilty to the four counts of aggravated robbery and one
count of aggravated burglary in exchange for a sentence of eleven years and dismissal of
the remaining charges. The trial court accepted the agreement and entered judgments on
February 18, 2016.

       The post-conviction history in this case is extensive. On February 21, 2017, the
Petitioner’s father filed a post-conviction petition on his son’s behalf in which he alleged,
among other things, ineffective assistance of counsel. Subsequently, on March 20, 2017,
the Petitioner filed a pro se petition for relief that he titled as an amended petition, in
which he alleged, among other things, ineffective assistance of counsel. Presumably
unaware the amended petition had been filed, the post-conviction court entered an order
on March 30, 2017, dismissing the original petition filed by the Petitioner’s father,
reasoning that the petition was filed after the statute of limitations expired, that it could
not be filed by the Petitioner’s father, and that the Petitioner did not sign the petition. On
April 10, 2017, the Petitioner filed a pro se motion to alter judgment, asserting that the
post-conviction court was in error in dismissing the petition for untimeliness because the
judgments did not become final until March 20, 2016, and failing to consider his pro se
petition. Thereafter, on April 21, 2017, the Petitioner filed a pro se notice of appeal.

       On May 1, 2017, the post-conviction court entered a preliminary order, finding
that the petition stated a colorable claim for relief and appointing counsel. That same
day, the post-conviction court entered another order in which it set aside its March 30,
2017 order dismissing the petition, finding that the Petitioner remedied the deficiencies in
the original petition with the amended petition.

        On May 22, 2017, the post-conviction court appointed counsel to represent the
Petitioner on his pro se appeal of the dismissal of the original petition for post-conviction
relief. On June 19, 2017, this court entered an order approving the voluntary dismissal of
the initial appeal. Finally, on September 12, 2017, the post-conviction court reacquired
jurisdiction when it entered an order reaffirming and incorporating by reference its May
1, 2017 preliminary order.

       The Petitioner filed a second amended petition for post-conviction relief on
December 18, 2017. In this petition, he specifically alleged, relevant to this appeal, that
he received ineffective assistance of counsel because counsel failed to file a motion to
suppress phone records that were seized without a warrant and alleged to link him to the
crimes.

       The post-conviction court conducted an evidentiary hearing at which former
Brentwood Police Department officer Alan Keller testified that he was the lead detective
in the investigation of the home invasion that was the factual basis for the Petitioner’s
convictions. Officer Keller recalled that later in the day of the home invasion, credit
cards taken from the home were used at multiple businesses in the Nashville area,
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including a Walmart. Surveillance footage from two of the businesses showed four
individuals trying to use the credit cards. At some point, one of the individuals called
American Express from inside the Walmart in an attempt to get one of the stolen credit
cards to work. American Express provided the number that made this call to Officer
Keller, and he subsequently made a request to AT&T to get the information associated
with the number that made the call. Officer Keller identified an “Exigent Circumstances”
form provided by AT&T that he had to fill out for his request to be honored.

       Officer Keller stated that AT&T provided the records and those records revealed
the “name on the phone holder account,” which was the Petitioner’s father. Through his
investigation, Officer Keller determined that “Lewis Binoca,” a user on the account, was
the Petitioner. In addition, the information provided by AT&T listed the phone numbers
called by the number being investigated. Officer Keller said that he did not contemplate
obtaining a search warrant for the records because one was not required at the time.
Officer Keller indicated that even without the request made to AT&T, the Petitioner
would have still been developed as a suspect because another detective obtained a search
warrant that covered the same information. Officer Keller recalled that the exigent
circumstances he relied upon for the request was that the case involved “a home invasion
where violence was perpetrated on the homeowner.” However, he admitted that the
request was made more than 24 hours after the incident and that the particular crimes
were no longer occurring.

       On cross-examination, Officer Keller elaborated on the search warrant that was
later obtained by another detective. He said that Detective Valley of the Metro Nashville
Police Department obtained one of the Petitioner’s co-defendants’ records, and those
records documented calls made between the Petitioner and his co-defendant.

       Trial counsel testified that she had practiced law for 18 years, 15 of which were
focused on criminal law. She was retained by the Petitioner’s family to represent him.
Once she began representation of the Petitioner, she obtained the services of an
investigator and went over the materials produced by her investigator with the Petitioner.
She also discussed the discovery received from the State with the Petitioner and provided
him with copies.

       Trial counsel testified that as part of her investigation, she looked into the phone
records produced by AT&T to determine whether they were legally obtained and whether
they were valid or constituted “junk science” when used to track the Petitioner’s location.
After researching the issue, she did not file a motion to suppress the phone records
because her research did not reveal any precedent invalidating the use of the statute relied
upon by Officer Keller to obtain the records. She read Riley v. California, 573 U.S. 373
(2014), as part of her research. She understood Riley to prohibit warrantless searches of
                                           -3-
information stored on cell phones, but she did not view Riley as prohibiting the collection
of account data from a wireless provider and noted a federal statute that contemplated the
collection of cell phone information without a search warrant. Trial counsel agreed that
the cell phone records obtained from AT&T were critical in determining the Petitioner’s
identity.

       On cross-examination, trial counsel elaborated that she did not feel that the
Petitioner would have had standing to challenge the seizure of the cell phone records.
Her research into the issue led her to conclude that any motion to suppress the records
would have been unsuccessful. Trial counsel told the Petitioner of her conclusions and
her plan not to file a motion to suppress.

       At the conclusion of the hearing, the post-conviction court entered an order
denying relief. In making this determination, the court explicitly found that the
Petitioner’s father was the owner of the account for which records were obtained and
therefore that the Petitioner had no reasonable expectation of privacy in an account in
which his father was the account owner. In light of this, the court concluded that trial
counsel was not deficient in failing to file a motion to suppress the phone records. The
court also noted the Petitioner’s urging to apply retroactively the case of Carpenter v.
United States, 138 S. Ct. 2206 (2018), but determined that it would not hold counsel
responsible for case law that was not governing precedent when she represented the
Petitioner.

                                       ANALYSIS

       The Petitioner argues that the post-conviction court erred in denying his petition
because he received ineffective assistance of counsel due to counsel’s failure to file a
motion to suppress “the warrantless seizure of cellphone records alleged to link the
Petitioner to the charged crimes.” He asserts that the collection of these phone records
violated his Fourth Amendment rights.

       Post-conviction relief “shall be granted when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. The
petitioner bears the burden of proving factual allegations by clear and convincing
evidence. Id. § 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 Wiley v. State, 183 S.W.3d 317, 325 (Tenn.
2006). When reviewing factual issues, the appellate court will not reweigh the evidence
and will instead defer to the post-conviction court’s findings as to the credibility of
witnesses or the weight of their testimony. Id. However, review of a post-conviction
                                           -4-
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 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 the 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)).
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. In the context of a guilty plea, the petitioner must show a
reasonable probability that were it not for the deficiencies in counsel’s representation, he
would not have pled guilty but would instead have insisted on proceeding to trial. Hill v.
Lockhart, 474 U.S. 52, 59 (1985); House v. State, 44 S.W.3d 508, 516 (Tenn. 2001).

       Both the Fourth Amendment to the United States Constitution and article I, section
7 of the Tennessee Constitution protect individuals against unreasonable searches and
seizures. See U.S. Const. amend. IV; Tenn. Const. art. I, § 7. “These constitutional
provisions are designed to ‘safeguard the privacy and security of individuals against
                                           -5-
arbitrary invasions of government officials.’” State v. Keith, 978 S.W.2d 861, 865 (Tenn.
1998) (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)). Determining
whether a governmental action constitutes a search requires an inquiry into whether the
individual had a subjective expectation of privacy that society is prepared to consider
reasonable. State v. Munn, 56 S.W.3d 486, 494 (Tenn. 2001). “[A] person has no
legitimate expectation of privacy in information he voluntarily turns over to third
parties.” Smith v. Maryland, 442 U.S. 735, 743-44 (1979).

       Initially, we note that because the Petitioner is alleging ineffective assistance of
counsel in the guilty plea context, he bears the burden of establishing that but for trial
counsel’s alleged error, he would not have pled guilty and insisted on going to trial. Id.
However, the Petitioner put on no evidence at the post-conviction hearing suggesting that
he would not have pled guilty had counsel filed the desired motion. Moreover, he does
not suggest in his brief on appeal that he would have proceeded to trial if the motion to
suppress had been filed. The lack of any evidence suggesting that the Petitioner would
have taken his case to trial had the desired motion been filed prevents him from
establishing the prejudice prong of Strickland and is fatal to his claim of ineffective
assistance of counsel.

       Even if this court were to conclude that the Petitioner established that he would
have gone to trial if the motion to suppress had been filed, his claim of ineffective
assistance of counsel nonetheless fails because the desired motion to suppress would not
have been granted. Fourth Amendment jurisprudence leads to the conclusion that the
Petitioner did not have a legitimate expectation of privacy in the records he claims trial
counsel should have sought to have suppressed. The records consist solely of
information that the Petitioner voluntarily turned over to a third party, the wireless
provider. Such information is generally not protected by the Fourth Amendment. See
Smith, 442 U.S. at 743-44. This court has previously concluded that no reasonable
expectation of privacy exists in telephone records maintained by a third party. State v.
Hodgkinson, 778 S.W.2d 54, 62 (Tenn. Crim. App. 1989). By using a cell phone, the
Petitioner willingly exposed identifying information to his wireless provider, thereby
assuming the risk that this information might be revealed to the government and
rendering his expectation of privacy in this information unreasonable. Smith, 442 U.S. at
744. Trial counsel’s decision not to file a non-meritorious motion to suppress was not
deficient performance.

       The Petitioner attempts to side-step Smith by citing to Riley, 573 U.S. at 373, but
his reliance on that case is misplaced. In Riley, the Supreme Court held that law
enforcement could not search a cell phone for the information contained on it without a
warrant using the search incident to arrest exception to the warrant requirement. Id. at
401-03. In reaching its decision, the Court was concerned that the information contained
                                           -6-
on a modern cell phone includes “the privacies of life[.]” Id. at 403. However, in this
case, law enforcement did not execute a search of all the information stored on the
Petitioner’s cell phone. The records obtained by law enforcement do not implicate the
“privacies of life” in the same manner as a search of all information stored on one’s cell
phone.1

        Finally, we observe that the Petitioner has filed a pro se reply brief in which he
claims that he was denied his right to represent himself and raises issues not presented in
his initial brief filed by appointed counsel. We note that these issues were raised in the
Petitioner’s pro se petition, and the post-conviction court determined that the Petitioner
failed to present clear and convincing proof entitling him to relief. Lack of conformity
with the Rules of Appellate Procedure notwithstanding, we have reviewed the
Petitioner’s additional claims, and the record supports the post-conviction court’s
determination.

                                          CONCLUSION

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



                                                   ____________________________________
                                                   ALAN E. GLENN, JUDGE




1
  The Petitioner also references Carpenter in support of his ineffective assistance of counsel claim. As
noted by the post-conviction court, Carpenter had not been decided at the time trial counsel represented
the Petitioner. Therefore, the holding of Carpenter, even assuming it would make the desired motion to
suppress meritorious, does not render trial counsel’s actions deficient.
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