        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs February 2, 2010

                   BILLY HARRIS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 01-02675 Carolyn Wade Blackett, Judge




                 No. W2009-01069-CCA-R3-PC - Filed March 9, 2010


Petitioner, Billy Harris, was convicted by a Shelby County Jury of one count of rape and
three counts of aggravated kidnapping. He was sentenced as a Range I, standard offender
for each conviction. The aggravated kidnapping sentences were ordered to run concurrently
with each other but consecutively to the rape conviction, for a total effective sentence of
twenty years. Petitioner appealed his convictions and sentence. State v. Billy Harris, No.
W2003-01911-CCA-R3-CD, 2004 WL 1765532 (Tenn. Crim. App., at Jackson, Aug. 4,
2004), perm. app. denied, (Tenn. Dec. 20, 2004). On appeal, Petitioner’s convictions for
aggravated kidnapping were merged, and the trial court was ordered to resentence Petitioner.
Id. at *1. This Court determined that the remainder of Petitioner’s issues were waived
because the motion for new trial was untimely and no plain error existed. Id. On remand,
Petitioner was resentenced to an effective ten-year term. Petitioner then sought post-
conviction relief. Billy Harris v. State, No. W2006-01150-CCA-R3-PC, 2007 WL 1946655
(Tenn. Crim. App., at Jackson, July 3, 2007). The post-conviction court dismissed the
petition without appointment of counsel. This Court reversed the dismissal and remanded
for appointment of counsel and an evidentiary hearing. Id. at *2-3. After the denial of post-
conviction relief, Petitioner has appealed. We agree with the post-conviction court that
Petitioner failed to show that he received ineffective assistance of counsel. Accordingly,
because we determine that the post-conviction court properly dismissed the petition for post-
conviction relief, the judgment of the post-conviction court is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J.C. M CL IN and C AMILLE R.
M CM ULLEN, JJ., joined.

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Billy Harris.
Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; William L. Gibbons, District Attorney General, and Paul Goodman, Assistant
District Attorney General for the appellee, State of Tennessee.


                                          OPINION

                                     Factual Background

       The facts underlying Petitioner’s convictions were summarized by this Court on direct
appeal. The testimony at trial revealed that the victim picked up her and Petitioner’s one-
year-old son from daycare around 4:00 p.m. on November 21, 2000. Billy Harris, 2004 WL
1765532, at *1-2. When she left the daycare, Petitioner overtook the car and drove her to
some apartments. Id. While at the apartments, Petitioner raped the victim. Id. Petitioner
had a gun. Id. At some point, Petitioner asked someone to keep the baby. Id. at *2.
Petitioner then took the victim and drove her around in the car before returning to the
apartment where he let the victim get her child. Id. When the victim was allowed to leave,
she drove to work where her best friend was waiting for her. Id. The victim called the police
and reported the incident. Id.

       The victim admitted that she and Petitioner had been in a relationship and that
Petitioner had lived with her at one time but she moved out because Petitioner “kicked in her
doors, telephoned her all the time, and would not leave her alone.” Id. at *2. The victim also
admitted that she visited Petitioner in jail after he was arrested in this case and loaned him
money. Id. An eyewitness to the altercation at the daycare center heard Petitioner and the
victim arguing and heard one of them say something about a gun. Id. The victim’s roomate,
Bernita Henley testified that when the victim finally got home on the night of the incident,
she told her that Petitioner “had a gun and had raped her.” Id. at *3.

       As part of the investigation there was one sperm head found on the victim’s
underwear. Id. at *5. There was also evidence that the victim had previously secured an
order of protection against Petitioner. Id. There was also testimony introduced that
Petitioner was in a romantic relationship with Maria Alexander, a woman with whom
Petitioner had three children. Id. Ms. Alexander was the occupant of the apartment where
Petitioner took the victim on the day of the incident. Id. at *5. She watched the victim’s
baby while Petitioner and the victim left the apartment and witnessed the victim “hugging
and kissing” Petitioner. Id. At the conclusion of the trial, the jury found Petitioner guilty of
rape and three counts of aggravated kidnapping. Id. at *1-2.

       Subsequently, Petitioner filed a motion to have trial counsel removed. Petitioner was
sentenced on April 10, 2003. On July 28, 2003, an attorney filed a motion for new trial in

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Petitioner’s behalf.1 Another attorney was appointed to represent Petitioner on appeal.2 On
appeal, this Court determined that a number of Petitioner’s issues were waived due to the
failure to file a timely motion for new trial. Specifically, on appeal, Petitioner claimed:

       (1) the evidence is insufficient to support the convictions; (2) the trial court
       erred by allowing hearsay into evidence; (3) the trial court erred by not
       following the procedural requirements of Rule 404(b), Tenn. R. Evid., and by
       allowing the jury to hear about the defendant’s prior bad acts; (4) the trial court
       erred by not questioning a juror when the trial court learned that the juror knew
       a state witness; (5) the trial court erred by playing for the jury an audiotape of
       witnesses’ testimony; (6) the trial court gave an erroneous jury instruction on
       kidnapping; (7) the trial court should have merged his aggravated kidnapping
       convictions; and (8) his sentences are excessive.

Billy Harris, 2004 WL 1765532, at *6. This Court determined the following:

       [T]he defendant filed an untimely motion for new trial and that only issues
       which would result in a dismissal, rather than a new trial, may be considered
       when the motion for new trial is filed late because all other issues contained
       in the motion are considered waived. See T.R.A.P. 3(e); State v. Givhan, 616
       S.W.2d 612, 613 (Tenn. Crim. App. 1980). However, we do not believe that
       a defendant’s failing to file a timely new trial motion will waive a double
       jeopardy claim if support for the claim is apparent from the face of the record.
       See Menna v. New York, 423 U.S. 61, 62, 96 S. Ct. 241, 242, 46 L. Ed. 2d 195
       (1975) (reversing, per curiam, a state decision that a guilty plea “waived” a
       double jeopardy claim); State v. Rhodes, 917 S.W.2d 708 (Tenn. Crim. App.
       1995) (stating that defendant’s guilty plea did not waive a double jeopardy
       claim when support for claim was apparent from face of the record). Thus, we
       will consider the defendant’s claims that the evidence is insufficient to support
       his convictions, that the trial court should have merged his aggravated
       kidnapping convictions, and that his sentences are excessive. His remaining
       issues, however, are waived.

Billy Harris, 2004 WL 1765532, at *6. Despite the waiver of the issues, this Court
determined that the trial court properly denied Petitioner’s motion in limine with regard to


       1
           For purposes of this appeal, we will refer to this attorney as “first appellate counsel.”

       2
           For purposes of this appeal, we will refer to this attorney as “second appellate counsel.”

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prior bad acts. Id. at *11. This Court ultimately determined that the evidence was sufficient
to support the convictions but ordered that Petitioner’s convictions for aggravated kidnapping
be merged.       This Court concluded that the trial court improperly applied several
enhancement factors and sentenced Petitioner “based upon the incorrect belief that the
presumptive sentence for a Class B felony was the midpoint in the range rather than the
minimum in the range.” Id. at *8. Further, this Court was unable to determine the basis for
the imposition of consecutive sentencing. Id. The matter was remanded for resentencing.
Id. at *11-12.

        On remand, Petitioner was resentenced to an effective sentence of ten years.
Petitioner subsequently sought post-conviction relief. The trial court summarily dismissed
the petition without appointment of counsel or an evidentiary hearing. Petitioner appealed.
Billy Harris v. State, 2007 WL 1946655, at *2. This Court reversed the post-conviction
court’s dismissal of the petition and remanded for appointment of counsel and an evidentiary
hearing on claims of ineffective assistance of counsel. Id. at *2. Specifically, we
acknowledged as deserving of a hearing Petitioner’s colorable claims that counsel: (1) “took
no steps to have him evaluated for competency to stand trial;” (2) failed to investigate the
facts of the case and interview witnesses; and (3) failed to present relevant evidence to show
that the victim “had voluntarily continued in an ongoing relationship with the petitioner after
obtaining an order of protection against him.” Id. However, this Court noted:

       The petitioner raises a number of claims in his petition, including that the trial
       court improperly admitted evidence of his prior bad acts, that he received
       ineffective assistance of counsel, and that the prosecutor engaged in various
       acts of misconduct in the prosecution of his case. However, this court
       reviewed on direct appeal the claims, alleged once again, of the improper
       admission of evidence, including evidence of prior bad acts, and concluded
       that none of the trial court’s alleged errors in evidentiary rulings rose to the
       level of plain error. See Billy Harris, 2004 WL 1765532, at *11. Furthermore,
       the petitioner’s allegations that the prosecutor knowingly presented false
       testimony and engaged in improper closing argument could have been raised
       on direct appeal and, thus, are waived. See Tenn. Code Ann. § 40-30-106(g).

Counsel was appointed for Petitioner on remand and an amended petition was filed. Counsel
also filed an amendment to the amended petition prior to the hearing.




                          Evidence at the Post-conviction Hearing



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       At the post-conviction hearing, Petitioner and two of the attorneys who represented
Petitioner testified. Petitioner alleged that trial counsel erred in admitting into evidence
Petitioner’s prior bad acts against the victim. Trial counsel testified that he filed a motion
in limine with respect to this very issue, in order to restrict the victim’s testimony about the
basis of an order of protection that had been issued prior to the incident at issue in the present
case. The trial record reflected that the trial court reviewed the motion and declined to rule
on the motion prior to hearing the testimony from the victim. In addition to the pretrial
motion, trial counsel testified at the hearing that he objected two times during trial to the
victim’s testimony about Petitioner’s prior bad acts. The trial court overruled the objections
and allowed the testimony. Trial counsel stated that he would have included this issue in a
motion for new trial.

       After trial, trial counsel no longer represented Petitioner. First appellate counsel
admitted that he rarely represented appellate clients. Further, first appellate counsel admitted
that he filed the motion for new trial on July 28, 2003, and Petitioner’s sentencing hearing
was held on April 10, 2003. First appellate counsel acknowledged that the motion was
untimely.

        After the hearing on the post-conviction petition, the post-conviction court entered an
order denying relief and dismissing the petition. The post-conviction court noted that
Petitioner’s issues included various allegations of ineffective assistance of counsel along with
an allegation that he was denied due process of law by the misconduct of the prosecutor. The
post-conviction court examined each of Petitioner’s issues individually and made findings
of fact and conclusions of law with respect to each issue.

        Specifically, the post-conviction court determined that trial counsel’s failure to
“submit the written records pertaining to the visits [by the victim to Petitioner at the jail]” did
not fall below the objective standard of reasonableness where Petitioner acknowledged that
the victim admitted to the visits during her testimony at trial. Further, Petitioner’s allegation
that trial counsel failed to investigate and interview witnesses did not rise to the level of
ineffective assistance of counsel where trial counsel’s decisions were based on trial strategy
and did not fall below the objective standard of reasonableness. Petitioner failed to show by
“clear and convincing evidence” that trial counsel failed to investigate the victim’s counselor.

       Next, the post-conviction court determined that Petitioner failed to prove that trial
counsel’s “unethical assistance of the prosecutor’s case” by “illegally informing the jury
during closing arguments that the State’s evidence consisted of one sperm-head found in the
victim’s panties” was anything other than trial strategy. The post-conviction court dismissed
Petitioner’s allegation that trial counsel unethically withheld favorable evidence because



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Petitioner failed to offer any proof with respect to this allegation at the post-conviction hearing.

       The post-conviction court determined that Petitioner failed to prove by clear and
convincing evidence that trial counsel “knowingly used false testimony” as alleged by
Petitioner. Further, Petitioner failed to show that trial counsel was ineffective for instructing
Petitioner not to testify at trial or failing to keep out the victim’s statements regarding a
previous order of protection. Trial counsel had filed a motion in limine and objected to the
testimony.

       The post-conviction court determined that Petitioner failed to prove that trial counsel’s
“failure to introduce the TBI report into evidence” was ineffective because there was no
proof that the report would have been admitted or that the outcome of the proceedings would
have been different had the report been admitted.

       According to the post-conviction court, Petitioner failed to show by clear and
convincing evidence that trial counsel failed to object to hearsay statements made by the
nurse who testified at trial. Further, the post-conviction court found that trial counsel’s
actions did not fall below an objective standard of reasonableness with regard to Petitioner’s
allegations that: (1) trial counsel was ineffective for failing to voir dire a juror who knew the
nurse who testified at trial; (2) trial counsel was ineffective for failing to object to “jury
rehearing of testimony” of two witnesses, Donna Nelson and Maria Alexander; and (3) trial
counsel was ineffective for failing to have independent DNA testing conducted.

       Next, the post-conviction court determined that Petitioner had waived the issue
regarding prosecutorial misconduct for failure to raise it on direct appeal. Finally, with
respect to first appellate counsel, the post-conviction court determined that counsel was not
ineffective for failing to file a timely motion for new trial because Petitioner failed to show
that but for counsel’s actions, “the outcome of his case would have been different.”

       Petitioner now seeks a review of the post-conviction court’s dismissal of his petition
for post-conviction relief. On appeal, Petitioner argues that he was denied effective
assistance of counsel when first appellate counsel failed to timely file a motion for new trial.

                                          Analysis
                             Post-Conviction Standard of Review

       The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
During our review of the issues raised, we will afford those findings of fact the weight of a
jury verdict, and this Court is bound by the post-conviction court’s findings unless the

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evidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d
572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This
Court may not reweigh or re-evaluate the evidence, nor substitute its inferences for those
drawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.
2001). However, the post-conviction court’s conclusions of law are reviewed under a purely
de novo standard with no presumption of correctness. See Shields v. State, 40 S.W.3d 450,
458 (Tenn. 2001).

                             Ineffective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing that (a) the services rendered by trial
counsel were deficient and (b) that the deficient performance was prejudicial. See Powers
v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient
performance, the petitioner must show that the services rendered or the advice given was
below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different. See Strickland v. Washington, 466 U.S.
668, 694 (1984). “Because a petitioner must establish both prongs of the test to prevail on
a claim of ineffective assistance of counsel, failure to prove either deficient performance or
resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley v. State,
960 S.W.2d at 580.

       As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record
preponderates against the court’s findings. See id. at 578. However, our supreme court has
“determined that issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]
is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

        Furthermore, on claims of ineffective assistance of counsel, the petitioner is not
entitled to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 1994).
This Court may not second-guess a reasonably-based trial strategy, and we cannot grant relief
based on a sound, but unsuccessful, tactical decision made during the course of the
proceedings. See id. However, such deference to the tactical decisions of counsel applies
only if counsel makes those decisions after adequate preparation for the case. See Cooper
v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).




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        On appeal, Petitioner argues that the post-conviction court improperly dismissed his
petition for relief. Specifically, Petitioner contends that he received “ineffective” assistance
of counsel when first appellate counsel “failed to preserve all issues in a timely filed motion
for new trial” and, therefore, he “did not receive meaningful appellate review of his claims.”
Petitioner alleges that the outcome of his case would have been different if first appellate
counsel had properly filed the motion. The State, on the other hand, contends that the issue
has been previously determined by this Court. Specifically, that “the alleged error which
petitioner wished to have preserved in a new trial motion did [not] prejudice the result in his
trial.”

        At the post-conviction hearing, first appellate counsel admitted that the motion for
new trial was untimely. However, despite the untimely nature of the motion, the trial court
heard the motion and denied it. Second appellate counsel was then appointed to represent
Petitioner on appeal. Second appellate counsel attempted to include items on appeal that
were omitted from the motion for new trial. On direct appeal, this Court noted that there was
no plain error with regard to Petitioner’s claims that were waived due to the failure to timely
file the motion for new trial. State v. Billy Harris, 2004 WL 1765532, at *11. Further, in his
first appeal from the denial of post-conviction relief, this Court commented that this Court
had already determined that “none of the trial court’s alleged errors in evidentiary ruling [that
could have been raised in a timely filed motion for new trial] rose to the level of plain error.”
Billy Harris, 2007 WL 1946655, at *2. In other words, this Court has twice considered the
allegations that Petitioner presents herein despite the untimely motion and has twice
determined that Petitioner is not entitled to relief. Under Tennessee Code Annotated section
40-30-206, the trial court shall enter an order dismissing the petition for post-conviction
relief if, inter alia, it appears the ground asserted for relief has been previously determined
on the merits by a court of competent jurisdiction. T.C.A. § 40-30-206(h). The post-
conviction court herein found that Petitioner had failed to show that but for first appellate
counsel’s actions, “the outcome of his case would have been different.” The evidence
presented does not preponderate against the findings of the post-conviction court or the two
previous rulings by this Court. Petitioner is not entitled to relief on this issue.

                                          Conclusion

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE


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