            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT NASHVILLLE             FILED
                           AUGUST SESSION, 1999 September 9, 1999

                                                     Cecil Crowson, Jr.
                                                    Appellate Court Clerk
JERMAINE LEJUANE HUNTER, *
                         *          No. 01C01-9809-CR-00397
     Appellant,          *
                         *          DAVIDSON COUNTY
vs.                      *
                         *          Hon. J. Randall Wyatt, Jr., Judge
STATE OF TENNESSEE,      *
                         *          (Post-Conviction)
     Appellee.           *



For the Appellant:                  For the Appellee:

Jefre S. Goldtrap                   Paul G. Summers
Attorney                            Attorney General and Reporter
207 Third Avenue, North
Post Office Box 190599              Elizabeth T. Ryan
Nashville, TN 37219-0599            Assistant Attorney General
                                    Criminal Justice Division
                                    425 Fifth Avenue North
                                    2d Floor, Cordell Hull Building
                                    Nashville, TN 37243-0493


                                    Victor S. (Torry) Johnson III
                                    District Attorney General

                                    Katy N. Miller and Nick Bailey
                                    Asst. District Attorneys General
                                    Washington Square, Suite 500
                                    222 Second Avenue South
                                    Nashville, TN 37201



OPINION FILED:

AFFIRMED



David G. Hayes, Judge
                                                OPINION



          The appellant, Jermaine LeJuane Hunter, appeals the Davidson County

Criminal Court’s dismissal of his petition for post-conviction relief. On January 11,

1995, the appellant was found guilty by a jury of first degree murder and received a

life sentence in the Tennessee Department of Correction.1 His conviction and

sentence were affirmed by this court on direct appeal. See State v. Jermaine

Hunter, No. 01C01-9506-CR-00176 (Tenn. Crim. App. at Nashville, Aug. 22, 1996),

perm. to appeal denied, (Tenn. Feb. 3, 1997). The appellant collaterally attacks his

conviction for first degree murder upon grounds of ineffective assistance of counsel.

Specifically, he contends that trial counsel was deficient for (1) failing to adequately

prepare for trial and meet with the appellant; (2) failing to fully communicate with the

appellant his vulnerability regarding sentencing; and (3) failing to investigate and

utilize all possible alibi witnesses.



          After review of the record, we affirm the lower court’s denial of post-conviction

relief.




                                                Analysis



          On December 29, 1997, the appellant filed a pro se petition for post-

conviction relief alleging that he had received the ineffective assistance of counsel

and that the State had withheld exculpatory evidence. The post-conviction court

appointed counsel on February 18, 1998. No amended petition was filed. An

evidentiary hearing was subsequently held on May 20, 1998. On July 24, 1998, the


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          The facts underlying this conviction reveal that, on November 8, 1993, the appellant
murdered his ex-girlfriend approximately two weeks after the termination of their relationship. The
twenty-year o ld victim su ffered m ultiple guns hot wou nds to he r forehe ad, torso , leg and ha nds.
An eyewitness, who had known the appellant for fifteen years, identified the appellant as the
shoote r. See State v. Jermaine Hunter, No. 01C01-9506-CR-00176 (Tenn. Crim. App. at
Nash ville, Aug. 22, 1 996), perm. to appeal denied, (Tenn. Feb. 3, 1997).

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post-conviction court entered an order addressing the appellant’s claims and

denying the appellant relief.



       In dismissing the petition, the post-conviction court found, in parts pertinent to

this appeal:


       The petitioner contends that [counsel] did not have adequate time to
       prepare for trial and that he did not conduct a competent pre-trial
       investigation. [Counsel] testified that he was appointed to represent
       the petitioner approximately six (6) weeks before trial. [Counsel]
       indicated that such time ordinarily would have not been sufficient to
       prepare for a case of this nature. However, he asserted that the
       petitioner’s prior attorneys . . . had already thoroughly prepared the
       case at the time he was appointed and that he largely just needed to
       review the investigative file and the audio tape of the preliminary
       hearing to prepare himself for trial. [footnote omitted]. [Counsel] also
       testified that he met with the petitioner and the petitioner’s family on
       occasions prior to trial to discuss the case. [Counsel] indicated that he
       was ready to proceed on the day of trial and, accordingly, did not seek
       a continuance. [footnote omitted]. . . .

       ...

       [Counsel] testified that he discussed potential defense strategies with
       the petitioner prior to trial and ultimately, with the approval of the
       petitioner, pursued an alibi defense. . . . The Court finds no reason to
       second-guess the tactical and strategic decisions of counsel. The fact
       that the jury apparently did not accredit the alibi defense is not
       reflective on counsel’s efforts.

       The petitioner also contends that [counsel] failed to call certain
       witnesses who could have supported his alibi defense. However, the
       Court points out that the defense of alibi had already been introduced
       through several family members whom the jury apparently did not find
       to be credible. Any additional testimony reiterating the petitioner’s
       claim would have been cumulative. Moreover, as [counsel]
       acknowledged, the state’s evidence was simply too strong for any
       claimed alibi defense. In any event, the petitioner failed to . . . present
       any such witnesses at the evidentiary hearing.

       In sum, the Court is satisfied that [counsel] handled the petitioner’s
       case in a professional manner. The Court is of the opinion that
       [counsel] competently represented the petitioner at all stages of the
       case. [”Despite claims to the contrary, the Court finds that the
       petitioner was well aware of the sentence he would face if convicted of
       first degree murder.”] The petitioner could not articulate with any
       specificity any credible claims of deficient and prejudicial errors by
       counsel, and, accordingly, has failed to carry his evidentiary burden.


       To succeed in a post-conviction claim of ineffective assistance of counsel, the

appellant must show, by clear and convincing evidence, Tenn. Code Ann. § 40-30-

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210(f) (1997), that the services rendered by trial counsel were deficient and that, but

for the deficient performance, the results of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064

(1984). For purposes of proving ineffective assistance of counsel, proof of deficient

representation by omission requires more than a speculative showing of lost

potential benefit. The post-conviction court found that counsel was not deficient and

that counsel’s action did not prejudice the appellant. When this court undertakes

review of a lower court’s decision on a petition for post-conviction relief, the lower

court’s findings of fact are given the weight of a jury verdict and are conclusive on

appeal absent a finding that the evidence preponderates against the judgment. See

Davis v. State, 912 S.W .2d 689, 697 (Tenn. 1995). After reviewing the record, we

conclude that the evidence does not preponderate against the detailed findings

entered by the post-conviction court.



       As a result, we find no error of law requiring reversal. The judgment of the

trial court dismissing the appellant’s petition for post-conviction relief is affirmed.




                                    ____________________________________
                                    DAVID G. HAYES, Judge




CONCUR:




_____________________________________
JOE G. RILEY, Judge


_____________________________________
L. T. LAFFERTY, Senior Judge




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