        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs June 7, 2011

                   JARVIS HARRIS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                     No. 03-00441     Robert Carter, Jr., Judge




                No. W2010-01848-CCA-R3-PC - Filed August 18, 2011


The petitioner, Jarvis Harris, appeals the denial of his petition for post-conviction relief,
which challenged his convictions of first degree premeditated murder and attempted first
degree murder. In this appeal, the petitioner challenges the trial court’s denial of his pretrial
motion to suppress the evidence, the sufficiency of the convicting evidence, and the
performance of his attorneys at trial and on appeal. Because the first two issues are either
waived or previously determined, see T.C.A. § 40-30-106(g)-(h) (2006), and because the
petitioner failed to establish by clear and convincing evidence that he was denied the
effective assistance of counsel, we affirm the denial of post-conviction relief.

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

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and A LAN E. G LENN, JJ., joined.

Vicki Carriker, Memphis, Tennessee (at evidentiary hearing), for the appellant, Jarvis Harris,
pro se (on appeal).

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; William L. Gibbons, District Attorney General; and David Zak, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

               Following a December 2005 trial, a Shelby County Criminal Court jury
convicted the petitioner of first degree premeditated murder and attempted first degree
murder in the 2002 shootings of Montrell Graham and Maurice Wooten. According to the
petitioner’s pretrial statement, the April 11, 2002 shooting was the result of an altercation
between the petitioner and Mr. Wooten during an April 5, 2002 dice game. See State v.
Jarvis Harris, W2006-02234-CCA-R3-CD, slip op. at 2 (Tenn. Crim. App., Jackson, Aug.
24, 2007). The evidence adduced at trial and summarized by this court on direct appeal
established that the petitioner and his co-defendant, Thaddeus Johnson, both members of the
Vice Lords, planned the murder of Mr. Wooten following Mr. Wooten’s alleged theft of
marijuana during the April 5, 2002 dice game. See id., slip op. at 6-8. According to the
petitioner’s pretrial statement and various participants in the murder who testified as
witnesses for the State, neither the petitioner nor Mr. Johnson planned the murder of Mr.
Graham, who simply happened to be in the wrong place at the wrong time. See id.

               On direct appeal, the petitioner challenged the admission of evidence
concerning his gang affiliation, the trial court’s denial of his motion to suppress his pretrial
statements, and the propriety of the sentences imposed. This court affirmed the convictions
and life sentence imposed for first degree murder but remanded the case for resentencing of
the petitioner’s attempted first degree murder conviction. See id., slip op. at 13. Following
his unsuccessful bid at appellate relief, the petitioner filed a timely petition for post-
conviction relief alleging numerous grounds for relief, including the denial of his motion to
suppress and ineffective assistance of counsel.1 The post-conviction court appointed counsel
to represent the petitioner and held an evidentiary hearing in two parts on May 20 and June
29, 2010.2

              At the evidentiary hearing, trial counsel testified that he was appointed to
represent the petitioner in the case at issue and an unrelated attempted aggravated robbery
case. Counsel testified that as part of his trial preparations, he “had an open-file discovery
session” with the prosecutors wherein he familiarized himself with all the information in the
State’s possession. He said that he filed a number of pretrial motions, including an
unsuccessful motion to suppress the petitioner’s pretrial statement. He could not recall the
precise basis of the motion, only that it was unsuccessful.

               The petitioner testified that, prior to trial, he rejected a plea offer from the State
for a total effective sentence of 15 years in exchange for his testimony against other
participants in the offenses. The petitioner claimed that trial counsel performed deficiently


        1
         The pro se petitioner’s pleadings seeking post-conviction relief prior to the appointment of counsel
total 135 pages and include innumerable claims beginning with the petitioner’s arrest, which he claims was
not supported by probable cause, and detailing errors in nearly every aspect of the petitioner’s case. The
various claims were condensed by the post-conviction court into nine grounds for relief.
        2
         The appellate record does not contain a motion to withdraw filed by post-conviction counsel or any
record that counsel was granted permission to withdraw. The petitioner filed a pro se notice of appeal and
does not complain about his lack of appellate representation.

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by failing to call as a witness at the suppression hearing Memphis Police Department
Detective and the petitioner’s cousin, Eddie Bass, Jr. The petitioner asserted that Mr. Bass’s
presence in the interview room during his interrogation led to his providing a false and
coerced confession. The petitioner contended that Mr. Bass’s presence and coercive
statements formed the backbone of his motion to suppress and that trial counsel’s failure to
call Mr. Bass as a witness resulted in the motion’s being unsuccessful.

                The petitioner claimed generally that trial counsel “could have argued a little
better” during both the suppression hearing and at trial, but he could not state with any
specificity how counsel’s performance was actually deficient. The petitioner conceded that
the facts contained in his statement, which was admitted into evidence, made the charges
“kind of hard to beat” and admitted that trial counsel did “the best he could” at trial
considering the overwhelming evidence. Nevertheless, the petitioner maintained that trial
counsel was ineffective because he failed to properly articulate the Fourth Amendment issue
to the trial court.

               The petitioner also asserted that his appellate counsel failed to challenge on
appeal his illegal arrest. Essentially, the petitioner claimed that his statements to police
should have been suppressed because he was arrested without probable cause prior to giving
the statements.

              Appellate counsel testified that he was appointed to represent the petitioner on
appeal following trial counsel’s successful motion to withdraw from the case. He stated that
he selected those issues to pursue on appeal after examining the record and the motion for
new trial and talking to the petitioner and his family. He could not recall anything unusual
about the petitioner’s appeal.

                In an order detailing its findings of fact and conclusions of law, the post-
conviction court denied relief. The post-conviction court concluded that four of the
petitioner’s claims for post-conviction relief, including his claim that his pretrial statements
should have been suppressed, had been previously determined. The court determined that
the petitioner failed to present any evidence to support his claims that his convictions
violated double jeopardy principles, that his convictions were based on an “Anderson”
violation, and that the sentencing court lacked subject matter jurisdiction. The court ruled
that the petitioner failed to establish that trial counsel performed deficiently by failing to
secure Eddie Bass as a witness because he failed to present Mr. Bass as a witness at the
evidentiary hearing. Finally, the court concluded that the petitioner had failed to establish
that trial or appellate counsel did not sufficiently investigate factual and legal issues of merit
or that appellate counsel performed deficiently when choosing those issues to present on
appeal.

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               In this appeal, the petitioner contends that the trial court erred by denying his
motion to suppress his pretrial statements, that the evidence was insufficient to support his
convictions, and that he was denied the effective assistance of counsel at trial. We view each
of the petitioner’s claims with a few well-settled principles in mind. Post-conviction relief
is available only “when the conviction or sentence is void or voidable because of the
abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of
the United States.” T.C.A. § 40-30-103 (2006). A post-conviction petitioner bears the
burden of proving his or her allegations by clear and convincing evidence. Id. §
40-30-110(f). On appeal, the appellate court accords to the post-conviction court’s findings
of fact the weight of a jury verdict, and these findings are conclusive on appeal unless the
evidence preponderates against them. Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By contrast, the
post-conviction court’s conclusions of law receive no deference or presumption of
correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

                               A. Suppression and Sufficiency

                We agree with the post-conviction court and the State that issues relative to the
trial court’s denial of the petitioner’s motion to suppress have been previously determined.
See T.C.A. § 40-30-106(h) (“A ground for relief is previously determined if a court of
competent jurisdiction has ruled on the merits after a full and fair hearing. A full and fair
hearing has occurred where the petitioner is afforded the opportunity to call witnesses and
otherwise present evidence, regardless of whether the petitioner actually introduced any
evidence.”). The petitioner filed an unsuccessful motion to suppress his statements to police,
and the trial court’s denial of that motion later served as an issue on direct appeal. On direct
appeal, this court held that “the evidence supports the trial court’s finding that the defendant
knowingly, intelligently, and voluntarily waived” his constitutional rights prior to giving the
statements to police. See Jarvis Harris, slip op. at 12. Any other claim that the petitioner’s
statements should have been suppressed, including the petitioner’s assertion at the
evidentiary hearing that the statements were the product of an illegal arrest, would qualify
as waived for failure to present them at trial and on appeal. See T.C.A. § 40-30-106(g) (“A
ground for relief is waived if the petitioner personally or through an attorney failed to present
it for determination in any proceeding before a court of competent jurisdiction in which the
ground could have been presented.”).

             The petitioner’s challenge to the sufficiency of the convicting evidence has
been waived because it was not presented in the post-conviction court, see State v. Johnson,
970 S.W.2d 500, 508 (Tenn. Crim. App. 1996) (“Issues raised for the first time on appeal are
considered waived.”), and because it was not raised on direct appeal, see id.; T.C.A. § 40-30-
106(g). Moreover, “[t]he law is settled beyond question that . . . post-conviction proceedings

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may not be employed” to “question the sufficiency of the evidence.” Gant v. State, 507
S.W.2d 133, 136 (Tenn. Crim. App. 1973).

                            B. Ineffective Assistance of Counsel

                To establish entitlement to post-conviction relief via a claim of ineffective
assistance of counsel, the post-conviction petitioner must affirmatively establish first that
“the advice given, or the services rendered by the attorney, are [not] within the range of
competence demanded of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an
adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other
words, 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.” Id. at 694.
Should the petitioner fail to establish either deficient performance or prejudice, he is not
entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f
it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

              When reviewing a claim of ineffective assistance of counsel, we will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

              Claims of ineffective assistance of counsel are regarded as mixed questions of
law and fact. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999). When reviewing the application of law to the post-conviction
court’s factual findings, our review is de novo, and the post-conviction court’s conclusions
of law are given no presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State
v. England, 19 S.W.3d 762, 766 (Tenn. 2000).

               The petitioner first asserts that trial counsel performed deficiently by failing
to present Eddie Bass as a witness at the suppression hearing and at trial. We agree with the
post-conviction court, however, that the petitioner failed to establish this claim by clear and
convincing evidence because he did not present Mr. Bass as a witness at the evidentiary
hearing. “When a [post-conviction] petitioner contends that trial counsel failed to discover,
interview, or present witnesses in support of his defense, these witnesses should be presented
by the petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn.

                                              -5-
Crim. App. 1990). If he fails to do so, he generally fails to establish ineffective assistance
of counsel. Id. The post-conviction court may not speculate “on the question of . . . what a
witness’s testimony might have been if introduced” at trial. Id.; see also Wade v. State, 914
S.W.2d 97, 102 (Tenn. Crim. App. 1995).

              The petitioner also asserts that appellate counsel failed to raise meritorious
issues on appeal. He claims generally that appellate counsel should have raised issues
regarding the deprivation of his constitutional rights during interrogation and deficiencies in
the indictment. However, the petitioner presented absolutely no proof regarding either issue
at the evidentiary hearing. As a result, he failed to establish by clear and convincing
evidence that appellate counsel performed deficiently in his selection of those issues meriting
appellate review.

               The petitioner also makes myriad other, barely intelligble claims regarding the
efficacy of his trial and appellate counsel. We note that the petitioner simply failed to
establish that either trial or appellate counsel performed deficiently in any way.

              Accordingly, the judgment of the post-conviction court is affirmed.


                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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