                                                                                         07/20/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs April 26, 2017

               JAMES MELLON v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Knox County
                       No. 89777    Robert R. McGee, Judge


                             No. E2016-02040-CCA-R3-PC


The Petitioner, James Mellon, appeals as of right from the denial of his petition for post-
conviction relief. On appeal, the Petitioner contends that he received ineffective
assistance of counsel because trial counsel failed to present a viable defense. Following
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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Jonathan S. Wood, Knoxville, Tennessee, for the appellant, James Mellon.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Leslie Nassios,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                              FACTUAL BACKGROUND

       This case arises from the following procedural history. The appellant pled guilty
to the first degree murder and especially aggravated robbery of Robert Scott Loveday.
The State had agreed to recommend concurrent sentences of life and twenty-five years in
confinement in exchange for the appellant’s guilty pleas and agreeing to testify against
his co-defendants. However, the appellant failed to testify against his co-defendants, and
the State withdrew its sentencing recommendation. The appellant was sentenced to death
for the murder conviction and twenty-five years confinement for the robbery conviction.
A panel of this court affirmed the convictions and sentences; however, our supreme court
reversed his convictions, concluding that the appellant had not pled guilty voluntarily and
intelligently. State v. James A. Mellon, No. E2006-00791-CCA-R3-CD, 2007 WL
1319370, at *1 (Tenn. Crim. App. May 7, 2007), perm. app. denied (Tenn. Sept. 24,
2007).

      On direct appeal, this court summarized the facts of the underlying case as
follows:
             [O]n the night of August 23, 1997, David Jones picked up the
      twenty-one-year-old [Petitioner]; fourteen-year-old Ernest Rogers; and
      Anthony “T-Bone” Jones, who was unrelated to David Jones. The group
      planned to rob the “dope man” and drove to a drug house in Knoxville but
      found it empty. In the early morning hours of August 24, 1997, David
      Jones drove the group to west Knoxville. They were searching for a person
      to rob and spotted the victim near a gas station payphone. The victim had
      just paged a friend, was sitting in his Chevrolet Camaro with the driver’s
      door open, and was waiting for the friend to call him at the payphone.
      David Jones pulled up behind the victim’s car, and the [Petitioner] and
      Ernest Rogers got out and approached the victim’s Camaro.

               The [Petitioner] pointed a nine millimeter pistol at the victim, and
       the victim began pulling items out of his pockets. Anthony Jones, who had
       been waiting impatiently in David Jones’ car, got out and ran up to the
       victim’s car. David Jones heard gunshots and saw the [Petitioner] bend
       down. Anthony Jones, Ernest Rogers, and the [Petitioner] ran back to
       David Jones’ car, and the group drove away. Soon after the shooting, a
       motorist waiting at a stoplight across the street from the gas station saw the
       victim and pulled into the gas station parking lot. He found the victim
       sitting on the ground and gasping for air. The motorist opened the victim’s
       shirt, saw that he had been shot, and telephoned 911. A police investigation
       resulted in the arrests of the four individuals, and the police found nine
       millimeter handguns at Anthony Jones’ and Ernest Rogers’ homes.
       Forensic analysis of two cartridge cases recovered from the crime scene and
       two bullets recovered from the victim showed that the casings and bullets
       were fired from the handgun police found in Anthony Jones’ home. In
       interviews with police on August 25 and 26, 1997, the [Petitioner] admitted
       participating in the robbery but said he never intended for the victim to be
       killed.

               A forensic pathologist who performed the victim’s autopsy testified
       that the victim was shot once in the left chest through the heart and once in
       the upper left arm. He stated that either of the wounds would have been
                                            -2-
       fatal but that the victim could have survived briefly. The robbers obtained
       only a watch and a one-dollar-bill from the victim.

Mellon, 2007 WL 1319370, at *1-2.

        A Knox County Criminal Court jury convicted the Petitioner of first degree felony
murder and especially aggravated robbery. The Petitioner was sentenced consecutively
to life in prison and twenty-three years. On direct appeal, a panel of this court affirmed
his convictions. Mellon, 2007 WL 1319370, at *8-11. The Petitioner timely filed a pro
se petition for post-conviction relief from the judgments. Upon appointment of counsel,
the Petitioner filed an amended petition.

       At the Petitioner’s post-conviction hearing, the following proof was presented.
The Petitioner’s trial counsel testified that she knew the Petitioner because she was
appointed to represent him in “early 2000” for a “homicide that happened in 1998.” She
explained that the Petitioner was represented by two other attorneys for his original guilty
plea for which he received the death penalty; however, that conviction was appealed, and
“there was a reversal of the death sentence.” She explained that at that point, she was
appointed to represent him. Trial counsel testified that when she first received the
Petitioner’s case, “he still had the death notice” but that it was “ultimately withdrawn and
replaced by a life without parole notice.” She said that

       there was an understanding by the State that since . . . one of the other
       participants in the crime, one of the individuals who actually pulled the
       trigger and killed Mr. Loveday, that individual resolved his case with a plea
       to a life sentence. So I think there was an acknowledgement after the
       Appellate Court ruling that there was a proportionality problem, and so,
       ultimately, they withdrew their death notice. But there was some . . . work
       done on that, yes.

       She explained that moving forward with the Petitioner’s case, “there was a
potential of life without parole and, of course, there was also a potential for consecutive
sentencing for the other events of especially aggravated robbery, since the victim died at
the scene.”

       Trial counsel also testified that some investigation had already been completed
when she took over the Petitioner’s case, but she still “retained the services of a private
investigator.” She explained that she had an investigation done on “the factual issues of
guilt or innocence” and “on the mitigation” evidence to be used during the sentencing
phase. Regarding her investigation concerning guilt or innocence, trial counsel said that
she “did quite a bit of work.” Trial counsel testified that she “filed new Brady motions
and looked for possible alternate suspects and [she] looked at the case with fresh eyes[.]”
                                            -3-
She also filed “a motion for a bill of particulars” and agreed that this was what “led . . . to
the State agreeing to drop the death penalty and to just pursue life without parole.” She
confirmed that she filed “numerous pretrial motions” and provided the Petitioner with
“copies” of those motions and that she “met with him regularly” to discuss his case. She
explained that her investigator met with him and that she “also got funding for a
psychologist who did a thorough neuropsychological evaluation.”

       Trial counsel also testified that she interviewed multiple witnesses. When asked if
she interviewed the witnesses listed on the indictment, she responded,

       Yes. The investigator and sometimes the investigator and I both would
       investigate as many of the witnesses as we could locate. I recall that we
       went over to . . . the Fort Pillow Prison over at Henning and spoke with Mr.
       Edward Beeler, who was a pretty critical witness in this case.

Trial counsel testified that her investigator also attempted to speak with Mr. Beeler’s
girlfriend, to no avail.

       The State asked her if her investigator spoke with any of the other individuals
charged in this case and she said that she “believed that David Jones had counsel” and
she did not recall specifically speaking to him. Trial counsel testified that “another one
of the defendants [Anthony Jones, the shooter in the case] was serving . . . a sentence.”
She said that the investigator also attempted to interview Ernest Rogers, another one of
the defendants in the case, but was unsuccessful.

       Trial counsel testified that she did not recall the State making any plea offer before
the trial. The Petitioner had already entered into a plea once, which was revoked.
Moreover, she said that the victim’s family members were “very engaged” and “were at
every hearing,” and she did not believe that “they would have approved” of any plea
agreement. Trial counsel stated, “This [was] just a case that had to be tried.”

        Trial counsel testified that she “met with [the Petitioner] on a regular basis” and
discussed “the evidence that was turned over to [her] by the State[.]” Trial counsel also
testified that she discussed defense strategies with the Petitioner. When asked if she
recalled her defense strategy in the Petitioner’s case, trial counsel responded,

       Well, there was a proportionality issue. There was another individual
       involved in the crime, a young man named David Jones, who was also a
       participant. His activity was – is significant in the case, arguably, as [the
       Petitioner’s] was. And he had received a plea bargain before trial. So it
       was my strategy to argue that . . . [the Petitioner] should not be treated more
       severely than Mr. Jones was.
                                              -4-
Trial counsel affirmed that she conveyed this trial strategy to the Petitioner. When asked
if she recalled “whether or not [the Petitioner] agreed with [her] about that or disagreed
with [her] about that,” she said, “I don’t recall having many arguments with [the
Petitioner]. I was able to work with him.” She testified that if the Petitioner had
disagreed with her on the defense strategy, then she would “would certainly [have]
listen[ed] to what he would have to say, but what he’d have to say would have to have
some legal merit.” However, she testified that she did not “recall having an argument
with [the Petitioner] about trial strategy.”

        The prosecutor asked trial counsel if she recalled asking the jury for “fairness and
consistency” for the Petitioner during her opening and closing statements at trial. She
affirmed that she remembered such and explained that “Mr. Jones, who also actively
participated in this murder, had received a plea bargain[.]” She said her argument was
that if “Mr. Jones’ actions were not first-degree murder, then [the Petitioner’s] weren’t
either.” Trial counsel explained that “[n]either [Mr. Jones nor the Petitioner] were the
ones who actually pulled the trigger and shot [the victim]. It was Mr. T-Bone who did
that.” She confirmed that she “specifically talked to [the Petitioner] about” a fairness and
consistency defense and that he did not have any objections. Trial counsel testified that
ultimately, she “was trying to get [the Petitioner] a lesser-included offense.” She said
that she was “trying to get him second-degree murder, if possible, or negligent
homicide.” Trial counsel explained that if the Petitioner had been convicted of a lesser-
included offense, “he would have had a potential of a shorter sentence than life, and [the
State] wouldn’t have been able to seek life without parole against him[.]”

       When asked if she remembered why she did not call any witnesses for the defense
in this case, trial counsel responded, “Well, there might not have been any factual
witnesses that would have established anything that was helpful to [the Petitioner].” Trial
counsel was asked if she recalled calling any of the Petitioner’s co-defendants to testify,
and she replied, “No. Some of those people, . . . I know . . . David Jones resolved his
with a plea, but, . . . no, I don’t recall subpoenaing any of the co-defendants in this
matter.” She confirmed that “David Jones was a cooperating witness for the State” and
that “he was the driver.” With regard to the other co-defendants, she affirmed that “T-
bone or Anthony Jones was the shooter[.]” Trial counsel testified that she did not call
Mr. Jones to testify because she did not “believe his statement was helpful towards [the
Petitioner]. [She] believe[d] he put [the Petitioner] as a participant in the robbery” and
indicated that the Petitioner “knew full well that [the victim] was going to be robbed.”
Trial counsel said that Mr. Jones “would not support the theory that [a co-defendant]
forced [the Petitioner] to be there.” Trial counsel testified that she made “some effort to
talk to” Ernest Rogers, another co-defendant, who was a minor at the time of the crime.
Trial counsel said that she believed “the State subpoenaed [Mr. Rogers] to testify”; that


                                            -5-
she did not “believe that he had agreed to testify”; and that the State “got in [Mr.
Rogers’s] prior testimony, which was very damning[.]”

        Trial counsel was asked whether it was the Petitioner’s decision not to testify at
his trial. Trial counsel stated that “ultimately, of course, it was his decision, but I
discussed it with him.” She explained that testifying at trial might have been problematic
for the Petitioner because “he had absolutely no remorse whatsoever and no recognition
whatsoever that somebody died for absolutely no reason.” Trial counsel stated, “I didn’t
feel that [the Petitioner] could have helped his case by getting up there and revealing [his
lack of remorse] to the jury.” Trial counsel said that “[h]ad [the Petitioner] insisted” that
“he had wanted to testify”, then she “would not have precluded him from doing so.”

       Regarding the Petitioner’s sentence, trial counsel said that she filed “a motion
seeking information on any mitigating circumstances that the State might have found”
and “a motion in limine seeking to preclude the admission of any juvenile adjudications
against” the Petitioner. Trial counsel also filed a motion “to compel the disclosure of any
witnesses the State would seek to call at the penalty phase.” Trial counsel affirmed that
she “presented extensive mitigation evidence[,]” and the jury determined that the
Petitioner should be given an opportunity for parole with a life sentence.1 Trial counsel
confirmed that she “performed a tremendous amount of work on” the Petitioner’s case
and that the evidence against the Petitioner was overwhelming.

       The Petitioner said that he had spoken with trial counsel “several times over the
years” and that trial counsel visited him “several times” at the jail where he was
incarcerated. On those visits, the Petitioner testified that trial counsel discussed
mitigation with him. He confirmed that trial counsel informed him that she had hired a
private investigator to work on his case and that she planned to call expert witnesses “to
deal with mitigation issues[.]” The Petitioner testified that trial counsel did not tell him
that she was interviewing witness who could help him.

       He stated, “I asked her to talk to several witnesses, Edward Beeler and Amanda
Burnae and also, my sister, Angela Cunningham, concerning the case and they w[ere]
never contacted by [trial counsel].” When asked how he believed those witnesses might
have helped him, the Petitioner responded, “Because part of it was concerning Mr.
Edward Beeler stating that I was bragging about the crimes, which was not true at all.
And they [were] there at the time that Mr. Edward Beeler claim[ed] that I was speaking

1
  The direct appeal opinion reveals that the jury was unable to agree on punishment so the trial court
imposed a life sentence. See Mellon, 2007 WL 1319370, at *7.



                                                 -6-
to him concerning the crime.” He confirmed that his sister and Edward Beeler’s
girlfriend, Ms. Burnae, would have testified that Mr. Beeler was lying. The Petitioner
testified that despite his request, trial counsel “never interviewed” these individuals.

        The Petitioner claimed that he “never discussed anything with [trial counsel]
concerning” her defense strategy at trial. The Petitioner claimed that he did not approve
of trial counsel’s “fairness consistency argument.” The Petitioner said that he recalled
discussing the facts of his case with trial counsel but that she never “made [him] copies of
anything.”

       Regarding his not testifying at trial, the Petitioner claimed that he did not decide
for himself and that trial counsel “told me it would be best if [he] didn’t get on the stand
and [he] just went with her advice.” He said that the only time he discussed testifying
with trial counsel was in the courtroom during his trial. The Petitioner explained, “I
didn’t tell her I wanted to testify. I just went with her, what she said.” In reference to
the appeal in his case, the Petitioner stated, “I don’t think we discussed anything about it.
I think she may have contacted me once or twice through letters, but other than that, I
don’t remember.”

       On cross-examination, the Petitioner admitted that he had been involved in the
victim’s robbery. He further confirmed that he made several statements to the police
regarding his involvement in the crime. He said that he was present during the victim’s
robbery and that David Jones was there. The Petitioner agreed that Anthony Jones was
present and shot the victim.

      The post-conviction court subsequently denied the petition. In its order denying
the Petitioner relief, the post-conviction court found that the Petitioner’s trial counsel
provided effective assistance. The Petitioner filed a timely notice of appeal.

                                        ANALYSIS

       On appeal, the Petitioner argues that the post-conviction court erred in dismissing
his petition because he received ineffective assistance of counsel due to trial counsel’s
failure to present a viable defense. Specifically, he argues that trial counsel failed to
provide effective assistance of counsel by (1) “not presenting any proof to bolster her trial
strategy of fairness and consistency”; (2) “not calling potential witnesses to testify”; and
(3) by failing to put on any proof of “how all the co-defendants were treated within the
criminal justice system” and “their coinciding roles in the criminal activity.” The State
responds that the Petitioner failed to “prove that trial counsel was deficient for failing to
assert a viable defense theory” and that the Petitioner failed to “prove that trial counsel
was ineffective for failure to put on proof in support of the [d]efense strategy.” We agree
with the State.
                                              -7-
                                      I. Standard of Review

       Post-conviction relief is available when a “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. The
burden in a post-conviction proceeding is on the petitioner to prove his allegations of fact
supporting his grounds for relief by clear and convincing evidence. Tenn. Code Ann. §
40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). On appeal,
we are bound by the trial court’s findings of fact unless we conclude that the evidence in
the record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456
(Tenn. 2001). Additionally, “questions concerning the credibility of the witnesses, the
weight and value to be given their testimony, and the factual issues raised by the evidence
are to be resolved” by the post-conviction court. Id. Because they relate to mixed
questions of law and fact, we review the trial court’s conclusions as to whether counsel’s
performance was deficient and whether that deficiency was prejudicial under a de novo
standard with no presumption of correctness. Id. at 457.

                           II. Ineffective Assistance of Counsel

       Criminal defendants are constitutionally guaranteed the right to effective
assistance of counsel. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009) (citing U.S.
Const. amend. VI; Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). When a claim of
ineffective assistance of counsel is made under the Sixth Amendment to the United States
Constitution, the burden is on the petitioner to show (1) that counsel’s performance was
deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S.
668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). “Because a
petitioner must establish both prongs of the test, a failure 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). The Strickland standard has been
applied to the right to counsel under article I, section 9 of the Tennessee Constitution.
State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       Deficient performance requires a showing that “counsel’s representation fell
below an objective standard of reasonableness,” despite the fact that reviewing courts
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. Prejudice requires
proof of “a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.

       In reviewing counsel’s conduct, a “fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to
                                         -8-
reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Id. at 689. “Thus, the fact that a
particular strategy or tactic failed or even hurt the defense does not, alone, support a
claim of ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim.
App. 1992). Deference is made 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).

      At the Petitioner’s post-conviction hearing, the court denied his petition and
reasoned as follows:

               [T]here has not been evidence presented that would . . . indicate to
       this [c]ourt that [trial counsel] was in anyway ineffective. She . . . filed a
       massive number of motions.

              This [c]ourt is familiar with [trial counsel’s] work. I’ve been having
       her in court trying cases for years and years. And she is vigorous and she –
       she’s one of those lawyers who works hard to figure out new angles and to
       try to find the weakness in the State’s case and to try to argue the law
       whenever it’s possible to do so.

             With specific reference to the issue about her not talking to these
       witnesses who reportedly could impeach Mr. Beeler’s testimony about the
       bragging, the [c]ourt would simply note you can’t – you can’t just say it.
       You have to . . . show some proof, and there’s none here.

              ....

             And beyond that, the [c]ourt would also find that the proof here was
       so overwhelming that – that no changing by [trial counsel] of what she did
       could possibly be expected to change the outcome of the trial. The
       evidence included [the Petitioner’s] admission that he was there when this
       occurred. And the other testimony regarding how the event actually played
       out, who brought the gun and so forth, would have – , well, it was
       overwhelming.

              ....

              I see no basis for post-conviction relief and, accordingly, I dismiss
       the petition.

       Here, the post-conviction court clearly credited trial counsel’s testimony over that
of the Petitioner and concluded that trial counsel’s performance was not deficient. Trial
                                            -9-
counsel testified that she filed numerous motions on behalf of the Petitioner in
preparation for trial, discussed these motions with the Petitioner, and provided the
Petitioner with copies. She hired a private investigator and attempted to contact multiple
witnesses, although she was unsuccessful in speaking with them. Trial counsel testified
that she discussed her defense strategy with the Petitioner and that he did not protest.
Further, she stated that she discussed with the Petitioner whether he should testify at trial
and advised him that it would be unwise. However, she said that it was ultimately the
Petitioner’s decision not to testify.

       In light of overwhelming evidence presented by the State at trial, trial counsel
presented an effective defense strategy of attempting to obtain the least severe sentence
possible for the Petitioner. Moreover, she successfully negotiated with the State to drop
their pursuit of the death penalty, and during the penalty phase, trial counsel testified that
she was able to obtain a sentence of life for the Petitioner’s conviction of felony murder.
Regarding the Petitioner’s argument that trial counsel’s performance was deficient, we
conclude that the record supports the post-conviction court’s conclusion that the
Petitioner received effective assistance of counsel.

       Additionally, the Petitioner failed to put on any proof that he was prejudiced by
counsel’s performance. The Petitioner claimed there were potential witnesses who would
have testified on his behalf, but he failed to present these witnesses at his post-conviction
hearing. In general, the only way a petitioner can establish that trial counsel’s failure to
interview or present a witness in support of his defense at trial inured to his prejudice is
to present the witness at the evidentiary hearing. See Black v. State, 794 S.W.2d 752,
757 (Tenn. Crim. App. 1990). Here, the Petitioner failed to present any proof of
prejudice; thus, he is not entitled to relief.

                                  CONCLUSION

      Based upon consideration of the foregoing and the record as a whole, the post-
conviction court’s denial of the petition for post-conviction relief is affirmed.

                                                        __________________________________

                                                        D. KELLY THOMAS, JR., JUDGE




                                            -10-
