        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs February 1, 2011 at Jackson

           NABEEH JAMEEL MATEEN v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                     No. 2005-A-650    Steve R. Dozier, Judge


                  No. M2010-00423-CCA-R3-PC - Filed May 5, 2011


The petitioner, Nabeeh Jameel Mateen, appeals the denial of his petition for post-conviction
relief from his especially aggravated robbery conviction, arguing that he received the
ineffective assistance of counsel. Following our review, we affirm the denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J ERRY L. S MITH and N ORMA
M CG EE O GLE, JJ., joined.

Nathaniel Colburn (on appeal) and George Duzane (at hearing), Nashville, Tennessee, for
the appellant, Nabeeh Jameel Mateen.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

       The petitioner was convicted of especially aggravated robbery by a Davidson County
Criminal Court jury and sentenced to forty years at 100% in the Tennessee Department of
Correction. This court affirmed his conviction and sentence on direct appeal, and the
Tennessee Supreme Court denied permission to appeal. See State v. Nabeeh Jameel Mateen,
No. M2006-02295-CCA-R3-CD, 2008 WL 1904250 (Tenn. Crim. App. May 1, 2008),
perm. to appeal denied (Tenn. Dec. 8, 2008).
        Our direct appeal opinion reveals that the petitioner’s conviction arose out of his
involvement in the robbery, shooting, and running over of Rachel Browning, the victim, the
morning of February 7, 2004. Id. at *1-2. Neighbors of the victim, who observed various
portions of the incident, described that the assailant was wearing a “poofy jacket,” a hooded
sweatshirt with the hood pulled up, gloves, and “bag-sag” jeans. Id. Approximately a week
prior to the incident, the defendant, with whom the victim had a business and romantic
relationship, asked the victim for $1000 which the victim refused to give him. Id. at *3.
The next time the victim saw the defendant was the night before the shooting when she was
working at the nightclub she owned, and the defendant arranged to meet her at her home
after she closed the club. When the victim arrived home around dawn and was removing
her belongings from her car, she saw a gray, hooded sweatshirt, heard a loud noise, and
remembered nothing thereafter until she woke up in the hospital. The victim could not
identify the person who shot her. Id.

        The State’s primary witnesses against the defendant was Michael Scott, a friend of
the defendant, who testified that he was with the defendant sometime after the shooting
when the defendant told Scott that he had set up the victim to be robbed by telling some
other people to follow her after she left the club and that those people had shot her. Scott
testified that the defendant later told him over the telephone that someone named “Jazz” shot
the victim. Id. at *5. The victim’s and the defendant’s cell phone records were introduced
at the trial. The records showed a number of calls between the victim and the defendant
between 4:23 a.m. and 6:08 a.m. the morning of the shooting, as well as calls from the
victim to a Styles Camp. The defendant’s records showed, among other things, calls to and
from a Jermaine Hyler around the same time period. The location of the telephone towers
used during the calls reflected that a 6:06 a.m. call by Hyler was received at a tower in the
part of town where the victim lived. Id. at *6.

        The petitioner filed a timely pro se petition for post-conviction relief, and after the
appointment of counsel, an amended petition was filed. The petitioner requested that his
attorney be relieved, and new counsel was appointed and filed another amended petition.
In his petitions, the petitioner raised various allegations of ineffective assistance of counsel.

        The post-conviction court conducted an evidentiary hearing, at which the petitioner
testified that his trial counsel only met with him approximately seven times for a total of two
hours in preparation for trial. He and counsel “discussed some small issues” but did not talk
about possible defenses. The petitioner said that there was a preliminary hearing in his case
at which he was represented by another attorney. At that hearing, Michael Scott, who was
the State’s key witness at trial, testified that the petitioner had made a confession to him
while they were in a vehicle together, but Scott could not remember whose car they were in,
where they had been, where they were going, or what they were wearing. However, at trial,

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Scott remembered who had been driving in addition to “a lot of other stories that had
changed from the story that he stated in the preliminary hearing.” The petitioner stated that
he asked counsel to obtain a transcript of the preliminary hearing.

       The petitioner testified that, at the preliminary hearing, Scott also stated that he
“wanted [the petitioner] to take a charge, a dope charge that he claimed that [the petitioner]
supposedly left some drugs . . . in his car[.]” Scott said that, in addition, he wanted the
petitioner to pay to get his car out of impound and pay for his attorney. Scott stated at the
hearing that he was presently mad at the petitioner. The petitioner testified, however, that
none of those things came out at trial.

       The petitioner testified that Scott also testified at the preliminary hearing that the
petitioner had made another confession over the jailhouse phone. The petitioner said that
he did not get a copy of that phone conversation, and he could not recall whether he brought
the matter to counsel’s attention. The petitioner further alleged that Crystal Parnam was his
alibi witness, which he informed counsel “[n]umerous times” and asked to have her
subpoenaed, but Parnam did not testify at trial.

        The petitioner testified that he was not in possession of his cell phone the morning
of the incident, and he asked counsel to investigate the whereabouts of his phone through
the use of a private investigator, but counsel told him that “a private investigator is going
to cost a lot of money. You can barely afford me right now.” The petitioner testified that
counsel represented him on direct appeal, and he alleged that counsel never met with him
to discuss the issues he wished to raise.

       On cross-examination, the petitioner denied having a conversation with the victim
shortly before the incident in person at the nightclub or on the phone. He admitted that he
had sexual relations with the victim on several occasions but stated that he did not know the
victim’s voice over the phone. The petitioner denied that he was supposed to meet the
victim for sexual relations the morning of the incident.

        The petitioner acknowledged that Crystal Parnam was his girlfriend at the time of the
incident, and she met with counsel on several occasions and made partial payments toward
his attorney’s fees. However, a few weeks prior to trial, Parnam disappeared, and counsel
was unable to locate her. The petitioner denied that he possessed his cell phone around the
time of the incident, claiming that he told counsel that his friend, Mervin Harvell, had his
phone at the time.

     Counsel testified that he was retained by the petitioner to represent him at trial.
Counsel discussed the elements of the charged offenses with the petitioner, as well as the

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possible defenses he might have. He met with the petitioner six or seven times at the jail
during the pendency of the case and whenever the petitioner came to the courthouse on his
court dates. He said that some of their conversations could have been as short as fifteen
minutes and others more than thirty minutes, but their meetings were “way more than an
hour any time that [they] met within two weeks of trial.”

        Counsel testified that he obtained a copy of the preliminary hearing tape within one
month from the time he was retained by the petitioner. Counsel listened to the tape and
made notes, but he did not see any reason to have it transcribed. Counsel learned from
listening to the tape that the State was prolonging a hearing on a probation violation on
Michael Scott until after Scott testified at the petitioner’s trial and learned that Scott had a
felony drug charge pending.

        Counsel testified that he talked to the petitioner about Scott’s allegation that the
petitioner had confessed to the crime while they were in a vehicle, but neither the petitioner
nor Scott could remember whose vehicle they were in when the conversation took place.
Counsel said that Scott’s testimony at trial was different than that at the preliminary hearing
“[i]n some minor ways,” but there was nothing from the hearing that counsel could use to
cross-examine Scott because it was not “vastly different.” Counsel said that he cross-
examined Scott regarding any “material” inconsistencies in his testimony, and he believed
that his cross-examination was “thorough.”

        Counsel testified that he learned about some jailhouse telephone calls between the
petitioner and Scott that had taken place, but he did not file a motion to obtain a transcript
of the telephone calls because “after just a few months those calls are erased. And by the
time [he] was retained . . ., that time had long passed. . . . They were not going to be
obtainable.” Counsel said that he was “sure” he discussed with the prosecutors whether they
had a transcription of the jailhouse calls, “but neither of them had a transcript of it.”
However, counsel did not make a request in writing or go to the jail to investigate whether
the sheriff’s department still had the tapes of the conversation. In addition, counsel
attempted to talk to Michael Scott before the trial, but he “was not given access to [Scott]
by his attorney.”

        Counsel stated that he met with Crystal Parnam once or twice a month for a total of
six to eight times. He interviewed her and she said there was an alibi, but counsel did not
“know whether there was one or not.” The petitioner asked counsel to file a notice of alibi
witness, but he did not do so “because [the alibi witness, Parnam,] disappeared a few weeks
before the trial,” and he did not know how to locate her. Counsel attempted to locate
Parnam by calling her, but he discovered that her number was longer valid. He also drove
by an address where she said she had lived for a period of time, but no one was home. The

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petitioner was unable to give him any additional contact information that counsel did not
have already. Counsel recalled that the petitioner told him that Parnam had “found a new
boyfriend and had moved on from their relationship.”

       Counsel testified that he did not visit with the petitioner in preparation of the appeal,
but he sent letters to the petitioner throughout the appellate process. However, counsel and
the petitioner discussed issues in preparation for the motion for new trial, and the petitioner
did not mention any additional issues that he wanted to raise. The petitioner never wrote
counsel to say that he thought of additional issues he wanted to include on appeal. Counsel
said that he would have included other issues in the appellate brief if he thought they had
merit.

        In denying the petitioner post-conviction relief, the court accredited the testimony of
counsel that he met with the petitioner on several occasions to discuss trial strategy and had
thoroughly investigated the petitioner’s case by meeting with witnesses. The court observed
that Crystal Parnam was not called as a witness at the evidentiary hearing, nor was there any
showing of the validity of the claimed alibi. Therefore, the petitioner failed to prove that
counsel was ineffective for not calling Parnam to testify at trial. The court noted the phone
usage of the various actors was very incriminating at trial, but at the evidentiary hearing,
there was “no proof . . . submitted as to who possessed the petitioner’s phone during the
critical time of these events.” The court found, therefore, that counsel could not “be blamed
for not presenting proof to the contrary if it did not exist.”

                                         ANALYSIS

        The petitioner argues on appeal that counsel rendered ineffective assistance because
he failed to adequately investigate the petitioner’s alibi defense and subpoena his alibi
witness; failed to investigate who possessed the petitioner’s phone at the time of the
incident; failed to obtain a transcript of Michael Scott’s testimony at the preliminary hearing
to use “for impeachment and substantive evidence”; failed to adequately confer with him
prior to trial; and failed to meet with him in preparation of or raise sufficient challenges on
appeal.

        The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). When an
evidentiary hearing is held in the post-conviction setting, the findings of fact made by the
court are conclusive on appeal unless the evidence preponderates against them. See Tidwell
v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual
issues, the appellate court should not reweigh or reevaluate the evidence. See Henley v.
State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s application of

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the law to the facts of the case is de novo, with no presumption of correctness. See Ruff v.
State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel,
which presents mixed questions of fact and law, is reviewed de novo, with a presumption
of correctness given only to the post-conviction court’s findings of fact. See Fields v. State,
40 S.W.3d 450, 458 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the burden
to show both that trial counsel’s performance was deficient and that counsel’s deficient
performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.
668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting
that same standard for determining ineffective assistance of counsel that is applied in federal
cases also applies in Tennessee). The Strickland standard is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient performance
       prejudiced the defense. This requires showing that counsel’s errors were so
       serious as to deprive the defendant of a fair trial, a trial whose result is
       reliable.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The reviewing court must indulge a strong presumption that the conduct of counsel falls
within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and
may not second-guess the tactical and strategic choices made by trial counsel unless those
choices were uninformed because of inadequate preparation. See Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a
reasonable probability, i.e., a “probability sufficient to undermine confidence in the
outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694.

        With regard to the petitioner’s claim that counsel was ineffective for failing to
adequately investigate his alibi defense and subpoena his alibi witness, the petitioner has
failed to prove how he was prejudiced by any alleged deficiency. As noted by the post-
conviction court, the petitioner failed to offer any evidence as to the validity of his alibi or

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call Crystal Parnam to testify at the evidentiary hearing as to what her testimony would have
been at trial regarding the petitioner’s alibi. To satisfy the prejudice requirement of
Strickland when alleging that counsel was ineffective for failing to offer testimony from a
favorable witness, the post-conviction petitioner must “(1) produce the witness at his
post-conviction hearing; (2) show that through reasonable investigation, trial counsel could
have located the witness; and (3) elicit both favorable and material testimony from the
witness.” Denton v. State, 945 S.W.2d 793, 802-03 (Tenn. Crim. App. 1996) (citing Black
v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)). The petitioner failed to make this
showing.

        With regard to the petitioner’s claim that counsel was ineffective for failing to
investigate who possessed his phone at the time of the incident, the petitioner has, again,
failed to prove how he was prejudiced by any alleged deficiency. Although the petitioner
maintained at the evidentiary hearing that Mervin Harvell had his phone at the time of the
offense, the petitioner put on no proof that Harvell, or someone else, indeed had the
petitioner’s phone. As observed by the post-conviction court, counsel “cannot be blamed
for not presenting proof to the contrary if it did not exist.”

        With regard to the petitioner’s claim that counsel failed to obtain a transcript of
Michael Scott’s testimony at the preliminary hearing to use “for impeachment and
substantive evidence,” counsel testified that he obtained an audiotape copy of the
preliminary hearing within one month from the time he was retained by the petitioner.
Counsel listened to the tape and from it learned that the State was prolonging a hearing on
Michael Scott’s probation violation until after Scott testified at the petitioner’s trial.
Counsel also learned that Scott had a pending felony drug charge. Counsel testified that
after he listened to the tape, he did not see any reason to have the hearing transcribed or he
would have done so. Counsel did not think that Scott’s testimony at trial was “vastly
different” from his preliminary hearing testimony, consisting only of “minor” discrepancies.
In any event, counsel believed that his cross-examination of Scott was thorough. We, as did
the post-conviction court, have reviewed the transcript of the preliminary hearing provided
by the petitioner. We fail to see how the petitioner received ineffective assistance due to
counsel’s not obtaining a transcript of the preliminary hearing with which to cross-examine
Scott regarding the minor discrepancies pointed out by the petitioner, when Scott’s extensive
criminal history, his several month delay in informing the authorities of the petitioner’s
statements, and his hopes of receiving favorable consideration by the prosecution with
regard to his own cases were brought before the jury.

        With regard to the petitioner’s claim that counsel failed to adequately confer with him
prior to trial, counsel testified that he met with the petitioner six or seven times at the jail in
addition to the times the petitioner was at the courthouse for various appearances. Counsel

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said that their conversations ranged from fifteen to more than thirty minutes, with their
meetings in the two weeks leading up to trial being more than an hour. Counsel stated that,
at these meetings, he discussed the elements of the charged offenses with the petitioner, as
well as the possible defenses the petitioner might have. The post-conviction court accredited
counsel’s testimony at the evidentiary hearing; therefore, the petitioner has failed to prove
that counsel rendered deficient performance.

        The petitioner’s final claim is that counsel provided ineffective assistance with regard
to his handling of the appeal. Specifically, he argues that counsel failed to meet with him
in preparation or raise challenges that a robbery occurred, a deadly weapon was used, or that
the offense was a carjacking as opposed to an aggravated robbery. Counsel testified that he
and the petitioner discussed issues in preparation for the motion for new trial, and the
petitioner did not ask counsel to include any additional issues. Counsel said that the
petitioner never wrote him to say that he thought of additional issues he wanted to include
on appeal. Counsel stated that he would have included other issues in the appellate brief if
he thought they had merit, but he was ethically precluded from raising issues that were not
meritorious. The petitioner has failed to prove that there would have been any merit to the
challenges he now claims counsel should have made. Moreover, we fail to see any
deficiency in counsel’s performance. Even though counsel did not meet with the petitioner
specifically in preparation of the appeal, they discussed issues in preparation for the motion
for new trial, and counsel kept in correspondence with the petitioner during the appellate
process.

                                      CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the post-conviction
court’s denial of the petition.


                                                    _________________________________
                                                    ALAN E. GLENN, JUDGE




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