        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 March 23, 2010 Session

          JOSEPH DEJUAN WEBSTER v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Davidson County
                          No. 2005-B-1384 Steve Dozier, Judge



                   No. M2009-01540-CCA-R3-PC - Filed June 28, 2010


Petitioner, Joseph Dejuan Webster, was convicted by a Davidson County jury of first degree
murder. State v. Joseph Dejuan Webster, No. M2007-00050-CCA-R3-CD, 2008 WL
2229208, at *1 (Tenn. Crim. App., at Nashville, May 29, 2008), perm. app. denied, (Tenn.
Dec. 8, 2008). He received a life sentence for the conviction which was ordered to be served
consecutively to a prior sentence. Id. Subsequently, Petitioner filed a petition for post-
conviction relief. Petitioner filed an amended petition, and the post-conviction court held a
hearing. After the hearing, the post-conviction court denied relief. We have reviewed the
record and conclude that Petitioner has failed to show that he received ineffective assistance
of counsel. Accordingly, the judgment of the post-conviction court is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
R OBERT W. W EDEMEYER, JJ., joined.

Theodora Pappas, Brentwood, Tennessee, for the appellant, Joseph Dejuan Webster.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant
Attorney General; Victor S. Johnson, District Attorney General, and Rachel Sobrero,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                       OPINION

                                  Factual Background

       Petitioner was indicted in April of 2005 for the first degree murder of Leroy Owens
that occurred on November 22, 1998. At trial, the following testimony led to Petitioner’s
conviction:

      Tammy Nelson testified that she was living in an apartment complex at 159
      Hermitage Avenue in November of 1998. She and Leroy Owens, the victim,
      were friends. She knew the victim as “Little Nick,” and he would sometimes
      stay at her apartment. Ms. Nelson and the victim had used drugs together in
      the past.

             According to Ms. Nelson, around the beginning of November, a man
      named Robert Nichols, who was known as “Big Nick,” wanted “some dope.”
      The victim offered to call his “cousin” who had some “good stuff.” Two men,
      one of whom was [Petitioner], arrived at Ms. Nelson’s apartment. The men
      claimed that the victim already owed them some money. The victim and “Big
      Nick” pooled their money together and “got the drugs” from the two men. The
      men left the apartment. Ms. Nelson was under the impression that the victim
      and “Big Nick” were going to divide the drugs up for resale to make some
      money, but “Big Nick scammed Little Nick out of his money.”

              About three days later, [Petitioner] and the other man that brought the
      drugs, returned to Ms. Nelson’s apartment, looking for the victim. Ms. Nelson
      specifically identified [Petitioner] as one of the men that came to her door.
      The men came to her apartment five or six times looking for the victim. At
      some point, the two men gave Ms. Nelson a pager number and told her to call
      them when she saw the victim. On November 21, 1998, the victim came to her
      house. The victim and Ms. Nelson got high together, and the victim stayed the
      night at her apartment. Ms. Nelson called the pager number to let the men
      know that the victim was at her apartment. The two men arrived at Ms.
      Nelson’s apartment in a white station wagon on the morning of November 22,
      1998. When they arrived, the victim was asleep. Ms. Nelson woke the victim
      up to tell him that [Petitioner] and the other man were there to see him.
      [Petitioner] went to the car where Ms. Nelson saw him put on gloves and get
      a stick. The other man “snatched” the victim out of the front door of Ms.

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Nelson’s apartment. Ms. Nelson saw [Petitioner] start hitting the victim with
his hands. The victim took off running, escaping over a fence. As he was
running away, one of his black tennis shoes came off his foot. [Petitioner]
and the other man got into their car to chase the victim. About thirty minutes
later, Ms. Nelson learned that the victim was dead.

        The victim ran to Delunn Todd Hyde’s house. According to Mr. Hyde,
the victim entered his house without being invited inside. The victim looked
like he had been beaten up, was missing a shoe and had bruises under his eye.
The victim’s pants were “halfway down.” The victim acted “scared” and
asked to use Mr. Hyde’s telephone. Mr. Hyde did not want to get involved, so
he escorted the victim out of his house. The victim asked Mr. Hyde to look
outside to see if there was a white car. Mr. Hyde reported that he did not see
a white car. At that point, the victim “took out across the street running.” Mr.
Hyde then saw a white “souped up” station wagon coming over the hill toward
the victim. The car “flew right behind” the victim. Mr. Hyde could tell that
there were two black men in the car and remembered that he had seen the same
car the night before on Lewis Street. About thirty minutes after the victim left
his house, Mr. Hyde walked to the scene of the incident and learned that the
victim was dead.

       Fred McClain testified that on November 22, 1998, he was “doing some
concrete” work for a small restaurant on the corner of Green Street and Wharf
Avenue. Around 11:30 a.m., Mr. McClain heard a car pull up and brakes
“screeching.” The next thing he saw was a “man running.” The man running
turned out to be the victim, Leroy Owens. He also saw a “white car that pulled
up, that the two fellows jumped out of.” The two men were black and one of
the men was about five feet nine inches tall and weighed about two hundred
and twenty-five or two hundred and thirty pounds. The other man was smaller,
“about five eight and weighed about one seventy-five.” The car was an older
white station wagon with “chrome wheels.”

       The two black men from the car “bum rushed” or “tackled” the victim
while he was running. This caused the victim to actually bump into Mr.
McClain, who hit his head on the food service window of the restaurant. Mr.
McClain got up and ran around a corner to the side of the building. When he
peered around the corner, he saw the larger of the two men standing over the
victim, who was lying on the ground. The larger man was hitting the victim
with a cinder block. Mr. McClain heard the man ask, “Where’s my goddamn
money?” Mr. McClain saw the man hit the victim twice with the cinder block

                                      -3-
before the two men left in the station wagon. Once the two men left, Mr.
McClain could see blood running out of the victim’s head where he had been
hit with the block. The victim was silent and still. Mr. McClain was unable
to identify the attackers.

       ....

        Detective Brad Corcoran and Detective Pat Postiglione investigated the
murder of the victim. Around 7:00 p.m. on the day of the murder, Detective
Corcoran and Detective Postiglione went to 1245 Lewis Street and spoke with
a woman named Katrina Norman. At the time, Ms. Norman was [Petitioner’s]
girlfriend. At the time of trial, she was married to [Petitioner] and went by the
name Katrina Webster. Detective Corcoran informed Ms. Norman that he was
trying to locate [Petitioner] and the white station wagon that had been
described by several witnesses. Ms. Norman told Detective Postiglione that
she knew the owner and driver of the car but refused to identify them. Ms.
Norman, who had [Petitioner’s] first name, “Joseph,” tattooed on her neck,
was uncooperative and actually became “very defensive” during questioning.
At trial, Ms. Norman testified that she did not know anything about the
victim’s murder. She also denied that she told the police she knew the owner
and driver of the white station wagon.

        Detective Postiglione was the first person to interview Ms. Nelson. She
initially denied knowing the victim but later explained what occurred on the
day of his murder. Ms. Nelson identified [Petitioner] from a photographic
lineup. She also identified [Petitioner] at trial. According to Detective
Postiglione, Ms. Nelson was “fearful,” “upset and crying.”

       ....

       [Petitioner] took the stand in his own behalf. He claimed that he did not
remember what he did on November 22, 1998. [Petitioner] denied ever
owning a white station wagon. Further, [Petitioner] claimed that he did not
know Tammy Nelson. [Petitioner] stated that he was dating Ms. Norman at
the time of the incident and that she lived on Lewis Street.

. . . .[After being convicted by the jury, Petitioner] filed a motion for new trial
in which he argued that he had “obtained newly discovered evidence that was
not available to counsel at the time of trial.” Attached to the motion were
affidavits from Marie Burns, [Petitioner’s] mother; Katrina Norman,

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[Petitioner’s] wife; and Arthur Gordon, [Petitioner’s] brother. The affidavits
alleged that [Petitioner’s] brother, Kenneth Neal, was the owner of the white
station wagon and was the perpetrator who killed the victim. [Petitioner] later
filed an amended motion for new trial in which he raised additional grounds
for relief.

       ....

        [At the hearing on the motion for new trial], Marie Burns testified that
her son Kenneth Neal was the owner of the white station wagon. Ms. Burns
admitted that she was questioned in 1998 by Detective Postiglione about the
white station wagon. She claimed that Detective Postiglione never asked if
[Petitioner] owned the white station wagon. She did not tell the detective that
Mr. Neal was the owner of the car. Ms. Burns claimed that [Petitioner] told
her prior to being arrested for the victim’s murder that Mr. Neal “went out
south and killed that man,” but that she never told anyone about it because
[Petitioner] told her he “didn’t want to see [her and [Petitioner’s] wife] hurt.”
According to Ms. Burns, she approached counsel for [Petitioner] immediately
after trial and told her that Mr. Neal killed the victim. In fact, Ms. Burns
claimed that Mr. Neal admitted to the murder.[FN3] Ms. Burns stated that she
had a conversation with Mr. Neal prior to [Petitioner’s] trial in which Mr. Neal
told her that the jury would not convict [Petitioner] of the crime because he
and [Petitioner] “don’t look alike” and that he was the one that “did it.” Ms.
Burns was afraid to tell anyone, but thought that after [Petitioner] was
convicted, it was time to come forward with the information.

       [FN3] There was an audiotape admitted into evidence at the
       hearing that allegedly contained a conversation between Mr.
       Neal and Ms. Burns in which Ms. Burns accused Mr. Neal of
       committing the crime. After listening to the audiotape, it
       appears to be of a conversation between Ms. Norman, referred
       to in the tape as “Trina,” and Mr. Neal. During the discussion,
       from what we could understand, Ms. Norman expresses her
       frustration with Mr. Neal’s lack of monetary assistance to
       support [Petitioner’s] defense. We could not locate a portion of
       the tape in which there was a conversation between Ms. Burns
       and Mr. Neal. The conversation between Ms. Norman and Mr.
       Neal appears to be followed by a tape recording of a lecture on
       Tennessee history and the Chickasaw Treaty.



                                       -5-
              Arthur Gordon testified that his brother, Mr. Neal, told him that he
       committed the murder that [Petitioner] was convicted of committing, but he
       could not remember when that conversation occurred. On cross-examination,
       Mr. Gordon stated that the conversation may have occurred about “three
       weeks” after the murder. Mr. Gordon also informed the court that Mr. Neal
       owned a white station wagon in 1998. Mr. Gordon testified that Mr. Neal told
       him that the car was taken to Kentucky and “destroyed.”

               Katrina Norman Webster testified at the hearing on the motion for new
       trial. She claimed that she knew that Mr. Neal committed the murder in 1998,
       but did not tell anyone about it because she was scared of Mr. Neal. She
       decided to come forward with the information after trial because her husband
       was convicted for a crime that he did not commit.

              Kenneth Neal denied that he owned a white station wagon in 1998. He
       admitted that Ms. Burns questioned him about the murder but claimed that he
       walked out the door instead of talking to her about the murder. When asked
       why he did not specifically deny committing the murder, Mr. Neal responded,
       “I didn’t have a reason to say anything about it.”

Joseph Dejuan Webster, 2008 WL 2229208, at *1-4 (footnotes omitted).

        On direct appeal, Petitioner argued that new evidence was available to prove that his
brother actually committed the crime. Id. at *1. This Court affirmed the judgment of the trial
court, determining that “the evidence was available prior to [Petitioner’s] trial and
[Petitioner] has failed to show that he used reasonable diligence in seeking the newly
discovered evidence.” Id.

        The supreme court denied permission to appeal on December 8, 2008. On January 23,
2009, Petitioner filed a pro se petition for post-conviction relief. Petitioner subsequently
filed an amended petition.1

         In the petitions, Petitioner alleged that he received ineffective assistance of counsel
at trial and on appeal. Specifically, Petitioner complained that trial counsel: (1) erred in jury
selection; (2) failed to present a trial strategy during opening statement; (3) failed to call alibi
witnesses; (4) failed to object to various statements of witnesses during trial; (5) failed to

       1
         On appeal, the State alleges that the petition was filed six weeks after the expiration of the
statute of limitations. Our review of the record indicates that the petition herein was filed within
one year of December 8, 2008, and therefore timely.

                                                 -6-
properly investigate the case; (6) failed to file a motion to suppress the identification of
Petitioner; (7) failed to adequately prepare for trial; (8) failed to preserve and raise various
issues for appeal; (9) failed to adequately advise Petitioner about the right to testify; (10)
failed to effective cross-examine witnesses for the State; (11) failed to ask for a jury
instruction on accomplice testimony; and (12) failed to present proof on Petitioner’s behalf
at sentencing. Additionally, Petitioner complained that counsel failed to raise various issues
on appeal. Finally, Petitioner complained that his conviction was based on the knowing use
of the perjured testimony of Tammy Nelson.

       The post-conviction court held a hearing on the petition for relief. At the hearing,
Robert Lyons, a private investigator for Petitioner’s trial counsel, testified that he interviewed
State witness Tammy Nelson twice in October of 2005. These interviews took place about
seven years after the victim’s death and after the police had taken a formal statement from
Ms. Nelson. According to Mr. Lyons, Ms. Nelson could not identify the two “short black
males” who murdered the victim. Additionally, she was unable to provide any distinguishing
characteristics of the perpetrators.

        Petitioner presented the testimony of Dr. Ulysses Walls, a Nashville dentist. Dr. Walls
testified that in 1995 or 1996, he placed six permanent gold teeth in Petitioner’s upper jaw.
The teeth were distinct in that they had the initials “JW” on them. Dr. Walls saw Petitioner
as a patient a second time. At this visit, Dr. Walls noticed that Petitioner had more gold teeth
on the lower jaw. Dr. Walls did not place the gold teeth on Petitioner’s lower jaw. Dr. Walls
was unable to provide medical records of Petitioner’s visits due to a burglary at his office.

        Petitioner testified at the hearing that by the end of 1996 he had a total of twelve gold
teeth, six on the upper jaw and six on the lower jaw. At this time, Petitioner would have been
sixteen or seventeen years old. According to Petitioner, the top teeth bore the initials “JW”
as well as “a dollar sign.” Petitioner did not recall whether he testified at trial that he was
eighteen years old when he got his gold teeth.

       Trial counsel took the stand at the post-conviction hearing. He and another attorney
represented Petitioner at trial and on appeal. Trial counsel confirmed that he hired
Investigator Lyons to help with the investigation of the case. Trial counsel was present
during one of the interviews of Ms. Nelson and used transcripts of that interview to cross-
examine Ms. Nelson at trial. Trial counsel was surprised that Ms. Nelson made such a solid
witness at trial and commented that he was frustrated when she stuck “to her guns.”

       Trial counsel first met Petitioner in 1998, when Petitioner hired trial counsel to
represent him in a murder case. Petitioner was acquitted in the 1998 case. Trial counsel
could not recall whether Petitioner had gold teeth at that time. Trial counsel did recall that

                                               -7-
Petitioner had gold teeth at the trial and remembered arguing the issue of the gold teeth to
the jury. Trial counsel did not recall specific details about his cross-examination of Ms.
Nelson but admitted that the transcript reflected that he did not question her about the gold
teeth. Further, trial counsel admitted that he did not call a dentist to testify about when the
teeth had been mounted. Trial counsel explained that he did not question Ms. Nelson about
prior inconsistent statements because “[s]he was a steadfast either well-coached witness or
just a good witness” and he felt that “strategy-wise” it was better to “back off.”

        Trial counsel recalled filing a motion to dismiss the case prior to trial because of the
delay between incident and indictment. However, trial counsel did not recall the specifics
of the argument because it was handled by co-counsel. Trial counsel felt that they could not
show any prejudice due to the delay.

       Trial counsel recalled that he did not present any evidence in mitigation at the
sentencing hearing. Trial counsel determined that there was no mitigating evidence to
present and that Petitioner’s extensive criminal history supported the consecutive sentencing
ordered by the trial court.

       Trial counsel recalled the hearing on the motion for new trial. Trial counsel explained
that his argument was based on newly-discovered evidence that warranted a new trial.
Specifically, Petitioner’s mother claimed immediately after the verdict that her other son
committed the murder. Trial counsel only raised issues in the motion for new trial and on
appeal that he thought had “the most merit.”

       At the conclusion of the hearing, the post-conviction court took the matter under
advisement. In an order issued at a later time, the post-conviction court denied relief,
determining that trial counsel effectively cross-examined Ms. Nelson and found “no proof
to support [Petitioner’s] allegation that the cross-examination was ineffective. Further, the
post-conviction court determined that trial counsel’s decisions were tactical. With regard to
issues of identity, the post-conviction court accredited the testimony of trial counsel in that
he “chose to proceed on the issues which he felt had the most merit.” The post-conviction
court determined that Petitioner’s prior criminal history was extensive and trial counsel was
not ineffective for failing to present proof at sentencing. Moreover, Petitioner did not present
proof that he was prejudiced by not receiving a speedy trial. Specifically, the post-conviction
court determined that, as a whole:

       [T]he testimony of trial counsel [is accredited] that he made strategic trial
       decisions. Despite the petitioner’s assertions and assumptions that specific
       questions would have changed the outcome of the verdict, the Court finds that
       counsel was effective in his representation of the petitioner. The petitioner has

                                              -8-
       failed to prove the factual allegations by clear and convincing evidence. As
       to the petitioner’s claims of ineffective assistance of appellate counsel, the
       Court finds that counsel strategically chose to pursue the issues he felt had the
       most merit and that petitioner has failed to prove the allegations by clear and
       convincing evidence.

       On appeal, Petitioner argues that the post-conviction court improperly denied the
petition for relief.

                                         Analysis
                            Post-Conviction Standard of Review

       The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
During our review of the issues raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the post-conviction court’s findings unless the
evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This
Court may not reweigh or re-evaluate the evidence, nor substitute its inferences for those
drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.
2001). However, the post-conviction court’s conclusions of law are reviewed under a purely
de novo standard with no presumption of correctness. See Shields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).

                              Ineffective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing that (a) the services rendered by trial
counsel were deficient and (b) that the deficient performance was prejudicial. See Powers
v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient
performance, the petitioner must show that the services rendered or the advice given was
below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different. See Strickland v. Washington, 466 U.S.
668, 694 (1984). “Because a petitioner must establish both prongs of the test to prevail on
a claim of ineffective assistance of counsel, failure to prove either deficient performance or
resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley v. State,
960 S.W.2d 572, 580 (Tenn. 1997).



                                              -9-
       As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record
preponderates against the court’s findings. See id. at 578. However, our supreme court has
“determined that issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]
is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

        Furthermore, on claims of ineffective assistance of counsel, the petitioner is not
entitled to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994).
This Court may not second-guess a reasonably-based trial strategy, and we cannot grant relief
based on a sound, but unsuccessful, tactical decision made during the course of the
proceedings. See id. However, such deference to the tactical decisions of counsel applies
only if counsel makes those decisions after adequate preparation for the case. See Cooper
v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

       First, Petitioner argues that trial counsel failed to property cross-examine Ms. Nelson
regarding her identification of Petitioner as the perpetrator and an alleged inconsistent
statement. At the post-conviction hearing, trial counsel testified that he was surprised that
Ms. Nelson was such a good witness for the State. He expressed frustration by the fact that
she was “[sticking] to her guns” during her testimony. Trial counsel did not recall specific
things about which he cross-examined Ms. Nelson at trial but explained that he did not feel
like he was “getting anywhere” because she was such a “good witness” so his strategy was
to “back off.” The post-conviction court accredited the testimony of trial counsel. The
record supports the post-conviction court’s determination. Petitioner in this case has failed
to establish by clear and convincing evidence that he is entitled to post-conviction relief on
the basis of ineffective assistance of counsel.

       Next, Petitioner argues that trial counsel was ineffective for failing to object to
testimony by Detective Postiglione about Petitioner’s girlfriend’s statements. Further,
Petitioner argued that trial counsel should have requested a limiting instruction so that the
testimony could only be used for impeachment purposes. We have reviewed the transcript
of the post-conviction hearing, and Petitioner failed to present any proof as to how this
alleged deficiency on the part of counsel might have altered the outcome of his trial. His
allegations of prejudice are pure speculation. Petitioner in this case is not entitled to
post-conviction relief on the basis of ineffective assistance of counsel.

       Next, Petitioner argues that trial counsel was ineffective because he failed to present
proof to support a motion to dismiss after an alleged prosecutorial delay. At the hearing, trial
counsel testified that he filed a pre-trial motion to dismiss because of the lengthy delay
between incident and indictment. However, trial counsel admitted that he did not remember

                                              -10-
the specifics of the motion or the hearing on the motion because it was argued by co-counsel.
Trial counsel recalled that Petitioner would have been required to show prejudice in the
delay, and trial counsel did not feel that they could show the prejudice required to secure
relief. The post-conviction court accredited the testimony of trial counsel. The record
supports the post-conviction court’s determination. Petitioner in this case has failed to
establish by clear and convincing evidence that he is entitled to post-conviction relief on the
basis of ineffective assistance of counsel.

        Petitioner next claims that trial counsel was ineffective for failing to present proof at
the sentencing hearing. At the hearing, trial counsel explained that he did not present proof
because there was no mitigating evidence to present. In addition, Petitioner’s extensive
criminal history supported consecutive sentencing. The post-conviction court accredited the
testimony of trial counsel. The record supports the post-conviction court’s determination.
Petitioner in this case has failed to establish by clear and convincing evidence that he is
entitled to post-conviction relief on the basis of ineffective assistance of counsel.

        Petitioner contends that trial counsel was ineffective because he failed to ask the trial
court, as the thirteenth juror, to grant a new trial due to insufficient evidence. At the hearing
on the post-conviction petition, trial counsel acknowledged that he failed to raise sufficiency
of the evidence as an issue in the motion for new trial. However, counsel for Petitioner did
not ask trial counsel why he failed to raise this issue on appeal. Trial counsel did recall
seeking a motion for judgment of acquittal, which the trial court denied. Further, trial
counsel explained that he chose to pursue issues on appeal that had the most merit.
Apparently, trial counsel felt that the sufficiency argument had little merit and chose not to
pursue it on appeal. The record supports the post-conviction court’s determination.
Petitioner has failed to show how he was prejudiced by trial counsel’s failure to raise this
issue. Petitioner in this case has failed to establish by clear and convincing evidence that he
is entitled to post-conviction relief on the basis of ineffective assistance of counsel.

        Finally, with respect to trial counsel, Petitioner argues that trial counsel was
ineffective for failing to challenge the admission of the crime scene and autopsy photographs
in the motion for new trial. Trial counsel recalled at the hearing that he had filed a motion
in limine to prevent admission of the photographs. This motion was denied by the trial court
prior to trial. Trial counsel testified that he did not pursue certain issues at the motion for
new trial stage because he only wanted to pursue issues that had the most merit.
Additionally, he did not think that this issue “would have any effect at the Court of Appeals.”
Petitioner has failed to show how he was prejudiced by trial counsel’s failure to pursue this
issue in the motion for new trial. Petitioner in this case has failed to establish by clear and
convincing evidence that he is entitled to post-conviction relief on the basis of ineffective
assistance of counsel.

                                              -11-
       Petitioner also argues that counsel was ineffective on appeal, specifically, for failing
to preserve issues necessary for appellate review in the motion for new trial. As stated
above, trial counsel testified that he only pursued issues on appeal that he felt had “merit.”
The post-conviction court accredited the testimony of trial counsel that this was a tactical
decision. Again, this Court may not second-guess a reasonably-based trial strategy, and we
cannot grant relief based on a sound, but unsuccessful, tactical decision made during the
course of the proceedings. See Adkins, 911 S.W.2d at 347. Petitioner in this case has failed
to establish by clear and convincing evidence that he is entitled to post-conviction relief on
the basis of ineffective assistance of counsel.

                                         Conclusion

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




                                             -12-
