        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs August 9, 2016

            FREDERICK E. BRAXTON v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                    No. 2009-C-2845 Mark J. Fishburn, Judge


                No. M2016-00161-CCA-R3-PC – Filed August 31, 2016


The Petitioner, Frederick E. Braxton, appeals the Davidson County Criminal Court’s denial
of his petition for post-conviction relief from his 2010 convictions for selling less than 0.5
gram of cocaine within 1000 feet of a school zone, evading arrest, and criminal
impersonation and his effective fifteen-year sentence. The Petitioner contends that he
received the ineffective assistance of counsel. We affirm the judgment of the post-conviction
court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and J. ROSS DYER, J., joined.

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Frederick E. Braxton.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Victory S. (Torry) Johnson III, District Attorney General; and Wesley King,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

       This case arises from the Petitioner’s selling cocaine to undercover police officers.
The Petitioner appealed his convictions, and in its opinion affirming the convictions, this
court summarized the facts as follows:

              At trial, Detective Matthew Atnip of the Metro Nashville Police
       Department recalled the events leading to Appellant’s arrest. In October of
       2007, Detective Atnip was assigned to the Hermitage Crime Suppression Unit.
        Detective Atnip was working with Detective Josh Walters on an undercover
“buy bust operation” that targeted street-level drug dealers. The two detectives
wore plain clothes and traveled in the area around Murfreesboro Road in an
undercover vehicle. Several other members of the Crime Suppression Unit
assisted in the operation.

       On October 8, 2007, Detective Atnip drove the undercover vehicle to a
Mapco gas station at the corner of Murfreesboro Road and Thompson Lane.
He saw Appellant walking either to or from a Cadillac. Detective Walters
asked Appellant if he had any “work,” a slang term for drugs. Appellant stated
that he did not have any drugs. At that time, the undercover officers drove
away, heading down Murfreesboro Road toward downtown.

        Detective Atnip next pulled into another gas station on Murfreesboro
Road near Spence Lane and the Waffle House. The vehicle was backed into
the parking space near the pay phone. A few minutes later, Appellant pulled
up next to them in his vehicle and asked the men what they needed. Detective
Walters told Appellant that they wanted a “40” of crack cocaine. Appellant
told the men it was “hot,” meaning that there were police in the area, and asked
them to follow him down the road. The detectives followed Appellant in his
car to the intersection of Blanton and Hill Avenues. Detective Atnip pulled his
car next to Appellant’s car.

        Appellant asked the men if they were police officers. The detectives
denied being police officers. According to the detectives, Appellant handed
Detective Walters three or four loose rocks of crack cocaine. Detective
Walters tried to hand Appellant the forty dollars for the drugs; Appellant told
him to throw it to the ground. Detective Walters complied. Detective Atnip
drove away from the scene, giving the takedown signal to the other officers
involved in the operation. By the time the officers approached with lights and
sirens, Appellant had turned his car around so that he could pick up the money.
Appellant took off, “squealing his tires” and heading toward Hill Avenue.
Appellant was surrounded and taken into custody. Detective James Anthony
King, who was also a part of the investigation, recalled that the arrest of
Appellant took place near the intersection of Blanton and Hill Avenue, near
Murfreesboro Road.

        Appellant gave his name as “Frederick Jones” and “Frederick Brown”
when he was read his Miranda rights. Detective Walters thought that
Appellant was actually “booked” as “Frederick Brown.” At some point during
the arrest, Appellant stated that he “just f[ ] up” and should “lay down” and go

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to “jail.” Following the arrest, Detective Atnip went to the location of the drug
purchase and recovered a bag that contained a large white rock. The substance
tested field positive for cocaine. . . .

       . . . The contents of the bag were later tested by TBI scientist Ella
Carpenter . . . . Ms. Carpenter analyzed a sealed plastic bag that contained 2.8
grams of cocaine. She did not test the additional amount of cocaine in the bag
because it was not enough to increase the penalty. In other words, the amount
of cocaine was less than twenty-six grams, the statutory threshold for a greater
penalty. The report indicated that “[n]o analysis was performed on additional
rock-like substance. The gross weight of this additional rock-like substance is
3.4 grams.[1] The total[] weight for all the rock-like substances would not
exceed 26 grams.” Ms. Carpenter tested the substance and determined that it
was, indeed, crack cocaine, weighing 2.8 grams.

       In May of 2009, the district attorney’s office requested that the
remainder of the substance be tested by the TBI. . . . The remaining substance
was also determined to be cocaine, weighing .4 grams. . . .

        ....

        David Kline, the manager of the mapping division for Metropolitan
Planning Department, prepared a map of the area in anticipation of trial. The
map outlined an area 1000 feet around the Nashville School of the Arts.
According to the map, the intersection of Blanton Avenue and Hill Avenue
was within 1000 feet of the property of Nashville School of the Arts. In fact,
the intersection is 822 feet away from the property line of the school.

       Appellant took the stand in his own defense. He described himself as
an “entertainer” trying to break into the music industry. On October 8, 2007,
Appellant was at the Mapco Station to meet a friend, Pamela Sircy. Appellant
was going to give Ms. Sircy a CD so that she could pass it along to her
“connections” on Music Row.
       Appellant testified that he went into the store to buy some items for Ms.
Sircy when he noticed a new Mustang vehicle outside. He saw two men inside
the car. They asked him for “something.” Appellant claimed that he told the
men to go away, and he walked to his car. Appellant could sense that the men

1
 This includes the weight of the packaging. Ms. Carpenter later explained that the gross
weight of the cocaine was 3.2 grams.

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       were police officers. Appellant insisted that he did not sell drugs and had no
       drugs on him that night.

               Appellant told the men to go away when they asked him for drugs a
       second time. Appellant testified that at some point, he heard a CB radio go off
       inside the Mustang. Appellant claimed that he knew the men were police.

              Appellant left the gas station in his car. He claimed that the Mustang
       was following him. Appellant planned to get on the interstate when a car cut
       in front of him. Appellant kept going straight and tried to perform a U-turn.
       Appellant saw a “No U-turn” sign, so he turned on Blanton Avenue. When he
       drove down the street to turn around, the Mustang pulled in front of him and
       two other cars activated their blue lights, blocking him . . . on the street.
       Appellant claimed that the police jumped out of their cars with their guns
       drawn and that he did not make it to the intersection of Blanton and Hill before
       this happened.

              According to Appellant, the police never asked his name. They made
       him get out of the car, searched him, and cuffed him. Appellant claimed that
       the police told him to “shut up” when he asked what was going on that night.
       Appellant insisted that he did not give a false name to police, instead he told
       them that his identification was inside his pocket. Appellant admitted that he
       used the alias Frederick Frank Brown when he was a teenager but claimed that
       he has not used it since. Additionally, Appellant admitted that he was driving
       on a suspended license.

State v. Frederick Edward Braxton, No. M2010-01998-CCA-R3-CD, 2011 WL 5573357, at
*1-3 (Tenn. Crim. App. Nov. 15, 2011), perm. app. denied (Tenn. Apr. 12, 2012).

       On March 26, 2012, the Petitioner filed the instant petition for post-conviction relief
alleging multiple grounds of the ineffective assistance of counsel. The Petitioner’s sole
contention on appeal is that trial counsel provided ineffective assistance by failing to present
a material witness who would have supported his claim of innocence. Our recitation of the
evidence presented at the post-conviction hearing is limited to this issue.

       At the post-conviction hearing, trial counsel testified that she and co-counsel
represented the Petitioner. Counsel said that she had practiced criminal law for thirty years
and that she had tried between thirty and fifty jury trials. She said that she began working on
the Petitioner’s case in the beginning of 2010, after a colleague left the public defender’s
office. She said that she examined the discovery, spoke with an investigator, determined

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what pretrial motions needed to be filed, met with the Defendant four or five times, and
prepared an opening statement, witness cross-examinations, and a closing argument to
prepare for the trial.

        Trial counsel testified that during her meetings with the Petitioner, they discussed the
facts of the case, reviewed the charges and possible punishments, obtained the Petitioner’s
input, and prepared him for the trial. She said they discussed the possible defenses and the
benefits and pitfalls of the Petitioner’s testifying. She noted that the jury acquitted the
Petitioner of the Class A felony drug charge. She said that before the trial, she investigated
Pamela Jenkins and that she prepared “an examination” but could not recall whether Ms.
Jenkins testified.

       On cross-examination, trial counsel testified that her meetings with the Petitioner were
usually two hours. She thought she began representing the Petitioner about six months
before the trial. She said that she and the Petitioner spoke about various things the Petitioner
wanted investigated and that she took photographs of the scene and presented the
photographs at the trial.

        Trial counsel testified that she did not personally meet with Ms. Jenkins before the
trial but that her office investigated Ms. Jenkins. Counsel said that her file indicated she
prepared questions to ask Ms. Jenkins, leading counsel to believe that she had expected Ms.
Jenkins to testify at the trial. Counsel’s file did not indicate whether someone interviewed
Ms. Jenkins. She did not recall what, if anything, the Petitioner said about Ms. Jenkins.
Counsel was unsure whether someone interviewed Ms. Jenkins.

        Trial counsel testified that the Petitioner was involved in his case, that he expressed
his opinions, and that they discussed trial strategy at length. Although she did not recall the
details of their discussions, she recalled discussing the case extensively.

       Pamela Jenkins testified that she was incarcerated for especially aggravated robbery at
the time of the post-conviction hearing and that she had known the Petitioner for about ten
years. She said that she and the Petitioner were together when the Petitioner was arrested but
that nobody from the district attorney’s office or the public defender’s office contacted her.
She recalled the Petitioner’s driving her red, two-door Cadillac but said later, though, that the
Cadillac belonged to her uncle.

       Ms. Jenkins testified that before the Petitioner’s trial, she spoke to the Petitioner’s
attorney on the telephone, that Ms. Jenkins told the attorney what occurred, and that the
attorney told Ms. Jenkins that Ms. Jenkins could not testify because of her background. Ms.
Jenkins did not know the attorney’s name. Ms. Jenkins said that on the night of the offense,

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the Petitioner was driving her car, that she called the Petitioner and requested he pick her up
from a friend’s home, that the Petitioner picked her up, and that they were driving to meet a
woman regarding the Petitioner’s music. Ms. Jenkins said the Petitioner stopped at a
convenience store at Ms. Jenkins’s request, that they went inside and purchased items, and
that when they returned to her car, she saw two undercover police officers walking toward
the Petitioner. Ms. Jenkins heard the officers ask the Petitioner if the Petitioner knew where
they could find drugs. Ms. Jenkins said that the Petitioner told the officers he did not know
where to find drugs but that the officers harassed the Petitioner about where to find drugs.
Ms. Jenkins said that she heard the officers’ radios, that she and the Petitioner were getting
ready to leave, and that she asked the Petitioner if he was okay. Ms. Jenkins said the
Petitioner told her that his driver’s license “was messed up.” She said that she and the
Petitioner got inside her car, that the officers stopped them from leaving, and that the officers
harassed the Petitioner, threw him on the ground, and took him to jail. She said later, though,
that they drove about three blocks before the police stopped them. She denied the Petitioner
was speeding or attempting to “chase away.”

       Ms. Jenkins testified that when the officers stopped them three blocks from the
convenience store, they asked the Petitioner to get out of the car and asked for permission to
search the car. Ms. Jenkins said that the Petitioner became angry and that the officers asked
the Petitioner what was his “problem.” She said the officers searched the car and arrested the
Petitioner. She said neither she nor the Petitioner consented to a search of the car. She did
not know what, if anything, the police found during the search. She said the officers flirted
with her and asked what she “had on.”

        On cross-examination, Ms. Jenkins testified that at the time of the Petitioner’s arrest,
she went by the name Pamela Searcy and that she had been previously convicted of theft and
attempted alteration of a vehicle license plate. She said the Petitioner was never outside her
presence between the Petitioner’s picking her up and the Petitioner’s arrest. She said that the
Petitioner was arrested near the convenience store on Murfreesboro Road. She said she was
sitting in the front passenger seat of the car. She denied she saw the Petitioner make a hand-
to-hand drug deal and said she did not see the Petitioner throw drugs on the ground.

        Ms. Jenkins testified that she did not know the Petitioner testified at his trial that he
was alone at the time of his arrest. She said she and the Petitioner had been good friends at
the time of the Petitioner’s arrest, that they had not remained good friends, and that she last
saw the Petitioner in 2008. She said that she did not speak to the officers, other than when
they flirted with her.




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       The Petitioner testified that he pleaded guilty in two or three previous cases because
he was guilty of the charges and that he went to trial in two cases because he was not guilty.
Relative to co-counsel, the Petitioner said he met with her once for about thirty minutes just
before the trial regarding a twenty-year plea offer from the prosecutor. The Petitioner said he
rejected the offer because he was not guilty.

       The Petitioner testified that he met with trial counsel twice before the trial, that the
second meeting was the day before the trial, and that the meeting was less than one hour. He
said that he did most of the talking, that counsel said she would “do all this,” and that counsel
did not do anything before the trial.

       The Petitioner testified that he told trial counsel about Ms. Jenkins, that he thought
counsel and co-counsel had interviewed Ms. Jenkins before the trial, and that he thought
counsel intended to present Ms. Jenkins as a trial witness. The Petitioner said that when he
realized Ms. Jenkins was not going to testify, counsel told him that Ms. Jenkins’s testimony
was not needed. The Petitioner did not understand. The Petitioner said that counsel told him
that counsel had interviewed Ms. Jenkins and that a few months before the trial, counsel
thought Ms. Jenkins would be a good witness.

       The Petitioner testified that he was released on bond at the time of his arrest. He said
that he knew the people at the convenience store were police officers and that he initially
laughed at the officers when they stopped him a few blocks away from the store.

        On cross-examination, the Petitioner testified that he did not ask Ms. Jenkins to leave
after their first encounter with the police officers at the convenience store. The Petitioner
agreed that he provided details about the events during his trial testimony. He agreed that he
was on bond for attempt to commit first degree murder at the time of his arrest and that he
was ultimately convicted of attempted second degree murder. He agreed his previous
convictions placed him in a higher offender classification, which resulted in a longer
sentence in the present case. He agreed he had previous convictions for possession with the
intent to sell less than 0.5 gram of cocaine, unlawful possession of a handgun, and voluntary
manslaughter.

       The Petitioner stated that he chose to testify at the trial and that the jury credited the
police officers’ testimony. He said that he and trial counsel discussed the possible defenses
and that he received the State’s discovery package.

      On redirect examination, the Petitioner testified that he did not speed as he and Ms.
Jenkins drove away from the convenience store, that he wore a seatbelt, and that he looked
both ways before driving onto the roadway. He admitted he had a suspended license at the

                                                  -7-
time of his arrest. He said that when the police officers stopped the car, the officers did not
request his license and that the officers pulled him out of the car. He believed Ms. Jenkins’
testimony would have resulted in the jury’s acquitting him of all charges.

       The post-conviction court denied relief. The court acknowledged the merits of the
Petitioner’s complaint that trial counsel dismissed Ms. Jenkins from testifying at the trial
without consulting him. The court found that counsel should have discussed dismissing Ms.
Jenkins with the Petitioner before Ms. Jenkins was released. The court found, though, that
Ms. Jenkins did not provide testimony at the post-conviction hearing that would have called
into question the validity of the jury’s verdicts. The court found that although Ms. Jenkins
corroborated the Petitioner’s testimony regarding his initial encounter with the police, Ms.
Jenkins was not present to add any insight into the actual events that led to the drug
transaction that might have resulted in a different verdict. The court found that although
corroborative evidence was generally relevant and material, the absence of Ms. Jenkins’s
testimony did not rise to the level of deficient performance because her corroborative
evidence related to undisputed facts.

        The post-conviction court found that counsel made a strategic and tactical decision not
to call Ms. Jenkins as a witness, that counsel pursued a legitimate defense strategy based
upon adequate preparation, and that counsel communicated properly with the Petitioner. The
court determined that the Petitioner failed to establish by clear and convincing evidence that
counsel’s performance was deficient or that the Petitioner was prejudiced by counsel’s
performance. This appeal followed.

       The Petitioner contends that trial counsel provided ineffective assistance by failing to
present Ms. Jenkins as a trial witness. He argues that Ms. Jenkins’s testimony was critical
because she was the only witness to the Petitioner’s encounter with the police. He argues
that because the Petitioner’s defense was actual innocence, Ms. Jenkins’s testimony would
have corroborated the Petitioner’s testimony that he did not sell cocaine to the officers.

       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 (2012). A petitioner has the burden
of proving his factual allegations by clear and convincing evidence. Id. § 40-30-110(f)
(2012). 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.

                                                 -8-
       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 (2012). A petitioner has the burden
of proving his factual allegations by clear and convincing evidence. Id. § 40-30-110(f)
(2012). 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 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.



                                                 -9-
        Generally, presenting a witness at the post-conviction hearing “is the only way the
petitioner can establish that the failure to . . . call the witness . . . resulted in the denial of
critical evidence which inured to the prejudice of the petitioner.” Black v. State, 794 S.W.2d
752, 757 (Tenn. Crim. App. 1990). When the basis for an ineffective assistance claim is trial
counsel’s failure to present a witness, the post-conviction court “must determine whether the
testimony would have been (1) admissible at trial and (2) material to the defense.” Pylant,
263 S.W.3d at 869. If the witness’s testimony would have been admissible and material to
the defense, the post-conviction court must determine the credibility of the witness. Id. at
870.

        The record reflects that although trial counsel could not recall whether Ms. Jenkins
testified at the Petitioner’s trial, she recalled that before the trial, her office investigated Ms.
Jenkins and that counsel prepared questions in the event Ms. Jenkins testified. Although
counsel could not recall whether she spoke to Ms. Jenkins personally, Ms. Jenkins testified
that she spoke to the Petitioner’s attorney on the telephone, that Ms. Jenkins told the attorney
what occurred when the Petitioner was arrested, and that the attorney told Ms. Jenkins that
Ms. Jenkins’s background prevented counsel from presenting Ms. Jenkins as a trial witness.
Ms. Jenkins testified that she had previous convictions for theft and attempted alteration of a
vehicle license plate, crimes involving dishonesty, and that at the time of the post-conviction
hearing, Ms. Jenkins was serving a sentence for especially aggravated robbery. In this
regard, the record does not preponderate against the post-conviction court’s findings that
counsel made a strategic and tactical decision not to present Ms. Jenkins as a trial witness and
that counsel was not deficient by failing to present Ms. Jenkins.

         Furthermore, the record reflects significant inconsistencies between the Petitioner’s
trial testimony and Ms. Jenkins’s post-conviction hearing testimony. Ms. Jenkins provided
testimony that was somewhat consistent with the Petitioner’s trial testimony regarding the
initial interaction with the police officers at the convenience store. However, Ms. Jenkins
testified that the Petitioner was driving her car and that the Petitioner picked her up from a
friend’s home before driving to the store. Likewise, she initially testified that after the first
interaction with the police, the officers stopped them from leaving the store and that the
officers harassed the Petitioner, threw him on the ground, and took him to jail. She later said,
though, those events occurred three blocks away from the store. In any event, Ms. Jenkins
said that when the officers stopped the car a short distance from the store, the officers asked
the Petitioner to get out of the car and for permission to search the car. She said although
nobody consented to a search of the car, the officers searched the car and arrested the
Petitioner.




                                                   -10-
       In contrast, the Petitioner testified at the trial that he met Ms. Jenkins at the
convenience store, not that he picked her up from a friend’s home. Furthermore, the
Petitioner said that after the first interaction with the police officers, the Petitioner gave Ms.
Jenkins the items he had purchased inside the store. The Petitioner said that Ms. Jenkins “got
in her car” and asked, “Do you need me to follow you?” The Petitioner told Ms. Jenkins
following him was unnecessary and said that Ms. Jenkins “pulled off and went the opposite
way from downtown” and that he got in his car and began traveling toward downtown.

        Therefore, Ms. Jenkins’s post-conviction hearing testimony that she and the Petitioner
were together when the police stopped the car a short distance from the convenience store
was inconsistent with the Petitioner’s trial testimony. According to the Petitioner’s trial
testimony, he was alone at the time of his arrest because he and Ms. Jenkins were driving
separate vehicles and traveled in different directions from the store. We note that the officers
did not testify at the trial about Ms. Jenkins being present at the time of the Petitioner’s
arrest. As a result, the Petitioner has failed to establish that the outcome of the trial would
have been different had Ms. Jenkins testified at the trial.

       We conclude that the record does not preponderate against the post-conviction court’s
findings that counsel did not provide deficient performance and that the Petitioner failed to
establish he was prejudiced by any deficiency.

      Based upon the foregoing and the record as a whole, the judgment of the post-
conviction court is affirmed.




                                             ____________________________________
                                             ROBERT H. MONTGOMERY, JR., JUDGE




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