        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs August 3, 2010

                BENNY TAYLOR, JR. v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Lauderdale County
                      No. 8412     Joseph H. Walker, III, Judge




                No. W2010-00107-CCA-R3-PC - Filed August 30, 2010


The petitioner, Benny Taylor, Jr., appeals the denial of his petition for post-conviction relief
wherein he challenged his 2008 Lauderdale County Circuit Court conviction of possession
with intent to deliver cocaine. In this appeal, he contends that he was denied the effective
assistance of counsel at trial. Discerning no error, we affirm the judgment of the post-
conviction court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which JOHN E VERETT
W ILLIAMS and J.C. M CL IN, JJ., joined.

Scott A. Lovelace, Ripley, Tennessee, for the appellant, Benny Taylor, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; D. Michael Dunavant, District Attorney General; and Julie K. Pillow,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

               Following a September 2008 bench trial, the petitioner was convicted of one
count of the possession with intent to deliver cocaine, and the trial court imposed a sentence
of seven years’ incarceration. The petitioner did not appeal his convictions but filed a timely
petition for post-conviction relief alleging that he had been denied the effective assistance
of counsel at trial. The post-conviction court appointed counsel and held an evidentiary
hearing on December 18, 2009.

              At the evidentiary hearing, the petitioner testified that trial counsel was
appointed to represent him prior to his appearance in the general sessions court. He stated
that he met with trial counsel for the first time immediately before his sessions court
proceeding and that he met with her “probably about two or three times” before the bench
trial in this case. The petitioner claimed that he never received a copy of the search warrant
when it was executed on the residence he shared with his mother and stepfather and that he
did not get to hear an audiotape that allegedly precipitated the warrant.

                During cross-examination, the petitioner stated that counsel provided him with
a copy of the search warrant and that the two reviewed the warrant together. The petitioner
admitted that he was allowed to testify at trial and that his counsel called witnesses on his
behalf in an attempt to prove that cocaine discovered in the pocket of a jacket inside the
residence did not belong to the petitioner. The petitioner also conceded that trial counsel
raised all the issues he wanted to be raised in his defense. The petitioner also agreed that trial
counsel “competently and to the best of her ability raised” all appropriate issues in his
defense.

             On redirect examination, the petitioner testified that counsel discussed with him
the nuances of the drug possession statute and all defenses that were available to him.

               Trial counsel testified that at the time of the petitioner’s trial, she had served
as an assistant public defender for some 18 years. She stated that she reviewed the search
warrant in the petitioner’s case and that she found no reason to challenge the warrant. She
recalled that after the petitioner’s mother told her that officers did not leave a copy of the
warrant at the residence, she spoke with the three officers who conducted the search
“independently, not at the same time, and asked them, and they each gave [her] the same
answer as to where they had left that search warrant.” She stated that she gave this
information to the petitioner and to his mother. She said that given the officers’ testimony
on this issue, a motion challenging the search on grounds that the petitioner did not receive
a copy of the warrant would not have been successful.

               Trial counsel stated that she did not receive a copy of the audiotape to which
the petitioner referred in his testimony because the petitioner was not charged as part of the
controlled buy that was memorialized on the tape. In consequence, the tape was not available
for the petitioner to hear. Trial counsel testified that she met with the petitioner two or three
times prior to the trial and then “quite a few times after the conviction” to assess the
petitioner’s chances for success on direct appeal. Trial counsel testified that as a result of
those discussions, the petitioner executed a waiver of his right to appeal. She stated that she
believed the petitioner to be a well-informed and active participant in the trial process.

               During cross-examination, trial counsel conceded that she did not provide the

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petitioner with discovery materials during their first meeting, but she explained that she had
not received the materials at the time of that meeting. She stated that “the discovery, frankly,
was a police report, a search warrant, and then a lab report. There really wasn’t a lot to it.”
She said that probable cause for the search warrant “was based upon a sale that occurred at
that residence between an undercover confidential informant and [the petitioner].” She said
that she did not listen to the tape because she did not “have a right to listen to it.” She stated
that the contents of the tape were irrelevant to the validity of the warrant, explaining, “I
cannot go beyond the four corners of the warrant. So if they say in the warrant that they had
a reliable confidential informant who made a sale or a buy, you know, I can’t . . . question
that.” She testified that the tape was never admitted into evidence in the petitioner’s trial.

               Trial counsel stated that she did not pursue a defense based on the cocaine
being possessed solely for the petitioner’s personal use because the petitioner was adamant
that neither the cocaine nor the jacket in which it was found belonged to him. She said that
he maintained that the jacket belonged to his brother and that, as a result, she did not “believe
that [personal use] would be a viable claim for a defense.”

               At the conclusion of the hearing, the post-conviction court took the petition
under advisement. In a later-issued written order, the post-conviction court denied post-
conviction relief, finding that the petitioner had not been denied the effective assistance of
counsel at trial. The court accredited the testimony of trial counsel and concluded that “the
petitioner failed to carry the burden of showing that (a) the services rendered by trial counsel
were deficient and (b) the deficient performance was prejudicial.”

              In this appeal, the petitioner reiterates his claims that trial counsel performed
deficiently by failing to meet with him a sufficient number of times and by failing to
challenge the search warrant in his case.

              A post-conviction petitioner bears the burden of proving his or her allegations
by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006). 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).

               To establish entitlement to post-conviction relief via a claim of ineffective
assistance of counsel, the post-conviction petitioner must affirmatively establish first whether
“the advice given, or the services rendered by the attorney, are within the range of

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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).

               In this case, testimony from both the petitioner and his trial counsel established
that trial counsel reviewed the discovery materials with the petitioner, reviewed the nature
of the charges against the petitioner and the likelihood of success at trial, reviewed the search
warrant with the petitioner and the likelihood of mounting a successful challenge to the
search warrant, and discussed all available defense strategies. The petitioner conceded that
trial counsel represented him “competently and to the best of her abilities.” Trial counsel’s
accredited testimony established that there was no legal basis for challenging the search
warrant, and the petitioner failed to even allege any meritorious grounds for a motion to
suppress the search warrant. Under these circumstances, the petitioner has failed to establish
by clear and convincing evidence that trial counsel performed deficiently.

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




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      _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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