        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 1, 2013

                  RONALD YATES v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                  No. 01-08883, 01-08884 W. Otis Higgs, Jr., Judge


                No. W2012-02455-CCA-R3-PC - Filed January 27, 2014


The Petitioner, Ronald Yates, appeals the Shelby County Criminal Court’s denial of his
petition for post-conviction relief from his convictions for first degree murder and attempt
to commit first degree murder and his sentence of life plus twenty-three years. The Petitioner
contends that he received the ineffective assistance of appellate counsel. We affirm the
judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J ERRY L. S MITH and
N ORMA M CG EE O GLE, JJ., joined.

Sean H. Muizers (on appeal) and Eran E. Julian (at post-conviction hearing), Memphis,
Tennessee, for the appellant, Ronald Yates.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle L. Consiglio-Young,
Assistant Attorney General; Amy P. Weirich, District Attorney General; and Charles
Summers, III, Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

      According to this court’s opinion in the appeal of the Petitioner’s convictions, the
evidence at the trial showed that:

             On January 10, 2001, the defendant entered a residence located at 5086
       Bowie Street in Memphis and shot the victims, Michael Monroe, Sr., and Erik
       Monroe. Michael Monroe, Sr., died as a result of a gunshot wound to the
       head. His fifteen-year-old nephew, Erik Monroe, was shot once in the left arm
       and once in the right hand.
       Jolene Monroe, her brother, Michael Monroe, Sr., her sons, Erik
Monroe and twenty-two-year-old Michael Monroe, Jr., and her nephew,
Reginald Williams, lived at 5086 Bowie Street. Shortly after leaving for work
at 6:00 a.m. on the day of the offenses, Ms. Monroe received a telephone call
from one of her sons, who said she “needed to get home quick.” According
to Ms. Monroe, her brother was dating Linda Matthews at the time of his
death.

        Erik Monroe, who was in bed with a cold on the day of the shootings,
testified that he opened his bedroom door when he heard someone enter the
residence. Erik recalled that he saw the defendant standing in the hallway.
When the defendant asked for “Mike,” Erik responded, “He’s in the
bathroom.” Erik stated that after he returned to bed, he heard his uncle say,
“Linda’s not here,” followed quickly by “knocking up against the wall,” which
sounded “like a fight.” Erik recalled that when he opened his bedroom door,
he saw the two men fighting in a corner. As Erik walked toward them, the
defendant pulled a gun from his pocket and shot Michael Monroe, Sr., twice.
Erik testified that when he ran into his bedroom, the defendant followed him,
shooting him first in the left shoulder and then in his right hand as he blocked
a shot aimed at his head.

       Erik testified that after the defendant ran away, he went into the kitchen,
got a drink of water, and then went into his mother’s room to call her cell
phone. When he did not get an answer, he called his grandmother and, after
washing his hand, picked up the telephone to call the police. As he did so, he
heard his brother, Michael Monroe, Jr., talking to the police on another phone.
At trial, Erik admitted that while he had failed to identify the defendant on
three separate occasions prior to trial, he could positively identify the
defendant as his assailant. He recalled telling the police that the perpetrator
was tall, heavy set, “brown skinned,” and wearing a dark skull cap and a
striped shirt.

        Michael Monroe, Jr., testified that on the morning of the offenses, he
had dressed for work and was in the den when he heard his uncle call his
name. He went into the hallway, where he saw his uncle and the defendant
fighting. He recalled that his uncle directed him to call the police and, as he
did so, he heard two gunshots and then fled from the residence. Michael
identified the defendant from a photographic lineup approximately two weeks
after the offenses but conceded during cross-examination that he had told



                                       -2-
police that he did not see the perpetrator’s face and could only describe him as
male and wearing dark clothing and a hat.

        Reginald Williams, Michael Monroe, Sr.’s stepson, testified that on the
morning of the shootings, he was getting ready for school when he heard
someone enter the residence. When he heard “bumping” at the end of the hall,
he went to investigate. Williams recalled that his stepfather, who was
“tussling” with the intruder, directed Michael Monroe, Jr. to call the police.
He heard two gunshots as they took a portable telephone outside. Upon
hearing the shots, the two younger men ran into the backyard and jumped over
the fence. Williams stated that he was unable to identify the intruder because
he never saw his face. During cross-examination, however, he conceded that
he initially described the assailant as light skinned, less than six feet tall, thin,
and in his late twenties.

        Charles Broome, who worked with Michael Monroe, Sr., and Linda
Matthews at National Guard Products, testified that he had seen the defendant
at their workplace four or five times within a week before the offenses.
Broome recalled that on one occasion, the defendant had warned Michael
Monroe, Sr., that “Linda was his girlfriend and [he] needed to leave her
alone.”

        Linda Matthews, who was pregnant with the defendant’s child at the
time of the shootings, testified that she and the defendant dated for several
months but that she ended the relationship approximately four months before
the shootings. She recalled that the defendant was upset about the termination
of the relationship and often called her or came by her house unexpectedly.
According to Ms. Matthews, she began dating Michael Monroe, Sr., shortly
after ending her relationship with the defendant. She confirmed that the
defendant had asked her to come back to him so that they could raise their
child together.

       Kathy Booker, who was dating the defendant, testified that on the
morning of the shootings, the defendant arrived at her house sometime
between 6:30 and 7:00 a.m. and informed her that his truck had broken down.
She stated that the defendant appeared to be “upset” or “excited” and asked her
to “hold” him. Later that morning, the defendant told her that he had been
accused of shooting two people and suggested that she tell the police that he
had been with her all night. Ms. Booker explained that the defendant had
stopped by her house on the night before, but had not stayed the night.

                                         -3-
According to Ms. Booker, she drove the defendant to his house in her car and,
later that same evening, her son found a bullet in the car. Ms. Booker testified
that she did not own a gun and had never had bullets in her car. She recalled
placing the bullet in an envelope and informing the police of its existence but
explained that they never came to examine it.

        Ms. Booker testified that it was “some weeks” before the defendant
surrendered to the police and that they discussed the accusations every day
during that time period. During that time, the defendant did not stay at his
residence and communicated with her by telephoning her workplace.
According to Ms. Booker, the defendant claimed that he had never been to
5086 Bowie and that he did not know anything about the shootings. She
acknowledged that she had not given the bullet to the prosecutor until the week
before trial. Ms. Booker testified that she feared the defendant, explaining that
on the night before the shootings, he showed her a gun and said, “It’s a good
thing your boyfriend wasn’t here. I’d have shot him and thr[own] him over the
railing.”

        Dr. O’Brian Cleary Smith, who performed the autopsy on Michael
Monroe, Sr., testified that the cause of his death was an intra oral gunshot
wound. He stated that the bullet, a .380 caliber hollow point, traveled through
the victim’s mouth, fracturing the pallet, and then the base of the skull where
it joined the spinal cord. Bone fragments from the skull fracture damaged the
brain stem and the cerebellum. He stated that the bullet traveled from front to
back and slightly left to right, coming to rest in the back of the head. It was
Dr. Smith’s opinion that the gunshot wound would have caused instantaneous
incapacitation and that the bullet’s trajectory was consistent with the victim’s
lying face up when he was shot.

        During cross-examination, Dr. Smith acknowledged that the bullet
trajectory would also have been consistent with the defendant and the victim
standing face to face. He stated that the absence of powder burns indicated
that the gun was fired from a distance greater than two feet. Dr. Smith
testified that the victim suffered only one gunshot wound and that the bullet
did not exit the body.

       David Hoffman, the defendant’s employer, testified that approximately
one month after the shootings, the police arrived at his place of employment
to take custody of the defendant. He recalled that the defendant was doing
paperwork at the time and appeared to be “shocked” and “stunned” when he

                                       -4-
       saw the police. Hoffman remembered that the defendant quietly submitted to
       the arrest.

State v. Ronald Yates, No. W2003-02251-CCA-R3-CD, slip op. at 2-4 (Tenn. Crim. App.
Dec. 8, 2004).

       A Shelby County Criminal Court jury convicted the Petitioner of first degree murder
and attempt to commit first degree murder, and he was sentenced to life plus twenty-three
years. He appealed his convictions and argued several issues, including that he received the
ineffective assistance of trial counsel. This court affirmed the convictions but modified the
twenty-three-year sentence for attempted first degree murder to twenty years. Id. at 1.

       In 2005, the Petitioner filed a pro se petition for post-conviction relief, contending that
he received the ineffective assistance of counsel. In 2007, he filed an amended petition
through counsel, contending that although certain ineffective assistance claims had been
raised and determined in the motion for a new trial and on appeal of the Petitioner’s
convictions, the petition contained new factually distinct issues concerning the ineffective
assistance of trial counsel and the new issue of the ineffective assistance of appellate counsel.
This court concluded that although the Petitioner’s claims of the ineffective assistance of trial
counsel were litigated previously and could not be relitigated in the post-conviction
proceedings, the trial court erred in dismissing the petition without conducting an evidentiary
hearing on the ineffective assistance of appellate counsel and remanded for further
proceedings. Ronald Yates v. State, No. W2008-02067-CCA-R3-PC (Tenn. Crim. App. Dec.
3, 2009).

       At the post-conviction hearing, the Petitioner testified that he had different counsel
in general sessions court, at the trial, and at the motion for a new trial hearing and that he had
the same counsel for his motion for a new trial and on appeal of his convictions. He said that
he hired trial counsel but that when he could no longer afford to pay, the court appointed the
attorneys. He thought appellate counsel was appointed.

        The Petitioner testified that he first met appellate counsel after the motion for a new
trial hearing when counsel brought him an appellate brief. He said they did not discuss the
case or the issues he wanted to raise before the motion for a new trial hearing. He said
counsel brought him the brief to review.

        The Petitioner testified that trial counsel did not visit him in preparation for the trial.
He said that he had an “initial visit” with trial counsel at the jail, that he did not receive other
visits from counsel, and that he saw them at court hearings. He said the only time appellate



                                                -5-
counsel visited him at the jail was after the motion for a new trial hearing. He said he never
discussed the motion for a new trial with any counsel.

        The Petitioner testified that he did not realize appellate counsel was his attorney at the
motion for a new trial hearing. He said none of his counsel discussed the ineffective
assistance of counsel claim with him. He read in the transcripts that trial counsel stated he
was ineffective during the trial. He said the ineffective assistance of counsel claim was
raised at the motion for a new trial hearing and on appeal. Other inmates told him that
counsel should not have addressed the claim in his motion for a new trial because it could
not be argued again during post-conviction proceedings. He said appellate counsel told him
the ineffective assistance of trial counsel claim could be addressed in a post-conviction
petition. He told counsel that he did not want the claim argued in the brief and that he would
rather address it later. He asked counsel not to include it. When asked if he wanted other
issues raised in the ineffective assistance of counsel argument, he said that he did not have
a trial transcript when appellate counsel gave him the brief but that after he received the
transcript, he found inconsistencies at the trial he would have addressed in the brief.

        The Petitioner said that trial counsel failed to conduct an independent investigation
of the State’s witnesses and was ineffective in cross-examination. He said counsel was
ineffective in cross-examining Eric Monroe, who gave inconsistent testimony. He said Mr.
Monroe testified that the Petitioner stood over the victim and shot him, meaning gravity
would have caused stippling on the victim. He said Dr. Smith testified, though, that no
stippling was found on the victim’s body. He said that trial counsel never addressed the
inconsistency, that he attempted to get counsel’s attention, and that counsel told him to “hold
on” he would “get back with that.” He said counsel did not accept his input during the trial.
He said he told counsel he wanted to testify.

        The Petitioner testified that he also would have argued that trial counsel was
ineffective by presenting an identity defense rather than self-defense. He told co-counsel and
counsel’s investigator that he was at the scene, that he and the victim fought, that he grabbed
a gun, that the victim grabbed his hand and hit it against the wall, that the gun went off twice,
and that when he fell into a corner, the gun fired again. He said, though, that they never
discussed the theory that he was not at the scene and that counsel never asked for his input
about what theory to present. He said that everyone would have thought he was lying if he
testified that he was at the scene after counsel argued he was not. He said he learned on the
day of the trial that counsel’s theory was that he was not at the scene. He said he would have
included the issue in his ineffective assistance of counsel claim.

       The Petitioner testified that he also would have argued that trial counsel was
ineffective in cross-examining Linda Matthews and Charles Broome about an encounter the

                                               -6-
Petitioner had with the victim. He said Ms. Matthews’s testimony would have contradicted
Mr. Broome’s testimony that the Petitioner argued with the victim. He said that Mr. Monroe
testified that the Petitioner fired his gun four times and that counsel should have questioned
the detective about how many shells and bullets were found at the scene to show
inconsistencies. He said counsel should have been aware of these inconsistencies and cross-
examined the witnesses about them.

        The Petitioner agreed that trial counsel had difficulty during the trial and that trial co-
counsel did not attempt to resolve the problem, object, or take over questioning. He said
appellate counsel did not raise the issue that co-counsel was ineffective for failing to
intervene. He said that if the inconsistencies in testimony were addressed by trial counsel,
the outcome of his trial probably would have been different and that he would not have been
convicted of first degree murder but maybe second degree or less. He thought the outcome
of his appeal would also have been different had appellate counsel raised these issues.

        On cross-examination, the Petitioner testified that he was “not unhappy” with counsel
but was disappointed in the outcome of his trial and appeal. He said his “major” complaint
with appellate counsel was that he did not discuss anything with the Petitioner before
submitting the brief. He thought most of the issues in the brief were raised in the motion for
a new trial but did not see anything wrong with the arguments except the ineffective
assistance of counsel. He said he and appellate counsel did not discuss the arguments raised
in the motion for a new trial and did not discuss anything before they met about the appellate
brief. He said he listened to another inmate’s advice that the ineffective assistance of counsel
claim should not have been raised before post-conviction proceedings.

       The Petitioner agreed that Eric Monroe and Michael Monroe, Jr., testified that they
saw the events at the apartment. He agreed that trial counsel questioned the two witnesses
about their inconsistent identifications and argued the witnesses could not identify the man
who attacked the victims. He said that because he was at the scene and “scuffled” with the
victim, counsel’s argument that the witnesses could not identify him was not good. He said
that during the scuffle, he had a gun in his pocket, that the victim pulled the Petitioner’s coat
over his head, that the gun fell from his coat, that he grabbed the gun, that the victim grabbed
his arm, and that the gun fired twice. He said counsel should have questioned Eric Monroe
about why the bullet did not penetrate his hand and hit his face if Mr. Monroe used his hand
to block a shot aimed at his head.

       The Petitioner testified that appellate counsel failed to argue properly the ineffective
assistance of trial counsel claim. He said that for the appellate court to understand what
happened, the ineffective assistance of counsel should have been presented in detail on
appeal as it was at the post-conviction hearing.

                                                -7-
       On redirect examination, the Petitioner testified that he was aware trial counsel
worked together, assumed that they would discuss information he gave either of them, and
thought any theory would be developed based on information he provided them. He said he
only spoke with appellate counsel about the ineffective assistance of trial counsel claim when
counsel brought him the brief after the motion for a new trial hearing. He said appellate
counsel told him he could raise the ineffective assistance of counsel claim on appeal and in
post-conviction proceedings. On recross-examination, the Petitioner said he did not
remember if the main issue on appeal was trial counsel’s failure to object to the admission
of a bullet.

        Appellate counsel testified that in August 2003, trial counsel asked him to represent
the Petitioner on appeal. He did not remember if he was appointed or retained. He said that
at the time, he and trial counsel handled several death penalty cases together, that they had
a good working relationship, and that trial counsel knew he could write an appellate brief.
He said they did not work in the same office. He said the motion for a new trial hearing
transcript correctly reflected the hearing occurred on August 27, 2003, although he did not
remember the date. He did not recall how long before the hearing that trial counsel
approached him about representing the Petitioner or whether he or trial counsel represented
the Petitioner on the motion for a new trial. He did not remember feeling rushed in his
preparations. He agreed that the trial occurred in December 2002 and that the transcripts
were available in May 2003.

       Appellate counsel testified that his practice was to review the trial transcripts and
speak with the defendant before the motion for a new trial and post-conviction hearings.
When asked if he saw his name listed on the Petitioner’s jail visitation records, he said he
was unsure he met the Petitioner in the jail visitation area. He said he probably met with the
Petitioner in the back of the courtroom but did not know the exact dates. He denied that his
practice was to meet a defendant on a court setting and said his practice was to meet at the
jail. He recalled meeting with the Petitioner but could not recall when or where. He knew
the Petitioner had been in custody and assumed he met with him in “this building” but did
not know whether the meeting was in the visitation area or in the courtroom.

       Appellate counsel agreed that his name appeared on the motion for a new trial hearing
transcript, although he did not recall if he handled the hearing. He assumed he met with the
Petitioner before the hearing but did not know if he or trial counsel prepared the motion. He
said he raised the ineffective assistance of counsel at the motion for a new trial hearing
because the Petitioner insisted. He did not know where he met the Petitioner but recalled
meeting with him and was sure he met with him several times because he had never filed a
post-conviction issue as part of a motion for a new trial. He did not know if deciding the
issues to raise in a motion for a new trial was a legal decision but said that if his client

                                             -8-
wanted an issue raised in a motion for a new trial that was well-grounded in the law, he
would raise it.

        Appellate counsel denied having a case file or notes on the Petitioner’s case. He said
that although the case was about nine years old, it was his practice to keep records that long.
He did not know where his files from that time were but said he had files in a previous
office’s basement that flooded. He thought, though, he left the office before he handled the
Petitioner’s case. He said that he searched a previous office but did not find the file and that
he did not know where the Petitioner’s file was.

       Appellate counsel testified that he remembered discussing with trial counsel the
Petitioner’s decision to raise the ineffective assistance of counsel claim in his motion for a
new trial. He thought an issue occurred at the trial regarding the defense being unaware of
a bullet until it was admitted as an exhibit. He said that trial counsel contended they were
“sandbagged” and that the Petitioner was very adamant and upset about the bullet’s being
admitted. He said he did not remember specific dates or where he met the Petitioner but
remembered being surprised about the bullet because he did not believe the prosecutor would
have done that.

        Appellate counsel testified that the Petitioner’s case was the only case in which he had
raised the ineffective assistance of counsel during a motion for a new trial and that he
thought it was a terrible idea. When asked why he presented the claim if he thought it was
a “terrible” idea, counsel said it was similar to allowing clients to testify at a trial when they
insisted against his advice because it was the client’s trial and case. He said he advised
clients as to what he thought was a good idea and sound legal strategy but did not force them
to do certain things. He said the final decision rested with the client. He said it would not
surprise him if the Petitioner testified at the post-conviction hearing that he did not want the
issue raised.

        Appellate counsel testified that when he handled a motion for a new trial, he typically
gave copies of the transcripts to the defendant but not necessarily before the hearing. He
stated that if he had the transcripts he would give a copy to the defendant. He said that when
he handled post-conviction proceedings, his clients usually had copies of the transcripts from
their previous appeals but that if they did not, he would provide them. He did not recall
when or if the Petitioner received trial transcripts. He stated that when preparing for a post-
conviction proceeding, he typically spoke to the client about trial issues and that he
remembered speaking with the Petitioner about the issue regarding the bullet. He said he did
not remember the exact facts of the case. He thought a woman was killed and remembered
something about a bullet or a gun in an envelope not being discovered by trial counsel until
it was introduced at the trial but said it was “all kind of sketchy as to exactly what happened.”

                                               -9-
         Appellate counsel testified that it took a couple of weeks to review the file and the
trial transcripts and speak with the client to file an amended post-conviction petition and that
it would not take more than two weeks to file the petition if the petitioner pleaded guilty.
When asked if the time between his receiving the transcripts in May and the motion for a new
trial hearing in August was a typical amount of time for post-conviction preparation, he said
that if he had all the transcripts, he thought the time was adequate but that it depended on the
court because some gave more time than others. He said that based on his normal practice,
the time was adequate.

        After reviewing the appellate brief, appellate counsel agreed he focused the
ineffective assistance of counsel claim on trial counsel’s inability to hear and the resulting
problems. He did not recall why this was the only issue raised concerning ineffective
assistance but said he “would bet” it was the only one he could find. Although he did not
recall speaking with the Petitioner about the theory presented at the trial or his conversations
with trial counsel in preparation for the trial, he was sure he did. He assumed he asked the
Petitioner what he and trial counsel discussed and what defense was presented but denied
having any actual recollection.

        Appellate counsel testified that if the Petitioner had told him he wanted to testify but
trial counsel would not allow him or he was prohibited by a defense he did not want, counsel
would have raised the issue as the ineffective assistance of counsel. He remembered
someone stating that trial counsel had co-counsel during the trial when trial counsel could
not hear. He said he had no specific knowledge as to why he did not raise the ineffective
assistance of co-counsel but assumed it was because co-counsel told him she relayed the
information trial counsel missed. He said that he had tried many cases with trial counsel and
knew he was “profoundly deaf” in one ear and did not like wearing a hearing aid and that he
was familiar with the procedure of telling trial counsel what was said by a witness when trial
counsel could not hear. He said he had no specific knowledge regarding the Petitioner’s case
but guessed co-counsel told him that she relayed the information.

        Appellate counsel testified that he told the Petitioner that raising the ineffective
assistance of counsel claim during the motion for a new trial would prohibit him from
arguing it in post-conviction proceedings and that he thought it was a “horrible” idea to raise
the claim. He thought trial counsel also told the Petitioner it was a bad idea. He did not
think it was ultimately his decision what issues to raise on appeal any more than it was his
decision whether a client testified. He believed that when a client was adamant about an
issue being included on appeal and was advised properly as to the ramifications, it was his
obligation to include the issue. He said he interpreted the law that way, although he could
be wrong. He said he had no specific knowledge about discussing with the Petitioner how
raising the ineffective assistance of trial counsel would prevent him from being able to raise

                                              -10-
other issues against trial counsel later. He remembered telling the Petitioner that raising the
issue was a bad idea, that he would lose his right to a post-conviction hearing, and that this
would be his one “shot.”

       Appellate counsel testified that he did not remember a customary form used in 2003
or 2004 by post-conviction counsel to show they had explained to a petitioner that by filing
a post-conviction petition, he waived other constitutional issues in later proceedings. He said
that the form may have existed but that he was unaware of it. He denied viewing the
Petitioner’s appeal as a post-conviction proceeding. He did not believe he completed a form
with the Petitioner explaining that after a post-conviction petition was filed, the Petitioner
could not raise new issues at a later time.

        Appellate counsel testified that the length of the appellate briefs he wrote depended
on the issues and the appeal. He said that in some cases, he requested to exceed the page
limit and that in others, the brief was shorter than the Petitioner’s. He denied he thought
there was merit to the ineffective assistance of trial counsel argument. Counsel did not
remember if the Petitioner was adamant about including other issues on appeal. He said that
if the Petitioner had wanted other issues included, he would have included them. He said he
thought it was better to include more issues on appeal because he did not know which would
be important. When asked if he would have omitted issues if the Petitioner asked, he said
it depended on the issue. He said, though, a client had never asked him not to include an
issue and did not remember it happening in the Petitioner’s case. He said that if the
Petitioner had a good reason to omit an issue and wanted the appellate court to focus on the
issue with more merit, he would consider not including an issue.

        On cross-examination, appellate counsel testified that the Petitioner was charged with
first degree murder. He agreed that during the trial, counsel lost concentration and did not
hear when a bullet was entered as an exhibit and that when counsel recognized the mistake,
he made a motion to dismiss and a motion for a mistrial, which the court denied. He agreed
that the Petitioner was convicted and that trial counsel was still upset about the mistake. He
remembered trial counsel asking him to represent the Petitioner on appeal and said counsel
may have brought him the appeal to raise the ineffective assistance claim when it was fresh
on the trial judge’s mind. He agreed it was a strategy to raise the ineffective assistance claim
in the motion for a new trial, allow the judge that heard the trial to consider the issue, and
allow trial counsel to testify about what happened and possibly remedy the situation.

       Appellate counsel agreed that during his more than twenty-year career, the courts have
given more credence to what a defendant wanted done in his case. He said that the Petitioner
wanted the ineffective assistance claim raised in his motion for a new trial and on appeal of
his convictions.

                                              -11-
       Appellate counsel acknowledged that Tennessee’s Post-Conviction Act was unique
and that in other states, ineffective assistance was raised on appeal. He agreed it was “not
unheard of nationally” to raise the issue and said it was not illegal or unethical to raise it in
Tennessee. He thought the idea behind having an appeal of a defendant’s convictions and
a post-conviction proceeding was to give the defendant “two bites at the apple.”

        Appellate counsel testified that he remembered meeting with the Petitioner because
he remembered the Petitioner’s being very upset about the verdict, more upset than most of
his clients. He thought the Petitioner was surprised by the verdict. He agreed that when he
filed an appeal, he included the issues he thought the court would consider because he did
not want to miss any. He denied that when he reviewed the brief, he thought any of the
issues included were a mistake, other than the ineffective assistance of counsel. He thought
that the other issues were “pretty well covered” and that it was a “pretty clean” trial.

       In denying post-conviction relief, the trial court noted that the petition, amended
petition, and “WRITTEN ARGUMENT” included the Petitioner’s allegations of error but
that he only presented evidence regarding the ineffective assistance of appellate counsel at
the hearing. The court found that the other claims in his pleadings were waived and only
addressed the ineffective assistance of appellate counsel.

       The Petitioner argued that appellate counsel was ineffective for failing to argue that
the Petitioner’s motion to suppress the illegal identification made by Eric Monroe was
erroneously denied. The trial court found that the Petitioner only made a cursory allegation
and that because he failed to present any supporting evidence, the issue was waived.

        Regarding the Petitioner’s argument that appellate counsel was ineffective for raising
the ineffective assistance of trial counsel on appeal of the Petitioner’s conviction, the trial
court found that appellate counsel was not deficient in raising the claim. The court stated
that counsel must abide by his client’s decisions regarding the objectives of representation
and consult with the client about how to accomplish the client’s objectives. The court found
that counsel raised the ineffective assistance of counsel on appeal because the Petitioner
insisted and that the Petitioner’s testimony that he did not want counsel to raise the issue was
not persuasive. The court noted that appellate counsel was an experienced criminal defense
attorney who was aware of the dangers of raising ineffective assistance on appeal and that
counsel warned the Petitioner of those dangers. The court was not convinced that counsel
raised the claim against the Petitioner’s wishes. The court found that the Petitioner failed to
show counsel’s decision was unreasonable and that counsel was not deficient.

       Regarding the Petitioner’s argument that appellate counsel was ineffective for failing
to present evidence at the motion for a new trial hearing to support the ineffective assistance

                                              -12-
of trial counsel, the trial court found the Petitioner’s claims that counsel did not investigate
the allegations of ineffective assistance without merit. The court noted that the motion for
a new trial hearing transcript showed counsel raised several arguments concerning specific
ineffective assistance issues and that counsel could not have raised the arguments without
investigating the issues. The court stated that the Petitioner did not address counsel’s failure
to call the Petitioner as a witness during the motion for a new trial hearing and that the issues
the Petitioner wanted raised regarding the ineffective assistance of counsel did not concern
the motion for a new trial. The court found that the Petitioner did not offer any issues at the
post-conviction hearing that would have changed the result of the appeal. The court also
found that counsel made a strategic decision to argue certain points of error in the motion for
a new trial and that his handling of the ineffective assistance of counsel claim at the motion
for a new trial hearing was not deficient.

       The Petitioner argued that appellate counsel was ineffective for challenging the ruling
on the motion for a mistrial without reserving the right to challenge the effectiveness of trial
counsel in post-conviction proceedings. The trial court found that the Petitioner failed to
present supporting evidence and that the issue was waived.

       Regarding the Petitioner’s argument that appellate counsel was ineffective for raising
the ineffective assistance of counsel claim in the motion for a new trial, the trial court found
that counsel’s performance was not deficient. The court stated that the Petitioner wanted
ineffective assistance raised in the motion for a new trial and that it was counsel’s strategic
decision to raise the claim because of the Petitioner’s and counsel’s concerns that trial
counsel was ineffective. The court found unpersuasive the Petitioner’s testimony that
appellate counsel did not meet with him before the motion for a new trial hearing. The court
found that appellate counsel’s decision to raise the ineffective assistance of counsel in the
motion for a new trial was not “objectively unreasonable” and did not constitute deficient
performance.

        The trial court noted that the Petitioner presented several issues he felt appellate
counsel should have raised in support of the ineffective assistance of trial counsel. The
Petitioner asserted that appellate counsel should have argued that trial counsel’s theory and
strategy precluded him from testifying, that trial counsel was ineffective in cross-examining
witnesses about the victim’s wounds, and that trial co-counsel was ineffective. The court
stated that the determination of which issues to raise on appeal was a matter of professional
judgment, that it was not the function of the court to second guess strategic choices, and that
appellate counsel’s failure to address the issues was made with professional judgment. The
court found that appellate counsel chose to raise four ineffective assistance of counsel issues
and that counsel’s failure to raise other issues of ineffective assistance did not constitute
deficient performance.

                                              -13-
        The trial court found that appellate counsel’s argument concerning the ineffective
assistance of counsel claim in the motion for a new trial and on appeal was not deficient.
The court stated that counsel presented several well-articulated arguments on the issue at the
motion for a new trial hearing and that the court rejected the arguments and ruled against the
Petitioner. The court also stated that counsel raised in his brief four separate, well-articulated
issues regarding the ineffective assistance of trial counsel and that the argument was within
his “standard treatment” of such appellate issues. The court found that appellate counsel
performed as well as a lawyer with ordinary training and skill in criminal law. The court
found the Petitioner failed to prove that appellate counsel’s performance was deficient or that
the Petitioner was prejudiced by his representation. This appeal followed.

        The Petitioner contends that he received the ineffective assistance of appellate
counsel. He argues that the jail records and his testimony show that appellate counsel did not
communicate with him as ethically required by Tennessee Supreme Court Rule 8, that
counsel raised an issue on appeal he considered without merit and a horrible idea, and that
counsel knowingly deprived the Petitioner of the right to argue the ineffective assistance of
trial counsel in post-conviction proceedings. The State counters that the Petitioner received
the effective assistance of appellate counsel. The State argues that the Petitioner waived the
issue concerning counsel’s failure to communicate with him by not presenting the issue in
his written argument and that the record supported the trial court’s findings concerning
counsel’s effectiveness in raising the ineffective assistance of trial counsel on appeal. We
conclude that the Petitioner is not entitled to relief.

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2012). On appeal, we
are bound by the trial court’s findings of fact unless we conclude that the evidence in the
record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.
2001). Because they relate to mixed questions of law and fact, we review the trial court’s
conclusions as to whether counsel’s performance was deficient and whether that deficiency
was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.
Post-conviction relief may only be given if a conviction or sentence is void or voidable
because of a violation of a constitutional right. T.C.A. § 40-30-103 (2012).

       The Fourteenth Amendment to the United States Constitution guarantees an indigent
criminal defendant the right to counsel for his first appeal. Douglas v. California, 372 U.S.
353, 357 (1963). The right to appellate counsel encompasses the right to the effective
assistance of counsel. Evitts v. Lucey, 469 U.S. 387, 397 (1985). The two-prong test set
forth in Strickland v. Washington, 466 U.S. 668 (1984), which is applied to claims of
ineffective assistance of trial counsel asserted under the Sixth Amendment to the United
States Constitution, is also used to determine whether appellate counsel was constitutionally

                                               -14-
effective. Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004); see also Smith v. Murray,
477 U.S. 527, 535-36 (1986) (applying Strickland to a claim of attorney error on appeal).

        The burden is on the Petitioner to show (1) that counsel’s performance was deficient
and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984); see Porterfield v. State, 897 S.W.2d 672, 678 (Tenn. 1995). In other words, a
showing that counsel’s performance fell below a reasonable standard is not enough because
the Petitioner must also show that but for the substandard performance, “the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. The petitioner’s failure
to establish either prong of the Strickland test results in the denial of relief. Cooper v. State,
849 S.W.2d 744, 747 (Tenn. 1993). The performance prong requires a petitioner raising a
claim of ineffectiveness to show that counsel’s representation fell below an objective
standard of reasonableness or “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. The prejudice prong requires a petitioner to
demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. A reasonable
probability means a “probability sufficient to undermine confidence in the outcome.” Id.

        As to the State’s argument that the Petitioner waived his issue concerning appellate
counsel’s failure to communicate with him, we note that in the Petitioner’s “WRITTEN
ARGUMENT,” he discussed the conflicting testimony from the post-conviction hearing
concerning appellate counsel’s visits with the Petitioner. The “WRITTEN ARGUMENT”
states that the Petitioner testified that appellate counsel did not visit him at the jail before the
motion for a new trial hearing and only visited briefly before filing the appeal, that appellate
counsel testified that he visited the Petitioner on several occasions, and that the jail visitation
records did not support appellate counsel’s testimony. Although the jail records do not show
that appellate counsel visited the Petitioner at the jail, appellate counsel testified that he was
unsure he met the Petitioner in the jail visitation area and that he probably met with the
Petitioner in back of the courtroom. The trial court found unpersuasive the Petitioner’s
testimony that appellate counsel did not meet with him before the motion for a new trial
hearing. We cannot conclude that the Petitioner failed to present the issue in his written
argument or at the post-conviction hearing, and it is not waived. However, the evidence does
not preponderate against the trial court’s findings that appellate counsel met with the
Petitioner before the motion for a new trial hearing, and the issue is without merit.

       Regarding the Petitioner’s argument that appellate counsel was ineffective by raising
an issue on appeal he considered without merit and a bad idea, he argues that Tennessee
Supreme Court Rule 8 requires attorneys to abide by a client’s decision whether to enter a
plea, waive a jury trial, and testify but that the rule does not force counsel to argue claims on
appeal that counsel feels are meritless or a “horrible” idea at the whim of their clients.

                                               -15-
Tennessee Supreme Court Rule 8 provides the Rules of Professional Conduct, and
Professional Conduct Rule 1.02(a) states that a

       lawyer shall abide by a client’s decisions concerning the objectives of
       representation and . . . shall consult with the client about the means by which
       the client’s objectives are to be accomplished. . . . In a criminal case, the
       lawyer shall abide by the client’s decision, after consultation with the lawyer,
       as to a plea to be entered, whether to waive jury trial, and whether the client
       will testify.

Although the rule lists three situations in which a criminal defense attorney must abide by
his client’s decisions, it also requires attorneys to abide by the client’s decisions concerning
the objectives of representation and to consult with the client as to how to accomplish the
objectives. Appellate counsel denied he thought there was merit to the ineffective assistance
of trial counsel claim, but he later agreed it was a strategy to raise it in the motion for a new
trial, to allow the judge that presided over the trial to consider the issue, and to allow trial
counsel to testify about what happened and possibly remedy the situation. He also agreed
that when he filed an appeal, he included the issues he thought the court would consider.

        To be effective, appellate counsel must use his professional experience and knowledge
to determine which issues to advance and which issues have no merit. Carpenter v. State,
126 S.W.3d 879, 887 (Tenn. 2004). Generally, these decisions are left to the sound
discretion of appellate counsel. Id. Appellate counsel said that he raised the ineffective
assistance of counsel claim in the motion for a new trial because the Petitioner insisted and
that if his client wanted him to raise an issue in a motion for a new trial that was well-
grounded in the law, he would raise it. The trial court found that appellate counsel presented
several well-articulated issues in support of the ineffective assistance of counsel claim. The
court found that appellate counsel raised the ineffective assistance of counsel on appeal
because the Petitioner insisted, that the Petitioner’s testimony that he did not want appellate
counsel to raise the issue was unpersuasive, and that it was appellate counsel’s strategic
decision to raise the claim. The record does not preponderate against the trial court’s
findings.

        The Petitioner also argues that appellate counsel knowingly deprived the Petitioner
of the right to raise the ineffective assistance of trial counsel in post-conviction proceedings.
Appellate counsel testified that he told the Petitioner that raising the ineffective assistance
of counsel claim in the motion for a new trial would prohibit him from arguing it in post-
conviction proceedings. The trial court found that appellate counsel was an experienced
criminal defense attorney who was aware of the dangers of raising the ineffective assistance
on appeal and that appellate counsel warned the Petitioner of the dangers. The court was

                                              -16-
unconvinced that appellate counsel raised the issue against the Petitioner’s wishes. Nothing
in the record preponderates against the trial court’s findings that the Petitioner was not
advised of the ramifications of raising the ineffective assistance of counsel claim on appeal.
We note that, as was sought in this case, an ineffectiveness claim may be raised in a
conviction appeal and that if the claim is raised ineffectively, the issue may be addressed in
a subsequent post-conviction petition.

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.


                                    ____________________________________
                                    JOSEPH M. TIPTON, PRESIDING JUDGE




                                             -17-
