                                                                                         07/02/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 12, 2020

                  LEONEL LOPEZ v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                     No. 2011-C-2591 Jennifer Smith, Judge
                     ___________________________________

                           No. M2019-00683-CCA-R3-PC
                       ___________________________________


A Davidson County grand jury indicted Petitioner, Leonel Lopez, for first degree murder.
After a jury trial, Petitioner was convicted of second degree murder. Petitioner received a
twenty-year sentence. This Court upheld Petitioner’s conviction on appeal. State v.
Lopez, 440 S.W.3d 601 (Tenn. Crim. App. 2014). Petitioner filed a pro se petition for
post-conviction relief arguing that he received ineffective assistance of counsel, that the
prosecution failed to disclose exculpatory evidence, that the State engaged in
prosecutorial misconduct, and that the trial court made various errors. After two
hearings, the post-conviction court denied relief. After reviewing the record, we affirm
the judgment of the post-conviction court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE, and ROBERT H. MONTGOMERY, JR., JJ., joined.

Wesley Clark (at hearing and on appeal), Nashville, Tennessee, for the appellant, Leonel
Lopez.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Doug Thurman,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                              Facts and Procedural History
       Petitioner was indicted by a Davidson County grand jury for first degree murder.
After a trial, a jury convicted Petitioner of the lesser-included offense of second-degree
murder. This Court provided a brief summary of facts in Petitioner’s direct appeal when
outlining the sufficiency of evidence:

              [T]he evidence showed that [Petitioner] repeatedly punched and
       kicked the victim all over her body, including her head, even after she lost
       consciousness. [Petitioner] punched another bar patron who attempted to
       intervene. The attack on the victim grew so vicious that [Petitioner’s]
       friends tried to make him stop and took a pool stick away from him to
       prevent him from hitting the victim with it. After he stopped, [Petitioner]
       screamed that he had killed the victim and that her children “would be
       next.” The victim suffered severe injuries from the attack, her brain
       swelled, and she died a week later.


Lopez, 440 S.W.3d at 609. Petitioner received a twenty-year sentence. Petitioner
challenged his conviction, and this Court affirmed the conviction on February 24, 2014.
Id. at 603. On March 3, 2015, Petitioner filed a pro se petition for post-conviction relief
which was subsequently amended by appointed counsel.

                                Post-Conviction Hearing

        Trial counsel stated that he was hired by friends of Petitioner. After reviewing the
evidence, trial counsel was “comfortable [the State was] not gonna be able to prove
premeditation.” Trial counsel’s “preparation for the case hinged on, on proving there was
no premeditation.” Trial counsel did not file any pre-trial motions to exclude evidence
because he believed there was nothing in the evidence that was inadmissible. He did not
call any witnesses, but felt he did an effective job of cross-examining the State’s
witnesses to negate premeditation. Trial counsel recalled that the three witnesses who
testified against Petitioner each described what they saw. Each witness testified that they
saw Petitioner beat and kick the victim and use a pool cue to hit her. The autopsy report
supported the testimony of the State’s witnesses. Trial counsel recalled that Petitioner
confessed to beating the victim with his fists and kicking her. Trial counsel agreed that
the only way to get the jury to convict for voluntary manslaughter was to put Petitioner
on the stand, and trial counsel did not believe that was a good idea. Petitioner chose not
to testify. Trial counsel stated he “was on a tight rope in trying to shed positive light on
[Petitioner], but [trial counsel] also didn’t want to paint the victim as a perpetrator.”
Trial counsel interviewed all witnesses who were at the crime scene, including Carlos
Jiminez-Gomez. Ultimately, trial counsel chose not to call Mr. Jiminez-Gomez because
his testimony would paint the victim as an aggressor and that would have upset the jury.
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        Petitioner testified that he kicked and beat the victim, but did not intend to kill her.
Petitioner was upset that the victim had confronted his cousin and screamed at Petitioner.
Petitioner was under the influence of drugs and alcohol and that “it was only a moment of
anger, but [Petitioner] never had the intention of things to end that, that way.” Petitioner
testified that he told trial counsel to call Michel Hernandez, Cesar Cedillo, and Mr.
Jiminez-Gomez because they were present when Petitioner beat the victim. Petitioner
believed that he should have been convicted of voluntary manslaughter instead of second
degree murder.

       Mr. Jiminez-Gomez testified that Petitioner was his cousin and friend. He was not
interviewed by police, but acknowledged that trial counsel had interviewed him. Trial
counsel told him that he would be called as a witness at trial but that never happened.
Mr. Jiminez-Gomez stated that the victim became aggressive with Mr. Hernandez, that
Petitioner intervened, and that the victim then “threw herself on [Petitioner].” The victim
was verbally aggressive toward Petitioner and that is when Petitioner began beating the
victim. Mr. Jiminez-Gomez never informed police about his version of events even
though he believed what he had to say was important and relevant. Mr. Jiminez-Gomez
did not see the victim strike Petitioner, but stated that she grabbed Petitioner.

                                                 Analysis

      On appeal, Petitioner argues that he received ineffective assistance of counsel.1
The State argues that Petitioner fails to establish that trial counsel was ineffective. We
agree with the State.

       Post-conviction relief is available for any conviction or sentence that 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. In order to
prevail in a claim for post-conviction relief, a petitioner must prove his factual allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, a post-
conviction court’s findings of fact are conclusive unless the evidence preponderates
otherwise. Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). Accordingly, questions
concerning witness credibility, the weight and value to be given to testimony, and the
factual issues raised by the evidence are to be resolved by the post-conviction court, and
an appellate court may not substitute its own inferences for those drawn by the post-

       1
           Petitioner has, on appeal, abandoned all other arguments.
                                                   -3-
conviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). However,
the post-conviction court’s conclusions of law and application of the law to the facts are
reviewed under a purely de novo standard, with no presumption of correctness. Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001).

        Both the Sixth Amendment to the Constitution of the United States and article I,
section 9 of the Tennessee Constitution guarantee the right of an accused to the effective
assistance of counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In
order to sustain a claim of ineffective assistance of counsel, a petitioner must demonstrate
that counsel’s representation fell below the range of competence demanded of attorneys
in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Under the two
prong test established by Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner
must prove that counsel’s performance was deficient and that the deficiency prejudiced
the defense. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that the same standard for determining ineffective assistance of counsel applied in federal
cases also applies in Tennessee). Because a petitioner must establish both elements in
order to prevail on a claim of ineffective assistance of counsel, “failure to prove either
deficient performance or resulting prejudice provides a sufficient basis to deny relief on
the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). “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 v. State, 938 S.W.2d 363, 370
(Tenn. 1996) (citing Strickland, 466 U.S. at 697).

       The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance,” State v. Burns,
6 S.W.3d 453, 462 (Tenn. 1999).

        Even if a petitioner shows that counsel’s representation was deficient, the
petitioner must also satisfy the prejudice prong of the Strickland test in order to obtain
relief. The question is “whether counsel’s deficient performance renders the result of the
trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S.
364, 372 (1993). A petitioner must show that there is a reasonable probability “sufficient
to undermine confidence in the outcome” that, “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Burns, 6 S.W.3d at 463 (quoting
Strickland, 466 U.S. at 694).



                                           -4-
        Here, Petitioner specifically argues that trial counsel was ineffective for failing to
call witnesses to present evidence in support of a voluntary manslaughter conviction
instead of second degree murder. The post-conviction court found that trial counsel was
aware of Mr. Jiminez-Gomez, that trial counsel had interviewed him prior to trial, and
that trial counsel made a tactical decision not to present additional witnesses at trial. The
post-conviction court credited the testimony of trial counsel. As to other witnesses that
Petitioner wanted trial counsel to call, Petitioner did not present them at the post-
conviction hearing, therefore he cannot show prejudice. See Black v. State, 794 S.W.2d
752, 757 (Tenn. Crim. App. 1990). The post-conviction court stated that “Petitioner
failed to establish by clear and convincing evidence that trial counsel was ineffective for
any of the various reasons alleged in his petitions or that [Petitioner] was prejudiced by
any alleged deficiency.” The record does not preponderate against the post-conviction
court’s findings. Petitioner is not entitled to relief.

                                        Conclusion

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.



                                              ____________________________________
                                              TIMOTHY L. EASTER, JUDGE




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