        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 12, 2016

           DEMARCUS KEYON COLE v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Madison County
                     No. C-15-183    Roy B. Morgan, Jr., Judge


                 No. W2015-01901-CCA-R3-PC - Filed May 11, 2016



The petitioner, Demarcus Keyon Cole, acting pro se, appeals the post-conviction court‟s
denial of his petition for post-conviction relief, arguing he received ineffective assistance
of counsel. After review, we affirm the denial of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which THOMAS T. WOODALL,
P.J., and ROBERT H. MONTGOMERY, JR., J., joined.

Demarcus Keyon Cole, Only, Tennessee, Pro Se (on appeal); and Joseph T. Howell,
Jackson, Tennessee (at hearing), for the appellant, Demarcus Keyon Cole.

Herbert H. Slatery III, Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
James G. (Jerry) Woodall, District Attorney General; and Alfred L. Earls, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                          FACTS


       The petitioner was convicted of first degree felony murder and especially
aggravated robbery and was sentenced to consecutive terms of life and twenty years, to
be served consecutively to a six-year-sentence for a previous conviction. This court
affirmed the judgments of the trial court on direct appeal, and the Tennessee Supreme
Court denied the petitioner‟s application for permission to appeal.
On direct appeal, this court recited the underlying facts of the case as follows:

        According to the State‟s proof at trial, the [petitioner] spent the
evening of October 28-29, 2011, using cocaine and partying with friends at
his Jackson apartment before he and two accomplices shot and robbed the
victim, Demetris Cole. The victim died of his injuries two days later, and
the [petitioner] was subsequently indicted for first degree premeditated
murder, first degree felony murder, and especially aggravated robbery. The
first degree premeditated murder count was, however, nolle prosequied
prior to trial.

        The first witness at the [petitioner‟s] trial was Ebony Jenkins, who
spent the evening of October 28-29 at the [petitioner‟s] apartment and was
present when the victim was shot. She said the [petitioner], whom she had
known for about a week, picked her up and took her to his apartment at
about 9:00 p.m. that night and, after putting his two-year-old son to bed,
used cocaine with her in the apartment. The victim arrived at about 10:00
p.m., and the three of them drank beer and smoked marijuana together. She
and the [petitioner] used more cocaine, and later some of the [petitioner‟s]
neighbors arrived to purchase marijuana from the victim. At about 1:00
a.m., while the [petitioner] was gone from the apartment, she and the victim
had sexual intercourse in a bedroom. At about 3:30 or 4:00 a.m., the victim
left to purchase more condoms and some cigarettes and she followed him
out the door to get a cigarette from him before he left. Outside, she saw the
[petitioner] and two other men in the [petitioner‟s] truck. She also saw the
victim stop briefly to talk with the [petitioner].

       Jenkins testified that when the victim returned to the apartment he
received a telephone call from someone wanting to purchase marijuana.
She said he was in the living room weighing and bagging the marijuana
when the [petitioner] and two other men came into the apartment. As the
three men walked to the back of the apartment, the victim asked which one
wanted the bag of marijuana. Approximately thirty seconds later, the
shorter of the [petitioner‟s] two companions returned to the living room and
said, “This is a f***ing robbery” as he pulled a gun on the victim. At about
the same time, the second man came to the front of the apartment. One of
the men ordered her to put blankets over her head, and she complied. As
she sat on the couch with her head covered, she heard “a commotion” and
one of the two men yelling to the victim, “Give me everything in your
pockets. I want your money, your cellphone, your wallet, anything that you
have in your pockets.” Jenkins said she was unable to see anything, but the
                                       2
sounds she heard made her believe that the man she referred to as “the
aggressor” was beating the victim.

       Jenkins testified that the men called the [petitioner] from the back
and she heard the [petitioner] say, “I got a son. I got a son.” To her,
however, the [petitioner‟s] words did not sound sincere but instead as if he
were putting on “an act” and pretending to be shocked at what was
happening. She next heard “the aggressor” ordering the [petitioner] and the
second man to leave, the sounds of their footsteps going down the stairs,
and the sounds of further struggle between “the aggressor” and the victim.
She then heard two gunshots, followed by three more gunshots. After
hearing “the aggressor” leave the apartment, she removed the blankets from
her head to find the victim lying on the floor covered in blood.

        Jenkins testified that she called 9-1-1 on her cell phone. Later, as
she was with Sergeant Chestnut of the Jackson Police Department
preparing to go to the police department for an interview, she noticed she
had a missed call from the [petitioner] on her cell phone. She gave
Sergeant Chestnut the [petitioner‟s] phone number and he tried to reach the
[petitioner] on his cell phone, but the [petitioner] did not answer. At
Sergeant Chestnut‟s request, she then texted the [petitioner] using her own
phone and, when the [petitioner] called back, handed her phone to Sergeant
Chestnut so that he could talk to the [petitioner].

       On cross-examination, Jenkins clarified that the scuffle between the
aggressor and the victim did not ensue until after the [petitioner] had left
the apartment. She acknowledged that the [petitioner] was not in the
apartment when the victim was shot. She further acknowledged that she
never mentioned the [petitioner‟s] voice having sounded insincere or fake
in any of the three separate statements about the incident that she gave to
the police. Finally, she testified that on one occasion, the [petitioner] had
used the victim‟s vehicle to pick her up because the victim had borrowed
the [petitioner‟s] vehicle to use on an out-of-town trip.

        Officer Brandon Bankston of the Jackson Police Department
testified that he was dispatched to the scene at approximately 4:50 a.m.
When he arrived at the [petitioner‟s] apartment, he found Jenkins present
and the victim, who had gunshot wounds to the chest and head, lying in
front of the living room couch. A lot of blood was in the area, and it
appeared as if a struggle had taken place. Although Jenkins informed them
that a child had been present in the apartment, no child was located.
                                     3
       Officer Carrie Hart of the Jackson Police Department identified
photographs she took of the crime scene, including ones that showed five
.32 caliber shell casings and one spent .32 caliber bullet found in the living
room and a bag with cocaine residue that was found in the bathroom.

       Dr. Michael Revell, an emergency room physician at Jackson-
Madison County General Hospital, testified that the victim arrived at the
emergency room at approximately 5:30 a.m. in critical condition with
gunshot wounds to his head, upper thorax, chest, abdomen, and hip. The
victim ultimately became brain dead and passed away on October 31 after
his family made the decision to have him removed from the ventilator.

       Dr. Feng Li, the medical examiner who performed the autopsy of the
victim‟s body, testified that the victim‟s cause of death was multiple
gunshot wounds.

      Aimee Oxley, Director of the Property and Evidence Unit of the
Jackson Police Department, testified that no latent fingerprints of value
were developed from the shell casings or any other items submitted in the
case.

        Tennessee Bureau of Investigation Special Agent Forensic Scientist
Alex Brodhag, a firearms expert, testified that he determined that all five
shell casings recovered in the case were fired from the same gun and that
all three bullets – one recovered from the living room and two from the
victim‟s body – were fired from the same gun. Because he did not have the
gun, he was unable to determine whether the shell casings and the bullets
were fired from the same gun.

       Investigator Gary Davidson, a criminal investigator with the
Henderson Police Department, testified that on November 3, 2011, he
searched a Henderson home at which the [petitioner] was present and
recovered a Samsung AT&T cell phone, which he turned over to Sergeant
Chestnut of the Jackson Police Department.

       Sergeant Chris Chestnut testified that Jenkins was being detained by
patrol officers outside the apartment when he arrived at approximately 5:30
a.m. on the morning of the shooting. In their preliminary conversation,
Jenkins told him that the apartment belonged to the [petitioner] but that he
had left the apartment immediately prior to the shooting and had not
                                      4
returned. He asked her to ride to the police department with him for a more
extensive interview and was sitting with her in his patrol vehicle when she
told him that her cell phone, which had been retrieved for her from the
[petitioner‟s] apartment, had a missed call on it from the [petitioner]. She
then gave him the [petitioner‟s] cell phone number, and he called the
[petitioner] on his cell phone. When the [petitioner] did not answer, he
asked Jenkins to text him using her phone and ask him to call her. Within
seconds, the [petitioner] called and Jenkins handed the phone to him.

       Sergeant Chestnut testified that the [petitioner] was evasive when he
asked him his location. He asked the [petitioner] to meet him at the police
department, and the [petitioner] arrived there with his son at 6:40 a.m. and
gave a statement. In the statement, which Sergeant Chestnut read aloud to
the jury, the [petitioner] claimed that he was a robbery victim and had been
forced at gunpoint to drive the perpetrators from the scene. He also
claimed that they had spared his life only because he had his young son
with him. The [petitioner‟s] statement reads in pertinent part:

      I left the apartment around 3 a.m. I went and rode around the
      lot of the Mix Factory. When I was leaving the Mix Factory
      lot, I saw two dudes walking on Old Hickory. . . . I‟ve seen
      them in the area before when I‟ve been at my girl‟s house off
      Tracewood. I asked the dudes if they had some powder and
      they said they could get some. They said they wanted $50 for
      a gram. They got in the truck with me and we rode back to
      my apartment. I went in my apartment and got some more
      cash. I got in my truck where the two dudes had stayed while
      I was in the apartment. We pulled out and was heading
      toward the bypass. One of the dudes, the short dark-skinned
      dude, asked me if I knew where he could get some weed. I
      called [the victim]. [The victim] said he had some weed for
      sale, and we turned around and went back to my apartment.

      Me and the two dudes went in my apartment. When we got
      in the apartment, the two dudes pulled guns. They told me to
      get on the ground. I laid down and they started searching my
      pockets. They were asking [the victim] where the weed was
      at. I heard one of them smack [the victim]. The taller light-
      skinned dude told me to get up and leave. The short one had
      a gun on me while I got my son and left out of the apartment.
      Me and my son got in my truck, and the short one got in the
                                     5
       back seat with my son. He was holding the gun on me. My
       son was crying. A couple of minutes later I heard three or
       four gunshots. The dude in my truck told me to crank up the
       truck and back up. The light-skinned dude got in the truck
       front passenger‟s seat and told me to drive. . . . They went
       through my stuff in my truck. They said for me to stop the
       truck. . . . They told me that they would kill me if I didn‟t
       have my son with me. The last time I saw them they were
       running down Talbot. . . . When they were robbing us, one of
       them said they were Crips.

        Sergeant Chestnut testified that he processed the [petitioner‟s]
vehicle when he arrived at the police department and found a laptop
computer in the backseat and a green and yellow jacket, which the
[petitioner] said was his, in the front passenger seat. The [petitioner] also
had his cell phone and cash in his pockets. All incoming and outgoing
calls, as well as any text messages, had been deleted from the [petitioner‟s]
phone and the [petitioner] was “extremely evasive” when he asked him
why. According to Sergeant Chestnut, the [petitioner] gave him “a couple
of different answers,” including the suggestion that the perpetrators must
have done it.

        Sergeant Chestnut testified that his next meeting with the [petitioner]
was on October 31, 2011, in front of the Tractor Supply store at Carriage
House and Highland. During their brief conversation, he informed the
[petitioner] of the victim‟s death, told him that he wanted to ask him more
questions, and requested that he follow him to his office. The [petitioner]
replied that he needed to shower and eat and would call him back later to
meet with him. An hour or two later, the [petitioner] called to tell him he
had to take a friend to work but would call him later and meet with him.
Still later, the [petitioner] called to tell him he had to attend a meeting at
work but would come to his office to talk after the meeting was over.
Ultimately, the [petitioner] never met with him on October 31.

       Sergeant Chestnut testified that his next meeting with the [petitioner]
was on November 2 in the parking lot of the Family Dollar Store in
Henderson. He asked the [petitioner] at that time if he owned any firearms,
and the [petitioner] “was very adamant that he never owned or possessed
any firearms.” The [petitioner] told him he was not staying at his apartment
but would not disclose where he was currently living, other than that it was
in Henderson. In another meeting, the [petitioner] again denied that he
                                      6
owned any firearms. A couple of weeks later, however, the [petitioner]
informed Sergeant Chestnut that he had gone home after meeting with him
in his office on October 29 and realized that he was missing two firearms
from his apartment. The explanation he provided was that the missing
weapons were ones he did not use and did not even realize were in his
house until after he noticed them missing. The [petitioner] provided no
explanation for why he had gone home to look for weapons that he
allegedly had forgotten he owned.

        Sergeant Chestnut identified photographs that had been taken by the
[petitioner‟s] phone. These appeared to show two different guns that had
been photographed inside the [petitioner‟s] apartment – a small caliber
weapon consistent with a .22, .25, or a .32, and a medium to large caliber
semiautomatic firearm. He stated that during the investigation, he never
released any information about where the victim had been shot or what
caliber weapon had been used. Sergeant Chestnut also identified a
photograph of the victim obtained from the surveillance tape of an Exxon at
Carriage House and Highland, which showed the victim at 2:56 a.m. on the
day of the shooting wearing the same green and yellow jacket that the
[petitioner] had in his vehicle later that morning.

        Craig Hobson, the human resource generalist at the company where
the [petitioner] worked, testified that the [petitioner] did not work on
Monday, October 31. On cross-examination, he agreed that he was not the
[petitioner‟s] direct supervisor and therefore would not necessarily have
known if the [petitioner] had a meeting with his “boss” on October 31. On
redirect, he testified that there was no record of the [petitioner‟s] having
drawn any pay for working on October 31.

       Kyneshia Williams, the [petitioner‟s] girlfriend at the time of the
shooting, testified that she had met the victim through the [petitioner], who
purchased cocaine from him. She said the [petitioner] called her at 3:53
a.m. on October 29, 2011, to ask her if she would “set up [the victim] at a
store in Jackson so that [the petitioner] could rob him.” The [petitioner]
told her he was hoping to get “dope and money.” When she refused to
participate, the [petitioner] asked if she was sure and then said, “Well, let
me know so I can make other plans.” The [petitioner] called her again that
night, telling her that he was at his mother‟s house because his apartment
was being cleaned and that he was going to “get off dope” and wanted her
to move to Clarksville with him. He said nothing about the victim‟s having
just been shot at his apartment or of his having been kidnapped and robbed.
                                     7
The following Sunday, the [petitioner] showed up at her house. When she
asked him about the victim, he told her that the victim had been shot five
times with a hollow point .32 caliber weapon – twice in the head, once in
the arm, once in the chest, and once somewhere else – and that he was
dead. Williams testified that she had been in the [petitioner‟s] apartment in
the past and that the [petitioner] had shown her a .40 caliber silver gun that
he kept on top of his mirror in his bedroom and a .32 caliber gun that he
kept in his closet.

       The victim‟s mother, Dosha Howard, identified the store
surveillance photograph of the victim wearing his green and yellow jacket.
She said she and her family searched for the jacket after the victim‟s death
but were unable to find it.

        LeGraine Poston, who acknowledged that he had a conviction for
attempted aggravated burglary, testified that in February 2013, he was
incarcerated at the Madison County Jail in the same pod as the [petitioner],
who, agitated and seeking advice, told him about his case. According to
Poston, the [petitioner] said that he had set the victim up for a robbery
because he wanted to “get high,” that all that was supposed to happen was a
robbery but that things had not gone according to plan, and that he did not
want to take the blame for something that someone else had done. He said
he waited a couple of months to contact Sergeant Chestnut to tell him what
he had learned because it was difficult and dangerous to contact the police
while in jail. On cross-examination, he was unable to say why the
[petitioner] had picked him to confide in out of all the inmates that shared
their pod. On redirect, he testified that in his statement to Sergeant
Chestnut, he said that the [petitioner] told him that all the victim had to do
was to give up his money.

       Sergeant Al Colon of the Jackson Police Department testified that he
collected the victim‟s clothing from the hospital and found $611 in cash in
the pocket of the victim‟s pants.

        Curtis Blake Bailey, who acknowledged he was on probation for an
aggravated assault conviction, testified that he was housed at the C-Pod of
the Madison County Jail with Poston when the [petitioner], who appeared
“skittish,” was brought to the jail. He said he saw the [petitioner] talking
with Poston that night. He never saw the [petitioner] talking with anyone
else and, after that first night, did not see the [petitioner] again.

                                      8
              Patrick Williams, a senior GIS analyst for the City of Jackson-
       Madison County Planning Department, testified that he had, at the request
       of the prosecutor, prepared a map of the city showing various cell phone
       calls with their times and the cell phone towers that had transmitted the
       calls.

               William C. Carroll, a senior investigator with AT&T, identified the
       [petitioner‟s] cell phone records, which were introduced as an exhibit.
       Using the cell phone records and the map that had been prepared by Patrick
       Williams, Carroll testified that the [petitioner‟s] cell phone either placed or
       received a total of twenty-nine phone calls between 4:50 a.m., when
       Jenkins‟ 9-1-1 call was placed, and 6:00 a.m. The records indicated that the
       [petitioner] was moving from one location in the city to another during that
       time and that he never called 9-1[-]1 or law enforcement.

               The [petitioner] elected not to testify and rested his case without
       presenting any witnesses. Following deliberations, the jury convicted him
       of first degree felony murder and especially aggravated robbery.

State v. Demarcus Keyon Cole, No. W2013-02850-CCA-R3-CD, 2014 WL 7269813, at
*1-5 (Tenn. Crim. App. Dec. 22, 2014), perm. app. denied (Tenn. May 18, 2015).

       The petitioner filed a timely pro se petition for post-conviction relief, as well as an
amended petition, in which he asserted several claims of ineffective assistance of counsel.
The post-conviction court appointed counsel to represent the petitioner, and counsel filed
two more amended petitions. The post-conviction court conducted an evidentiary hearing
on the petitioner‟s claims, at which the petitioner and trial counsel testified.

        The petitioner testified that he was charged with first degree murder, felony
murder, and especially aggravated robbery. He was initially appointed original counsel,
but, because of a conflict, trial counsel was appointed to represent him at trial and on
direct appeal. The petitioner testified that counsel did not file a pretrial motion to
determine whether he was competent at the time of the offenses. He claimed that counsel
should have done so because it was noted in the police report that the petitioner “was
acting strangely and unkempt and hadn‟t slept in several days.” However, the petitioner
admitted that he had no previous history of mental illness and that he never asked counsel
to file a motion for a mental evaluation.

       The petitioner testified that trial counsel failed to seek suppression of his
“cellphone and the contents thereof” because they were obtained “without the use of a
warrant.” The petitioner was unable to say specifically what incriminating evidence was
                                              9
obtained from his phone, other than “they was alleging I called a witness, and . . . they
tried to compare a witness to the records.” On cross-examination, the petitioner
acknowledged that he voluntarily went to the police station and that, while there, he
allowed the investigator to see his cell phone.

       The petitioner next claimed that trial counsel should have filed a motion for a bill
of particulars; however, he acknowledged that the prosecutor‟s office had an open file
policy. He also claimed that counsel should have investigated the criminal records of two
of the State‟s witnesses, but he could not explain how that investigation would have
impacted the outcome of the trial.

        The petitioner testified that trial counsel should have moved to strike a portion of
Ebony Jenkins‟ testimony concerning her impression that the petitioner‟s statements
during the criminal episode “sounded fake.” He elaborated that such testimony was not
in the purview of a lay witness. The petitioner further faulted counsel for failing to object
to the amendment of the indictment, even though he admitted that counsel discussed the
amendment with him and advised that they should agree to the amendment.

        The petitioner testified that trial counsel should have requested a more specific
jury instruction on criminal responsibility and the requirement of a unanimous verdict.
He also claimed that counsel should have requested a jury instruction on “causation” as
an element of homicide. The petitioner further claimed that counsel should have
challenged that his conviction was based on a theory of criminal responsibility when no
principal actor was ever charged or convicted of the offense. On cross-examination, the
petitioner acknowledged that Tennessee Code Annotated section 39-11-407 specifies that
a person can be convicted under a theory of criminal responsibility even if the principal
actor is not charged or convicted.

       The petitioner testified that trial counsel should have challenged Kyneshia
Williams‟ testimony about a phone call she received from him concerning his wanting to
arrange a robbery of the victim. However, the petitioner could not explain how such a
challenge would have affected the outcome of the case.

       The petitioner testified that trial counsel failed to object to testimony by Patrick
Williams, a GIS analyst, and William Carroll, an AT&T investigator, about his cell
phone records and the location of cell phone towers. He elaborated that the testimony
was hearsay and violated his right to confront witnesses. He said that the map generated
by Mr. Williams was used to show the jury “the relation to the calls that was transmitted
by [his] phone.” On cross-examination, the petitioner agreed that both witnesses were
qualified to testify as expert witnesses and to introduce the records.

                                             10
       The petitioner lastly asserted that trial counsel should have objected to portions of
the prosecutor‟s closing argument because the prosecutor misstated the evidence, misled
the jury about the law, and argued facts outside the record.

       Trial counsel, an attorney with fourteen years‟ experience, testified that he did not
file a motion to suppress any information obtained from the petitioner‟s cell phone
because the petitioner voluntarily provided his cell phone to the investigator. Counsel
believed that, at that point in the investigation, the petitioner was actually still perceived
as a victim, not a suspect. Counsel said that he did not file a motion to suppress the other
cell phone records because those came from the petitioner‟s cell phone service provider
and were not obtained by searching the petitioner‟s phone. Counsel stated that there was
no legal basis to suppress the testimony of either expert witness who testified about the
location of cell towers and the petitioner‟s proximity to them when he made or received
calls. Counsel recalled challenging “the veracity” of some of the records by bringing out
that there was “a glitch in the system” used by the witness from AT&T. However, the
records were lawfully obtained from the phone company.

       Trial counsel testified that Ebony Jenkins‟ testimony at trial that the petitioner
“sounded fake” was the first time she had said that. However, he saw no basis to request
the testimony to be stricken, although he did impeach her testimony with her prior
inconsistent statements. Counsel testified that Kyneshia Williams was “the biggest
problem witness that [they] had,” and he challenged her testimony “as well as [he]
could.” Counsel recalled impeaching LeGraine Poston‟s testimony by showing that he
was related to the victim and that he waited eight or nine months before reporting that the
petitioner had confessed to him.

       Trial counsel testified that the petitioner‟s contention that he could not be
convicted under a theory of criminal responsibility for the acts of another because no
principal actor had been charged or convicted was “not the current status of the law.”

        In investigating the case and preparing for trial, trial counsel did not see any basis
for filing a motion for a mental evaluation of the petitioner. The petitioner was able to
communicate with him, and the petitioner‟s “mental competency never came up and was
never in question.”

       Trial counsel testified that he agreed to the amendment of the indictment because
it removed “attempted” from the charge, which actually raised the State‟s burden of
proof. Counsel also testified that he did not think any portion of the prosecutor‟s closing
argument was objectionable, elaborating, “The State argued its version of the facts.”
Counsel stated that the district attorney‟s office had an open file discovery policy, and he
was able to get a copy of everything he needed to prepare for trial.
                                             11
       After the hearing, the post-conviction court made oral findings, followed by a
written order, denying the petition. Noting that it assessed the credibility of the witnesses
in making its determinations, the post-conviction court found that the petitioner failed to
carry his burden of proof as to any of his allegations.

                                       ANALYSIS

        On appeal, the petitioner argues that the post-conviction court erred in finding that
trial counsel‟s representation was not ineffective. He claims that counsel‟s performance
was deficient in that counsel: (1) failed to challenge his convictions, which were based
on a theory of criminal responsibility, when a principal offender was not charged or
convicted; (2) failed to file a motion to suppress evidence obtained from his cell phone;
(3) failed to challenge the testimony of expert witnesses concerning his cell phone
records, and the location of cell towers and his proximity to those towers when he made
or received calls; and (4) failed to explain settlement offers from the State. The petitioner
also argues that post-conviction counsel did not render effective assistance.

       The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). 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 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); Burns v. State, 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:



                                             12
       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)).
Moreover, 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.

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
Id. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

       The petitioner first argues that trial counsel provided ineffective assistance by
failing to challenge his convictions, which were based on a theory of criminal
responsibility, when a principal offender was not charged or convicted. The post-
conviction court found that the petitioner‟s contention that he could not be convicted
under a theory of criminal responsibility for the conduct of another when no principal
actor was ever charged or convicted of the offense was without merit. The court noted
that such assertion was contrary to the law, as Tennessee Code Annotated section 39-11-
407 “clearly allows the [petitioner] in this case to be prosecuted and convicted as
charged.”

       The petitioner acknowledges the statutory support for the post-conviction court‟s
finding but attempts to distinguish his case from falling under its purview by asserting
                                            13
that the principal offender must at least be “known,” and the one in his case was not.
Citing State v. Farner, 66 S.W.3d 188, 205 (Tenn. 2001), the petitioner maintains that
“one cannot be convicted pursuant to a theory of criminal responsibility if there is no
other person who is guilty of the crime as a principal.” Id. (citing Pierce v. State, 168
S.W. 851, 856 (Tenn. 1914)). However, the Farner opinion does not stand for the
proposition that the principal offender must be known, only that there must be one. In
this case, the proof at trial revealed the existence of another actor in the criminal episode
for whose conduct the petitioner was criminally responsible.

       Kyneshia Williams testified at trial that the petitioner tried to involve her in his
plan to rob the victim of his “„dope and money.‟” Demarcus Keyon Cole, 2014 WL
7269813, at *5. When she declined to participate, the petitioner said that he would
“„make other plans.‟” Id. Ebony Jenkins testified that the robbery began when the
petitioner came into the apartment with two other men, one of whom pulled a gun on the
victim and announced, “„This is a f***ing robbery.‟” Id. at *1. One of the men directed
Ms. Jenkins to put blankets over her head. Id. Ms. Jenkins heard the man she identified
as “„the aggressor‟” beat the victim and order the petitioner and the other man to leave
the apartment. Id. Ms. Jenkins heard gunshots and then heard the aggressor leave. Id.
She testified at trial that the petitioner‟s protestations to the aggressor “did not sound
sincere,” and she thought that he was putting on “„an act‟” rather than actually being a
victim of the robbery. Id. Accordingly, the proof established the existence and criminal
conduct of one for whom the petitioner was criminally responsible and trial counsel was
not deficient for failing to challenge the petitioner‟s convictions on that basis.

       The petitioner next argues that trial counsel provided ineffective assistance by
failing to file a motion to suppress evidence obtained from his cell phone. The post-
conviction court found that there was no basis to seek suppression of the petitioner‟s cell
phone records, as the evidence showed that the petitioner gave consent for the forensic
search of his phone. The court further found that the petitioner failed to show how the
outcome of the case would have been different had counsel filed such a motion to
suppress.

        The petitioner contends that the post-conviction court‟s ruling “misapprehends the
evidence.” He concedes that Sergeant Chestnut obtained his phone by consent on the
first occasion but maintains that there was no consent on the second occasion, which
occurred when he was in custody on unrelated charges several weeks later. According to
the petitioner, his phone was removed from the property room and given to Sergeant
Chestnut, who then performed a forensic evaluation of his phone. The petitioner
maintained that Sergeant Chestnut recovered pictures of “weapons which were alleged to
be the murder weapon[s]” and utilized call and text records to create maps to establish his

                                             14
location “in the hours and days following the robbery and homicide.” The petitioner
maintains that he did not consent to the second search of his phone.

        Regardless of whether counsel should have filed a motion to suppress the search
of the petitioner‟s cell phone, we cannot conclude that there is any reasonable probability
that the result of the proceeding would have been different had a motion to suppress been
filed and granted. The bulk of the incriminating evidence against the petitioner came in
the form of witness testimony from Kyneshia Williams, Ebony Jenkins, and LeGraine
Poston, as well as the petitioner‟s evasiveness with the police. Moreover, as we will
discuss in the section below, the call and text records that were used to create maps of the
petitioner‟s location were recovered from the petitioner‟s cell phone service provider, not
the phone, and were, thus, appropriate evidence. Any minimal information gleaned from
the petitioner‟s phone was auxiliary.

        The petitioner next argues that trial counsel provided ineffective assistance by
failing to challenge the testimony of expert witnesses concerning his cell phone records
and the location of cell towers and his proximity to those towers when he made or
received calls. He argues that the expert witnesses‟ testimony was based on evidence
illegally obtained from his cell phone. The post-conviction court found that the experts
who testified concerning the petitioner‟s cell phone records and location of cell phone
towers were properly qualified to give the testimony and evidence that they gave.

       Contrary to the petitioner‟s assertion, the record indicates that the expert witnesses
based their testimony on records maintained by the service provider and not on
information gleaned from the petitioner‟s phone. In fact, Sergeant Chestnut testified that
when he examined the petitioner‟s phone, he discovered that “[a]ll incoming and
outgoing calls, as well as any text messages, had been deleted” from the phone.
Demarcus Keyon Cole, 2014 WL 7269813, at *4. The petitioner provides no other legal
basis for counsel to have objected to the expert witnesses‟ testimony and has thus failed
to prove that counsel was ineffective.

        Along with this issue, the petitioner contends that trial counsel was ineffective for
failing to “investigate, research and prepare to properly impeach” expert witness William
Carroll or present a defense expert to counter Mr. Carroll‟s testimony. The petitioner,
however, did not include this allegation in his petition for post-conviction relief, and no
evidence to support the claim was presented at the evidentiary hearing. He has, therefore,
failed to prove his allegations by clear and convincing evidence or establish that he was
prejudiced by the failure to have a defense expert witness testify.

       The petitioner next argues that trial counsel provided ineffective assistance by
failing to explain settlement offers from the State. He specifically asserts that trial
                                             15
counsel “never explained the ramifications of refusing the multiple plea offers by the
[S]tate, never explained the likelihood of conviction and the potential sentence.” The
petitioner, however, did not include this issue in his post-conviction petition or raise it at
the evidentiary hearing; thus, the post-conviction court made no ruling on the matter for
this court to review. Issues not included in a post-conviction petition may not be raised
for the first time on appeal and are waived. See Walsh v. State, 166 S.W.3d 641, 645
(Tenn. 2005) (“Issues not addressed in the post-conviction court will generally not be
addressed on appeal.”); Cauthern v. State, 145 S.W.3d 571, 599 (Tenn. Crim. App. 2004)
(“[A]n issue raised for the first time on appeal is waived.”)

       The petitioner lastly asserts that post-conviction counsel did not render effective
assistance, in that counsel did not perform “as counsel envisioned under Martinez v.
Ryan, [132 S. Ct. 1309 (2012)], Trevino v. Thaler [133 S. Ct. 1911 (2013)], and Sutton v.
Carpenter [745 F.3d 787 (6th Cir. 2014)],” or Tennessee Supreme Court Rule 28.

       We initially note that a petitioner does not have a constitutional right to the
effective assistance of post-conviction counsel. See Frazier v. State, 303 S.W.3d 674,
680 (Tenn. 2010); Stokes v. State, 146 S.W.3d 56, 60 (Tenn. 2004); House v. State, 911
S.W.2d 705, 712 (Tenn. 1995). The right to counsel is statutorily based, found in
Tennessee Code Annotated section § 40-30-107(b). “This statutory right, does not,
however, serve as a basis for relief on a claim of ineffective assistance of counsel in a
post-conviction proceeding and does not include „the full panoply of procedural
protection that the Constitution requires be given to defendants who are in a
fundamentally different position -- at trial and on first appeal as of right.‟” Frazier, 303
S.W.3d at 680 (citing House, 911 S.W.2d at 712). “All that due process requires in the
post-conviction setting is that the defendant have „the opportunity to be heard at a
meaningful time and in a meaningful manner.‟” Stokes, 146 S.W.3d 56, 61 (Tenn. 2004)
(quoting House, 911 S.W.2d 705, 711 (Tenn. 1995)). Specifically, a full and fair hearing
only requires “the opportunity to present proof and argument on the petition for post-
conviction relief.” House, 911 S.W.2d 714.

       In pertinent part, Tennessee Supreme Court Rule 28 provides:

              Appointed or retained counsel shall be required to review the pro se
       petition, file an amended petition asserting other claims which petitioner
       arguably has or a written notice that no amended petition will be filed,
       interview relevant witnesses, including petitioner and prior counsel, and
       diligently investigate and present all reasonable claims.

Tenn. Sup. Ct. R. 28, § 6(C)(2). This court has repeatedly held that violations of Rule 28
by post-conviction counsel do not afford the remedial right of a second post-conviction
                                             16
hearing. See, e.g., Thaddeus Johnson v. State, No. W2014-00053-CCA-R3-PC, 2014
WL 7401989, at *9 (Tenn. Crim. App. Dec. 29, 2014), perm. app. denied (Tenn. May 18,
2015); Anthony Boyland v. State, No. W2013-01226-CCA-MR3-PC, 2014 WL 3818612,
at *14 (Tenn. Crim. App. Aug. 4, 2014), perm. app. denied (Tenn. Nov. 20, 2014);
Jonathan Everett v. State, No. W2013-02033-CCA-R3-PC, 2014 WL 3744498, at *6-7
(Tenn. Crim. App. July 28, 2014), perm. app. denied (Tenn. Nov. 19, 2014).

       The petitioner‟s contention that the above mentioned federal rulings establish the
right of effective assistance of counsel at a post-conviction evidentiary hearing has been
addressed and rejected by another panel of this court, with its analysis we agree. See
David Edward Niles v. State, No. M2014-00147-CCA-R3-PC, 2015 WL 3453946, at *6-
7 (Tenn. Crim. App. June 1, 2015), perm. app. denied (Tenn. Sept. 17, 2015). The record
in this case shows that counsel substantially complied with the “minimum standard of
service to which post-conviction counsel is held.” Frazier, 303 S.W.3d at 681. Post-
conviction counsel twice amended the petitioner‟s post-conviction petition and, at the
evidentiary hearing, post-conviction counsel thoroughly questioned the petitioner and
trial counsel about the petitioner‟s claims. The record does not reflect that post-
conviction counsel failed to comply with Rule 28, and the petitioner was afforded “the
opportunity to be heard at a meaningful time and in a meaningful manner.” James
Patterson v. State, W2009-01874-CCA-R3-PC, 2011 WL 579122 at *5 (Tenn. Crim.
App. Feb. 17, 2011), perm. app. denied (Tenn. July 14, 2011).

                                    CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the denial of the
petition.


                                                _________________________________
                                                ALAN E. GLENN, JUDGE




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