        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 4, 2011

              CAMERON WINSELLE v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                     No. 04-05193    James M. Lammey, Judge


              No. W2010-02154-CCA-R3-PC - Filed November 18, 2011


The petitioner, Cameron Winselle, appeals the Shelby County Criminal Court’s denial of his
petition for post-conviction relief challenging his convictions of two counts of first degree
murder on the basis of ineffective assistance of counsel. The petitioner specifically contends
that trial counsel committed ineffective assistance by failing to present evidence of his
diminished capacity, failing to exhaust peremptory challenges, failing to investigate the facts
of the offense, and failing to move for the trial judge’s recusal based upon the trial judge’s
previous employment as a prosecutor. The petitioner also contends that appellate counsel
was deficient for failing to raise issues on appeal. Discerning no error, we affirm the
judgment of the post-conviction court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and A LAN E. G LENN, JJ., joined.

Terita M. Hewlett, Memphis, Tennessee, for the appellant, Cameron Winselle.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Kevin Rardin, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                A Shelby County Criminal Court jury convicted the petitioner of the August
11, 2002 premeditated murders of Rubin and Larry Matthews. The trial court sentenced the
petitioner to consecutive life sentences. On direct appeal, this court affirmed the judgments
of the trial court. State v. Cameron Winselle, No.W2007-00139-CCA-R3-CD (Tenn. Crim.
App., Jackson, Feb. 20, 2008), perm. app. denied (Tenn. Aug. 25, 2008). The facts at trial
showed that the petitioner shot the victims during an ill-fated drug deal. Id., slip op. at 2-4.
The evidence showed that the victims allowed other individuals to use their apartment as a
location to use and purchase drugs. Id., slip op. at 2-3. The petitioner claimed that when he
went to the apartment to purchase marijuana, four individuals pulled a pistol on him and
robbed him of $7400 and his handgun. Id., slip op. at 4. When he was allowed to leave the
apartment, he went to his vehicle, retrieved an “SKS Chinese Assault Rifle,” and returned
to the apartment where he shot the victims, who he claimed participated in the robbery. Id.

               The petitioner filed a timely pro se petition for post-conviction relief on April
15, 2009. He alleged that his trial counsel rendered ineffective assistance for failing to
interview certain witnesses and failing to obtain expert services to present diminished
capacity evidence. He also alleged that appellate counsel performed deficiently by failing
to raise issues on appeal despite his insistence that counsel do so. On June 14, 2010,
following the appointment of counsel, the petitioner filed an amended petition alleging
additional claims concerning trial counsel’s failure to exhaust peremptory challenges and
failure to seek recusal of the trial judge who had been employed as an assistant district
attorney at the time of the petitioner’s indictment.

               At the July 13, 2010 evidentiary hearing, trial counsel testified that he utilized
the investigative services of the Shelby County Public Defender’s Office and that he fully
investigated the facts of the petitioner’s case. He testified, “In conversations with [the
petitioner], I did not feel it was necessary to order a mental evaluation . . . [because] there
w[ere] no signs or issues of competency.” Trial counsel recalled that the petitioner’s case
was “a drug deal gone bad” and, based upon his investigation, he determined to present self-
defense based upon the petitioner’s claim of being “ambushed” and robbed by the victims.
Trial counsel also recalled, however, his debate with the petitioner concerning whether to
present a defense of “adequate provocation” rather than self-defense. Trial counsel testified
that he challenged for cause five potential jurors who expressed the opinion that nothing
justified taking a life. After the trial court discussed the law concerning self-defense,
however, the jurors expressed an ability to follow the law. Trial counsel then elected not to
exercise peremptory challenges to remove those jurors after discussing the issue with the
petitioner. Trial counsel also testified that he was aware that the trial judge, a former
assistant district attorney, “did not handle any matter concerning [the defendant’s case]”
while employed with the prosecutor’s office, and, therefore, trial counsel did not file a
motion to recuse.

              Appellate counsel testified that, as an appellate attorney with the Shelby
County Public Defender’s Office, she coordinated with trial counsel concerning the filing of
the motion for new trial and encouraged each trial attorney to include every possible issue
in the motion. On appeal, however, she determined which issues to raise based upon her

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assessment of the validity of the claims on appeal. For this reason, she determined only to
challenge the sufficiency of the evidence in the petitioner’s case and explained her decision
in a detailed letter to the petitioner.

                The petitioner testified that he and trial counsel discussed his case “a lot,”
particularly debating whether to raise a defense of self-defense or adequate provocation. The
petitioner denied knowledge of any independent investigation performed by trial counsel.
He said that he and trial counsel never discussed the trial judge’s recusal and expressed his
belief that the trial judge should have recused himself from his case. He admitted, however,
that he had no actual proof of any bias that the trial judge held against him. The petitioner
testified that he discussed with trial counsel his “mind running” after being robbed as it
affected his ability to premeditate the shooting. He opined that any attorney is “supposed to
have his client evaluated.” He admitted, however, that he did not currently suffer any mental
health problems.

               In a written order, the post-conviction court found that trial counsel had no
indication that the petitioner needed a mental health evaluation and that the petitioner failed
to present proof of any deficiency at the evidentiary hearing. The court also found that the
questionable jurors were rehabilitated by the trial court and that trial counsel and the
petitioner agreed not to exercise peremptory challenges for their removal. As to the
petitioner’s claim of deficient factual investigation, the court found that the petitioner failed
to present proof of any undiscovered evidence to rebut trial counsel’s testimony that he fully
investigated the case. The court also found that the petitioner failed to establish any deficient
performance or prejudice concerning the recusal of the trial judge or appellate counsel’s
preparation of appellate issues. In summary, the court concluded that the petitioner failed
to establish his claims by clear and convincing evidence and denied post-conviction relief.
The petitioner timely appealed the post-conviction court’s order.

              The post-conviction petitioner bears the burden of proving his allegations by
clear and convincing evidence. See T.C.A. § 40-30-110(f) (2006). On appeal, the appellate
court accords to the post-conviction court’s findings of fact the weight of a jury verdict, and
these findings are conclusive on appeal unless the evidence preponderates against them.
Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631
(Tenn. Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive
no deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

              To establish entitlement to post-conviction relief via a claim of ineffective
assistance of counsel, the post-conviction petitioner must affirmatively establish first that
“the advice given, or the services rendered by the attorney, are [not] within the range of

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competence demanded of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an
adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other
words, 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.” Id. at 694.

               When reviewing a claim of ineffective assistance of counsel, we will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

               Claims of ineffective assistance of counsel are mixed questions of law and fact.
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6, S.W.3d 453, 461
(Tenn. 1999). When reviewing the application of law to the post-conviction court’s factual
findings, our review is de novo, and the post-conviction court’s conclusions of law are given
no presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State v. England, 19
S.W.3d 762, 766 (Tenn. 2000).

               The record in this case fully supports the findings of fact and conclusions of
law of the post-conviction court concerning the petitioner’s allegations of ineffective
assistance of counsel. The petitioner failed to establish any deficient performance
concerning trial counsel’s investigation of the case and presentation of diminished capacity
evidence because the petitioner failed to present any witnesses, expert or otherwise, to
establish these claims. As such, the petitioner failed to establish his claim for relief. See
Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990) (holding that a post-conviction
petitioner generally fails to establish his claim that counsel did not properly investigate or call
a witness if he does not present the witness or evidence to the post-conviction court because
a post-conviction court may not speculate “on the question of . . . what a witness’s testimony
might have been if introduced” at trial).

                Likewise, the evidence does not preponderate against the post-conviction
court’s findings concerning trial counsel’s exercising peremptory challenges or deciding not
to seek recusal of the trial judge, as well as the court’s findings concerning appellate
counsel’s performance. The petitioner simply failed to establish deficient performance or
prejudice stemming from these allegations. Accordingly, the petitioner failed to establish his
entitlement to post-conviction relief. The judgment of the post-conviction court denying
relief is affirmed.

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      _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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