        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 5, 2012

              JONATHAN WILLIAMS v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Lauderdale County
                      No. 8793    Joseph H. Walker, III, Judge


               No. W2012-00107-CCA-R3-PC - Filed January 22, 2013


The Petitioner, Jonathan Williams, appeals the Lauderdale County Circuit Court’s denial of
his petition for post-conviction relief from his convictions of attempted second degree
murder and possession of a handgun by a convicted felon, for which he received an effective
sentence of twenty years. In this appeal, the Petitioner contends he received ineffective
assistance of counsel and that his guilty pleas were not entered knowingly and voluntarily.
Upon review, we affirm the judgment of the post-conviction court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL and J EFFREY S. B IVINS, JJ., joined.

George D. Norton, Jr., Ripley, Tennessee, for the Petitioner-Appellant, Jonathan Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
D. Michael Dunavant, District Attorney General; and Julie Pillow, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                          OPINION

        In January 2010, the Petitioner, Jonathan Williams, was arrested for shooting Toddy
Pettigrew in the face and was charged with attempted first degree murder, employment of a
firearm during the commission of a dangerous felony, and possession of a handgun by a
convicted felon. At the time of his arrest, the Petitioner was on probation for several charges,
which ultimately resulted in an effective nineteen-year sentence. While released on bond for
the attempted first degree murder charge, the Petitioner retained counsel and later was re-
arrested for another unrelated drug charge. In October 2010, the Petitioner entered a guilty
plea to attempted second degree murder and possession of a handgun by a convicted felon
and was sentenced to a concurrent term of twenty years and six years, respectively. The plea
agreement further provided that these sentences were to be served concurrently with his
nineteen-year sentence on the prior charges.

        At the plea colloquy in October 2010, the Petitioner stipulated to the State’s recitation
of the facts:

       [O]n January 8, 2010, Mr. Toddy Pettigrew had stopped by the residence
       where [the Petitioner] was we believe living, or at least he was there on that
       particular day; that they had some limited conversation; that [the Petitioner]
       said wait a minute; Mr. Pettigrew was in a truck, and as he was backing the
       truck up, [the Petitioner] asked him to wait; he went back in the residence for
       a moment, came back out with a handgun and fired through the windshield of
       the truck striking Mr. Pettigrew in the face.

              Mr. Pettigrew had to receive extensive medical treatment, first at the
       emergency room and then later at The Med, and I believe he is still under a
       doctor’s care with regard to his injuries. He was able to recover but has some
       issues with regard to damage that was done to his jaw and teeth with regard to
       the shot that struck him in the jaw area of his face.

             Mr. Pettigrew would have come to court, identified the individual who
       had shot him in the face, which would have been [the Petitioner].

       The Petitioner acknowledged the rights he was waiving by entering a guilty plea. He
further acknowledged that he was charged with a Class A felony, attempted first degree
murder, for which the State sought to classify him as a Range III career offender, requiring
a sixty-year sentence to be served at sixty percent. He understood that the plea agreement
reduced this charge to attempted second degree murder, a Class B felony, and that the State
recommended a sentence of twenty years at thirty-five percent as a multiple offender.
Regarding the Class E felony charge of possession of a handgun by a convicted felon, the
Petitioner understood that he would receive a six-year sentence as a career offender to run
concurrent with the attempted murder conviction. The Petitioner also understood that, based
on the plea agreement, the charge of employing a firearm during the commission of a
dangerous felony would be dismissed. He acknowledged he had other convictions which
would be served concurrently with the sentences he received that day.

        The Petitioner further stated that he was satisfied with Counsel’s representation and
that he had “had adequate time to meet with an attorney to discuss this case and any defense
to the charges” and that he was “in fact guilty of an offense.” The trial court accepted the

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pleas and revoked the Petitioner’s probation on the prior charges while ordering all sentences
to be served concurrently.

       The Petitioner timely filed a pro se petition for post-conviction relief alleging
ineffective assistance of counsel and an involuntary guilty plea. The following day, the post-
conviction court appointed counsel for the Petitioner, however, the Petitioner retained
counsel, who later filed an amended petition.

       At the post conviction hearing, the Petitioner testified that when he first met Counsel
in January 2010, he “set a[n] example about a case, what if somebody would have did [sic]
such and such[.]” The Petitioner stated that he did not discuss any specifics about his case
with Counsel until after he was re-arrested while on bond for the instant offenses. While in
custody Counsel visited the Petitioner and discussed the specifics of his case and the plea
agreement.

       The Petitioner was concerned because Counsel had failed to inform him of or
investigate various aspects of his case. Specifically, the Petitioner said that Counsel had not
spoken with the victim or police officers; that Counsel did not tell him whether a gun was
found or whether there were other eyewitnesses to the offense; and that Counsel failed to
advise the Petitioner whether he should testify. According to the Petitioner, Counsel never
interviewed neighbors of the crime scene and failed to tell the Petitioner that his criminal
record might not have to be admitted at trial. The Petitioner further stated that although
Counsel showed him motions, the Petitioner did not attend any motion hearings. The
Petitioner said Counsel did not discuss a defense to the attempted murder charge or the
probation violation with him, and if he had known what evidence the State planned to
present, he would have proceeded to trial.

        The Petitioner said that at the time he entered his plea, he did not understand the plea
agreement. He said he did not know much about his case in October 2010, and he accepted
the plea because he understood from Counsel that “[i]f [he] took the 20 at 35 percent, [he]
would do a minimum of seven years, which with good time would be . . . three to four years.”
However, he had since learned that “with a case like that in prison . . . . [i]t’s no guarantee
to get parole.” He said he felt pressured to accept the plea because “everything happened so
fast before the trial date.” He planned on proceeding to trial “until all that time started
getting throwed at me.”

        The Petitioner said that when he received the plea bargain, Counsel told the Petitioner
that it was the Petitioner’s decision to accept or reject the offer. The Petitioner said that
Counsel “kept telling [him] that it’s on [him] if [he] want[ed] to go to trial” and “[n]ot up to
[Counsel].” He said Counsel advised him the jury likely would find him guilty based upon

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his criminal record, but it just “took one” juror to avoid a conviction. The Petitioner agreed
that Counsel discussed the possibility of an acquittal and said, “[i]t was just, Who knows.
It was whatever I want to do. It was on me if I wanted to go to trial.”

       On cross-examination, the Petitioner acknowledged that at his preliminary hearing,
he heard the sworn testimony of the victim and a police officer. He acknowledged that
Counsel discussed his case when he first met him in his office in January and that Counsel
met with him prior to his preliminary hearing and represented him at the preliminary hearing.
He agreed that he could have spoken with Counsel about his case at the preliminary hearing
but chose not to. He acknowledged that he received a packet of discovery materials from
Counsel with a letter dated September 1, 2010, instructing him that should he have “any
questions or concerns,” to not “hesitate to contact our office and make an appointment.”

       Counsel testified that the Petitioner retained his services on January 18, 2010, at which
time Counsel “mapped” out the Petitioner’s charges and the preliminary hearing process to
him. Counsel stated that he “spent a long time [with the Petitioner at] the first meeting.”
Counsel testified that he did not interview anyone prior to the preliminary hearing, which he
conducted, but he was able to “very, very thoroughly” cross-examine the victim and “all the
other witnesses.”

         Counsel testified that the Petitioner did not “want to commit . . . as to anything that
happened” and instead presented Counsel with hypothetical scenarios. Counsel said he
continued to ask the Petitioner what his defense was, but three days prior to the scheduled
trial, the Petitioner still had not “told [counsel] a defense.” Counsel told the Petitioner he
was willing to go to trial, and counsel said he “would have worked with what [he] had.”
Counsel was prepared to present a case of self-defense because the victim, a boxer, was
“mouthing” with the Petitioner on the Petitioner’s property. Counsel further believed that
the presence of cocaine and the excessive alcohol found in the victim’s system would have
“dilut[ed] the element of premeditation[.]” Counsel commented that “[w]hen [the Petitioner]
decid[ed] what he was going to say happened, then [he] [could] start talking about a more
definitive defense.”

        Counsel outlined his understanding of the plea agreement in diagram form to the
Petitioner on October 8, 2010, which was entered into evidence at the hearing. Counsel
testified that he expected the Petitioner’s probation would be revoked and that the court
would impose a consecutive sentence. With this in mind, Counsel believed “it was a smarter
move [to plead] than going to trial.”

       On cross-examination, Counsel stated that for the last twenty of his thirty years of
practicing law, he had focused “almost exclusively” on criminal work. He held several

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certifications in trial work and gave seminars on “trial skills and criminal trial practice.” For
the past twelve years he served as an instructor at the Tennessee Criminal Defense College.
Counsel further testified that he explained to the Petitioner that meeting with the parole board
in seven years did not guarantee release. Counsel described the Petitioner as “a smart, smart
man,” and Counsel believed the Petitioner understood his rights and made an “informed
decision.”

        Officer Jackie Fennesy testified that the Lauderdale County Sheriff’s Department
dispatched him to the hospital to meet the victim the day of the crime. He stated that prior
to being airlifted for surgery, the victim identified the Petitioner from an array of
photographs. The officer never spoke with Counsel or his associate. On cross-examination,
Officer Fennesy said the victim identified his shooter as “Skinny,” and the officer did not
know who “Skinny” was. Officer Fennesy included in his array a photograph of Cortezmon
Jones, who lived next door to the lot where the shooting occurred. He said he investigated
the house where the shooting occurred and “went to [the Petitioner’s] job[] and . . . pulled
his job record,” which showed that the Petitioner was not at work on the day of the shooting.

       In its order denying relief, the post-conviction court stated the following:

               [Counsel] discussed the possible defenses to the charges with
       [P]etitioner. The [P]etitioner never committed to what happened or as to
       which defense he would go with at trial. The [P]etitioner never would discuss
       the facts of which defense. At the time of the plea he had not committed as to
       the facts with [Counsel], and at this late date at the hearing on post conviction
       he is still non-committal.

       . . . . An informed decision was made to accept the State’s offer. . . .The
       [Petitioner] received a substantial reduction in sentence from the possible
       sentence he would receive if convicted.

              The Court finds that Petitioner was adequately informed of the nature
       and consequences of the plea agreement, and the punishment to be received.
       His attorneys made adequate investigation of the facts.

               The Court finds that the [Petitioner] actually understood the
       significance and consequences of the particular decision to plead guilty and the
       decision was not coerced. The [Petitioner] was fully aware of the direct
       consequences of the plea. He was informed at the plea hearing of the sentence.




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               The Court finds that [P]etitioner has failed to establish the factual
       allegations contained in his petition by clear and convincing evidence. The
       [P]etitioner has not shown that (a) the services rendered by trial counsel were
       deficient and (b) the deficient performance was prejudicial. The [P]etitioner
       has not shown that the services rendered or the advice given was below the
       range of competence demanded of attorneys in criminal cases. The
       [P]etitioner has not shown that there is a reasonable probability that, but for
       counsel’s deficient performance, the result of the proceeding would have been
       different.

The Petitioner timely filed a notice of appeal.

                                         ANALYSIS

        The Petitioner contends that the trial court erred in denying his petition for post-
conviction relief. He argues that Counsel was ineffective by failing to “adequately
investigate the case, explain the other options available to the [Petitioner] including potential
defenses, [and] spend sufficient time conferring with the [Petitioner] about the charges he
faced.” He contends he did not enter a knowing, intelligent, and voluntary guilty plea, and
that “but for [C]ounsel’s errors, [he] would not have pled guilty and would have insisted on
going to trial.” The State responds that the trial court accredited the testimony of Counsel and
not of the Petitioner, and that the Petitioner has failed to meet his burden of proof. We agree.

      Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.
§ 40-30-103 (2006). The Tennessee Supreme Court has held:

              A post-conviction court’s findings of fact are conclusive on appeal
       unless the evidence preponderates otherwise. When reviewing factual issues,
       the appellate court will not re-weigh or re-evaluate the evidence; moreover,
       factual questions involving the credibility of witnesses or the weight of their
       testimony are matters for the trial court to resolve. The appellate court’s
       review of a legal issue, or of a mixed question of law or fact such as a claim
       of ineffective assistance of counsel, is de novo with no presumption of
       correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110 (f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and

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convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

       Vaughn further repeated well-settled principles applicable to claims of ineffective
assistance of counsel:

              The right of a person accused of a crime to representation by counsel
       is guaranteed by both the Sixth Amendment to the United States Constitution
       and article I, section 9, of the Tennessee Constitution. Both the United States
       Supreme Court and this Court have recognized that this right to representation
       encompasses the right to reasonably effective assistance, that is, within the
       range of competence demanded of attorneys in criminal cases.

202 S.W.3d at 116 (internal quotations and citations omitted).

       In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[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 v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S.
at 697, 104 S. Ct. at 2069).

       A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of
reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is
demonstrated once the petitioner establishes “‘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.’” Id. at 370
(quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). In order to satisfy the “prejudice”
requirement in the context of a guilty plea, a petitioner “must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); see
Serrano v. State, 133 S.W.3d 599, 605 (Tenn. 2004).

       I. Ineffective Assistance of Counsel. The Petitioner contends that Counsel “did not

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properly investigate the facts in this case by interviewing key witnesses and reviewing
appropriate existing legal arguments and non-frivolous arguments for the extension or
change of existing law.” The post-conviction court determined that Counsel “made adequate
investigation of the facts.”

       The Petitioner’s brief to this court fails to identify with any particularity which witness
the Petitioner believes Counsel should have interviewed or what arguments he maintains that
Counsel failed to argue. We glean from the post-conviction hearing that the Petitioner
believes that Counsel should have interviewed the victim, Cortezmon Jones, and various
other police officers. However, none of these individuals testified at the post-conviction
hearing, and this Court has repeatedly held that “[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). The presentation of the witness at the post-
conviction hearing is the only way for the petitioner to establish:

       (a) a material witness existed and the witness could have been discovered but
       for counsel’s neglect in his investigation of the case, (b) a known witness was
       not interviewed, (c) the failure to discover or interview a witness inured to his
       prejudice, or (d) the failure to have a known witness present or call the witness
       to the stand resulted in the denial of critical evidence which inured to the
       prejudice of the petitioner.

Id. Because the Petitioner failed to present any of these individuals at the post-conviction
hearing, he is not entitled to relief on this issue.

        In his amended petition for post-conviction relief, the Petitioner asserted that Counsel
should have argued that the Petitioner “could not have been properly charged with
employment of a firearm during the commission of a dangerous felony because the
employment of a firearm was a[n] essential factual element that the [S]tate needed to prove
in this particular case to meet its burden of proof for attempted first degree murder.” As an
initial matter, we consider this issue as moot because the State dismissed the employment of
a firearm during the commission of a dangerous felony charge. In addition, the Petitioner
failed to address this issue during the hearing before the post-conviction court, and the court
did not provide an analysis of this issue in its order. Finally, there is no mention whatsoever
of this issue in the Petitioner’s appellate brief to this court. Accordingly, we conclude that
this issue is waived.

      Next, the Petitioner contends that Counsel failed to advise him of potential defenses
and “what evidence would most likely be admitted at trial.” The post-conviction court found

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that Counsel “discussed the possible defenses to the charges with [the P]etitioner,” and that
the Petitioner “was aware of the proof against him.” At the evidentiary hearing, the
Petitioner acknowledged that Counsel had discussed with him (1) the absence of the gun,
(2) that someone else shot the victim, and (3) that the victim was intoxicated at the time of
the offense. Accordingly, the record supports the determination of the post-conviction court,
and the Petitioner is not entitled to relief on this issue.

       Citing Kevin Jerron Cook v. State, No. M2004-02413-CCA-R3-PC, 2005 WL
2477531 (Tenn. Crim. App. Oct. 6, 2005), the Petitioner apparently argues that Counsel was
ineffective for failing to advise the Petitioner of a direct consequence of his guilty plea. We
are puzzled by the Petitioner’s citation and reliance on Cook because, once again, this issue
was not raised in his petition for post-conviction relief nor developed in any meaningful way
during the hearing before the post-conviction court. The Petitioner’s brief generally cites
Cook, but fails to identify any direct or collateral consequence of the plea agreement of
which he was not advised. Accordingly, we conclude that this issue is waived, and the
Petitioner is not entitled to relief.

        The Petitioner further contends that Counsel did not “spend sufficient time conferring
with the [Petitioner] about the charges that he faced.” The post-conviction court noted that
“[u]pon cross-examination, the [P]etitioner’s memory was refreshed about multiple meetings
with his attorneys” in both Memphis and Ripley, Tennessee. The court also found that
Counsel had recorded ten discussions with the Petitioner. At the plea hearing, the Petitioner
testified that he had “adequate time to meet with an attorney to discuss this case and any
defense to the charges.” At the evidentiary hearing, the Petitioner testified that Counsel
answered the Petitioner’s calls to his cell phone but that they “didn’t want to talk over the
phone. So I had to set up a meeting or something to go down.” Counsel testified that, until
October 2010, the Petitioner was “out of custody and could come to my office whenever he
wanted to. Those are his choices of when to come to my office and talk to me.” The record
supports the determination of the post-conviction court. Accordingly, the Petitioner has failed
to show deficient performance or prejudice as a result.

       II. Voluntariness of Plea. The Petitioner argues that he “relied on the deficient
performance of his counsel in making a decision to enter a guilty plea. As such, [the
Petitioner’s] plea was not entered into voluntarily and knowingly and resulted in prejudice
to him.” The post-conviction court found that the “Petitioner freely entered a plea of guilty.
. . . Petitioner was adequately informed of the nature and consequences of the plea
agreement, and the punishment to be received. . . . [T]he [Petitioner] actually understood the
significance and consequences of the particular decision to plea guilty and the decision was
not coerced.”



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        When analyzing the validity of a guilty plea, we follow the federal landmark case of
Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969), and the Tennessee landmark case
of State v. Mackey, 553 S.W.2d 337 (Tenn. 1977), superseded on other grounds by rule as
stated in State v. Wilson, 31 S.W.3d 189, 193 (Tenn. 2000). State v. Pettus, 986 S.W.2d 540,
542 (Tenn. 1999). In Boykin, the United States Supreme Court held that a trial court may
not accept a guilty plea unless there is an affirmative showing that the guilty plea was
“intelligent and voluntary.” 395 U.S. at 242, 89 S. Ct. at 1711. When accepting a guilty
plea, the trial court is responsible for “canvassing the matter with the accused to make sure
he has a full understanding of what the plea connotes and of its consequence.” Id. at 244, 89
S. Ct. at 1712. In Mackey, the Tennessee Supreme Court held that “the record of acceptance
of a defendant’s plea of guilty must affirmatively demonstrate that his decision was both
voluntary and knowledgeable, i.e., that he has been made aware of the significant
consequences of such a plea; otherwise, it will not amount to an ‘intentional abandonment
of a known right.’” 553 S.W.2d at 340.

        The Tennessee Supreme Court has emphasized that a plea is not voluntary if it is the
result of “‘[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant
threats . . . .’” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993) (quoting Boykin, 395
U.S. at 242-43, 89 S. Ct. at 1712). A trial court must look at a number of circumstantial
factors before determining whether a guilty plea is voluntary and intelligently made. Id.
These factors include “the relative intelligence of the defendant; the degree of his familiarity
with criminal proceedings; whether he was represented by competent counsel and had the
opportunity to confer with counsel about the options available to him; the extent of advice
from counsel and the court concerning the charges against him; and the reasons for his
decision to plead guilty, including a desire to avoid a greater penalty that might result from
a jury trial.” Id. (citing Caudill v. Jago, 747 F.2d 1046, 1052 (6th Cir. 1984))).

        At the plea hearing, the trial court followed the guidelines of Rule 11(b) of Tennessee
Rules of Criminal Procedure and questioned the Petitioner extensively about the terms and
consequences of the plea agreement. In response, the Petitioner acknowledged that he
understood the charges, his sentences, the plea agreement, and the constitutional rights he
was forgoing by waiving trial. At the evidentiary hearing, the Petitioner agreed that Counsel
discussed the advantages and disadvantages of going to trial. He said that he accepted the
plea because he understood that he “would do the minimum of seven years” before meeting
with the parole board. He then interjected that he will “go up for parole in 2013,” which is
ahead of schedule. He agreed that he chose to take the plea to not risk losing the advantage
of having twenty years running concurrently, and he testified “[i]t was [his] decision to go
to trial.” Counsel characterized the Petitioner as a “smart, smart man,” and the post-
conviction court found “[n]othing in the record . . [that] indicates that the [Petitioner’s] plea
was involuntary.”

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         Based on this record, the trial court concluded, and we agree, that the Petitioner
entered knowing, intelligent, and voluntary guilty pleas. The Petitioner is not entitled to
relief in this matter.

                                    CONCLUSION

       Upon review, we affirm the judgment of the post-conviction court.


                                                  ______________________________
                                                  CAMILLE R. McMULLEN, JUDGE




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