        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs January 21, 2016

                    JOE TURNER v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Knox County
                        No. 98504    Bob R. McGee, Judge



                 No. E2015-00849-CCA-R3-PC – Filed March 8, 2017



The Petitioner, Joe Turner, filed a petition in the Knox County Criminal Court seeking
post-conviction relief from his convictions of two counts of aggravated rape, one count of
especially aggravated kidnapping, one count of aggravated assault, and the accompanying
effective sentence of one hundred years in the Tennessee Department of Correction. The
Petitioner alleged that his appellate counsel was ineffective by failing to appeal the trial
court‟s refusal to admit potentially exculpatory DNA evidence. After a hearing, the post-
conviction court denied relief. Upon review, we affirm the judgment of the post-
conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and CAMILLE R. MCMULLEN, JJ., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the Appellant, Joe Turner.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Charme Allen, District Attorney General; and Philip H. Morton, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

                                 I. Factual Background

       On direct appeal, this court summarized the proof adduced at trial as follows:
[T]he victim, A.T., testified that at the time of the offenses
she was addicted to drugs and alcohol but that she had been
“sober” for more than a year. The victim said that she met
the [Petitioner] on Keith Avenue one to one and one-half
months prior to the instant offenses. She and the [Petitioner]
started a relationship, and they occasionally used crack
cocaine and alcohol.

        In August 2006, the victim was hired to clean rooms at
the Best Value Inn in exchange for room and board. The
[Petitioner] stayed with her. He promised to look for
employment; however, after job searching, he often came
back to the room drunk or with crack cocaine.

       The victim testified that at times the [Petitioner] was
violent. He took her belongings and threatened to burn them.
He would also “strip [her]” so that she was unable to leave.
He frequently grabbed her arms and physically restrained her.
She said she did not want to be with the [Petitioner], but she
was afraid of him.

        The victim worked at the motel for one week before
her job was terminated on August 16, 2006. The night before
she lost her job, the [Petitioner] kept the victim awake until
3:00 a.m. “ranting and raving,” making it difficult for her to
work the next day. The victim said that on August 16, the
[Petitioner] left to look for a job, and she began cleaning
rooms. Her boss called her downstairs and told her he had to
“let her go.” The victim asked to be given a reason for her
dismissal, and her boss responded that the [Petitioner] had
been harassing the guests. The victim asked if she could
continue to stay and work at the motel if she evicted the
[Petitioner], but her boss told her that they both needed to
leave. The victim left the [Petitioner‟s] belongings at the
motel because she was unable to carry them. She told the
motel clerk that the [Petitioner] would return later for his
belongings.

        At 5:00 or 5:30 p.m., after arranging to stay with a
woman who lived on Keith Avenue, the victim went to a
nearby convenience store.       While she was there, the
[Petitioner] confronted her. He was angry and cursing
                             -2-
because she had left his belongings at the motel. She told him
that the relationship was not working and that his behavior
had cost her a job and a place to stay. The victim left the
store and went to the house where she was staying.

        At 10:00 or 11:00 p.m., the victim returned to the store
and bought a quart of beer. When she walked out of the store,
the [Petitioner] grabbed the “neck area” of her shirt with one
hand. In his other hand, he had an open Buck knife. The
[Petitioner] repeatedly called the victim a “bitch.” He held
the knife to her throat, threatened to kill her, and dragged her
to a dirt pile behind the store. The [Petitioner] told her that
“no one else was going to have [her]” and threatened to “rape
[her] dead body.” Hoping to get the [Petitioner] to stop, the
victim told him that God was watching them.                 The
[Petitioner] responded by hitting both sides of her head and
pushing her onto the dirt pile. The victim said the [Petitioner]
was angrier than she had ever seen him.

        The [Petitioner] ordered the victim to remove her
clothes, and she reluctantly complied. She pled with the
[Petitioner] to let her go. He used profanity, strangled her,
and kept the knife near her face and neck. The victim briefly
lost consciousness while the [Petitioner] strangled her. After
the victim‟s clothes were removed, the [Petitioner] penetrated
her vagina with his penis then ejaculated on her face. The
[Petitioner] laughed, kicked dirt on her, and ordered her to get
dressed.

        The [Petitioner] then forced the victim to go to an
abandoned house which was dark and smelled of urine. The
[Petitioner] pushed the knife into her neck and ordered the
victim to lie on a blue couch that was in the house. When she
complied, he penetrated her again.

       Afterward, the [Petitioner] appeared to be asleep.
When the victim saw that it was getting light outside, she
squirmed out from under the [Petitioner] and stood. She told
him she would not tell police about the rapes if he allowed
her to leave. The [Petitioner] allowed her to leave, but he
followed her out of the house. She found a telephone and

                              -3-
called 911. The victim said she was disoriented, confused,
weak, and had trouble breathing because of the strangulation.

        An ambulance arrived and transported the victim to
Baptist Hospital where she was examined. Later, she went to
an out-of-county domestic violence shelter because she was
afraid of the [Petitioner]. The victim stated that the ordeal
lasted from 10:30 p.m. on August 16, 2006, until 7:30 a.m. on
August 17, 2006.

       The victim said that the [Petitioner] always carried a
knife and that he liked to “flip” knives at odd times, such as
when he watched television. Because of the strangulation,
she had trouble swallowing for a month. She said that she
had bruises and scrapes and that she healed slowly. She also
stated that “mentally those scars are a lot deeper.” She
acknowledged that she had previously had consensual sex
with the [Petitioner] but maintained that she did not consent
on the night of the offenses.

       Ginger Evans testified that on August 17, 2006, she
was called to Baptist Hospital Emergency Department to
perform a sexual assault forensic examination on the victim.
When Evans first saw the victim, she was curled in a “fetal
position” on an examination table. She was crying and was
clearly upset. The victim told Evans that she was scared, and
she asked Evans to find her a safe place to stay.

       The victim told Evans that she had been sexually
assaulted and strangled by the [Petitioner]. Evans said that
the victim complained of pain and that she had marks and
scratches on her body. Evans stated that the victim had
broken blood vessels in her eyes and significant bruises on
her neck, ears, and chin[,] which were consistent with
strangling. Evans found dirt in various places on the victim‟s
body, including her genital area, which could have been
consistent with the victim being thrown on a pile of dirt.
Additionally, Evans collected swabs from the victim‟s face
and genital area. When she examined the victim‟s genital
area, she saw redness and excoriation, which she described as
a tearing away of the top layers of skin where the victim‟s
legs connected with her pubic bone.
                             -4-
                    Kimberly Bryant, a Tennessee Bureau of Investigation
             [(TBI)] forensic scientist, testified that the swab from the
             victim‟s face revealed the presence of limited spermatazoa.
             She said that the [Petitioner‟s] genetic material was present in
             the swab.

                     Knoxville Police Department Investigator Steve Sill
             testified that he was working in the Violent Crimes Unit
             around 7:30 a.m. on August 17, 2006, when he received a call
             to respond to Baptist Hospital to investigate a rape complaint.
             When he arrived at the hospital, the victim was “very
             emotional, scared, upset. Obviously in some type of a crisis.”
             Investigator Sill said the victim had bruises on her face, neck,
             arms, and legs, which corroborated her story.

                   Later that day, Investigator Sill went to the
             convenience store where the offenses occurred. He noticed a
             depression on the dirt pile behind the store. He walked the
             neighborhood and found an abandoned blue house and couch,
             which matched the victim‟s descriptions.

State v. Joe Michael Turner, No. E2009-00069-CCA-R3-CD, 2010 WL 3706434, at *1-3
(Tenn. Crim. App. at Knoxville, Sept. 22, 2010) (footnote omitted).

       A jury convicted the Petitioner of two counts of aggravated rape, one count of
especially aggravated kidnapping, three counts of aggravated kidnapping, and one count
of aggravated assault. Id. at *3. The trial court sentenced the Petitioner as a persistent
offender to consecutive sentences of fifty years for the aggravated rape convictions. Id.
The trial court ordered the Petitioner to serve a fifty-year sentence for the especially
aggravated kidnapping conviction to be served concurrently with the sentence for the
second aggravated rape conviction. Id. “Finally, the trial court sentenced the [Petitioner]
as a career offender to thirty years for each aggravated kidnapping conviction and fifteen
years for the aggravated assault conviction and ordered that those sentences be served
concurrently with the other sentences, for a total effective sentence of one hundred
years.” Id.

        On direct appeal, the Petitioner challenged the length of the individual sentences
and the imposition of consecutive sentencing. Id. at *1. Upon review, this court
concluded that the aggravated kidnapping convictions should be merged into the
especially aggravated kidnapping conviction. Id. This court affirmed the judgments of
the trial court in all other respects. Id.
                                           -5-
       Thereafter, the Petitioner filed a petition for post-conviction relief, alleging among
other claims that his appellate counsel was ineffective by failing to challenge the trial
court‟s exclusion of evidence that male DNA detected on a vaginal swab from the victim
did not match the Petitioner‟s DNA.

        At the post-conviction hearing, the Petitioner said that trial counsel represented
him for approximately one year. Trial counsel occasionally spoke with the Petitioner,
who was incarcerated in Knox County, by telephone and met with him only twice. The
Petitioner said that trial counsel did not sufficiently investigate the case or discuss the
case with him. The Petitioner received copies of discovery from the trial court, not from
trial counsel.

       The Petitioner said that on the day of trial, he saw a TBI report on DNA analysis
on the desk in front of trial counsel. The Petitioner had never seen the report. The report
stated that a swab taken from the victim‟s vagina as part of the rape kit revealed DNA
from an unknown male contributor and did not match the Petitioner. Trial counsel did
not introduce the report during trial and did not question any of the witnesses about the
report. The Petitioner opined that the report would have made a difference in the jury‟s
verdict and in the sentences he received.

        The Petitioner testified that appellate counsel met him only once and did not
discuss the appeal with him.1 The Petitioner wrote appellate counsel letters about the
issues he wanted raised on appeal and when he did not receive a response, wrote a letter
complaining about appellate counsel to the Board of Professional Responsibility. The
Petitioner said that appellate counsel did not send him a copy of the appellate briefs or
this court‟s opinion on his direct appeal. The Petitioner said that after the brief was filed,
appellate counsel explained that he did not raise an issue about the DNA evidence
because trial counsel failed to preserve the issue in the trial court. The Petitioner said that
trial counsel challenged the exclusion of DNA evidence at trial and in the motion for new
trial.

       On cross-examination, the Petitioner said that he did not realize that his attorneys
were allowed to make tactical and strategic decisions about his case and that they were
not required to comply with all of his requests.

       Trial counsel testified that he had practiced law for twenty-one years; the first ten
years he was a prosecutor, and the next eleven years were primarily in criminal defense.
Regarding the exclusion of the DNA evidence, trial counsel said that the TBI report
1
  The parties agreed that appellate counsel was not available to testify at the post-conviction hearing
because he had retired from the practice of law. The post-conviction court further stated that appellate
counsel had moved to another state.
                                                 -6-
reflected that male DNA on the vaginal swab taken from the victim did not match the
Petitioner. Trial counsel recalled that the trial court made a pretrial ruling that evidence
that DNA from an unknown male was found on the vaginal swab was not admissible
because it was not relevant. Trial counsel raised the trial court‟s exclusion of the DNA
evidence on the vaginal swab in the motion for new trial.

      Trial counsel recalled that the Petitioner attempted to have him “fired” on the
morning of trial and that shortly after the trial was concluded, the trial court relieved him
as counsel because counsel and the Petitioner‟s relationship had deteriorated.

        On cross-examination, trial counsel said that he was prepared for trial. The
defense was that the sex was consensual, and identity was not an issue. Trial counsel
acknowledged that the Petitioner‟s DNA was found on the victim‟s face, which
corroborated her testimony that the Petitioner ejaculated on her face. Additionally, the
victim testified that the Petitioner raped her on a dirt pile behind a convenience store,
which was corroborated by Detective Still‟s testimony that he saw an indentation in the
dirt pile.

        At the conclusion of the hearing, the post-conviction court recalled that the State‟s
case against the Petitioner was “very strong,” that the victim was a “convincing” and
“impressive” witness, and that forensic evidence supported her testimony. The court
stated:

                     There wasn‟t much of anything anybody could do
              about the DNA. I ruled on it – as I recall, I think I kept out
              the parts that did not name the [Petitioner], under the theory
              of the Rape Shield Statute. And I would still stand on that.

                     There was a time – there used to be a time when,
              before we had DNA, if there was some semen found in a
              victim, or on a victim, some questioning was permitted about
              recent sexual activity, perhaps with other people, because that
              would raise the question of the identity of the person who left
              that semen there. But that – that issue disappeared with . . .
              DNA evidence, so . . . . There is no need to bring in any other
              evidence of any other kind of sexual activity.

       Regarding appellate counsel, the post-conviction court stated that

                     The only specific issue that‟s been raised in that
              respect was that he didn‟t argue the DNA issue on appeal.
              But this Court‟s satisfied that . . . it would have done no good
                                            -7-
              to do so. And his failure to do so was not prejudicial to the
              [Petitioner].

        The post-conviction court found that the Petitioner had failed to prove that either
his trial counsel or his appellate counsel was ineffective. On appeal, the Petitioner
challenges only the post-conviction court‟s ruling regarding the effectiveness of appellate
counsel.

                                       II. Analysis

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

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

        When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel‟s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel‟s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
petitioner must show that “there is a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Moreover,

                     [b]ecause a petitioner must establish both prongs of the
                                            -8-
              test, a failure to prove either deficiency or prejudice provides
              a sufficient basis to deny relief on the ineffective assistance
              claim. Indeed, a court need not address the components in
              any particular order or even address both if the [petitioner]
              makes an insufficient showing of one component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). The same test is used to
determine the effectiveness of trial counsel and appellate counsel. See Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).

      This court has previously observed:

              “[F]ailure to preserve and/or assert all arguable issues on
              appeal is not per se ineffective assistance of counsel, since the
              failure to do so may be a part of the counsel‟s strategy of
              defense. Counsel is not constitutionally required to argue
              every issue on appeal, or present issues chosen by his client.
              The determination of which issues to present on appeal is a
              matter of counsel‟s discretion.”

State v. Matson, 729 S.W.2d 281, 282 (Tenn. Crim. App. 1986) (quoting State v.
Swanson, 680 S.W.2d 487, 491 (Tenn. Crim. App. 1984)). Moreover, “[a]ppellate
counsel are not constitutionally required to raise every conceivable issue on appeal.”
Carpenter, 126 S.W.3d at 887. Generally, “appellate counsel‟s professional judgment
with regard to which issues will best serve the [Petitioner] on appeal should be given
considerable deference[, and this court] should not second-guess such decisions, and
every effort must be made to eliminate the distorting effects of hindsight.” Id.

      Our supreme court has set forth the following “non-exhaustive list” of factors
which “is useful in determining whether an attorney on direct appeal performed
reasonably competently in a case in which counsel has failed to raise an issue”:

              1) Were the omitted issues “significant and obvious”?
              2) Was there arguably contrary authority on the omitted
              issues?
              3) Were the omitted issues clearly stronger than those
              presented?
              4) Were the omitted issues objected to at trial?
              5) Were the trial court‟s rulings subject to deference on
              appeal?
              6) Did appellate counsel testify in a collateral proceeding as
              to his appeal strategy and, if so, were the justifications
                                            -9-
              reasonable?
              7) What was appellate counsel‟s level of experience and
              expertise?
              8) Did the petitioner and appellate counsel meet and go over
              possible issues?
              9) Is there evidence that counsel reviewed all the facts?
              10) Were the omitted issues dealt with in other assignments
              of error?
              11) Was the decision to omit an issue an unreasonable one
              which only an incompetent attorney would adopt?

Id. at 888. “A petitioner alleging ineffective assistance of appellate counsel must prove
both that (1) appellate counsel was objectively unreasonable in failing to raise a particular
issue on appeal, and (2) absent counsel‟s deficient performance, there was a reasonable
probability that the petitioner‟s appeal would have been successful.” Michael Fields v.
State, No. E2015-01850-CCA-R3-PC, 2016 WL 5543259, at *8 (Tenn. Crim. App. at
Knoxville, Sept. 29, 2016) (citing Smith v. Robbins, 528 U.S. 259, 285-86 (2000)), perm.
to appeal denied, (Tenn., Jan. 19, 2017).

       The Petitioner makes a general complaint that appellate counsel should have
challenged the trial court‟s exclusion of evidence that the male DNA detected on the
victim‟s vaginal swab did not match the Petitioner‟s DNA. The State maintains that
appellate counsel‟s decision to omit the issue was based on “sound professional
judgment” because the evidence was inadmissible under the “rape shield law.” We agree
with the State.

       Our supreme court has explained that “[r]ape shield laws were adopted in response
to anachronistic and sexist views that a woman who had sexual relations in the past was
more likely to have consented to sexual relations with a specific criminal defendant.”
State v. Sheline, 955 S.W.2d 42, 44 (Tenn. 1997). The rape shield laws were designed to
prevent “the trial of the rape victim based on her past sexual conduct.” Id. Tennessee‟s
rape shield rule, Tennessee Rule of Evidence 412, “limits the admissibility of evidence
about the prior sexual behavior of a victim of a sexual offense[] and establishes
procedures for determining when evidence is admissible.” Id.; see also State v. Douglass
Leon Lyle, No. E2012-00468-CCA-R3-CD, 2013 WL 1281857, at *12 (Tenn. Crim.
App. at Knoxville, Mar. 28, 2013). “Tennessee Rule of Evidence 412 permits [an
accused] to introduce specific instances of a victim‟s sexual behavior only if the
prosecutor or victim presents evidence during the trial regarding the victim‟s sexual
behavior.” State v. Mustapha Boutchiche, No. E2007-00473-CCA-R3-CD, 2009 WL
102949, at *6 (Tenn. Crim. App. at Knoxville, Jan. 12, 2009). In determining whether
the contested evidence is admissible, a court must balance “the evidence‟s probative
value against the harm that disclosure will cause to the victim. This balance includes
                                            - 10 -
consideration of the harmful effect the proof may have on the victim.” Tenn. R. Evid.
412, Advisory Comm‟n Cmts. Essentially, “Rule 412 is a rule of relevance and is written
as a rule of exclusion.” State v. Brown, 29 S.W.3d 427, 430 (Tenn. 2000). “As with
other evidentiary rulings, the admissibility of the evidence [under Rule 412] rests in the
discretion of the trial court.” Sheline, 955 S.W.2d at 46.

      In order for the evidence to be admissible under the rule, the accused generally
must file no later than ten days prior to trial a written motion seeking to offer such
evidence, and the “motion shall be accompanied by a written offer of proof, describing
the specific evidence and the purpose for introducing it.” Tenn. R. Evid. 412(d).
Tennessee Rule of Evidence 412(c) provides in pertinent part that

             [e]vidence of specific instances of a victim‟s sexual behavior
             is inadmissible unless admitted in accordance with the
             procedures in subdivision (d) of this rule, and the evidence is:

             ....

             (4) If the sexual behavior was with persons other than the
             accused,

             (i) to rebut or explain scientific or medical evidence, or

             (ii) to prove or explain the source of semen, injury, disease, or
             knowledge of sexual matters, or

             (iii) to prove consent if the evidence is of a pattern of sexual
             behavior so distinctive and so closely resembling the
             accused‟s version of the alleged encounter with the victim
             that it tends to prove that the victim consented to the act
             charged or behaved in such a manner as to lead the defendant
             reasonably to believe that the victim consented.

        On appeal, the Petitioner contends that one of his “defense theories was that the
victim had a history of drug use and prostitution, and that the interaction of [the
Petitioner] and the victim was of a commercial nature in which the presence of [the
Petitioner‟s] DNA resulted from consensual activity by the victim.” The Petitioner
argues that the evidence of an unknown male‟s sperm on the victim‟s vaginal swab
buttressed this claim and was therefore admissible under Rule 412. The State responds
that allowing the Petitioner to adduce proof that the victim had sexual intercourse with
another man “is precisely the type of proof that Rule 412 is designed to regulate.”
Therefore, the State contends that this issue would not have been successful on direct
                                           - 11 -
appeal. We agree with the State.

       We note that the record reveals the Petitioner never claimed at trial or at the post-
conviction hearing that the sexual encounter with the victim was a “commercial
transaction” or that the victim was a prostitute;2 instead, he argued that he and the victim
were involved in a relationship and that the sex was consensual. In his post-conviction
petition and at the post-conviction hearing, the Petitioner merely raised a general
challenge to the exclusion of the unknown male DNA evidence, contending that appellate
counsel was ineffective because he was aware of the issue and should have raised it on
appeal. A party is bound by the evidentiary theory argued to the post-conviction court
and may not change or add theories on appeal. State v. Alder, 71 S.W.3d 299, 303 (Tenn.
Crim. App. 2001). Accordingly, we are not required to address issues raised for the first
time on appeal. State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996).

        We agree with the post-conviction court that the Petitioner has failed to show that
he would have been successful on appeal if appellate counsel had raised the issue of the
trial court‟s exclusion of the DNA evidence. We note that although this specific issue has
not been addressed in this jurisdiction, another jurisdiction has held that “evidence of
unknown male DNA falls squarely into the general prohibition of Rule 412.” Pribie v.
State, 46 N.E.3d 1241, 1247 (Ind. Ct. App. 2015). In other words, the presence of an
unknown male‟s sperm in a victim‟s vagina is evidence of sexual behavior as defined by
Rule 412. See Tenn. R. Evid. 412(a). Evidence that the victim may have had sexual
intercourse with another man did not negate the fact that the Petitioner‟s sperm was found
on the victim‟s face, corroborating her statement that the Petitioner ejaculated on her face
after vaginally penetrating her. Moreover, the presence of another man‟s semen on a
swab of the victim‟s vagina had no bearing on whether the victim consented to sexual
intercourse with the Petitioner. Robert Allen Edmonds v. Commonwealth, No. 2011-SC-
000059-MR, 2012 WL 2362429, at *3 (Ky., June 21, 2012). We conclude that the
evidence does not preponderate against the post-conviction court‟s finding that the
Petitioner failed to prove that appellate counsel was ineffective.

                                         III. Conclusion

      In sum, we conclude that the post-conviction court did not err by denying post-
conviction relief.
                                             _________________________________
                                             NORMA MCGEE OGLE, JUDGE



2
  In his amended post-conviction petition, the Petitioner alleged that trial counsel should have cross-
examined the victim about her addiction to crack cocaine and about her engaging in prostitution to
support her addiction. However, no mention of this allegation was made at the post-conviction hearing.
                                                - 12 -
