                                                                                         03/06/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs December 5, 2017

              BENJAMIN MURRELL v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                      No. 09-06930       Chris Craft, Judge
                     ___________________________________

                           No. W2017-00581-CCA-R3-PC
                       ___________________________________

The petitioner, Benjamin Murrell, appeals the denial of his post-conviction petition,
arguing the post-conviction court erred in finding he received effective assistance of
counsel regarding the jury instructions presented at trial. Following our review, we
affirm the denial of the petition.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and ALAN E. GLENN, JJ., joined.

Patrick E. Stegall, Memphis, Tennessee, for the appellant, Benjamin Murrell.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Jose Leon, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                         FACTS

        In 2009, the petitioner and his co-defendant engaged in a shooting that resulted in
their victim being paralyzed. After a mistrial, a Shelby County jury ultimately convicted
the petitioner of criminal attempt to commit voluntary manslaughter and employing a
firearm during the commission of a dangerous felony for his participation in the shooting.
The trial court imposed an effective eighteen-year sentence for the convictions, and the
petitioner subsequently challenged the sufficiency of the evidence supporting his
convictions on direct appeal. In denying his challenge, this Court summarized the
underlying facts leading to the petitioner’s convictions, as follows:
       In September 2009, a Shelby County grand jury indicted [the
petitioner] and the co[-]defendant, Melvin Jackson, for criminal attempt to
commit first degree murder and employing a firearm during the
commission of a dangerous felony. The trial court held a jury trial that
resulted in [the petitioner’s] acquittal for criminal attempt to commit first
degree murder and a hung jury as to the lesser-included offense of criminal
attempt to commit voluntary manslaughter. The trial court declared a
mistrial and reset the case for trial.

       The court held a retrial August 15-18, 2011, on the charges of
criminal attempt to commit voluntary manslaughter and employing a
firearm during the commission of a dangerous felony. The parties
presented the following evidence at trial:

       Officer Clarence Neal with the Memphis Police Department testified
that on June 6, 2009, he responded to a “man down” call at 589 Mississippi
Boulevard, in the area of the Foote Homes Housing Project (“Foote
Homes”). When he arrived at the scene, he observed the victim, “a male
black [who] was in front of a Lincoln Town Car.” The victim was lying on
the ground unconscious. Officer Neal said that the victim’s mouth was
open, that his eyes were closed, and that he appeared to be dead. He saw
that the victim was bleeding and covered the victim’s wounds with a towel
“to keep [them] from bleeding out.” He asked the victim who had injured
him, but the victim was unresponsive. Officer Neal called paramedics to
the scene, and the paramedics transported the victim to the hospital.

       After the paramedics transported the victim to the hospital, Officer
Neal searched for witnesses. After speaking with family members of the
victim, he developed a suspect. He gave the information about the suspect
to other officers, and they attempted to find the suspect.

        Officer David Payment with the Memphis Police Department’s
Crime Scene Investigation Unit testified that when he arrived at the scene
in this case, he observed “a vehicle parked on the street with spent casings
and possible blood around it.” He stated that officers had secured the scene
with crime scene tape. Paramedics had already transported the victim to the
hospital when Officer Payment arrived.

       Officer Payment identified several photographs of the crime scene,
including photographs of the spent casings. He also identified five spent
.380 casings and a spent bullet fragment that he recovered from the scene.
                                    -2-
Officer Payment testified that he did not find [the petitioner’s] fingerprints
or DNA at the scene. He further testified that he did not find a gun at the
scene. He said that a camera outside the store where the shooting took
place captured surveillance video; however, officers were unable to
download the video.

       Trena Jenkins testified that the victim, Marques Jenkins, was her
son. On June 6, 2009, she went to the birthday party of her nephew,
Damon Collier, inside an apartment in Foote Homes. Two of her other
sons, Anthony and Tashun, were at the party as well. Ms. Jenkins said she
knew [the petitioner] as “BAM.” She further said that she knew [the
petitioner] because [the petitioner’s] sister and Mr. Collier had dated for
seventeen years. Ms. Jenkins was friendly with [the petitioner] and did not
have any problems with him before the day of this incident.

        Ms. Jenkins stated that the party was going well when [the
petitioner] arrived. However, at some point during the party, Ms. Jenkins’
sister screamed, “Stop BAM!” According to Ms. Jenkins, her sister was
“frantic” and “scared like something was fixing to happen.” After speaking
with her sister, Ms. Jenkins became concerned about what [the petitioner]
was going to do and the safety of the victim. Ms. Jenkins asked [the
petitioner] what happened, but he did not reply. Ms. Jenkins said [the
petitioner] went to his uncle’s apartment, and she went to find the victim.
The victim arrived at Ms. Jenkins’ location, and she asked him what was
happening. She said there was “a lot of screaming going on.” She further
said the victim was trying to talk to her, but he was focused on [the
petitioner], who was behind her. Ms. Jenkins stated that she was between
the victim and [the petitioner], who were swinging at each other. She
attempted to keep the men from fighting.

       Ms. Jenkins testified that some teenagers came across the street as
she was attempting to keep the victim and [the petitioner] from fighting.
The teenagers were hollering and saying, “[Y]’all got BAM f[ ]ed up.” The
victim’s cousins walked toward the teenagers, and a fight started in the
street. Ms. Jenkins said that [the petitioner] disappeared when the fight
started. The victim then went to help his cousins fight the teenagers who
had come from across the street. Ms. Jenkins attempted to keep her sons,
including the victim, from fighting. According to Ms. Jenkins, the fight
lasted approximately forty-five seconds. It ended when [the petitioner]
drove a vehicle into the crowd, striking three people. Ms. Jenkins asked

                                    -3-
[the petitioner] what he was doing, and [the petitioner] said, “I’m sorry,”
put the vehicle in reverse, and left the scene.

        After the fight, people began to leave the party. Ms. Jenkins began
looking for her sons. She found her sons, Tashun and Anthony, and
continued to look for the victim and another one of her sons, Sam. She sat
in her car with Tashun and Anthony seated in the back and waited to see if
the victim and Sam returned to the scene. She eventually saw the victim
exiting a store with some food. She stated that she “thought everything was
done” because the victim sat on the hood of a car that was in front of the
store and began eating. The victim was accompanied by his cousin, Damon
Collier, and his aunt, Sara Collier. Ms. Jenkins and the victim were
“hollering” at each other about continuing the party on Beale Street. Ms.
Jenkins continued to sit in her car, talking on her telephone and waiting for
Sam to appear. Ms. Jenkins testified that she looked to her left and saw
[the petitioner] and the co-defendant walking toward the victim. She said,
“BAM, don’t go down there with that sh[ ].” [The petitioner] looked at her
but did not respond. Ms. Jenkins said [the petitioner] and the co-defendant
walked in front of the victim. The co-defendant “pulled the gun up and had
it directly in front of [the victim].” [The petitioner] grabbed the co-
defendant’s arm and said, “[M]an, shoot that mother f[ ].” The co-
defendant shot the victim approximately four or five times. Ms. Jenkins
stated that [the petitioner] and the co-defendant ran across the street toward
her car. When they got to her car, she said, “I’m going to get you,” to [the
petitioner]. She said [the petitioner] smirked at her, but the co[-]defendant
appeared afraid.

       Ms. Jenkins testified that she got out of her car and ran toward the
victim. She stopped approximately ten feet away from him because she did
not want to see him in his condition. She called 9-1-1 and then “passed
out.” When Ms. Jenkins regained consciousness, she asked about the
location of the victim. The ambulance was driving past her, and bystanders
told her he was in the ambulance. Ms. Jenkins entered her vehicle and
followed the ambulance to the Regional Medical Center. Initially, she was
unsure whether the victim was alive but discovered he was alive
approximately an hour later. Two days later, Ms. Jenkins learned that the
victim was paralyzed because of the shooting.

      Ms. Jenkins was able to identify [the petitioner] because she had
known him for seventeen years. She had not previously known the co-
defendant nor had she seen him before the party. The police showed her
                                    -4-
photographs of suspects, and she identified [the petitioner] and the co[-
]defendant.

       Anthony Jenkins, the victim’s brother, testified that he knew [the
petitioner] because his father “used to be around [the petitioner].” Anthony
knew the co-defendant because he went to school with the co-defendant’s
sister. He did not know whether [the petitioner] and the co[-]defendant
were associated with the Crips gang. Anthony was at the birthday party on
June 6, 2009, and said that the victim and [the petitioner], along with a
crowd of people, were fighting in the middle of the street. Anthony heard
[the petitioner] and the co-defendant tell the victim that they were going to
come back “and get some more people.” He said the fighting ended when
[the petitioner] ran over two people with his vehicle. Anthony stated that
the people who were fighting cleared the area and that an ambulance
arrived at the scene. He left the scene with his friends.

        Anthony further testified that he met with his mother, Ms. Jenkins,
and his brother, Tashun, sometime later, and they sat in Ms. Jenkins’
vehicle. Anthony stated that while he was in the vehicle, he saw [the
petitioner] come from behind a house and give the co-defendant a gun.
According to Anthony, [the petitioner] told the co-defendant to shoot the
victim, but the co[-]defendant was shaking and did not want to shoot the
victim. He stated that the co-defendant raised the gun toward the victim,
that [the petitioner] shook the co-defendant’s hand two or three times, and
that the gun fired, shooting the victim. Anthony heard multiple shots fired.
Anthony stated that [the petitioner] and the co-defendant ran past him as he
exited the car and ran toward the victim.

       On cross-examination, Anthony admitted that he did not testify at a
prior hearing that [the petitioner] said he was returning with more people.
He further admitted that at the prior hearing, he did not testify that [the
petitioner] gave the co-defendant the gun.

        Tashun Jenkins, another of the victim’s brothers, testified that he
attended the birthday party in Foote Homes on June 6, 2009. He stated that
his family got into a physical altercation with some people who were across
the street from the party. He said [the petitioner] got into a vehicle and ran
over two or three people who were fighting. Tashun stated that [the
petitioner] then exited the vehicle. Tashun’s cousin attempted to stop the
fight, but [the petitioner] pulled out a gun and told him that he was going to
kill him. Tashun testified that [the petitioner] and the victim had argued
                                    -5-
earlier in the day about a red shirt. He said the victim was wearing a red
shirt, and [the petitioner] told the victim that he was going to “shoot or kill”
him if he did not take off the red shirt.

       Tashun stated that he was in his mother’s vehicle when the co-
defendant shot the victim. He saw [the petitioner] and the co-defendant
“coming out the cut” between a house and an apartment complex. Tashun
said appellant gave the co-defendant a gun and told him to shoot the victim.
He stated that the co-defendant had the gun pointed at the victim, and [the
petitioner] grabbed the co-defendant’s hand. The gun fired four or five
times when [the petitioner] grabbed the co-defendant’s hand, and the
bullets struck the victim. After the co-defendant shot [the victim], he and
[the petitioner] ran into Foote Homes. Tashun exited the vehicle and ran
toward the victim. He stated that the victim was in “critical condition” and
was unable to talk.

       On cross-examination, Tashun admitted that he did not testify at a
prior hearing that he heard [the petitioner] say he was going to kill anyone.
He only stated that [the petitioner] said he was going to shoot.

        The victim, Marques Jenkins, identified [the petitioner] and stated
that he had known him since he was five years old. He stated that his
oldest cousin, Damon Collier, was in a relationship with [the petitioner’s]
sister. The victim stated that while growing up, he lived in Foote Homes
for some time. He said the Crips gang was present in Foote Homes, and he
became a member of the Crips when he was thirteen years old. He stated
that [the petitioner] was also a Crip. [The petitioner] was “OG,” which
meant he was the head of the gang. The victim explained that although he
and [the petitioner] were both members of the Crips gang, they belonged to
different “sets.” The victim was a member of the Raymond Crips, and [the
petitioner] was a member of the Hoover Crips.

       The victim recalled attending his cousin’s birthday party in Foote
Homes. He stated that he went to a house next door to talk to a friend, who
was wearing a red shirt. The victim’s friend told the victim that [the
petitioner] had instructed him to take off the red shirt. The victim
explained that the red shirt was disrespectful to the Crips because it was the
color of the Bloods, a rival gang. The victim’s friend removed the shirt.
The victim said, “[H]e ain’t your daddy, he don’t [sic] buy your clothes or
nothing [sic], why you [sic] take it off?” His friend shook his head, and the
victim took the shirt from him and wore it.
                                     -6-
        The victim testified that it took some time for [the petitioner] to
notice that he was wearing the red shirt. When [the petitioner] noticed that
the victim was wearing the red shirt, “[h]e just came out [of] the blue and
start[ed] pointing his finger in [the victim’s] face.” [The petitioner] told the
victim that the victim thought he was “all that” and told the victim that he
was going to get a “50 cal.” The victim said “50 cal” meant a .50 caliber
gun. The victim jumped up, ready to fight, but [the petitioner] ran away.
Later, [the petitioner] reappeared and the victim and his family began
arguing with [the petitioner’s] “little Hoover Crips.” The victim said [the
petitioner] drove his car through the crowd of people who were arguing,
attempting to hit the victim. However, the victim said his mother saw [the
petitioner] coming and “snatched [him] out of the way.” [The petitioner]
struck the victim’s uncle and two other people with his car. The victim said
his mother drove him home. He was about to go inside but decided that he
did not want to be at home by himself. His mother did not want to leave
him there alone, so they returned to the party.

        The victim testified that when he and his mother returned to the
Foote Homes area, he was going to stay inside of his mother’s vehicle, but
he was hungry and decided to go into a nearby store to purchase something
to eat. The victim recalled talking to his aunt and friend at the store, but he
did not remember any events after that conversation. He stated that his next
memory after speaking with people in the store was waking up in the
hospital. The victim said he was shot four times, but he did not remember
who shot him. He further said that he was hospitalized for three months
and is paralyzed from the chest down because of the shooting.

       The victim testified that his fight with [the petitioner] was about his
friend’s T-shirt. He denied having a “beef” with the co-defendant or [the
petitioner] before the day of the shooting. He admitted that he had been
drinking beer that day but said that he did not smoke anything. The victim
did not have a gun or threaten anyone with a gun that day. He said that the
only threats of gun use came from [the petitioner].

       Melvin Jackson, [the petitioner’s] co-defendant, testified that he shot
the victim on June 6, 2009, during an altercation. According to the co-
defendant, the victim and the victim’s family “jump[ed] on him” as he was
leaving a store on Mississippi Boulevard, and he shot the victim. He stated
that he got the gun with which he shot the victim from a “junkie.” The co-
defendant further stated that he was alone when he shot the victim, and no
                                     -7-
one told him to shoot the victim. After the co-defendant shot the victim, a
couple of shots were fired at him. The co-defendant said he ran away and
slept in an empty house until his father came to get him.

       After his father retrieved him from the empty house, the co-
defendant went to his father’s house. He stated that he could not go back to
his home because the victim “and them [sic] kin folks [or ‘little Crip
Homies’] was [sic] probably going to come through there.” The co-
defendant said he did not know to which Crips “set” the victim belonged.
The co[-]defendant was a member of the Hoover Crips. The co-defendant
stated that his father called the police, and the police arrested him at his
father’s house.

       The co-defendant testified that he did not know [the petitioner] and
was not afraid of him. He denied that [the petitioner] ordered him to shoot
the victim and said, “If he ordered me, we would have been fighting when I
stepped through the door. I just signed 15 years of my life away.”

        The State showed the co-defendant the “Advice of Rights” form that
he signed; however, the co-defendant stated he did not remember signing
the form because he was under the influence of cocaine and marijuana. The
co-defendant reviewed his statement to police and testified that he did not
remember making it. When asked about the portion of the statement where
he said [the petitioner] gave him the gun to use, the co-defendant answered
that he “probably” did not make the statement. He said that the only thing
he remembered was “getting bound over to the juvenile [court].” The co-
defendant did not know whether he wrote, “[T]his is BAM[,] and he told
me to shoot the guy,” beneath a photograph of [the petitioner]. The co-
defendant stated that he only recalled telling the police “some story about
how [the victim] and his boys jumped on [him] as [he] was leaving the
store[.]” He further stated that he was the victim in this incident.

        The co-defendant further testified that he did not recall a notarized
letter he wrote, which stated that [the petitioner] did not have anything to
do with the incident and was not around him at the time of the incident.
The letter further stated that the co-defendant was not in a gang, that he was
an honor student, and that the co-defendant’s father made him “say that
stuff so that they would blame it on [the petitioner].” The co-defendant
admitted that the handwriting in the letter looked like his, but he was unsure
whether he wrote the letter.

                                    -8-
       Sergeant Byron Braxton with the Memphis Police Department’s
Felony Response Unit testified that he investigated the incident in this case.
He stated that a witness identified the co-defendant as the shooter.
Sergeant Braxton contacted the co-defendant’s mother and advised her that
the police wanted to speak with the co-defendant because he was a suspect
in a shooting.

        The co-defendant, accompanied by his parents, went to the felony
response unit six days after the shooting to speak with Sergeant Braxton.
The co-defendant told Sergeant Braxton that he encountered [the petitioner]
the day of the incident and that [the petitioner] told him that he wanted to
shoot the victim. The co-defendant told [the petitioner] that he “didn’t have
any beef” with the victim and that [the petitioner] and the victim needed to
“squash that.” The co[-]defendant began to walk away when he felt
something cold on the back of his neck. The co[-]defendant realized it was
a gun. [The petitioner] told the co-defendant that he would “blow [the co[-
]defendant’s] mother-f[ ] brains out the back of [his] head” if he did not
shoot the victim. [The petitioner] advised the co-defendant that he “better
not try to run or move.” The co-defendant stated that he cooperated with
[the petitioner] because he was afraid. [The petitioner] put the gun in the
co-defendant’s hand and pushed him toward the victim. The co-defendant
further told Sergeant Braxton that when he saw the victim, he closed his
eyes and began shooting at the victim. The co-defendant stated to Sergeant
Braxton that he attempted to aim low so the victim would fall. [The
petitioner] took the gun away from the co-defendant, and the men ran in
separate directions. Sergeant Braxton reduced the co-defendant’s statement
to writing. The State entered the statement as an exhibit at trial.

       Sergeant Braxton further testified that in his statement, the co-
defendant admitted he was a Hoover Crip. The co-defendant said that the
victim was unarmed and that no one shot at the co-defendant during the
incident. When Sergeant Braxton asked the co-defendant if he wanted to
add anything to his statement, the co-defendant said, “I wish I could have
taken the chance for [the petitioner] to kill me.” Sergeant Braxton stated
that he showed the co[-]defendant [the petitioner’s] booking photograph,
and the co-defendant identified [the petitioner] as “BAM,” the person who
instructed him to shoot the victim.

       After hearing the evidence and deliberating, the jury found [the
petitioner] guilty of criminal attempt to commit voluntary manslaughter and
of employing a firearm during the commission of a dangerous felony. The
                                    -9-
       trial court sentenced [the petitioner] to eight years for criminal attempt to
       commit voluntary manslaughter and a consecutive ten-year sentence for
       employing a firearm during the commission of a dangerous felony, for a
       total effective sentence of eighteen years in the Tennessee Department of
       Correction.

State v. Murrell, No. W2011-02672-CCA-R3-CD, 2012 WL 6602908, at *1-6 (Tenn.
Crim. App. Dec. 18, 2012), perm. app. denied (April 9, 2013) (internal footnotes
omitted). Upon our review of the sufficiency of the evidence against the petitioner, we
determined he was not entitled to relief and upheld his convictions. Id. at *8.

        The petitioner then filed a pro se petition for post-conviction relief, wherein he
“checked” every potential allegation provided in the standard form petition, including
those that did not apply to his case. After appointment of counsel, the petitioner filed an
amended petition for post-conviction relief, alleging he “received ineffective assistance
by his counsel failing to request and to include a jury instruction on possession of a
firearm during [the] commission of a dangerous felony” as a lesser-included offense of
the charged offense of employing a firearm during the commission of a dangerous felony.
The post-conviction court held an evidentiary hearing during which the petitioner and
trial counsel both testified.

        The petitioner testified he had an “off and on” relationship with trial counsel
throughout both of his trials. According to the petitioner, trial counsel only met with him
in jail “[p]robably maybe once,” and otherwise, only talked to him briefly at court
appearances. The petitioner stated while trial counsel provided him with the discovery
file, he failed to fully investigate the case. In particular, the petitioner claimed trial
counsel failed to obtain video footage of the shooting from a nearby store. The petitioner
stated he never saw the alleged video footage of the incident but that it would have
exonerated him. Further, the petitioner claimed trial counsel failed to “subpoena a few
people that was (sic) out there that night like [his] fiancé[e], Ashley Upchurch[,]” and his
cousin, Courtney Murrell. The petitioner explained Ms. Upchurch “could have been a
good eyewitness to the situation where people were saying things happened and they
didn’t happen.” Despite this testimony, the petitioner admitted he did not ask trial
counsel to put Courtney Murrell on the stand and stated Ms. Upchurch did not attend the
trial. Regarding other potential witnesses trial counsel failed to subpoena, the petitioner
stated, “It was another one. It was a couple other people named but I don’t know their
names by heart. I’ve got it in my folder file but it was like two men and one woman.
Three I wanted to witness for me.” The petitioner stated he felt like trial counsel was
“more in the favor of the court than he was in [his].”



                                           - 10 -
        Further, the petitioner claimed trial counsel failed to relay offers to him and as a
result, he was forced into trial. The petitioner stated he “maybe was” threatening to trial
counsel “[d]epending on what he did that day because he was really out of control how he
was doing. He used to say things to me that were unprofessional.” Additionally, the
petitioner took issue with trial counsel’s failure to request a jury instruction on the lesser-
included offense of possession of a firearm during the commission of a dangerous felony,
stating he “asked him for a motion for [a] lesser[-]included offense.”

        Trial counsel then testified. He stated he represented the petitioner for almost two
years, and then detailed his investigation into the petitioner’s case. In his efforts, trial
counsel visited the scene of the crime, sent an investigator to the area of the crime to
interview potential witnesses, and questioned the store owner and the State at length
about the existence of a video of the shooting. According to trial counsel, no witnesses
cooperated with the investigation and no video existed. Trial counsel stated the store
manager provided video footage from the morning of the shooting to the victim’s mother.
The shooting, however, occurred around 11 p.m. and the evening footage, which might
have captured the shooting, was deleted from the store’s computer system before the
parties realized the mistake. As a result, trial counsel ultimately determined video of the
shooting did not exist. Regarding the alleged witnesses mentioned by the petitioner in his
testimony, trial counsel stated he would have called the petitioner’s fiancée and cousin to
testify if they had been at trial.

        Trial counsel stated the petitioner frightened him and “had taken a swing at [him]
once.” As such, trial counsel did not meet with him in “jail proper,” but rather in an area
where the head deputy “shackled” the petitioner. Trial counsel testified he relayed
several offers to the petitioner prior to trial, which the petitioner rejected, and stated the
trial court “voir dired [the petitioner] extensively” before setting the case for trial.
According to trial counsel, the petitioner’s co-defendant pled guilty to attempted murder
between the first and second trial. As such, the co-defendant testified at the second trial,
“and it was very obvious he was trying to tailor his testimony to [the petitioner’s]
benefit.” Trial counsel explained the State “ended up introducing as an exhibit his -- [the
co-defendant’s] statement of admission as to what he did and to [the petitioner’s]
involvement.” To that end, trial counsel stated, “[t]he testimony and Jencks material and
all, everybody indicated that they did not think [the co-defendant] wanted to [shoot the
victim] that he was very hesitant and that [the petitioner] kept ordering him to shoot [the
victim] and [the petitioner] struck his arm a couple of times.” Trial counsel stated he and
the petitioner “discussed the facts inside and out,” and the petitioner maintained “he did
not order [the victim] to be shot by anybody.”

       As a result, trial counsel testified he had an “all or nothing” approach to the
petitioner’s case. Based upon this approach, trial counsel chose not to request a jury
                                            - 11 -
instruction on the lesser-included offense of possession of a firearm during the
commission of a dangerous felony. Trial counsel detailed his strategy, as follows:

             Now as far as the lesser[-]included offenses go, the possession of a
      firearm, I considered asking for that. However, I would implicitly be
      putting that gun in his hands, possession of that firearm. And so,
      strategically I chose not to put down, ask for that lesser[-]included, even
      though I didn’t think it was a lesser[-]included. I didn’t put it down for-
      fear if the judge did grant it, I would be implying -- that I would be
      implying that he had possession of that gun. And I didn’t want the jury to
      think he ever had that gun in his hand because his co-defendant in his
      statement to the police said that he felt something cold on his neck and that
      Mr. Murrell had put the gun on his neck. And strategically I didn’t think
      that would be a good lesser[-]included offense to have before the jury. So
      strategically I thought the wisest thing to do was leave it alone.

      ...

              That was strategy. I mean, I did not want him anywhere near that
      gun. I wanted that gun to be in [the co-defendant’s] hands. Never [the
      petitioner’s] hands. And strategically I thought if that -- one, I don’t think
      the judge give (sic) that instruction, and two, if he does, I’m semi sort of
      admitting that he might have had that gun in his hand when I start arguing
      for lesser[-]included offenses. . . . If I’m asking for a lesser[-]included
      offense on count two, I would implicitly be putting that gun in his hand, at
      least that was my strategy so I chose not to ask for something that I didn’t
      think was a lesser anyway. Now I’ve asked for things that I have been told
      are not lesser before such as aggravated assault on attempt murder one or
      attempt murder two. I have put that in motions before but I finally quit that
      because nobody’s ever going to give it to me, and so wasting my time. And
      I thought of putting down a motion for lesser[-]included possession, one,
      would be denied. And two, I would again implicitly be putting the gun in
      his hand and I couldn’t do it.

Trial counsel believed the possession instruction would have hurt the petitioner because
“[n]obody ever said he was the shooter, ever.”

      After its review, the post-conviction court found the petitioner failed to meet his
burden of proof as to any of his claims, and denied relief. This appeal followed.



                                          - 12 -
                                       ANALYSIS

        On appeal, the petitioner asserts he should be awarded a new trial because trial
counsel failed to request a jury instruction for possession of a firearm during the
commission of a dangerous felony. The petitioner claims he was “indicted and convicted
for the offense of employing a firearm, but possession of a firearm during a dangerous
felony is a lesser-included offense.” The petitioner argues that had the possession
instruction been provided to the jury, he “would be facing five years for possession rather
than ten years for employment. This would reduce his sentence from 18 years to 13
years.” The State asserts trial counsel’s “decision not to request the [p]ossession
[i]nstruction was a strategic choice based on adequate preparation” and, as such, the
petitioner’s claims are meritless. Following our review of the record and submissions of
the parties, we affirm the judgment of the post-conviction court.

       The petitioner bears the burden of proving his post-conviction allegations of fact
by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). The findings of
fact established at a post-conviction evidentiary hearing are conclusive on appeal unless
the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500
(Tenn. 1996). This Court will not reweigh or reevaluate evidence of purely factual
issues. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, appellate
review of a trial court’s application of the law to the facts 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 presents mixed questions of fact and law. See
Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Thus, this Court reviews the
petitioner’s post-conviction allegations de novo, affording a presumption of correctness
only to the post-conviction court’s findings of fact. See id.; Burns v. State, 6 S.W.3d 453,
461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner must show
both that counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceedings. 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 standard for determining ineffective assistance of counsel applied in federal cases is
also applied 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

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       errors were so serious as to deprive the defendant of a fair trial, a trial
       whose result is reliable.

466 U.S. at 687. In order for a post-conviction petitioner to succeed, both prongs of the
Strickland test must be satisfied. Id. Thus, courts are not required to even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” Id.;
see also Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (stating that “a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

       A petitioner proves a deficiency by showing “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;
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong of the
Strickland test is satisfied when the petitioner shows there is a reasonable probability, or
“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. However, “[b]ecause of the difficulties inherent in making
the evaluation, a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)).

        Here, trial counsel’s alleged ineffectiveness stems from his decision not to request
a jury instruction for possession of a firearm during the commission of a dangerous
felony. In denying relief as to this issue, the post-conviction court cited three reasons.
First, at the time of the petitioner’s trial, possession of a firearm during the commission
of a dangerous felony was not considered a lesser-included offense of employing a
firearm during the commission of a dangerous felony. Rather, the “question of whether
the possession offense was a lesser-included offense of the employment offense was
unsettled.” See State v. Martin, 505 S.W.3d 492, 503 (Tenn. 2016). In 2014, our
Supreme Court settled the issue in State v. Fayne, concluding that “[p]ossession of a
firearm during the commission of a dangerous felony qualifies as a lesser[-]included
offense of employment of a firearm during the commission of a dangerous felony”. 451
S.W.3d 362, 374 (Tenn. 2014). As such, the petitioner was not entitled, as a matter of
law, to the instruction at trial in 2011. See id. at 372 (citing State v. Terry, 118 S.W.3d
355, 360 (Tenn. 2003) (holding, in the context of plain error review, “[w]hile a defendant
is entitled to a correct and complete charge of the law, this Court has previously held that
the omission of an instruction on a lesser[-]included offense does not result in the breach
of a clear and unequivocal rule of law when the status of the crime as a lesser[-]included
                                           - 14 -
offense is not apparent based on prior law.”)). Accordingly, the petitioner is not entitled
to post-conviction relief as to this issue.

       Secondly, the post-conviction court noted the evidence produced at trial warranted
the employment of a firearm, rather than the possession of a firearm, instruction. The
post-conviction court stated, “considering the facts of this case, it is obvious that the
firearm was employed, as the victim was shot several times and paralyzed. If the
petitioner possessed the firearm at all, it was clear that his intent was that it be employed,
and the jury found that he was at a minimum criminally responsible for its employment
during the attempted voluntary manslaughter.” In denying relief, the post-conviction
court noted, “even if [trial counsel] would have requested [the possession] instruction,
this court would not have given it.” For this reason, the petitioner cannot show how trial
counsel’s decision not to request the possession instruction prejudiced his case.
Strickland, 466 U.S. at 687. The petitioner is not entitled to post-conviction relief.

        Finally, the post-conviction court found trial counsel “didn’t request the charge for
strategic purposes,” and we agree. At the evidentiary hearing, trial counsel provided a
reasoned explanation of his trial strategy wherein he detailed why he chose not to request
a jury instruction on the lesser-included offense of possession of a firearm during the
commission of a dangerous felony. As outlined above, trial counsel “did not want [the
petitioner] anywhere near that gun.” Trial counsel’s testimony makes clear that he
weighed the evidence produced at trial against his “all or nothing” approach to the case
and determined it best not to request the possession instruction so as to avoid “admitting
that [the petitioner] might have had that gun in his hand.” Our Supreme Court has stated,
“[f]ailing to request lesser-included offense instructions will not constitute deficient
performance, however, if the decision was a matter of strategy.” Moore v. State, 485
S.W.3d 411, 419 (Tenn. 2016) (citing Goad, 938 S.W.2d at 369). The petitioner has
failed to show how trial counsel’s strategy of the “all or nothing” defense amounted to
deficient performance or how it prejudiced the outcome of his case.

        In denying post-conviction relief, the post-conviction court stated, “[f]rom the
proof at the hearing on this petition and a careful reading of the trial record, this court can
find no fault with [trial counsel’s] performance.” We agree with the post-conviction
court’s assessment of the petitioner’s claims. No evidence exists in the record to support
how trial counsel’s performance was deficient or how the alleged deficient performance
affected the outcome of his trial. See Strickland, 466 U.S. at 687. The petitioner is not
entitled to post-conviction relief for his claim of ineffective assistance of counsel.




                                            - 15 -
                                 CONCLUSION

      Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.



                                                _________________________________
                                                J. ROSS DYER, JUDGE




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