         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs January 8, 2008

                      JULIUS JONES v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Shelby County
                           No. 01-12258    W. Otis Higgs, Jr., Judge



                      No. W2007-00680-CCA-R3-PC - Filed April 25, 2008


The petitioner, Julius Jones, was convicted in 2002 of facilitation of felony murder, a Class B felony,
and sentenced to twenty-three years in the Department of Correction. Following an unsuccessful
direct appeal to this court, he filed a petition for post-conviction relief alleging that Tennessee’s 1989
Criminal Sentencing Reform Act was unconstitutional and that his appellate counsel rendered
ineffective assistance in violation of his federal and state constitutional rights. The post-conviction
court denied the petition, holding that the petitioner failed to prove his factual allegations by clear
and convincing evidence. After our 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

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and J.C. MCLIN ,
JJ., joined.

Patrick E. Stegall, Memphis, Tennessee, for the appellant, Julius Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; James E. Gaylord, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Anita Spinetta, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                               OPINION

                                                FACTS

        The facts of this matter were set out in the petitioner’s direct appeal from his conviction:

                On November 28, 1998, Nathenia Dozier arrived home and discovered that
        someone had broken into her apartment. Upon entering the apartment, she noticed
        that the phone lines had been cut. The phones were missing, along with two hundred
        dollars and a leather jacket. She went to a downstairs apartment and paged an
       acquaintance, Norman Dixon, and requested that he come to the apartment. Dixon
       arrived at the apartment in a car being driven by the [petitioner]. The three of them
       left together and went to the [petitioner’s] house.

               Shortly after arriving at the [petitioner’s] house, the [petitioner] and Dixon
       left without Dozier and were gone for approximately an hour and a half. When the
       men returned, they spoke with Dozier, and the [petitioner] told her that as a result of
       an “investigation” conducted by him and Dixon, they had determined that Maurice
       Payton and another man had broken into her apartment. Dozier asked the [petitioner]
       and Dixon if they would accompany her back to her apartment to get a change of
       clothes so that she could spend the night at the [petitioner’s] house. The [petitioner]
       drove her and Dixon back to Dozier's apartment. After she retrieved clothes from the
       apartment, the [petitioner] drove the three of them out of the parking lot.

               Moments after leaving the parking lot of the apartment complex, Dixon
       spotted the victim, Maurice Payton, standing near the road. As the [petitioner] pulled
       alongside the victim, Dixon asked the victim to get into the car, and the victim
       complied. After a few minutes of conversation, Dixon brandished a gun and asked
       the victim about breaking into the apartment. The victim told “him everything he
       wanted to hear.” The victim cried and begged as the [petitioner] stopped the car.
       Dozier exited the car, and the [petitioner] “came after” Dozier. Around that time,
       Dozier heard a gunshot and realized that Dixon had shot the victim. The [petitioner]
       asked Dixon why he had not allowed the [petitioner] to be the first one to use his own
       gun. Thereafter, the [petitioner] and Dixon pulled the victim out of the car and
       dumped his body beside the road. The victim died of the gunshot wound to his head.
       The [petitioner] drove Dixon and Dozier back to his house where the [petitioner] and
       Dixon attempted to clean out evidence of the shooting from the backseat of the car.

State v. Julius L. Jones, No. W2002-02336-CCA-R3-CD, 2003 WL 23100729, at *1 (Tenn. Crim.
App. Dec. 30, 2003), perm. to appeal denied (Tenn. June 1, 2004).

        After this court upheld his conviction, the petitioner sought post-conviction relief, arguing
that his appellate counsel rendered ineffective assistance by not challenging the sufficiency of the
evidence supporting the petitioner’s conviction.

         The petitioner’s appellate counsel was the sole witness at the evidentiary hearing. She
testified that she challenged the admission of a statement made by Dozier regarding the petitioner’s
knowledge about the burglary and the trial court’s ruling that Dozier could not be questioned about
a prior, purportedly inconsistent statement. She said that in preparing the petitioner’s appellate brief
she reviewed the entire trial transcript, the motion for new trial and the order denying it, and the
transcript of the sentencing hearing. On cross-examination, she testified that her decision not to
attack the sufficiency of the evidence supporting the petitioner’s conviction was based upon trial



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counsel’s decision not to raise this issue in the motion for new trial and her independent reading of
the trial transcript.

       The post-conviction court denied the petition, holding:

                In this case, appellate counsel testified that she made the strategic decision not
       to raise sufficiency of the evidence after reading the entire trial transcript and based
       on the fact that the trial attorney did not raise that issue in his new trial motion.
       [footnote omitted] After examining the State’s [sic] proof, this court concludes that
       Petitioner’s claim fails both prongs of the Strickland test. At trial, the State provided
       evidence that Petitioner was disappointed that he had not been able to use his own
       gun to kill the victim, that Petitioner had assisted in disposing of the body, and that
       Petitioner helped to dispose of the evidence. . . . It is entirely reasonable that
       appellate counsel would take this evidence into consideration and make the decision
       that it would be frivolous to raise insufficiency of the evidence on appeal.

               Assuming arguendo that this decision did constitute gross professional
       negligence, Petitioner has nevertheless failed to show clear and convincing evidence
       that the decision resulted in prejudice against him because the evidence was
       sufficient to support a finding that Petitioner was operating with the mens rea
       required for kidnapping and felony murder. Under Tennessee law, kidnapping
       requires there to be a false imprisonment, which results when there is a knowingly
       unlawful confinement. . . . Additionally, Tennessee’s felony murder law lists
       kidnapping as an underlying offense supporting a felony murder conviction. . . . The
       statute also reads that “[n]o culpable mental state is required for [a felony murder]
       conviction except the intent to commit the enumerated offenses or acts.” . . . The
       evidence presented at trial was sufficient to support a finding that Petitioner
       knowingly kidnapped the victim, thus the murder resulting therefrom could lead to
       a conviction of felony murder. Because there is not a reasonable probability that
       Petitioner would have prevailed if sufficiency of the evidence had been raised on
       appeal, his claim of ineffective assistance of counsel is without merit.

                                             ANALYSIS

         On appeal, the petitioner asserts that appellate counsel was ineffective, arguing that the
evidence was insufficient either to support a finding that a kidnapping took place or that he
facilitated a murder in perpetration of a felony.

       Post-conviction relief “shall be granted when the conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” Tenn. Code Ann. § 40-30-103 (2006). The petitioner bears the
burden of proving factual allegations by clear and convincing evidence. Tenn. Code Ann. §
40-30-110(f) (2006). When an evidentiary hearing is held in the post-conviction setting, the findings


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of fact made by the court are conclusive on appeal unless the evidence preponderates against them.
See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When reviewing factual issues, the appellate
court will not reweigh the evidence and will instead defer to the trial court's findings as to the
credibility of witnesses or the weight of their testimony. Id. However, review of a trial court's
application of the law to the facts of the case is de novo, with no presumption of correctness. See
Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issues of deficient performance of counsel and
possible prejudice to the defense are mixed questions of law and fact and, thus, subject to de novo
review by the appellate court. See Wiley, 183 S.W.3d at 325; State v. Burns, 6 S.W.3d 453, 461
(Tenn. 1999).

        The right to effective assistance of counsel is safeguarded by the Constitutions of both the
United States and the State of Tennessee. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. In
order to determine the competence of counsel, Tennessee courts have applied standards developed
in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that
the same standard for determining ineffective assistance of counsel that is applied in federal cases
also applies in Tennessee). The United States Supreme Court articulated the standard in Strickland
v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), which is widely accepted as the appropriate
standard for all claims of a convicted petitioner that counsel’s assistance was defective. The standard
is firmly grounded in the belief that counsel plays a role that is “critical to the ability of the
adversarial system to produce just results.” Id. at 685, 104 S. Ct. at 2063. The Strickland standard
is a two-prong test:

       First, the defendant must show that counsel’s performance was deficient. This
       requires showing that counsel made errors so serious that counsel was not
       functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
       Second, the defendant must show that the deficient performance prejudiced the
       defense. This 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, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of “deficient
performance” in the first prong of the test in the following way:

       In any case presenting an ineffectiveness claim, the performance inquiry must be
       whether counsel’s assistance was reasonable considering all the circumstances. . . .
       No particular set of detailed rules for counsel’s conduct can satisfactorily take
       account of the variety of circumstances faced by defense counsel or the range of
       legitimate decisions regarding how best to represent a criminal defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish “that counsel’s representation fell
below an objective standard of reasonableness under prevailing professional norms.” House v. State,
44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).




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         As for the prejudice prong of the test, the Strickland Court stated: “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.” 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that “there is a
reasonable probability that, but for counsel’s errors, the outcome of the proceedings would have been
different”).

        The reviewing court must indulge a strong presumption that the conduct of counsel falls
within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, 104 S. Ct.
at 2066, and may not second-guess the tactical and strategic choices made by trial counsel unless
those choices were uninformed because of inadequate preparation. See Hellard v. State, 629 S.W.2d
4, 9 (Tenn. 1982). The fact that a strategy or tactic failed or hurt the defense does not alone support
the claim of ineffective assistance of counsel. See Thompson v. State, 958 S.W.2d 156, 165 (Tenn.
Crim. App. 1997). Finally, a person charged with a criminal offense is not entitled to perfect
representation. See Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996). As explained
in Burns, 6 S.W.3d at 462, “[c]onduct that is unreasonable under the facts of one case may be
perfectly reasonable under the facts of another.”

        In order to determine whether the petitioner received ineffective assistance of counsel, we
must analyze whether the evidence was sufficient to support the petitioner’s conviction. First degree
murder is, inter alia, a killing of another committed in the perpetration of or attempt to perpetrate
certain enumerated felonies, including kidnapping. No culpable mental state is required for a murder
in perpetration of a felony, except the intent to commit the underlying felony. Tenn. Code Ann. §
39-13-202(a)-(b). As relevant here, kidnapping is the knowing, unlawful removal or confinement
of another so as to substantially interfere with the other’s liberty, under circumstances exposing the
other to substantial risk of bodily injury. Id. § 39-13-303(a)(1). “A person is criminally responsible
for the facilitation of a felony, if, knowing that another intends to commit a specific felony, but
without the intent required for criminal responsibility under [Tennessee Code Annotated] §
39-11-402(2), the person knowingly furnishes substantial assistance in the commission of the
felony.” Id. § 39-11-403(a).

        Following our review, we conclude that the record supports the determinations of the post-
conviction court. At trial, Nathenia Dozier testified that, following the discovery of her apartment’s
burglary, the petitioner and Norman Dixon conducted an “investigation” and determined that the
victim and another person were responsible. The petitioner and Dixon took Dozier to retrieve some
clothes from her apartment. As they were leaving the apartment complex, they spotted the victim,
and Dixon asked him to enter their car. As the petitioner drove, Dixon turned a gun on the victim
and began questioning him about the burglary. The petitioner stopped the vehicle and exited along
with Dozier. Dixon shot the victim, and the petitioner helped him remove the victim’s body from
the vehicle.




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         From the foregoing evidence, a rational jury could have found the petitioner guilty of
facilitation of felony murder. Therefore, the petitioner has not established that appellate counsel was
ineffective in not challenging the sufficiency of the evidence and is not entitled to relief.

                                          CONCLUSION

        Based on the foregoing authorities and reasoning, the judgment of the post-conviction court
is affirmed.

                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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