                                                                                      04/23/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                Assigned on Briefs at Knoxville December 18, 2018

                TOMMY GAYDEN v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Shelby County
                     No. 09-06131       Chris Craft, Judge
                    ___________________________________

                          No. W2018-00787-CCA-R3-PC
                      ___________________________________

The Petitioner, Tommy Gayden, appeals the Shelby County Criminal Court’s denial of
his petition for post-conviction relief from his conviction of second degree murder and
resulting sentence of thirty years to be served at one hundred percent. On appeal, he
contends that he received the ineffective assistance of trial counsel. Based upon the
record and the parties’ briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ALAN E. GLENN
and D. KELLY THOMAS, JR., JJ., joined.

Vicki M. Carriker, Memphis, Tennessee, for the appellant, Tommy Gayden.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Karen Cook, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                      OPINION

                               I. Factual Background

      In September 2009, the Shelby County Grand Jury indicted the Petitioner for
second degree murder. This court described the proof at trial as follows:

             This case relates to a shooting that resulted in the death of Monoleto
      Robinson. At the trial, Felicia Robinson testified that she and the victim
      were married but separated at the time of the shooting. She had eight
      children. She said the victim was an involved stepfather, even after they
      separated. She said the victim moved out of their home four months before
his death. She said she and the victim were listed as emergency contacts at
her son’s school. She said that she knew the Defendant as Tommy
Dickerson and that they had an “on-and-off” relationship for fourteen years,
which ended on February 26, 2009. She admitted that she and the
Defendant dated while she was married to the victim, while she lived with
the victim, and after the victim moved out.

       Ms. Robinson testified that on February 26, 2009, around noon, she
was in her bedroom with the Defendant, who had stayed at her home for a
few days. She said she awoke that morning at 6:00, took her children to
school, returned home, and went back to sleep. She said that at noon, the
victim and her son knocked on the bedroom door. She said she put on her
clothes and went outside through the living room door, which opened to the
back of her home. She said the victim and her son were there because her
son had been suspended from school. She told the victim that her brother
was coming over and that they could walk to the front of the home and wait
for her brother. She said the victim asked why they could not go inside.
She told the victim that she had company.

       Ms. Robinson testified that the victim took her keys from her purse
and went into the home. She said she and her son followed the victim into
her bedroom. She stated that she heard the victim say, “[B]---- ass n-----,
are you pulling a gun?” She said that the Defendant stood in the doorway
with a handgun and that the victim yelled and cursed at the Defendant. She
said the victim stopped yelling and pushed her out the bedroom door. She
said her son and the Defendant followed behind them outside the home.
She said that the Defendant still had the gun in his hand, that the victim and
the Defendant continued to argue, and that the victim told the Defendant
what he was going to do to the Defendant if the Defendant put away his
gun.

       Ms. Robinson testified that the Defendant pushed the victim with
one hand, that the Defendant “tumbled forward,” and that the victim
stumbled back and forth. She said that the Defendant had his back to the
house when he pushed the victim and that the victim faced the house. She
did not see anything in the victim’s hand but said the Defendant still had
the gun in his hand. She said that after the Defendant pushed the victim,
the Defendant stood still, raised his arm straight, and shot the victim in the
chest. She said the Defendant paused before pulling the trigger. She stated
that the victim fell to the ground and that the Defendant went into the
home. She said the Defendant came outside, saw the victim on the ground,
                                    -2-
said, “[S]---, man,” and walked down the sidewalk. She said the Defendant
never yelled at the victim. She said that she performed CPR and that her
son witnessed the shooting.

       On cross-examination, Ms. Robinson testified that she and the victim
married on October 6, 2006. She said that she and the victim separated
several times during their marriage and that she and the Defendant dated
during the separation periods. She said the victim worked as a security
guard after they married. She said the victim weighed about 250 pounds
and was 6’2” tall and agreed he was a former high school athlete.

        Ms. Robinson testified that after she told the victim that she had
company, the victim choked and shook her and grabbed her clothes. She
did not recall the victim’s calling her names but said it was possible that he
did. She said the victim did not have a key to her home or permission to be
in her home. She said the victim had permission to be there once a week to
spend time with the children and agreed the day of the shooting was not his
visitation day. She said that the Defendant had permission to be in her
home and that he arrived two days before the shooting.

        Ms. Robinson testified that while she, the victim, the Defendant, and
her son were in the bedroom, the victim told the Defendant that the victim
was going to “f--- him up” if the Defendant put down his gun. She
interpreted the victim’s statement to mean the victim would fight the
Defendant but did not know if the victim meant he would kill the
Defendant. She said that the victim was angry and that the Defendant stood
still. She said the Defendant held the gun at his side with the barrel pointed
toward the floor while the victim yelled. She said the Defendant’s only
statement to the victim while they were in the bedroom was that “it don't
have to be like this.” She interpreted the Defendant’s statement to mean
that there was a better way to handle the situation. She said the Defendant
did not seem angry.

        Ms. Robinson testified that the victim pushed her by the neck and
shoulders out the bedroom door and yelled at her but denied that the victim
threatened her. She said the victim let her go after they were outside. She
said the Defendant came outside with the gun by his side and the barrel
pointed at the ground. She said the victim saw the Defendant and walked
toward the Defendant. She said the victim told the Defendant that he would
kill the Defendant if the Defendant put away the gun. She said the victim
did not have anything in his hands and denied telling the police the victim
                                    -3-
had an umbrella. She only remembered seeing an umbrella nearby. After
being confronted with her statement to the police, she agreed that the victim
struck her after the victim forced her outside. She said that after the victim
let her go, the victim began to leave but decided to approach the Defendant
instead. She said the victim told the Defendant that the Defendant “was
going to have to shoot” the victim. She said that when the victim
approached the Defendant outside, the victim pointed his finger at the
Defendant and yelled at him. She agreed the Defendant shoved the victim
and fired his gun. She agreed the victim had his finger in the Defendant’s
face. She said only two feet separated them.

        Ms. Robinson testified that the Defendant had a paralyzed right foot
and had undergone multiple surgeries. She agreed the Defendant had
difficulty with balance and said he stumbled when he pushed the victim.
She agreed she tried to get the victim to leave and said the victim “kept
going back” to the Defendant. She said the victim stated three or four times
that the Defendant was going to have to kill the victim. She said the
Defendant saw the victim grab her by the neck and push her outside, but
she did not know if the Defendant saw the victim hit her while they were
outside. She agreed that the Defendant pointed the gun at the victim only
after the victim “got up in” the Defendant’s face and that the Defendant
pushed the victim away.

       Ms. Robinson’s son testified that he was ten years old at the time of
the shooting and that the victim picked him up from school early because
he had been suspended for fighting. He said the victim took him home,
knocked on the door, and called for his mother. He said that his mother
came outside and that the victim asked why they could not enter the home.
He said that when his mother said she had company, the victim grabbed his
mother’s neck, took the house keys from her purse, and entered the home.
He said he entered the home a few minutes after the victim. He said the
Defendant was in his mother’s bedroom holding a gun, pointed toward the
floor. He said that the victim yelled that the Defendant should shoot the
victim and that the Defendant stood still and spoke calmly to the victim.

       Ms. Robinson’s son testified that his mother and the victim went
outside and that he followed behind. He did not recall anyone touching
anyone else or the victim’s having anything in his hands. He said the
Defendant came outside not long after he did. He stated that although the
Defendant did not say anything, the victim yelled, “[Y]ou got the gun,
shoot me.” He stated that the Defendant said there was another way to deal
                                    -4-
with the situation but that the victim continued to yell. He said that the
victim walked away but then ran up to the Defendant and that the
Defendant pushed the victim back. He said it appeared as though the
Defendant pushed the victim hard because the victim was bigger than the
Defendant. He said the Defendant raised the gun, paused for two seconds,
and shot the victim. He said the Defendant entered the home, got his
clothes, and walked down the street after the shooting. He said that the
Defendant repeatedly said “dang” and that he interpreted this to mean that
the Defendant did not want to shoot the victim.

        On cross-examination, Ms. Robinson’s son testified that the
Defendant was at Ms. Robinson’s home the day before the shooting. He
said the victim had an umbrella the day of the shooting. He said that his
mother did not want to let the victim inside the home and that the victim
forced his way inside. He said the victim called his mother names and was
angry. He agreed the Defendant was calm and said the Defendant stood
still in the bedroom doorway. He said the victim stood in the hall and
yelled at the Defendant to shoot the victim. He denied that the victim said
he would harm the Defendant if the Defendant put away the gun and that
the victim threatened to hit or kill the Defendant. He said that the
Defendant told the victim to calm down and that there was another way to
solve the problem.

        Ms. Robinson’s son testified that he did not see the victim grab his
mother by the neck and force her outside. He said that he went outside
after the victim and his mother and that the Defendant came outside about
five seconds later. He said that his mother stated that she did not want to
“have anymore of this” and that the Defendant stood still and watched. He
said that as the victim went to leave, the victim turned around and “rushed
up” into the Defendant’s face and that the Defendant pushed the victim off
the Defendant. He said the victim told the Defendant that the victim was
going to hurt the Defendant. He stated that he saw the victim grab his
mother by the throat twice, that he worried for her safety, and that he had
seen the victim grab his mother before the day of the shooting. On redirect
examination, he stated that the victim had an umbrella in his hand while
they walked home from his school but that he did not see the umbrella after
they got home. He denied seeing the victim touch the Defendant.

      Dr. Marco Ross, an expert in forensic pathology, testified that he
performed the autopsy of the victim and that the victim was 6’1’ tall and
weighed 250 pounds. He said the victim was shot in the chest and had an
                                   -5-
entrance wound on the left upper chest wall. He concluded that the cause
of death was the gunshot wound to the chest.

       Memphis Police Officer Kenneth Walcott testified that when he
arrived at the crime scene, he saw the victim lying in the street and secured
the area. He said that before he left the scene, the police had a description
of the Defendant. Memphis Police Officer Anthony Billingsley testified
that he searched the area for the Defendant and that he found the Defendant
in downtown Memphis the day after the shooting. On cross-examination,
Officer Billingsley stated that the Defendant was arrested while at his
attorney’s office.

       The Defendant testified that he and Ms. Robinson had dated
periodically since she was eighteen years old. He said he knew she was
married but separated at the time of the shooting. He denied staying at Ms.
Robinson’s home when she and the victim were living together. He said
that on February 24, 2009, he stayed overnight at Ms. Robinson’s home.
He said he and Ms. Robinson always discussed in advance his coming to
her home. He said that he remained at the home the following day with
Ms. Robinson and stayed the night. The next day, the day of the shooting,
the Defendant awoke around 9:30 or 10:00 a.m. and Ms. Robinson awoke
when the victim knocked on the door around noon.

        The Defendant testified that Ms. Robinson asked who was at the
door, got dressed, grabbed her purse, and went outside. He said her brother
planned to pick her up to run a few errands around the time the victim
knocked on the door. He said he heard “a commotion” and the victim ask
why he could not enter the home. He heard Ms. Robinson tell the victim
that she had company and that she did not want the victim at her home. He
heard the victim and Ms. Robinson arguing for about three minutes and
then someone “busting in” the home. He said he stood in the bedroom
doorway and saw the victim in the hall. He said the victim said, “[Y]ou got
me f----- up, you got this n----- in your house. I got your ass . . . you got a .
. . gun, you [are] going to have to use [it] with your b---- a--.” He said the
victim stated that if the Defendant put away the gun, the victim was going
to “f--- [the Defendant] up.”

       The Defendant testified that he told the victim that there was
“another way” to solve the problem “like gentlemen.” He said the victim
stated that the Defendant was not the only person who had a gun. He said
the victim made a telephone call, grabbed Ms. Robinson by the neck and
                                      -6-
forced her outside. He said he looked out the window, heard the victim
yelling at Ms. Robinson about the Defendant’s being there, and heard the
victim threaten the Defendant. He stated that he went outside, that the
victim approached him, and that the victim told him that if he put away the
gun, the victim would “f--- [the Defendant] up.” He said the victim was
four or five feet from him. He said the victim walked away, continued to
yell at Ms. Robinson for having the Defendant in the victim’s home, and
told the Defendant, “[S]hoot, mother, shoot.” He said that the victim ran at
him and that the Defendant held his arm out after the victim got too close.
He said that although he had a gun in his left hand pointed at the ground, he
had not pointed the gun at the victim. He said he only pointed the gun at
the victim when he shot the victim. He said the victim was a large man and
bigger than he was. He said that at the time of the shooting, he was 5’9’
tall and weighed about 200 pounds, and the victim was 6’1’ tall and
weighed 250 pounds.

       The Defendant testified that he shot the victim because he feared
being hurt by the victim. He said, “If the opportunity presented itself[,] I
just knew this man, after this display, . . . was going to hurt me. Possibly
kill me.” He said he did not mean to shoot the victim. He said he grabbed
his belongings and left. He denied intentionally or knowingly killing the
victim. He said he shot the victim because he was in fear for his life.

       On cross-examination, the Defendant testified that he never met the
victim before the shooting, although he knew the victim was Ms.
Robinson’s husband. He said his cell phone was on the dresser in Ms.
Robinson’s bedroom. He agreed he knew it was the victim knocking on the
door and said he did not know what the victim was going to do if he saw
the Defendant in Ms. Robinson’s bedroom. He said he wanted to leave the
home but stayed in the bedroom in shock that the victim was there. He said
he did not know what he faced outside if he left the home. He said he
grabbed his gun when he heard the victim and Ms. Robinson outside
“scuffling.” He said that when the victim first saw the Defendant, the
victim was about ten to twelve feet from the Defendant. He said the victim
came into the bedroom and stood in the middle of the room about four or
five feet from the Defendant. He denied saying anything to the victim other
than that there was a better way to solve the problem.

      The Defendant testified that he had been at the home frequently and
was familiar with most of the home’s layout. He agreed he knew where the
doors were located. He said that after the victim pushed Ms. Robinson out
                                    -7-
       the door, he looked out the window to check on her safety. He said he
       heard the victim and Ms. Robinson but could not see them. He said he
       went outside and walked to where he could see the victim and Ms.
       Robinson. He said he did not call the police or call anyone for help. He
       stated that he stood in the driveway during the incident and that although he
       wanted to leave, he stayed because he feared what the victim would do to
       Ms. Robinson. He said that while he was outside, he only spoke when the
       victim addressed him. He denied saying anything other than they needed to
       solve the problem another way and denied speaking to Ms. Robinson.

              The Defendant testified that he knew how a gun worked and that he
       did not know where he aimed the gun when he shot the victim. He denied
       yelling during the incident and said he entered the home after the shooting
       to get his belongings. He denied calling the police or an ambulance and
       said he walked through the yard when he left. He agreed he walked past
       the victim, who was lying on the ground, and said he did not attempt to
       help the victim, call the police, or wait for the police to arrive. On redirect
       examination, the Defendant testified that he put his gun in his pants pocket
       when the victim knocked on the door and identified himself.

State v. Tommy Gayden, No. W2011-00378-CCA-R3-CD, 2012 WL 5233638, at *1-6
(Tenn. Crim. App. at Jackson, Oct. 23, 2012), perm. app. denied, (Tenn. Mar. 18, 2013).
Based upon the foregoing proof, the jury convicted the Petitioner as charged of second
degree murder.

       Before sentencing, the State filed a notice to seek enhanced punishment, and
defense counsel filed a notice of mitigating factors. At the sentencing hearing, the trial
court sentenced the Petitioner as a Range II, violent offender to thirty years to be served
at one hundred percent.

       The Petitioner filed a direct appeal of his conviction to this court. On appeal, he
claimed that (1) the evidence was insufficient to support the conviction because he was
“acting upon a well-founded fear of death or serious bodily injury, or alternatively,
because he acted in a state of passion based on adequate provocation”; (2) the trial court
erred by allowing the State to say during its opening statement that he was “calm and
collected” at the time of the shooting; (3) the trial court erred by allowing the State to
make comments about the effect of the shooting on Ms. Robinson’s son during closing
arguments; and (4) the trial court erred by not giving his requested jury instruction “that
he held a reasonable belief of imminent death or serious bodily injury when deadly force
was used against someone who entered the home unlawfully and forcibly” pursuant to
Tennessee Code Annotated section 39-11-611(c). Id. at *6, 8, 9, 11.
                                            -8-
        This court found the evidence sufficient to support the conviction. In concluding
that a reasonable jury could have rejected the Petitioner’s claim of self-defense, this court
noted that the victim never touched the Petitioner, that the Petitioner obtained a gun when
he heard the victim at the door and kept the gun in his hand during the entire incident,
and that the Petitioner raised his arm straight and shot the unarmed victim after a brief
pause. Id. at *7. In concluding that a reasonable jury could have rejected the Petitioner’s
claim of adequate provocation, this court stated that the evidence supported a finding that
the Petitioner was calm during the incident. Id. at *8. This court also held that the
State’s opening statement was not improper and that the Petitioner was not entitled to his
requested jury instruction. Id. at *9, 13. Although this court found that the State’s
closing arguments about Ms. Robinson’s son were improper, this court noted that trial
counsel did not request a mistrial and concluded that the error was harmless. Id. at *11.

       After our supreme court denied the Petitioner’s application for permission to
appeal, he filed a timely pro se petition for post-conviction relief, claiming that he
received the ineffective assistance of counsel because trial counsel did not request a
mistrial when the State made its improper closing arguments. The post-conviction court
appointed counsel, and post-conviction counsel filed amended petitions, adding, in
pertinent part, that trial counsel were ineffective for not requesting a mistrial when “the
state made two objectionable and improper arguments during closing and rebuttal
argument forcing the [trial court] to give a curative instruction”; for not properly
investigating the victim’s violent nature and past history of violence; for not
communicating with the Petitioner about trial preparation or defense strategy; and for not
investigating the case properly.

       The trial transcript reflects that the Petitioner had two attorneys: lead counsel and
co-counsel. Lead counsel did not testify at the post-conviction evidentiary hearing. Co-
counsel testified for the Petitioner that he became licensed to practice law and went to
work for lead counsel’s law firm in 2009. Co-counsel “had minimal dealings” with the
Petitioner’s case prior to the 2010 trial and “simply helped [lead counsel] with the case
and made sure that . . . the file was together.” Co-counsel was not involved in the
discovery process but researched an issue involving “the self-defense presumption.” Co-
counsel did not think he ever met with the Petitioner before trial, but he and lead counsel
met with the Petitioner every morning during the trial “and then during the recesses and
whatnot.” After the jury convicted the Petitioner, co-counsel wrote the Petitioner’s
appellate brief and argued the appeal to this court.

       Co-counsel testified that the Petitioner’s case was “a first aggressor type of
defense” but that he did not know if lead counsel researched the victim’s reputation for
violence. Regardless, the State’s proof showed that the victim was the first aggressor
                                            -9-
because he forced his way into Ms. Robinson’s home, put his hands on her, and verbally
confronted her and the Petitioner. Co-counsel explained, “And so I don’t know that we
had planned on going into [the victim’s] propensity [for violence] necessarily because
there was already proof in the record that he was violent at that instance.” Co-counsel
said he thought lead counsel “started down that road” when lead counsel began cross-
examining Ms. Robinson’s son about the victim’s relationship with Ms. Robinson. The
State objected, though, and trial counsel “made a judgment call” not to pursue that line of
questioning because it could have opened the door to the Petitioner’s violent background.
The defense did not make an offer of proof regarding Ms. Robinson’s son’s testimony.

       Co-counsel testified that he and lead counsel explained to the Petitioner what was
going on during the trial and that the Petitioner was active in the trial strategy. Co-
counsel cross-examined only one of the State’s witnesses, and lead counsel cross-
examined the remaining witnesses. During the State’s closing arguments, trial counsel
objected to the State’s improper argument about Ms. Robinson’s son. The trial court
sustained the objection and gave a curative instruction, so trial counsel did not request a
mistrial. Lead counsel used a private investigator for murder cases, but co-counsel did
not know if the private investigator worked on the Petitioner’s case.

        On cross-examination, co-counsel testified that he was present every day during
the trial and that he did not remember having any difficulties communicating with the
Petitioner. The Petitioner was “frustrated with the situation he was in” but was not
critical or angry with lead counsel or co-counsel. The defense’s strategy was that the
Petitioner shot the victim in self-defense and in defense of Ms. Robinson, and lead
counsel questioned Ms. Robinson at trial about the victim’s actions before the shooting.
Lead counsel stopped questioning Ms. Robinson’s son about the victim’s relationship
with Ms. Robinson because “it became apparent that the State could go into the
defendant’s history of violence.” Because this was a self-defense case, trial counsel did
not want to open the door to the Petitioner’s having a prior conviction for voluntary
manslaughter.

       Michael Dickerson, the Petitioner’s older brother, testified that seventy percent of
the payment for the Petitioner’s defense “fell on” him. He and his family knew lead
counsel well prior to the shooting because lead counsel had represented the family for
“about five generations.” Dickerson described lead counsel as a “fixture” in the family
and said that the family trusted and depended on lead counsel. Dickerson had a difficult
time contacting lead counsel by telephone, so he would “just show up” at lead counsel’s
office occasionally to make a payment and ask about the Petitioner’s case.

       Dickerson testified that he was present every day of the Petitioner’s trial and that
lead counsel was not “at his best.” Lead counsel referred to the victim by the wrong
                                          - 10 -
name and seemed more dependent on co-counsel than lead counsel’s “own natural
abilities.” Dickerson said that his family loved lead counsel “dearly” but that lead
counsel was “older” and “slower.” Lead counsel was not his usual “perky self” and “just
wasn’t the man that [they] were used to seeing.”

        Dickerson testified that Felicia Robinson was a “very nice girl” and had been in a
relationship with the Petitioner “off and on” for more than twenty years. Dickerson said
that he did not know the victim personally but that the victim had a reputation as “a bully
kind of fellow.” Lead counsel knew about the victim’s reputation, and Dickerson told
lead counsel that he needed to bring out at trial that the victim attacked the Petitioner.
Dickerson said that the victim “came there with his mindset that somebody [was] going
to die,” that the victim was “out of order,” and that the Petitioner “fired one shot to stop
this man.” The Petitioner was not a person who showed a lot of emotion and usually
“kept his cool.”

       Felicia Robinson testified that at the time of the shooting, she and the victim were
married but separated due to “[c]ontrol issues” and physical and verbal abuse. Ms.
Robinson had told the Petitioner about some of the abuse, and the Petitioner was aware of
the victim’s violent tendencies. At trial, Ms. Robinson felt torn between the Petitioner’s
and the victim’s families. She talked with the prosecutors before trial and felt pressured
by them to say negative things about the Petitioner. No one from lead counsel’s office
spoke with Ms. Robinson or her son before trial. Ms. Robinson spoke with lead counsel
during the trial, but he did not prepare her for trial. She and lead counsel discussed her
abusive relationship with the victim, but she did not get to testify much about the abuse.

       Ms. Robinson testified that on the day of the shooting, the victim took her keys out
of her purse, went into her house, and walked toward her bedroom in the back of the
house. The Petitioner was already standing in the doorway, and the victim was cursing,
“going off,” and “wanting to fight” the Petitioner. The Petitioner was holding a gun. Ms.
Robinson stated that the victim told the Petitioner to put the gun down and that the victim
said he was going to do “this and that” to the Petitioner. The Petitioner did not do
anything to the victim and did not argue with him. The victim pulled Ms. Robinson out
of the house and pushed her head. Ms. Robinson was scared and tried to get him to
leave, but he refused. By that time, the Petitioner also was outside. Ms. Robinson said
that the victim “went up in [the Petitioner’s] face” and that they were probably less than
five feet apart. The Petitioner “pushed him back and shot him.”

        Ms. Robinson testified that she thought lead counsel “didn’t allow important
things to be shared” with the jury. Specifically, Ms. Robinson did not get to say at trial
that the Petitioner did not want to shoot the victim.

                                           - 11 -
       On cross-examination, Ms. Robinson acknowledged that she testified at trial that
the victim was the aggressor, that he took her keys and purse, and that he came into her
house without her permission. However, she did not get to “express” at trial that the
Petitioner’s reaction to the victim was not violent and that the Petitioner was trying to be
calm. She acknowledged that the Petitioner’s shooting the victim was a “pretty violent”
act.

       The Petitioner testified that he learned about a warrant for his arrest the day after
the shooting and that he turned himself in to lead counsel at lead counsel’s office. The
“fugitive squad” arrived a few minutes later, arrested the Petitioner, and took him to jail.
Lead counsel told the Petitioner not to give a statement to the police, so the Petitioner
never spoke with law enforcement. Lead counsel and the Petitioner talked about the
shooting “some” in lead counsel’s office and in jail, but they “never did get to finish.”
The Petitioner’s bond was set too high for him to be released from confinement. On the
day of his preliminary hearing, lead counsel told him that he was going home. However,
“it didn’t turn out like that,” and the Petitioner remained in jail.

       The Petitioner testified that lead counsel “seemed like he was disconnected from
the start.” The Petitioner never received discovery, and lead counsel never went over
discovery materials with him. One time, lead counsel told the Petitioner that “it don’t
look good that you’re [gang] affiliated.” Lead counsel’s statement “kind of throwed” the
Petitioner because the Petitioner had never been a gang member. The Petitioner thought
lead counsel was talking about a different defendant or the wrong case. Lead counsel
told the Petitioner that he had talked with Ms. Robinson. However, the Petitioner did not
think lead counsel hired an investigator or talked with the Petitioner’s family. The
Petitioner received letters from lead counsel, stating that Ms. Robinson had changed her
statement and that the State had made an offer of twenty-five years. The Petitioner was
forty-years old, so the offer was like a life sentence. Lead counsel asked the Petitioner
what he wanted to do. The Petitioner told lead counsel that he wanted to go to trial, and
lead counsel responded, “[G]ood for you.”

       The Petitioner testified that on three occasions, lead counsel asked him,
“[W]here’s my [motherf------] money?” The Petitioner told lead counsel to speak with
the Petitioner’s family about it. The Petitioner learned from his family that he had “a
zero balance,” so he thought his account with lead counsel had been paid in full. The
Petitioner said that he and lead counsel never discussed trial strategy and that he told lead
counsel to “check into” the victim’s history. However, lead counsel never responded to
the Petitioner.

        The Petitioner testified that he and lead counsel did not discuss the trial before the
trial date. During the trial, they talked in the lock-up area in the back of the courtroom.
                                            - 12 -
Lead counsel told the Petitioner that “whatever you do, don’t show no expression.”
Therefore, the Petitioner did not show any facial expressions even though he was feeling
“all kinds of emotion.” The Petitioner had a prior conviction for voluntary manslaughter,
and he and lead counsel discussed whether his criminal history should be admitted into
evidence. Although lead counsel did not want the jury to hear about the conviction, the
Petitioner said at the evidentiary hearing that “it wouldn’t have made much of a
difference.” The Petitioner testified on his own behalf at trial, but lead counsel did not
prepare him for his testimony. Lead counsel told the Petitioner, “[Y]ou have to be
careful what you say in order to avoid bringing in your background.” The Petitioner was
careful during his testimony and did not speak “badly” of the victim. The Petitioner saw
lead counsel “dozing off” at trial, and lead counsel was “really disconnected” from the
Petitioner. The Petitioner said lead counsel was not “strong with his questioning” of the
witnesses, “cowarded down,” and did not “follow through” on most of his objections and
questions.

       The Petitioner testified that lead counsel never addressed his character at
sentencing. The Petitioner was employed as a truck driver, was participating in a
program called Stop the Violence, and was taking responsibility for his child support
before the shooting. Although he had a prior drug conviction, he had stopped selling
drugs. Lead counsel did not bring up any of those factors at sentencing. Regarding
allocution, lead counsel simply told the Petitioner to “state your case to the Judge.”

       The Petitioner testified that he never got to say “fully” at trial what happened with
regard to the shooting. The Petitioner had heard from Ms. Robinson’s friends that the
victim “had jumped on her before.” A couple of days before the shooting, Ms.
Robinson’s uncle told the Petitioner that the victim was “about to explode.” The
Petitioner asked Ms. Robinson if he had anything to worry about, and she told him no
because “I asked you to come over here.”

       The Petitioner testified that on the day of the shooting, he heard the victim and
Ms. Robinson outside. The Petitioner wanted to leave but stayed because he did not
know what would happen to Ms. Robinson. The victim came into the house, saw him,
and said, “‘You got this [motherf-----] over here?’” The Petitioner had a gun in his left
hand but kept it pointed down. The victim grabbed Ms. Robinson by her neck and forced
her outside. The Petitioner and Ms. Robinson’s son also went outside, and the victim let
go of Ms. Robinson. The victim came toward the Petitioner and said, “‘Man, you put that
gun down, I’ll [f---] you up.’” The Petitioner responded, “‘I’m going to make you shoot
me, [B----].’” The victim went back to Ms. Robinson and put his hand on her neck, and
the Petitioner told the victim that “‘it ain’t got to be this way.’” The Petitioner stated that
he was not calm but that he “wasn’t acting outrageous” and that he was hoping to “talk
[the victim] down.” However, the Petitioner thought the victim was going to hurt him “in
                                            - 13 -
the worst way” if the victim got the chance. The Petitioner also thought the victim was
going to beat Ms. Robinson if the Petitioner left. The Petitioner said that the victim “ran
up on” him, that he stumbled backward, and that he “came up” and shot the victim. He
acknowledged that if he had testified the way he had wanted to at trial, his prior
conviction of voluntary manslaughter would have been admissible.

       On cross-examination, the Petitioner acknowledged that his defense was that he
was acting in self-defense and in defense of Ms. Robinson. He also acknowledged that
Ms. Robinson testified at trial that the victim was being verbally abusive, threatening, and
aggressive and that the victim was the aggressor on the day of the shooting. The
Petitioner said he did not get to testify at trial about his demeanor at the time of the
shooting. Although the State claimed at trial that he was calm and collected, the
Petitioner never got to say “what was going on, on the inside.” The Petitioner went
outside on the day of the shooting to make sure the victim was not hurting Ms. Robinson,
and the Petitioner tried “to talk the situation down.” The Petitioner took a gun outside
with him but left his cellular telephone inside the house. He did not call 911 before he
shot the victim.

       The Petitioner testified that he wanted lead counsel to ask Ms. Robinson at trial
what the victim said he would do to her if he caught her with someone else. However,
the Petitioner acknowledged that Ms. Robinson’s testimony would have been hearsay.
The Petitioner also wanted other people to testify at trial about the victim’s violent past.
Lead counsel did not tell the Petitioner that if the defense went into the victim’s violent
history, the prosecution could talk about the Petitioner’s violent history. The Petitioner
followed lead counsel’s advice so as not to open the door to his conviction for voluntary
manslaughter, and the jury never heard about the conviction. The Petitioner said he did
not know lead counsel filed a notice of mitigating factors before sentencing.

        On redirect examination, the Petitioner testified that he never pushed the victim
and “only blocked him.” The Petitioner also did not raise his arm and hold it with the
intent to kill the victim. The victim never stopped yelling or being aggressive prior to the
shooting, and the Petitioner shot the victim to protect himself. The Petitioner said that
“[w]ith everything going on, [he] didn’t think much about the police.”

        In a written order, the post-conviction court denied the petition for post-conviction
relief. First, the court addressed the Petitioner’s claim that trial counsel was ineffective
for failing to investigate the victim’s violent nature and past history of violence. The
court stated that “it was uncontroverted that the victim was the first aggressor” on the day
of the shooting. The court found that if the Petitioner had presented proof of the victim’s
violent nature and character pursuant to Tennessee Rule of Evidence 404(a)(2), then the
State could have presented proof of the Petitioner’s own violent nature, particularly his
                                           - 14 -
prior conviction for voluntary manslaughter, under Tennessee Rule of Evidence
404(a)(1). The post-conviction court stated that evidence of the Petitioner’s conviction
would have been extremely damaging to his case with little benefit because the victim’s
role as the first aggressor prior to the shooting was never in doubt. The court stated that
although the defense initially planned to introduce evidence of the victim’s propensity for
violence, trial counsel made a strategic decision not to pursue the evidence so as not to
open the door to the Petitioner’s criminal history. The post-conviction court described
trial counsel’s decision as “a wise one” and concluded that the Petitioner was not entitled
to relief.

       Next, the post-conviction court addressed the Petitioner’s claim that trial counsel
was ineffective because counsel failed to communicate with him about trial preparation
or defense strategy. The Petitioner acknowledged at the evidentiary hearing that trial
counsel’s trial strategy was to show he acted in self-defense and in defense of Ms.
Robinson. The post-conviction court found that the Petitioner “has not suggested how
any better communication or preparation would have resulted in a different or better
defense.” As to the Petitioner’s claim that trial counsel was ineffective for failing to
investigate the case properly, the post-conviction court stated that the Petitioner failed to
suggest what more counsel should have done or what information counsel could have
obtained that would have made a difference at his trial or in his defense strategy. Finally,
the post-conviction court addressed trial counsel’s failure to object to the State’s
improper closing arguments about Ms. Robinson’s son and concluded that the trial court
would have denied a request for a mistrial because the trial court gave a curative
instruction to the State’s improper arguments. At the conclusion of its order, the post-
conviction court stated that it did not notice a “‘slowing down’” of lead counsel or that
lead counsel “‘dozed off’” during the trial. The post-conviction court concluded that the
Petitioner failed to demonstrate that he received the ineffective assistance of counsel. On
appeal, the Petitioner challenges the court’s denial of the petition.

                                       II. Analysis

        To be successful in a claim for post-conviction relief, a petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are
                                           - 15 -
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s
conclusions of law purely de novo. Id.

        When a petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the petitioner bears the burden of proving both that counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the petitioner must show that counsel’s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, 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. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Further,

       [b]ecause a petitioner must establish both prongs of the test, a failure to
       prove either deficiency or prejudice provides a sufficient basis to deny
       relief on the ineffective assistance claim. 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, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

                              A. Victim’s Violent History

       The Petitioner contends that trial counsel were ineffective for failing to make
offers of proof at trial about the victim’s reputation for violence in the neighborhood and
the victim’s prior acts of abuse toward Ms. Robinson because the evidence would have
supported his claim of self-defense and defense of another. Specifically, the Petitioner
asserts that Ms. Robinson and her son should have testified about the victim’s prior acts
of abuse toward Ms. Robinson in order to show the victim was the first aggressor and that
the Petitioner should have testified that Ms. Robinson told him the victim had been
physically abusive to her in the past in order to show the Petitioner feared the victim.



                                          - 16 -
       As to offers of proof regarding the victim’s prior acts of abuse toward Ms.
Robinson, Ms. Robinson and her son testified on direct and cross-examination at trial that
the victim was the first aggressor before the shooting. The post-conviction court found,
and we agree, that the victim’s role as the first aggressor was never in doubt. Therefore,
the Petitioner has failed to establish that trial counsel was ineffective with regard to the
proposed testimony of Ms. Robinson and her son.

       As to an offer of proof by the Petitioner to show he feared the victim, “There is a
distinction between evidence of prior acts of violence by the victim used to corroborate
the defense theory that the victim was the first aggressor and that used to establish the
defendant’s fear of the victim.” State v. Ruane, 912 S.W.2d 766, 779 (Tenn. Crim. App.
1995). When a defendant’s fear of the victim is relevant and the defendant is aware of
the prior acts, the defendant can testify about his knowledge of the victim’s violent
conduct. State v. Hill, 885 S.W.2d 357, 361 n.1 (Tenn. Crim. App. 1994) (citing
Williams v. State, 565 S.W.2d 503, 505 (Tenn. 1978)).

       The State argues that if the Petitioner had testified about his knowledge of the
victim’s prior acts of abuse against Ms. Robinson, then the Petitioner would have opened
the door to his own violent nature pursuant to Tennessee Rule of Evidence 404(a). We
disagree. Tennessee Rules of Evidence 404(a)(1) and (2) provide that if an accused
places the victim’s character for violence at issue, then the State may offer evidence
about the accused’s character for violence to rebut the same. The Petitioner is not
arguing that he should have been allowed to testify that the victim was a violent person
and was acting in conformity with a propensity for violence on the day of the shooting
but that he was afraid of the victim because he knew the victim had abused Ms. Robinson
previously. In other words, he wanted to show his state of mind at the time of the
shooting. Therefore, Rule 404(a) does not apply. See State v. Garry Baker, No. M2016-
01164-CCA-R3-CD, 2017 WL 1534993, at *8 (Tenn. Crim. App. at Nashville, Apr. 28,
2017).

        That said, we conclude that the Petitioner is not entitled to relief. We have
carefully reviewed the Petitioner’s evidentiary hearing testimony. The Petitioner testified
that the victim “was more mad than I could ever imagine a man could be at that time” and
that “if [the] opportunity presented itself, he was going to hurt me in the worst way.”
However, he never testified at the hearing that he feared the victim because he knew the
victim had physically abused Ms. Robinson. In fact, he never testified at the hearing that
he feared the victim at all. To the contrary, the evidence at the hearing showed that the
Petitioner knew the victim and Ms. Robinson were still married but that he dated her
anyway and frequently spent the night at her home. Although Ms. Robinson’s friends
had told him that the victim had “jumped on” Ms. Robinson previously and her uncle told
him just a few days before the shooting that the victim was “about to explode,” the
                                           - 17 -
Petitioner again spent the night with her. When the victim arrived at Ms. Robinson’s
house on the day of the shooting, confronted the Petitioner, and told him that I’ll [f---]
you up,’” the Petitioner responded, “‘I’m going to make you shoot me, [B----].’” The
Petitioner appeared calm, not afraid, throughout the incident. Therefore, we conclude
that the Petitioner failed to demonstrate that counsel was deficient or that he was
prejudiced by any deficiency.

                              B. State’s Closing Arguments

       Next, the Petitioner contends that trial counsel should have objected or requested a
mistrial when the prosecutor repeatedly used the word “hitman” during the State’s
closing argument. As noted by the State, though, the Petitioner did not raise this issue in
his petition for post-conviction relief and did not ask co-counsel about it at the
evidentiary hearing. Accordingly, the post-conviction court did not address it in the
court’s order denying the petition for post-conviction relief. We conclude that the issue
has been waived. See State v. Alvarado, 961 S.W.2d 136, 153 (Tenn. Crim. App. 1996).

                             C. Petitioner’s Prior Conviction

        The Petitioner contends that trial counsel was ineffective for not discussing with
him whether his prior conviction of voluntary manslaughter should come into evidence at
trial and for not attempting to preclude the conviction from evidence pursuant to
Tennessee Rule of Evidence 404(b). However, as noted by the State, the Petitioner
testified at the evidentiary hearing that he and lead counsel discussed whether his
criminal history should be admitted and that lead counsel did not want the jury to learn
about his voluntary manslaughter conviction. Moreover, the Petitioner said lead counsel
told him to “be careful” during his testimony so as not to open the door to his criminal
history and that he followed lead counsel’s advice. Therefore, we find no merit to the
Petitioner’s claim that trial counsel was ineffective for not discussing his voluntary
manslaughter conviction with him.

       The Petitioner claims that trial counsel should have attempted to exclude his prior
conviction from evidence pursuant to Tennessee Rule of Evidence 404(b), which
prohibits the admission of evidence related to other crimes, wrongs, or acts offered to
show a character trait in order to establish that a defendant acted in conformity with the
trait. However, even if trial counsel had argued, and the trial court had agreed, that the
Petitioner’s voluntary manslaughter conviction was inadmissible under Tennessee Rule
of Evidence 404(b), a witness can still open the door to the State’s questioning the
witness about the conviction. See State v. Rodney Jennings, No. E2017-00330-CCA-R3-
CD, 2018 WL 1168723, at *13 (Tenn. Crim. App. at Knoxville, Mar. 6, 2018), perm.
app. denied, (Tenn. June 6, 2018) (although trial court ruled evidence of defendant’s prior
                                          - 18 -
conviction for domestic assault was inadmissible under Rule 404(b), defendant opened
the door to the evidence during his direct testimony). The evidentiary hearing testimony
demonstrates that trial counsel made a strategic decision not to do anything that might
open the door to the Petitioner’s prior conviction. Although the Petitioner claimed at the
hearing that the jury’s hearing about his conviction “wouldn’t have made much of a
difference,” this court may not second-guess the tactical or strategic choices of counsel
unless those choices are based upon inadequate preparation, nor may we measure
counsel’s behavior by “20-20 hindsight.” See State v. Hellard, 629 S.W.2d 4, 9 (Tenn.
1982). Therefore, we conclude that that the Petitioner has failed to show that counsel’s
performance was deficient or that he was prejudiced by any deficiency.

                                   D. Cumulative Errors

       Finally, the Petitioner contends that he was prejudiced by trial counsel’s
cumulative errors during the course of the trial. He claims that those cumulative errors
included trial counsel’s failure to hire an investigator to interview witnesses and
investigate the victim’s violent reputation, failure to prepare him to testify at trial so that
he “could have an understanding of any potential implications of a jury hearing his prior
criminal history,” and failure to prepare him or any witnesses to testify at sentencing.

       As found by the post-conviction court, the Petitioner failed to present any
additional evidence that an investigation would have revealed that would have made a
difference at his trial. Furthermore, the Petitioner testified that he and lead counsel
discussed his prior conviction of voluntary manslaughter during the trial and that lead
counsel told him to be careful so as not to open the door to that conviction. The
Petitioner was careful during his testimony, and the jury did not hear about his
conviction. He has failed to explain what more trial counsel should have done to prepare
him for his testimony, and he has failed to demonstrate that counsel’s not preparing him
prejudiced his case.

       Regarding sentencing, the Petitioner failed to present any witnesses at the
evidentiary hearing that could have testified on his behalf at the sentencing hearing.
Generally, “[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). Moreover, our review of the trial record confirms that trial counsel filed a
notice of mitigating factors, and the Petitioner has failed to explain on appeal what
evidence trial counsel could have presented at sentencing that would have changed his
sentence. Accordingly, he has failed to show that he is entitled to post-conviction relief.

                                      III. Conclusion
                                            - 19 -
      Based upon the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.


                                                  _________________________________
                                                  NORMA MCGEE OGLE, JUDGE




                                         - 20 -
