        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                     Assigned on Briefs July 27, 2010 at Knoxville

                TERRY B. JOHNSON v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Rutherford County
                     No. 59791     James K. Clayton, Jr., Judge


               No. M2009-02125-CCA-R3-PC - Filed November 29, 2010




The Petitioner, Terry B. Johnson, appeals as of right from the Rutherford County Circuit
Court’s denial of his petition for post-conviction relief challenging his conviction for sale of
less than .5 grams of cocaine and resulting 15-year sentence. The Petitioner contends (1) he
was denied his Sixth Amendment right to the effective assistance of counsel at trial; (2) he
was denied a “full and fair hearing” on his petition due to the ineffective assistance of his
post-conviction counsel; and (3) he was denied a “full and fair hearing” on his petition
because the judge presiding over his post-conviction proceedings also presided over the
original trial proceedings. Following our review, we affirm the judgment of the trial court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, J R., J., joined.

Terry B. Johnson, Whiteville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; William Whitesell, District Attorney General; and Trevor H. Lynch, Assistant
District Attorney General, attorneys for appellee, State of Tennessee.

                                          OPINION

       The record reflects that the Petitioner was convicted by a jury of the sale of less than
.5 grams of cocaine. The Petitioner was classified as a career offender, and the trial court
imposed a sentence of 15 years. This court affirmed the Petitioner’s conviction and
sentencing on direct appeal. State v. Terry V. Johnson, No. M2005-01858-CCA-R3-CD,
2006 WL 1627301 (Tenn. Crim. App. June 12, 2006). The Petitioner filed a timely petition
for post-conviction relief on February 2, 2007. An evidentiary hearing was held on June 25,
2007, and on August 9, 2007, the post-conviction court issued an order denying the petition.
On November 4, 2009, this court entered an order granting the Petitioner a delayed appeal
of the post-conviction court’s order.

        At the evidentiary hearing, trial counsel testified that the Petitioner was convicted
based upon the testimony of Detective Merrill Beene of the Murfreesboro Police Department
and a video recording of the Petitioner selling cocaine to a confidential informant. Trial
counsel’s defense strategy was to challenge the identity of the seller because the seller only
appeared in the video for a few seconds and because Detective Beene did not actually witness
the transaction. Prior to trial, counsel was informed that the confidential informant had
identified a photograph of another person as the seller. However, on the day of trial the
confidential informant saw the Petitioner and identified him as the seller. The State chose
not to call the informant as a witness. Trial counsel had to decide whether to call the
confidential informant as a witness in order to elicit his testimony about the misidentification.
Trial counsel testified that he ultimately decided the risk of the informant’s identifying the
Petitioner on cross-examination was too great to call him as a witness. Trial counsel also
testified that he believed an in-person identification in front of the jury would outweigh any
gains made from the informant’s testimony regarding his misidentification of the seller.

        At the evidentiary hearing, it was also alleged that trial counsel erred by failing to
request the dismissal of a juror who saw the Petitioner in handcuffs. Trial counsel testified
that when the issue was brought to the trial court’s attention, the trial court individually
questioned the juror. The juror stated that he had not seen the Petitioner in handcuffs and
that even if he had it would not influence his decision. The juror also stated that he
understood the Petitioner was entitled to a presumption of innocence and that he would not
tell the other jurors about what he may have seen. Trial counsel testified that the trial court
then gave the Petitioner the option of requesting a mistrial or continuing with the trial. The
Petitioner stated that he wanted to continue with the trial, that he understood the juror could
be one of the final 12 jurors to decide his case, and that he understood agreeing to go forward
would waive any future challenge based on the incident.

        At the evidentiary hearing, Detective Beene testified that trial counsel did not ask him
for an interview with the confidential informant. Detective Beene also confirmed that he did
not actually witness the drug buy. The Petitioner testified that the day before his trial he had
been informed about the misidentification and that his trial counsel told him that he would
call the confidential informant as a witness. The Petitioner testified that the next day he was
surprised when the informant was not called and that he told trial counsel he wanted the
informant called as a witness. He explained that he did not really object to trial counsel’s
failure to call the informant because he did not have an opportunity. The Petitioner also

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testified that he was positive that a juror saw him in handcuffs regardless of what the juror
told the court. The Petitioner testified that he was not aware the juror could be dismissed and
that he thought his only option was a mistrial.

                                         ANALYSIS

        The Petitioner contends that he was denied his Sixth Amendment right to effective
assistance of counsel because trial counsel failed to call the confidential informant as a
witness and failed to request that a possibly tainted juror be dismissed. The Petitioner further
contends that he was denied a “full and fair hearing” on his petition due to the ineffective
assistance of his post-conviction counsel and because the presiding judge also presided over
his original trial proceedings. The State responds that the Petitioner failed to demonstrate
that trial counsel’s performance was deficient. The State also responds that the Petitioner
was given a “full and fair hearing” on his petition.

                          I. Ineffective Assistance of Trial Counsel

         The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence. Tenn.
Code Ann. § 40-30-110(f). 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 (Tenn. 2001). Because they relate to mixed questions
of law and fact, we review the post-conviction 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.

       Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, 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 Lockhart v. Fretwell, 506 U.S. 364, 368-72
(1993). In other words, a showing that counsel’s performance falls below a reasonable
standard is not enough; rather, 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 Strickland standard has been applied to the right to counsel under article I,
section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.
1989).

        The Petitioner, trial counsel, and Detective Beene were the only witnesses who
testified at the post-conviction hearing. The Petitioner did not present the testimony of either
the confidential informant or the alleged improper juror. This court has long held that

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“[w]hen a 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. Crim. App. 1990). We
cannot speculate as to what these witnesses may have said if presented or how other
witnesses may have responded to a rigorous cross-examination. Id. This court has held
similarly in cases where a petitioner contends that a juror should have been dismissed due
to improper bias. See Danny Johnson v. State, No. M2008-02115-CCA-R3-PC, 2009 WL
4723382 at *3 (Tenn. Crim. App. Dec. 9, 2009) (noting the petitioner’s failure to present
testimony of alleged tainted juror to support his claim of ineffective assistance relative to jury
selection), perm. app. denied (Tenn. May 12, 2010). Accordingly, we conclude that the
post-conviction court did not err in finding that the Petitioner failed to establish by clear and
convincing evidence that counsel was ineffective at trial.

                    II. Ineffective Assistance of Post-Conviction Counsel

        The Petitioner contends that his post-conviction counsel was ineffective because he
failed to present the confidential informant as a witness at the evidentiary hearing. However,
our supreme court has made clear that there is no constitutional right to effective assistance
of counsel in post-conviction proceedings. House v. State, 911 S.W.2d 705, 712 (Tenn.
1995), cert. denied, 517 U.S. 1193 (1996). Petitioners do have a statutory right to assistance
of counsel in post-conviction proceedings, but there is no statutory right that the assistance
be effective pursuant to constitutional guidelines. Id. The Petitioner was afforded the
opportunity to present his evidence and cross-examine witnesses, and is bound by the action
or inaction of his post-conviction counsel. Id. at 714. Accordingly, we conclude that the
Petitioner’s claim is without merit.

                                      III. Judicial Recusal

        The Petitioner contends that he was denied a “full and fair hearing” on his petition
because the judge presiding over the post-conviction proceeding was the same judge who
presided over his original trial. It has long been held that “a judge is in no way disqualified
merely because he has participated in other legal proceedings against the same person.”
Harris v. State, 947 S.W.2d 156, 172 (Tenn. Crim. App. 1996). In order for a judge to be
disqualified due to prejudice, that prejudice must arise from an extrajudicial source. Id.
Furthermore, “adverse rulings by a court are not usually sufficient grounds to establish bias.”
Id. at 173. The practice of permitting “the judge who presided at the trial in which the
conviction occurred . . . to preside over post-conviction proceedings when the competency
of trial counsel has been challenged” is “pervasive.” Id. at 172-73. To hold otherwise and
“require recusal whenever a trial judge in a post-conviction proceeding has knowledge of



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disputed facts would wreak havoc in the criminal justice system.” Id. at 173. Accordingly,
we conclude that the Petitioner’s claim is without merit.

                                     CONCLUSION

       Upon consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.




                                                 _________________________________
                                                 D. KELLY THOMAS, JR., JUDGE




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