        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs November 7, 2006

                CHICO McCRACKEN v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Shelby County
                        No. P-27798 James C. Beasley, Jr., Judge



                  No. W2005-01999-CCA-R3-PC - Filed February 20, 2007



The Petitioner, Chico McCracken, was convicted of one count of murder in the perpetration of a
felony and one count of aggravated robbery. He petitioned for post-conviction relief claiming that
he had received the ineffective assistance of counsel at trial. The post-conviction court dismissed
the post-conviction petition, and we affirm that judgment.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES
CURWOOD WITT , JR., JJ., joined.

Eric Christensen, Memphis, Tennessee, for the appellant, Chico McCracken.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
William L. Gibbons, District Attorney General, for the appellee, State of Tennessee.



                                           OPINION

                                             I. Facts

       This appeal arises from an order denying the post-conviction petition by the criminal court.
The Petitioner was originally convicted of murder in the perpetration of a felony and aggravated
robbery. Those convictions were affirmed by this Court. State v. Chico McCracken, No. W2001-
03176-CCA-R3-CD, 2003 WL 1618082 (Tenn. Crim. App., at Jackson, Mar. 24, 2003), perm. app.
denied (Tenn. Sept. 2, 2003). The facts of the case were stated there as follows:

       In the early morning hours of December 1, 1999, Defendant and William Wilson, his
       half-brother, arrived at the Ebony and Lace Nightclub in Memphis, Tennessee. Mr.
Wilson entered the club, while Defendant walked around to the side of the building
where a game of dice was underway. Soon, the victim of the aggravated robbery,
Hubert Benson, arrived at the club and eventually joined in the game among
Defendant and three of the club’s employees. Mr. Benson had seen Defendant at
least once before at the nightclub, but he was not personally acquainted with
Defendant.

During one of Mr. Benson’s throws, one of the dice bounced off the hand of one of
the players. An argument broke out between Defendant and Mr. Benson as to
whether the throw was valid. As soon as Defendant and Mr. Benson exchanged
words, the other players walked toward the club’s entrance leaving Defendant and
Mr. Benson alone. Two patrons of the nightclub alerted Mr. Wilson that his brother
was involved in an altercation and when Mr. Wilson approached the two men,
Defendant told him to go get the car.

After Mr. Wilson left, Defendant drew a gun out of his front pocket and demanded
that Mr. Benson hand over his money. Mr. Benson refused and Defendant shot once
in the air. At that point, Mr. Benson threw between $200 and $300 on the ground,
including the $160 he had won that night. Defendant, however, ordered him to
empty his pockets. Because it was the first of the month, Mr. Benson was carrying
between $1,300 and $1,500 in cash which was earmarked for rent and a car payment.
Mr. Benson at first refused to give Defendant any more money, and Defendant fired
at the ground between Mr. Benson’s legs. Mr. Benson threw the rest of his money
on the ground, but Defendant threatened to kill him anyway. At this point, Mr.
Wilson drove up. Defendant told Mr. Wilson to get out of the car and pick up the
money. As Mr. Wilson gathered up the loose bills, Defendant continued to point his
gun at Mr. Benson. When Mr. Wilson was finished, both men got in the car, a blue
Mazda, and left the nightclub with Mr. Wilson driving.

Mr. Benson ran first to the nightclub and asked the security guards for help. When
they refused to get involved, Mr. Benson followed Defendant and Mr. Wilson in his
car. Mr. Benson assumed that the men would travel toward the interstate, and he
headed in that direction. In a few minutes, Mr. Benson spotted the blue Mazda. As
he tailed Defendant and Mr. Wilson, Mr. Benson called the 911 operator and reported
the incident and the direction the trio were heading. Near the interstate, Defendant
and Mr. Wilson apparently noticed Mr. Benson’s car behind the Mazda. Mr. Wilson
turned off the car’s headlights and accelerated to around ninety miles per hour,
ignoring stop signs and traffic lights.

Meanwhile, Officer John Robinson was following the Mazda’s route over his radio
as relayed by the dispatcher. When he spotted the cars, Officer Robinson made a
u-turn, and joined the pursuit maneuvering the patrol car between the Mazda and Mr.
Benson. The road had multiple lanes going north and southbound.


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Officer Robert Wilkie caught up with the cars next and moved his vehicle in position
directly behind Officer Robinson, with Mr. Benson still following at the end of the
line. Officer Wilkie testified that when he joined the chase, Mr. Wilson was driving
between fifty-five and sixty miles per hour with the headlights off. All the cars were
traveling at the same speed, one or two car lengths apart.

Officers David Royal and John Chevalier had just ended their shift, when they
listened to a call from Officer Robinson asking for assistance in stopping a robbery
suspect. Officer Robinson reported that he had seen a gun pointed at him through the
Mazda’s window. Realizing they were less than a mile away from the chase, Officers
Royal and Chevalier pursued the cars, with Officer Chevalier driving. When they
caught up with the chase, Officer Chevalier pulled in behind Officer Wilkie. At this
point, all four cars were in the left lane. The cars maneuvered around a curve, then
Officer Robinson pulled into the right lane after the road straightened out in an
attempt to pass Mr. Wilson.

Officer Royal said that they too pulled into the right lane after Officer Robinson
made his move. Officer Robinson accelerated slightly and was nearly past the Mazda
when Mr. Wilson suddenly pulled the car to the right, hitting the left rear of Officer
Robinson’s car. Until then, Mr. Wilson appeared to be in control of his car, and all
three officers testified that Mr. Wilson intentionally jerked the Mazda toward the
right lane. After impact with the Mazda, Officer Robinson’s car skidded sideways,
spun out of control and slid down an embankment on the right side of the road. The
Mazda’s brake lights flashed, the car hit the guardrail on the edge of the left lane, and
then bounced back and stopped in the road. The other officers were able to make a
controlled stop.

Officer Wilkie arrested Mr. Wilson while Officer Royal arrested Defendant and
neither man attempted to flee. Neither officer saw a gun on Defendant or in the
Mazda although Officer Wilkie noticed several pieces of money lying in the seat and
in the floorboard. Officer Chevalier ran down the embankment to assist Officer
Robinson. The car had bounced off two or three trees before stopping. Officer
Robinson was alive, but his breathing was labored. He was transported to the
hospital by helicopter. Officer Robinson died later that day as a result of the injuries
sustained in the collision.

Angela Williams, the owner of the Mazda, testified that she had asked Defendant to
drive her to work on November 30, then take the car into a garage for repairs. For
about a week, Ms. Williams said, the car had a tendency to pull to the left and
shudder when driven at a certain speed. The garage could not repair the car that day
and asked Ms. Williams to leave it overnight. However, she needed the car to run
errands that evening so Ms. Williams retrieved the car temporarily, leaving the keys


                                          -3-
under the car’s floor mat when she returned the Mazda to the garage later that night.
When she returned home, Ms. Williams called Defendant and asked him to bring
some milk for her baby, and Defendant knew her car was still at the garage.
Defendant never showed up at Ms. Williams’ apartment that night.

Wardell Askew, an employee of Ebony and Lace, was a member of the dice game
that precipitated the argument between Defendant and Mr. Benson. At trial, Mr.
Askew confirmed that Defendant began arguing after Mr. Benson’s dice hit a
bystander, but he walked away from the game before Defendant drew a gun. Mr.
Askew got as far as the club’s entrance door when he heard a gunshot followed by
a second shot. He sent someone into the club to page Mr. Wilson, but two men had
already found Mr. Wilson and sent him outside to see what was going on. Mr.
Askew remained approximately fifty feet away from Defendant and Mr. Benson.
Although he watched Mr. Wilson pick up the money on the ground, Mr. Askew never
saw a gun and did not know who fired the shots.

When Defendant was arrested, the officers did not find a gun on either Defendant or
Mr. Wilson. However, they recovered approximately $1,700 from the Mazda’s
floorboard and front seat. Defendant also had a pair of dice in his pocket. Officer
Dana Stine accompanied Mr. Benson back to the nightclub where Officer Stine
retrieved three .380 caliber cartridges and two “AK-47 cartridges.” The next
morning, police officers walked along the road from the collision site to the point
where Officer Robinson joined the chase but were unsuccessful in locating a gun.

Robin Beach, a member of the Michigan State Police and an accident
reconstructionist, examined the collision site aided by members of the Memphis
Police Department. His examination revealed a circular rubber transfer from the
Mazda’s right front tire onto the left rear corner of Officer Robinson’s car. The
Mazda’s right front tire was abraded, and a tear in the tire’s covering correlated to the
metal sticking through the left rear panel of the police car. White paint from Officer
Robinson’s car was also present on the Mazda’s right front fender. Sergeant Beach
testified that the circular patterned rubber transfer on the left rear panel of the police
car could only be caused by turning the wheel to the right, thereby exposing the tire’s
tread. If the tire had been straight on impact, Sergeant Beach explained, there would
be no rubber transfer. Based on the limited amount of rubber transferred, however,
Sergeant Beach estimated that the two cars were only in actual contact for a matter
of seconds before Officer Robinson’s car spun out of control.

Sergeant Beach also noted that the absence of an alteration in the filaments in the
Mazda’s headlights indicated that the lights were not on at the time of impact. The
tires on both vehicles were in good shape. Sergeant Beach stated that the two cars
were traveling at the same speed of approximately forty-nine miles per hour.



                                           -4-
        The Petitioner filed a pro se petition for post-conviction relief after his conviction, which was
amended by appointed counsel. A hearing was held in July 2005 on the Petitioner’s claim of
ineffective assistance of counsel, and the following evidence was presented: the Petitioner, Chico
McCracken, testified that he only spoke with his original trial counsel (“Counsel”) two times during
the course of the representation. The second time they met, Counsel brought him a discovery packet,
which he examined by himself. The Petitioner additionally expressed a desire to have an
investigator, but Counsel advised him that was not possible because the investigator had a tumor in
his head. The Petitioner stated he was not given the opportunity to provide Counsel with any more
information or discuss the case with her until the day he was to be tried.

        The Petitioner further testified that he told Counsel he wanted the investigator because there
were witnesses who could testify for him. Those witnesses were Tomeka Wallace, Sleeve, Big
Junior, and Mook. The Petitioner stated that Big Junior actually came to the Petitioner’s trial but
he was not allowed to testify because he had not been subpoenaed. The Petitioner told Counsel
about these witnesses the day of trial, and had these witnesses been subpoenaed to testify, they would
have stated that one of the victims, Herbert Benson, was not robbed, the Petitioner never had a gun,
and that the Petitioner had money with him. Additionally, the Petitioner wanted the first officer on
the scene called to testify because that officer took and kept the money which was on the Petitioner.

        The Petitioner also testified that he believed the five shell casings, three .380 and two AK-47,
should not have been introduced into evidence, and Counsel should have prevented that. Counsel
did not question witnesses in relation to the shell casings or concerning a ballistics test done on the
Petitioner. Additionally, no questions were asked of the witnesses concerning the lack of a gun
being found. The Petitioner also voiced his concerns about the significant amount of publicity
associated with a similar case tried thirty days before his and the fact that no motion for a change of
venue was ever filed. Additionally, no traffic investigators or reconstructionists were hired on behalf
of the Petitioner.

        On cross-examination, the Petitioner testified that he never really discussed his case with
Counsel. On the day of trial, he was able to give Counsel the names of his four witnesses, but he did
not know the real names of Sleeve or Mook, and the Petitioner did not have any address for Sleeve,
Mook, or Tomeka Wallace. The Petitioner stated he had $4700 in dirty money on him, but $1700
of clean money was entered into evidence. The $4700 was taken by the arresting officer. Had this
information come out at trial, it would have proved that he did not rob Benson because Benson had
$1700 taken from him. Addressing the shell casings, he stated that, although he never specifically
requested that Counsel file a motion to suppress the bullet shells, it would have benefitted him by
showing the shells were not his. The Petitioner did request Counsel file a motion to change venue
during trial.

        On re-direct examination, the Petitioner stated that he did give Counsel a point of reference
for Sleeve, Mook, and Tomeka Wallace. They were all associated with the club, and had an
investigator gone there, the trio could have been found.



                                                  -5-
       Counsel testified she met the Petitioner on September 25, 2000, they examined discovery,
discussed the facts of the case, and discussed possible witnesses. The Petitioner told Counsel that
Wardell Askew could put her in contact with the potential witnesses. The Petitioner gave Counsel
someone’s phone number and said to leave a message. That person would get in touch with Askew,
who would call Counsel back. This was done but Askew never returned the calls. Askew ended up
being called as a witness for the State, and Counsel talked with him on the day of trial. At that point,
Askew said he did not know any of the people who were outside at the time of the robbery.

       Counsel testified that she definitely met with the Petitioner on January 5, 2001, February 9,
2001, February 23, 2001, April 27, 2001, and April 30, 2001. Counsel was never able to locate
Sleeve or Mook because the street names were all the information the Petitioner was able to provide.
Counsel stated that the Petitioner never mentioned Tomeka Wallace or Big Junior. Counsel
additionally had no recollection of the Petitioner ever telling her that Big Junior was there to testify.


        Counsel specifically did not file a motion to suppress because she felt the spent shell casings
helped the Petitioner. There was no gun found, and the number of bullets did not match up with the
number of alleged shots. It was part of Counsel’s trial strategy to show there was no robbery. There
was never anything which could have been analyzed for fingerprints. Counsel never felt, after the
jury questionnaires and voir dire, that the Petitioner would not get a fair trial, and, as such, there was
no legal basis for a motion to change venue. Counsel did not get an accident reconstructionist
because she felt that was not the important issue: the important issue was whether or not there was
a robbery. Counsel did not recall ever being told that the arresting officer took the Petitioner’s
money.

         On cross-examination, Counsel testified that it was her strategic decision not to call an
accident reconstructionist because she felt it would not have mattered. The officer died and it would
have made no difference exactly how the officer’s car came to be run off the road. Additionally,
Counsel weighed the pros and cons of having the Petitioner testify as to exactly how the accident
occurred, but the Petitioner’s prior robberies could have been used against him. Counsel felt she
properly questioned the jurors concerning the publicity surrounding a similar case and felt there was
no reason for a change of venue motion: all the jurors could distinguish between the two cases.
Counsel stated that she did talk with her investigator, Ms. Abbott, and they went to Ebony and Lace.
However, Abbott simply could not locate the witnesses with only street names. Counsel also
testified that she did not question the officers because she felt they had not testified to anything
which hurt the Petitioner and she did not want them to get the opportunity to do so.

        The post-conviction court determined that Counsel adequately pursued her motion to sever
and there was no basis for a motion to change venue. Additionally, based on the defense strategy
that there was no robbery, there was nothing an accident reconstructionist could have provided that
would have helped the Petitioner. Additionally, the Petitioner did not show prejudice because there
was no reconstructionist to tell what he would have testified to at trial. Additionally, the court stated
it did not know of a valid motion to exclude the spent shell casings. Even if the shells could have


                                                   -6-
been excluded, it was the trial strategy of the defense to claim the three .380 casings show an
inconsistency in the claim there were two shots fired. The court also discredited the testimony of
the Petitioner that he only met with Counsel two occasions. The Petitioner did not produce these
witnesses he claimed would have benefitted him, and Askew, the man who could allegedly put
Counsel in touch with the witnesses, denied knowing them. Counsel performed adequately and
properly in the course of her representation of the Petitioner. As a result, the court denied the
petition for post-conviction relief.

                                             II. Analysis

                On appeal, the Petitioner claims that the trial court erred when it dismissed his
petition for post-conviction relief because he was denied the effective assistance of counsel. He
asserts that counsel was ineffective in failing present a defense by not calling a single witness on his
behalf; Counsel failed to cross-examine certain witnesses; Counsel failed to file a motion to suppress
the spent shell casings; and Counsel failed to file a motion to change venue.

        In order to obtain post-conviction relief, a petitioner must show that his or her conviction or
sentence is void or voidable because of the abridgment of a constitutional right. Tenn. Code Ann.
§ 40-30-103 (2003). The petitioner bears the burden of proving factual allegations in the petition
for post-conviction relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003).
Upon review, this Court will not re-weigh or re-evaluate the evidence below; all questions
concerning the credibility of witnesses, the weight and value to be given their testimony and the
factual issues raised by the evidence are to be resolved by the trial judge, not the appellate courts.
Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997). A post-conviction court’s factual findings are subject to a de novo review by this Court;
however, we must accord these factual findings a presumption of correctness, which can be
overcome only when a preponderance of the evidence is contrary to the post-conviction court’s
factual findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s
conclusions of law are subject to a purely de novo review by this Court, with no presumption of
correctness. Id. at 457.

        The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee Constitution.
State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following two-prong test directs a court’s
evaluation of a claim for ineffectiveness:

       First, the [petitioner] 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 [petitioner] by the Sixth Amendment.
       Second, the [petitioner] must show that the deficient performance prejudiced the
       defense. This requires showing that counsel’s errors were so serious as to deprive the
       [petitioner] of a fair trial, a trial whose result is reliable. Unless a [petitioner] makes


                                                  -7-
       both showings, it cannot be said that the conviction or death sentence resulted from
       a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772 S.W.2d 417, 419
(Tenn. 1989).

        In reviewing a claim of ineffective assistance of counsel, this Court must determine whether
the advice given or services rendered by the attorney are within the range of competence demanded
of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail on a claim of ineffective
assistance of counsel, a petitioner must show that “counsel’s representation fell below an objective
standard of reasonableness.” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Strickland,
466 U.S. at 688 (1984)).

        When evaluating an ineffective assistance of counsel claim, the reviewing court should judge
the attorney’s performance within the context of the case as a whole, taking into account all relevant
circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim.
App. 1988). The reviewing court must evaluate the questionable conduct from the attorney's
perspective at the time. Strickland, 466 U.S. at 690; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).
In doing so, the reviewing court must be highly deferential and “should indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance.” Burns, 6
S.W.3d at 462. Finally, we note that a petitioner in a criminal case is not entitled to perfect
representation, only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796
(Tenn. Crim. App. 1996). In other words, “in considering claims of ineffective assistance of counsel,
‘we address not what is prudent or appropriate, but only what is constitutionally compelled.’”
Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665 n.38
(1984)). Counsel should not be deemed to have been ineffective merely because a different
procedure or strategy might have produced a different result. Williams v. State, 599 S.W.2d 276,
279-80 (Tenn. Crim. App. 1980). The fact that a particular strategy or tactic failed or hurt the
defense does not, standing alone, establish unreasonable representation. House, 44 S.W.3d at 515
(citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)). However, deference to matters of strategy
and tactical choices applies only if the choices are informed ones based upon adequate preparation.
House, 44 S.W.3d at 515.

        If the petitioner shows that counsel’s representation fell below a reasonable standard, then
the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating “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; Nichols v. State, 90 S.W.3d 576, 587
(Tenn. 2002). To satisfy the requirement of prejudice, a petitioner must show a reasonable
probability that, but for counsel’s unreasonable error, the fact finder would have had reasonable
doubt regarding the petitioner’s guilt. Strickland, 466 U.S. at 695. This reasonable probability must
be “sufficient to undermine confidence in the outcome.” Id. at 694; Harris v. State, 875 S.W.2d 662,
665 (Tenn. 1994).



                                                 -8-
          The Petitioner has argued a number of instances of deficient performance which, he alleges,
resulted in prejudice to his case. First, we examine the claim that Counsel did not present a defense
by not calling any witnesses on behalf of the Petitioner and not cross-examining the officers.
Counsel testified she was told of Sleeve and Mook, and attempted to locate them. She called the
phone number which the Petitioner directed her to, and she and an investigator went to Ebony and
Lace to attempt to locate witnesses. However, because the Petitioner did not know their real names
or addresses, locating these two witnesses proved to be impossible. Counsel additionally asked
Askew, the man to whom she was directed, about the location of these witnesses when he testified
at trial. Askew told Counsel he did not know who these people were or where to find them. Counsel
also stated she was never told about Tomeka Wallace or that Big Junior was at court to testify for
the Petitioner. The Petitioner’s defense consisted of discrediting the theory that there was a robbery,
and the Petitioner told Counsel of no other witnesses who could testify there was no robbery. As the
post-conviction court found, there was no need to bring in an accident reconstructionist because the
issue of precisely how the officer came to be run off the road was of little importance.

        Counsel also stated she did not cross-examine the officers because they had not said anything
damaging to the Petitioner, and she did not want to give them the opportunity to do so. Considering
Counsel’s strategy of disproving the robbery, there is little the officers could have been cross-
examined on concerning that subject. The physical evidence was present, and Counsel determined
that the best strategy would be to argue at closing that the victim was not to be believed because the
physical evidence did not corroborate his story. If the jury determined there was no robbery, there
would be no murder in the perpetration of a robbery. We agree with the post-conviction court that
the Petitioner has not shown that Counsel was deficient in not calling the Petitioner’s witnesses or
cross-examining the officers.

         Second, the Petitioner claims Counsel was deficient in failing to file a motion to suppress the
spend shell casings which were admitted into evidence. There were two AK-47 shell casings and
three .380 casings which were found at the scene and admitted into evidence. The defense theory
was that, because there was testimony that the Petitioner had a pistol and fired two shots, the shell
casings actually helped the defense. The two AK-47 casings clearly could not have come from a
pistol, and the three .380 casings were inconsistent with the claim of two shots fired. The physical
evidence was clearly inconsistent with the testimony, and we will not second guess Counsel’s
strategy to not object to that evidence. We also note that the post-conviction court stated it had not
heard any basis for not admitting the casings into evidence, so, additionally, the Petitioner could not
prove prejudice. We agree. Counsel was not deficient in her strategic choice to not object to the
shell casings.

         Finally, the Petitioner claims Counsel was deficient in not making a motion for a change of
venue because the Petitioner’s case came one month after another well publicized case with similar
facts, the Overton Case. Counsel testified to the lengths she went in determining whether the jury
pool had been tainted by the publicity surrounding the Overton Case. Counsel had the jury fill out
a questionnaire prior to voir dire and made a motion, which was denied, to have the jury individually
voir dired. Counsel also testified that she did not believe that there was a basis for making a motion


                                                  -9-
to change venue because the jury seemed oblivious to the publicity. The post-conviction court
agreed with this statement, saying it was never surprised at how little potential jurors in Shelby
County know. We agree with the post-conviction court that the Petitioner failed to prove Counsel
was deficient in this instance.

        Counsel’s actions fell within the “wide range of reasonable professional assistance.” Burns,
6 S.W.3d at 462. Because the Petitioner has not shown by clear and convincing evidence that his
trial counsel was deficient and that he was prejudiced by that deficiency, he is not entitled to post-
conviction relief on this issue.

                                          III. Conclusion

       In accordance with the foregoing reasoning and authorities, we affirm the judgment of the
post-conviction court.



                                                            ________________________________
                                                            ROBERT W. WEDEMEYER, JUDGE




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