        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                   April 8, 2014 Session

            ANTONIO SANTIAL JONES V. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                      No. 2007-A-628    Monte Watkins, Judge


                  No. M2012-01548-CCA-R3-PC - Filed June 25, 2014


The petitioner, Antonio Santial Jones, appeals the denial of his petition for post-conviction
relief. The petitioner was convicted of second degree murder and is currently serving a
sentence of twenty-two years in the Department of Correction. On appeal, he contends that
trial counsel was ineffective for failing to supply the petitioner with discovery, only
beginning preparation for trial the day before, failing to convey a plea offer to the petitioner,
and ignoring the self-defense claim asserted by the petitioner. Following review of the
record, we affirm the denial of post-conviction relief.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which R OBERT W.
W EDEMEYER, J., and J OE H. W ALKER , III, Sp.J., joined.

Michael J. Flanagan, Nashville, Tennessee, for the appellant, Antonio Santial Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Roger Moore, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                     Procedural History

        The petitioner’s second degree murder conviction arose from his shooting of the
victim in the breezeway outside an apartment after a discussion about a vehicle. A complete
recitation of the facts of the event can be found in this court’s direct appeal opinion. State
v. Antonio Santial Jones, No. M2008-01254-CCA-R3-CD, 2010 Tenn. Crim. App. LEXIS
364, **2-29 (Tenn. Crim. App. May 10, 2010), perm. app. denied, (Tenn. Oct. 13, 2010).
Here, we include only a brief overview of those facts from the direct appeal as necessary for
our review. The shooting occurred in the breezeway of an apartment complex where Ms. Ira
Christian and Ms. Shanera Jones each had apartments. Ms. Christian had known the
defendant for approximately three years, and he had a key to her apartment, although he did
not actually live there. Mr. Christian also knew the victim. On this particular morning, Ms.
Christian heard someone knock on her door, and the defendant came into her room and told
her that the victim was at the door. Ms. Christian went outside and found the victim sitting
in a chair in the breezeway. He asked Ms. Christian for money, but she refused. Ms.
Christian knocked on her neighbor’s, Ms. Jones', door to wake her up for an appointment,
and the three had a brief conversation.

       Afterwards, the defendant came outside and asked the victim if he owned a purple
vehicle. The victim replied that he had previously owned one but had since sold it. The
defendant began to walk away, but he turned and raised the right side of his shirt, revealing
a handgun. The victim jumped from the chair and ran toward the defendant, and a scuffle
ensued. The gun was fired at least one time, and the victim was wounded.

       Ms. Christian ran into her apartment and locked the door. Shortly thereafter, when
things were quiet, she opened the door and saw the victim coming toward her. She pulled
him into her apartment and called police. The defendant had fled the premises in a white car.
By the time police arrived, the victim had died. Although initially denying knowledge of the
shooter and giving misleading information, both Ms. Christian and Ms. Jones later identified
the defendant as the shooter. Id.

       Based upon the foregoing, the petitioner was indicted for one count of first degree
murder. Following a jury trial, he was convicted of the lesser included offense of second
degree murder and sentenced to an effective sentence of twenty-two years in the Department
of Correction. Following the denial of his motion for new trial, the petitioner filed a direct
appeal with this court alleging that: (1) the evidence was insufficient to support the
conviction; and (2) the testimony of two witnesses, Ms. Christian and Ms. Jones, should have
been considered accomplice testimony, requiring independent corroboration. Id. at 1. After
review, this court affirmed, and the Tennessee Supreme Court denied permission to appeal.

        On September 26, 2011, the petitioner filed a timely pro se petition for post-conviction
relief. In the petition, it was alleged that trial counsel was ineffective for: (1) failing to
adequately conduct any meaningful pre-trial investigation; (2) failing to interview potential
witnesses that would have been favorable to the defense; and (3) failing to adequately
communicate with the petitioner in preparation for trial. The petitioner further alleged that
trial counsel, during his representation of the petitioner, was involved in illegal activity which
culminated in his pleading guilty to felony drug charges, that these illegal activities prevented

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trial counsel from providing effective representation, and that trial counsel was under the
influence of drugs during the trial.

        An evidentiary hearing was held, at which the petitioner and an assistant district
attorney general testified. The petitioner testified that trial counsel was hired by his family
and that he met him for the first time at the jail for what the petitioner characterized as a
“meet and greet.” The petitioner stated that trial counsel “called him out” with another
inmate and that trial counsel gave the other inmate an envelope, which, according to the
petitioner, contained “Xanax,” “weed,” and “tops.” The petitioner felt that trial counsel’s
real purpose of the meeting was just to deliver the drugs. After trial counsel left, the other
inmate informed the petitioner that trial counsel could do the same for him. Two weeks later,
trial counsel returned and brought the petitioner an envelope which contained “some
pornographic photos, three boxes of tops, and thirty valium pills.” According to the
petitioner, there was no discussion of his case at either of these meetings.

        The petitioner testified that, after he was moved to the justice center, he called trial
counsel multiple times. The petitioner stated that he asked trial counsel about discovery and
the case, but trial counsel said it would “come later down the road.” Trial counsel allegedly
told the petitioner that he would visit him, but he failed to do so. According to the petitioner,
he did not see trial counsel for five to six months. The petitioner contacted his family to have
them contact trial counsel. Trial counsel came to the jail, and the petitioner learned that his
family had run into money problems. At that meeting, trial counsel told the petitioner that
he was basically not going to do much until the money situation was resolved. According
to the petitioner, trial counsel stated that he was not going to hire an investigator or give him
discovery “until he [got] his money.” The petitioner testified that trial counsel told him that
he had looked at the paperwork and that he believed that Ms. Christian and Ms. Jones were
lying.

        The petitioner testified that he next saw trial counsel the day before trial. He testified
that he saw trial counsel only four times and that the case was mainly discussed on the phone.
During this meeting prior to trial, the petitioner asked trial counsel about an “11th hour” plea.
The petitioner testified that trial counsel told him that no offers had been made by the State.
However, following the trial, trial counsel informed him that there had been an offer for
fifteen to eighteen years at 30%. The petitioner testified that trial counsel told him that, had
he known how the trial would turn out, he would have advised the petitioner of the plea offer
and urged him to accept it. However, trial counsel told him that he had believed he could
win the case.

      The petitioner testified that, to his knowledge, trial counsel had not interviewed any
witnesses or done anything in preparation for the case. The petitioner informed trial counsel

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that he wanted to pursue a self-defense strategy for his defense. Trial counsel advised the
petitioner not to testify at trial. The petitioner contended that, had trial counsel properly
investigated the case, he would have been able to pursue the theory of self-defense.

        On cross-examination, the petitioner acknowledged that he had failed to report the
“smuggling” into the jail he assisted trial counsel with. He said he failed to do so because
he was stressed and “needed it.” The petitioner also acknowledged that he had stood before
the trial court and stated that he did not want to testify in the case. The petitioner further
acknowledged that trial counsel had attacked the witnesses on the stand as being unreliable,
getting them to admit that they lied to the police. He testified that he never told anyone about
his problems with trial counsel because he was a first time offender and did not know how
things worked. Finally, the petitioner admitted that there was no testimony supporting his
theory of self-defense as each witness testified that the victim was unarmed. Rather, the only
gun linked to the victim was later found in his car in the parking lot.

       The State then called Deborah Housel, an assistant district attorney general who was
involved in the petitioner’s trial. She testified that, during the case, she spoke with trial
counsel on several occasions. She believed trial counsel to be very familiar with the facts
of the case, he had received discovery, and he had filed several motions. Ms. Housel saw
nothing to indicate that trial counsel was not prepared for the trial. Nor did she recall any
discussion whatsoever regarding self-defense, rather trial counsel seemed to be proceeding
under an identity defense, which she acknowledged was the “key hurdle” for the State to
establish the petitioner’s identity as the shooter. She could not recall whether an offer had
been made in the case, but she said that one usually would have been extended.

       After hearing the evidence presented, the post-conviction court took the matter under
advisement. Subsequently, the court issued a written order denying relief. The petitioner has
timely appealed that denial.

                                           Analysis

        On appeal, the petitioner contends that the post-conviction court erroneously denied
his petition because he was denied his right to the effective assistance of counsel. In order
to obtain post-conviction relief, a petitioner must prove that his or her conviction or sentence
is void or voidable because of the abridgement of a right guaranteed by the United States
Constitution or the Tennessee Constitution. T.C.A. § 40-30-103 (2010); Howell v. State, 151
S.W.3d 450, 460 (Tenn. 2004). A post-conviction petitioner must prove allegations of fact
by clear and convincing evidence. T.C.A. § 40-30-110(f); Tenn. Sup. Ct. R. 28, § 8(D)(1);
Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). “‘Evidence is clear and
convincing when there is no serious or substantial doubt about the correctness of the

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conclusions drawn from the evidence.’” Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009) (quoting Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)). In an appeal
of a court’s decision resolving a petition for post-conviction relief, the court’s findings of
fact “will not be disturbed unless the evidence contained in the record preponderates against
them.” Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010).

        A criminal defendant has a right to “reasonably effective” assistance of counsel under
both the Sixth Amendment to the United States Constitution and Article I, Section 9, of the
Tennessee Constitution. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). The right to
effective assistance of counsel is inherent in these provisions. Strickland v. Washington, 466
U.S. 668, 685-86 (1984); Dellinger, 279 S.W.3d at 293. To prove ineffective assistance of
counsel, a petitioner must prove both deficient performance and prejudice to the defense.
Strickland, 466 U.S. at 687-88. Failure to satisfy either prong results in the denial of relief.
Id. at 697.

        For deficient performance, the petitioner must show that “counsel’s representation fell
below an objective standard of reasonableness” under prevailing professional norms, despite
a “strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 688-89. “In other words, the services rendered or the advice
given must have been below ‘the range of competence demanded of attorneys in criminal
cases.’” Grindstaff, 297 S.W.3d at 216 (quoting Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975)). The petitioner must prove that counsel made errors so serious that counsel was not
functioning as “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687.
When reviewing trial counsel’s performance for deficiency, this court has held that a
“petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably
based trial strategy by his counsel, and cannot criticize 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). The reviewing court “must make every effort to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s conduct, and to
evaluate the conduct from the perspective of counsel at that time.” Howell v. State, 185
S.W.3d 319, 326 (Tenn. 2006) (citing Strickland, 466 U.S. at 689). However, “deference to
tactical choices only applies if the choices are informed ones based upon adequate
preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

       “[C]ounsel has a duty to make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. In any ineffectiveness case, a
particular decision not to investigate must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference to counsel’s judgments.” Burns, 6
S.W.3d at 462 (quoting Strickland, 466 U.S. at 691). “[W]hen a defendant has given counsel
reason to believe that pursuing certain investigations would be fruitless or even harmful,

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counsel’s failure to pursue those investigations may not later be challenged as unreasonable.”
Strickland, 466 U.S. at 691. “Counsel must conduct appropriate investigations, both factual
and legal, to determine what matters of defense can be developed.” Baxter, 523 S.W.2d at
932-33.

        Prejudice in turn requires proof of “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. In Strickland, the Supreme Court noted that “[a]n error by counsel, even
if professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Id. at 691. The court clarified that
prejudice “requires showing that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Id. at 687. “The defendant 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.” Id. at 694.

        A claim of ineffective assistance of counsel raises a mixed question of law and fact.
Burns, 6 S.W.3d at 461; Grindstaff, 297 S.W.3d at 216. Consequently, this court reviews the
trial court’s factual findings de novo with a presumption of correctness unless the evidence
preponderates against the trial court’s factual findings. Grindstaff, 297 S.W.3d at 216. But
the trial court’s conclusions of law on the claim are reviewed under a purely de novo
standard with no presumption of correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn.
2001).

         On appeal, the petitioner contends that the post-conviction court erred in denying his
petition. In support of his argument, the petitioner relies upon his own testimony at the
hearing to establish the claims of ineffective assistance, stating that all of the allegations were
uncontroverted because only the petitioner testified. He notes that he “unequivocally
testified that he never received any discovery materials from trial counsel.” He further
argues that “[t]he record indicates that trial counsel only began trial preparation the day
before trial and completely ignored the self defense claim of the [p]etitioner.” He alleges that
“uncontroverted testimony at the evidentiary hearing established that trial counsel failed to
communicate to the [p]etitioner the State’s offer of settlement.” The petitioner asserts that
“the record clearly demonstrated the failures and ineffective representation of trial counsel,
. . . [a]nd these failures of trial counsel unquestionably had an adverse impact on the trial.”
We note, however, that the petitioner’s argument contains little more than these bare
assertions, with no specific argument advanced.

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



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               A close review of the record and testimony presented reveals that
       counsel met with the defendant and informed him of the nature of the charges
       against him, the likelihood of and range of punishment, the potential witness’s
       testimony, evidence against him, and the advantages and disadvantages of
       testifying on his own behalf. Furthermore, trial counsel’s alleged participation
       in illegal activities has no bearing on Petitioner’s conviction, nor was there any
       evidence introduced that trial counsel was under the influence of drugs during
       the trial.

              Therefore, Petitioner has failed to demonstrate by clear and convincing
       evidence ineffective assistance of counsel in violation of a constitutional right
       to render his conviction and sentence void or voidable under the Post
       Conviction Relief Act. The Court does not find the petitioner’s testimony to
       be credible. Accordingly, the Court finds that Petitioner has failed to show
       that he was prejudiced by counsel’s allegedly deficient conduct. . . .

       After review of the record, we conclude that nothing preponderates against the
findings made by the post-conviction court. By his own assertion, the petitioner’s argument
is based solely upon his “uncontroverted” testimony regarding trial counsel’s alleged
deficient performance. However, the post-conviction court heard that testimony and clearly
chose not to accredit it, finding the petitioner’s testimony “not . . . to be credible.” As has
been noted on multiple occasions, it is not the province of this court to re-evaluate credibility
determinations made by the finder of fact. See State v. Pappas, 754 S.W.2d 620, 623 (Tenn.
Crim. App. 1987). Absent the petitioner’s own testimony, we see little, if any, proof which
would support the petitioner’s contentions.

        Moreover, as pointed out by the State, portions of the petitioner’s own testimony
contradict his assertions. As to his allegation that trial counsel only began preparing for the
case the day before trial, the petitioner himself testified that they had previously discussed
the case during multiple phone conversations and that they had met in person four times.
Moreover, Assistant District Attorney General Housel testified that she had met with trial
counsel about this case and noted that he was very familiar with the facts of case, had filed
for and received discovery, and had represented the petitioner at several bond hearings. She
saw nothing to indicate that trial counsel was not prepared to try the case before a jury.
Again, absent the petitioner’s bare allegation that trial counsel was not prepared, there is
simply no proof in the record to support that conclusion. Additionally, the petitioner failed
to put forth any evidence at the hearing which trial counsel might have discovered with more
preparation, thereby precluding a finding of prejudice. See Black v. State, 794 S.W.2d 752,
757 (Tenn. Crim. App. 1990).



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       The petitioner’s claims regarding the alleged plea offer and the failure to pursue a
self-defense strategy likewise must fail. Again, the petitioner put forth no proof, other than
his own testimony, regarding these issues. He failed to establish that there was even a plea
offer extended by the State. While General Housel stated that there usually was, there is
nothing in this record to indicate such in this case. Moreover, discounting the petitioner’s
testimony, there is no proof that trial counsel failed to convey any offer which was made to
the petitioner. With regard to self-defense, the record seems to indicate that the defense
would have been in conflict with the proof presented at trial. Specifically, there was no
testimony that the victim was armed. Rather it was to the contrary, namely that the only gun
associated with the victim was found in his car.

        As found by the post-conviction court, the record establishes that trial counsel was not
deficient in his representation of the petitioner. Indeed, a reading of the direct appeal opinion
indicates that trial counsel vigorously and extensively cross-examined the State’s witnesses,
even getting them to acknowledge lying to the police initially. Moreover, the petitioner was
indicted for first degree murder, but convicted of the lesser included offense of second degree
murder. Clearly, trial counsel gained the petitioner some advantage in his case. The
petitioner’s allegations are simply not established on this record, and he is entitled to no
relief.

                                       CONCLUSION

       Based upon the foregoing, the denial of post-conviction relief is affirmed.




                                                     _________________________________

                                                     JOHN EVERETT WILLIAMS, JUDGE




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