                                                                                          02/08/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs March 7, 2017

                 CURTIS KELLER v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                   No. 10-07532      James M. Lammey, Judge
                     ___________________________________

                           No. W2016-00416-CCA-R3-PC
                       ___________________________________


Petitioner, Curtis Keller, appeals the denial of his petition for post-conviction relief, in
which Petitioner alleged that he received the ineffective assistance of counsel. Having
reviewed the record and the briefs of the parties, we affirm the judgment of the post-
conviction court.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Andrea D. Sipes, Jackson, Tennessee, for the appellant, Curtis Keller.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; Jessica Banti, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

Procedural history

       Petitioner was convicted by a jury of two counts of especially aggravated
kidnapping, one count of especially aggravated robbery, one count of especially
aggravated burglary, three counts of aggravated assault, and one count of employing a
firearm during the commission of a dangerous felony. State v. Curtis Keller, No. W2012-
00825-CCA-R3-CD, 2013 WL 3329032, at *1 (Tenn. Crim. App. June 27, 2013), perm.
app. denied (Tenn. Dec. 10, 2013). The trial court sentenced Petitioner to a total
effective sentence of 240 years’ incarceration. Id. On direct appeal, Petitioner argued
that the jury instructions concerning especially aggravated kidnapping were inadequate,
the jury instructions concerning the employment of a firearm during the commission of a
dangerous felony were erroneous, and his eight separate convictions violated his
constitutional protection from double jeopardy. A panel of this court concluded that the
jury instructions were inadequate, but the error was harmless beyond a reasonable doubt;
that the instructions concerning the employment of a firearm were erroneous and that
conviction was reversed; and that it was plain error for Petitioner to be convicted of both
especially aggravated burglary and attempted especially aggravated robbery based on the
same act of causing serious bodily injury to Mr. Morrow. Accordingly, the panel reduced
Petitioner’s conviction for especially aggravated robbery to aggravated burglary and
imposed a new sentence of 15 years for that count. The panel affirmed the remaining
judgments of the trial court.

       Petitioner timely filed a pro se petition for post-conviction relief, alleging several
grounds of ineffective assistance of counsel. Following the appointment of counsel,
Petitioner filed an amended petition. Following an evidentiary hearing, the post-
conviction court entered a written order denying post-conviction relief. Petitioner
appeals the post-conviction court’s ruling.

Facts

      The facts underlying Petitioner’s convictions were summarized in this court’s
opinion on direct appeal as follows:

               During the early morning hours of May 26, 2010, the defendant
        and at least two accomplices kicked in the door of a house and terrorized
        its occupants because the defendant – an admitted drug dealer – believed
        that one of them owed him some money as a result of a prior transaction.
        After breaking into the premises, the defendant went into a bedroom and
        woke up his intended target, victim Andrew Morrow, and his target’s
        girlfriend, Tamika Jones. He demanded money. Two of Ms. Jones’
        children, fifteen-year-old victim M.B. and fourteen-year-old J.G., were
        present in the home when the intrusion occurred. One of the intruders
        quickly located victim M.B., who was brought into the adults’ bedroom.
        The intruder proceeded to press his pistol against the boy’s head and
        asked Mr. Morrow: “Do you see what you are fixin’ to make me do?”
        Another of the assailants repeatedly struck Mr. Morrow in the head with
        a gun, injuring his face and causing a substantial amount of bleeding.
        Then the intruders began ransacking the residence.

            Fearing for the safety of her other child, Ms. Jones demanded to
        know the whereabouts of J.G. Surmising from her queries that there was
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        another individual who was unaccounted for and located somewhere on
        the premises, the intruders searched the house and finally located J.G.
        hiding in a bedroom closet – but not before J.G. was able to call the
        police from a cell phone and report the intrusion. Thinking quickly, J.G.
        also managed to hide the cell phone – still connected to 911 – underneath
        a pillow, where it continued to record the ongoing criminal activity for
        some time after his capture. Meanwhile, Ms. Jones asked one of the
        intruders if he wanted some of her jewelry, and the intruder responded
        affirmatively. Mr. Morrow, after struggling with one of the intruders,
        managed to break out one of the bedroom windows and yell outside for
        help.

              Suddenly, officers of the Collierville Police Department knocked
        on the door of the residence and announced their presence to those
        inside. The intruders panicked and sought any means of egress but
        discovered that the house was surrounded. The defendant took off his
        mask and attempted to flee on foot. Encountering the police outside, the
        defendant claimed that he had been the victim of a robbery and that the
        culprits were still located inside the residence – later clarifying that the
        “robbery” had occurred sometime earlier, when Mr. Morrow had taken
        his drugs without paying for them. Apparently unmoved by the
        defendant’s plight, the police arrested him and one of his accomplices,
        while the other accomplice(s) escaped into the night.

Keller, 2013 WL 3329032, at *1-2.

Post-conviction hearing

       Trial counsel testified that she had practiced criminal law “exclusively” for 35
years. She testified that she met with Petitioner three times in jail, but that most of their
conversations were at the courthouse. She provided discovery materials to Petitioner.
Trial counsel testified that the State offered a plea agreement that included an 18-year
sentence, and Petitioner refused to accept the offer.

        On the day of trial, Petitioner claimed that he was unaware of his court date, and
the trial court read the court minutes, which reflected that Petitioner was present when the
trial date was set. Trial counsel testified that Petitioner was “always cordial” to her, and
that he never asked her to withdraw as counsel. She testified, “I believe he said he
wanted a new attorney on the day of trial. And there was no basis given except in my
opinion he was trying to postpone the proceedings.”

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       Trial counsel reviewed the State’s discovery response and noted that no drugs or
money were found in the victims’ house. She testified, “There was absolutely nothing to
substantiate ‘the victim’ being involved in a drug deal.” Trial counsel testified that
Petitioner insisted that Mr. Morrow had stolen drugs from him and that he later found out
that was not true. Trial counsel clarified that “5 grams . . . of marijuana [was] found on
the bedroom floor just kind of loose.” Trial counsel testified that Mr. Morrow’s
statement to a detective that he had purchased marijuana from Petitioner in the past was
“not at all relevant to what happened [on the] night [of the incident].” She testified that
she did not attempt to impeach any of the State’s witnesses using their prior statements.
She cross-examined Mr. Morrow about the presence of marijuana in the house. Trial
counsel testified that she did not cross-examine Mr. Morrow about having purchased
drugs from Petitioner because “it certainly wouldn’t [have] help[ed] [Petitioner] for it to
come out that he had been buying drugs or selling drugs.”

        Trial counsel testified that Petitioner, against her recommendation, testified at
trial. She testified that Petitioner “did several very objectionable things in the courtroom
. . .” Petitioner and his co-defendant were tried together. Petitioner never requested that
his trial be severed from his co-defendant, and counsel did not believe there were grounds
upon which to sever. Trial counsel testified that the State provided “open-file” discovery.
She advised Petitioner to accept a plea agreement. Counsel testified that a detective
testified at trial that he found Petitioner in the garage of the victims’ house, and Petitioner
“stood up and raised his hand and said that was me.” One of the victims was made to lie
down on the bedroom floor and was not allowed to leave. According to trial counsel,
“[s]he kept calling out for her children because she was scared for them.”

      Petitioner asserted at the post-conviction hearing that trial counsel failed to cross-
examine one of the victims, Tamika Jones, about a prior inconsistent statement. Trial
counsel testified that “there w[ere] no material differences at all” between the witness’s
statements to police and her testimony at trial.

        Petitioner testified that he asked trial counsel to withdraw from representing him
on the day before trial. He testified that he did not know that his case was set for trial the
following day, and he did not feel prepared for trial. He testified that trial counsel did not
communicate with him while he was in jail about his case. He testified that trial counsel
“brought [him his] discovery packet. That was it.” Petitioner testified that he was
“forced to go to trial.” Petitioner testified that he requested a continuance, and that the
trial court denied his request and “didn’t inquire about the conflict that me and my
attorney had or none of that.”

      Petitioner testified that he wrote letters to trial counsel, and trial counsel did not
respond to his letters. Petitioner testified that all of the State’s witnesses “gave perjured
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testimony” at trial. He testified that trial counsel failed to impeach the witnesses on
cross-examination with their prior inconsistent statements. He testified that Andrew
Morrow told a detective that he had never seen Petitioner before the incident and that
“the big guy” held a pistol to his stepson’s head, but Mr. Morrow testified at trial that
Petitioner did not put a pistol to the child’s head. Petitioner also thought that trial counsel
should have objected to the prosecutor’s statements during voir dire concerning
discrepancies in the witnesses’ testimony.

Analysis

        Petitioner contends that counsel provided ineffective assistance. Specifically,
Petitioner asserts that counsel failed to properly investigate the case, and that she failed to
cross-examine the victims about their prior inconsistent statements. The State responds
that the Petitioner failed to establish that counsel was ineffective.

       Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A petitioner
has the burden of proving his factual allegations by clear and convincing evidence. Id. §
40-30-110(f). A post-conviction court’s findings of fact are binding on appeal, and this
court must defer to them “unless the evidence in the record preponderates against those
findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); see Fields v. State, 40
S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s application of law to its
factual findings is subject to a de novo standard of review without a presumption of
correctness. Fields, 40 S.W.3d at 457-58.

       To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1)
counsel’s performance was deficient and (2) the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell,
506 U.S. 364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland
standard to an accused’s right to counsel under article I, section 9 of the Tennessee
Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services
rendered . . . , are [not] within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at
                                             -5-
690. The post-conviction court must determine if these acts or omissions, viewed in light
of all of the circumstances, fell “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. 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.” Adkins v. State, 911 S.W.2d
334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn.
2008). This deference, however, only applies “if the choices are informed . . . based upon
adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
To establish the prejudice prong, a 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.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.

       In his brief on appeal, Petitioner alleges that trial counsel “did not conduct proper
investigation of the case as she was apparently unaware that Andrew Morrow and
Tamika Jones had given prior inconsistent statements.” Petitioner cites in his brief a
document that was filed as an exhibit to his post-conviction petition. The document
apparently contains a narrative of Detective Riley’s interviews in connection with the
investigation of the case. Petitioner argues that the inconsistencies in the witnesses’
statements “cast a serious doubt as to the veracity and character of both witnesses . . . .”
Specifically, Petitioner asserts that trial counsel should have cross-examined Andrew
Morrow about his statement to police that he knew Petitioner because he had purchased
marijuana from him.

       At the post-conviction hearing, trial counsel testified that Mr. Morrow had told a
detective that he had bought marijuana from Petitioner in the past, and that she did not
think that delving into Petitioner’s history of selling drugs would have helped his defense.
The State argues that this was a strategic decision by trial counsel, and we agree.
Deference is given to trial strategy or tactical choices if they are informed ones based
upon adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

       In its written order denying post-conviction relief, the post-conviction court
concluded that counsel was not ineffective for failing to impeach Andrew Morrow “with
prior statements that would have suggested that either that the witness knew the
Petitioner and/or that he was a drug dealer or user.” The post-conviction court also
concluded that “even if the information [that Andrew Morton had purchased drugs from
Petitioner previously] had been used, it is quite likely that the outcome of the trial would
have been the same.”

        Petitioner also asserts that “[t]he prior inconsistent statement of Tamika Jones
calls into question her recitation of events that took place.” However, Petitioner does not
                                           -6-
explain, nor cite to the record, what prior inconsistent statement he alleges that trial
counsel should have used to impeach Tamika Jones at trial. Petitioner has therefore
waived review of this claim. See Tenn. Ct. Crim. App. R. 10(b). Notwithstanding
Petitioner’s waiver of the issue, counsel testified at the post-conviction hearing that Ms.
Jones’ had never provided a sworn statement. A narrative of Detective Riley’s interview
with Ms. Jones was attached as an exhibit to Petitioner’s amended petition. Trial counsel
testified that she reviewed a police report and did not find any material differences
between the information contained in the report and Ms. Jones’ testimony at trial.

        Petitioner has failed to establish that counsel’s performance was deficient. Thus,
we need not reach the issue of whether any alleged deficiencies in counsel’s performance
prejudiced Petitioner. See Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (“If either
element of ineffective assistance of counsel has not been established, a court need not
address the other element.”). We conclude that the post-conviction court properly denied
relief.

                                     CONCLUSION

       The judgment of the post-conviction court is affirmed.

                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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