         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                 November 18, 2003 Session

              SAMUEL DAVID LAND v. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court for Williamson County
                         No. 901-262    Timothy L. Easter, Judge



                    No. M2003-00468-CCA-R3-PC - Filed March 16, 2004


Petitioner, Samuel David Land, appeals from the trial court’s dismissal of his petition for post-
conviction relief. Petitioner was convicted by a jury for felony evading arrest and driving on a
revoked license, second offense, a misdemeanor. For his felony conviction, Petitioner was sentenced
as a career offender to twelve years in confinement. Petitioner was sentenced to 11 months and 29
days for the misdemeanor conviction. The sentences were ordered to be served concurrently with
each other, but consecutive to a six-year sentence that Petitioner was already serving as a result of
a probation violation in a prior case. This Court affirmed Petitioner’s convictions on direct appeal.
State v. Land, 34 S.W.3d 516 (Tenn. Crim. App. 2000). Following an evidentiary hearing, the trial
court denied post-conviction relief. Having reviewed the record on appeal, the applicable law, and
the briefs of the parties, we affirm the judgment of the trial court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
NORMA MCGEE OGLE, J., joined.

J. Timothy Street, Franklin, Tennessee, for the appellant, Samuel David Land.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
Ronald L. Davis, District Attorney General; Mary Katharine White, Assistant District Attorney
General, for the appellee, the State of Tennessee.

                                            OPINION

       A summary of the proceedings prior to these post-conviction proceedings, as gleaned from
the record on appeal in this case, is necessary. On January 26, 1993, Petitioner pled guilty to
multiple counts of aggravated burglary and theft. On March 26, 1993, Petitioner received
consecutive sentences for those convictions of six and four years to be served in Community
Corrections. No direct appeal was taken.
        On June 18, 1993, a probation violation warrant was issued. On September 13, 1993,
Petitioner’s Community Corrections sentence was revoked and he was ordered to serve his original
six-year sentence in the Department of Correction, Special Alternative Incarceration Unit Program,
or “boot camp,” and his original four-year sentence was suspended and ordered to be served on
supervised probation following the six-year sentence. Petitioner did not appeal the revocation of his
Community Corrections sentence.

        On September 23, 1998, following Petitioner’s arrest for the charges that are the subject of
this appeal, a probation violation warrant was issued. On March 10, 1999, Petitioner was convicted
by a jury of felony evading arrest and driving on a revoked license, second offense, the charges in
this case. On April 23, 1999, Petitioner was sentenced as a career offender to twelve years for the
felony conviction and eleven months and twenty-nine days for the misdemeanor conviction, to be
served concurrently. Those sentences were ordered to be served consecutively with the sentences
for Petitioner’s January 26, 1993, convictions. On the same day Petitioner was sentenced for the
convictions in this case, he pled “true” to the probation violation. A transcript from the combined
sentencing hearing and probation revocation hearing is not part of the record before us. Petitioner
appealed his March 10, 1999, convictions, and this Court affirmed. State v. Land, 34 S.W.3d 516
(Tenn. Crim. App. 2000). The supreme court denied application for permission to appeal on
December 11, 2000.

        On September 7, 2001, Petitioner filed a pro se petition for post-conviction relief, entitled
“Nunc Pro Tunc Motion for Sentence Modification and Alternatively Petition For Post-Conviction
Relief,” requesting a sentence modification because, Petitioner argued, the total effective sentence
resulting from the judgments of April 23, 1999, was eighteen years, but the Department of
Correction had determined his sentence to be twenty-two years. Petitioner also argued that his
counsel was ineffective for failing to inform him of his right to appeal his classification as a career
offender, pursuant to Tenn. Code Ann. § 40-35-108(5)(d).

       In an order dated October 12, 2001, the trial court made the following findings:

         “To the extent that this Petition is an attack on the convictions received on
         January 26, 1993, pursuant to the Post-Conviction Procedure Act found at
         Tennessee Code Annotated § 40-30-201, the Petition is untimely.”

                                                ****

         “To the extent the Petition is a request for reduction of sentence, . . . the Court is
         without authority to grant such a request.”

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         “To the extent that this Petition is an attack on the convictions received on March
         10, 1999, . . . the Petition presents a colorable claim for post-conviction relief
         (effective assistance of counsel).

         By the order dated October 12, 2001, the trial court appointed counsel and ordered Petitioner
to file an amended petition for post-conviction relief. On November 8, 2001, Petitioner filed a pro
se amended petition for post-conviction relief, alleging, among other grounds, that: (1) trial counsel,
Eric Davis, refused his request to file a motion for recusal of the trial judge; and (2) trial counsel “did
not find out that [Petitioner] was technically off of probation at the time of [his] arrest [for the
charges in this case].”

        On November 28, 2001, Petitioner filed a pro se “Motion for Recusal,” requesting that Judge
Timothy Easter recuse himself from Petitioner’s case. After being appointed counsel, Petitioner
subsequently filed another “Motion to Recuse” and an amended petition for post-conviction relief.
In an order dated July 12, 2002, the trial court denied the motion, finding that “this Court’s
involvement as an Assistant District Attorney involved matters for which the Petitioner was
convicted in January 1993.” The trial court found that the convictions that were the basis for
Petitioner’s claims in the post-conviction petition occurred over six years after the matter in which
Judge Easter was involved as an Assistant District Attorney.

        Petitioner’s second amended petition for post-conviction relief alleges that his counsel, who
represented Petitioner at the trial and sentencing, at the probation revocation hearing, and on appeal,
was ineffective for: (1) failing to file a motion to recuse the trial judge; and (2) advising Petitioner
to plead true to the probation violation.

Post-Conviction Hearing

        An evidentiary hearing was conducted on November 8, 2002. At the hearing, Roberta
Anderson, of the Department of Correction, testified that Petitioner was serving a twenty-two year
sentence. On March 26, 1993, Petitioner received a total effective sentence of ten years to be served
on Community Corrections. On June 18, 1993, a probation violation warrant was issued. On
September 13, 1993, Petitioner’s Community Corrections sentence was revoked. The trial court
ordered Petitioner to serve his original six-year sentence in confinement and his original four-year
sentence to be served on probation. Petitioner received 186 days of pretrial jail credit; 48 days of
pretrial behavior credit; and 84 days of credit for time served on Community Corrections. On
February 10, 1994, Petitioner was released on probation.

       Camille Chester, a probation officer, issued the warrant for violation of probation on
September 23, 1998. Ms. Chester testified that Petitioner’s TOMAS report originally indicated a
sentence effective date of October 31, 1992.

       At the post-conviction hearing, testimony was elicited from Ms. Anderson and Ms. Chester
concerning Petitioner’s sentences for prior convictions in cases unrelated to the case that was the


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subject of the post-conviction petition. Following an examination of Ms. Anderson by the trial court,
the court stated:

         I’m considering [this issue] only for the purpose of whether or not it supports
         [Petitioner’s] claim that Mr. Davis was somehow ineffective for not having gone
         through – I guess and done what we’re trying to do here today and untie this knot.

        Eric Davis testified that he represented Petitioner at the trial on the charges of felony evading
arrest and driving on a revoked license, second offense, the charges in this case, and in the direct
appeal from those convictions. Mr. Davis testified that he formerly worked as an Assistant District
Attorney. He testified that Petitioner had “compromised” approximately twenty cases as a
confidential informant for the Drug Task Force. Mr. Davis testified that Judge Timothy Easter, who
presided over Petitioner’s trial, sentencing, and post-conviction proceedings in this case, also
formerly worked as an Assistant District Attorney. Judge Easter prosecuted a case in which
Petitioner and his brother were co-defendants. Prior to the trial in this case, Petitioner expressed to
Mr. Davis that he did not want Judge Easter to preside over his case because another judge would
be more lenient. Mr. Davis did not file a motion to recuse Judge Easter because he believed that
such a motion, based on the fact that another judge had a reputation for leniency, would be frivolous.

        Mr. Davis filed a motion to suppress a statement made by Petitioner to Detective Richard
Brown. Mr. Davis also filed a motion for mistrial after the trial court made a comment to the jury
that defense counsel had filed late notices, indicating that Defendant was unprepared. At trial, the
trial court admitted into evidence a statement made by Petitioner’s mother to Trooper Cash, over
defense counsel’s objection, as an excited utterance. On appeal, the Court of Criminal Appeals
concluded that the statement, although an excited utterance, was admitted in error because Ms. Land
did not have personal knowledge of the matter of which she spoke. The Court concluded, however,
that the statement’s admission was harmless error. Mr. Davis testified at the hearing that “it could
appear” that Petitioner was denied a fair trial.

         Mr. Davis also represented Petitioner at the probation revocation hearing. Mr. Davis advised
Petitioner to plead true because he had already been convicted of the offenses that were the basis of
the probation violation. The probation violation warrant alleged a six-year sentence, but, Mr. Davis
testified, Petitioner was actually serving a ten-year sentence. The order revoking Petitioner’s
Community Corrections sentence ordered that Petitioner serve the original six-year sentence in
confinement and recommended “boot camp,” followed by the original four-year sentence to be
supervised on probation. Mr. Davis testified that the probation violation warrant was issued within
Petitioner’s probationary period.

       In its written order filed after the conclusion of the post-conviction hearing, the trial court
addressed four grounds for post-conviction relief:

         The petitioner claims that [counsel] was ineffective by (1) allowing him to plead
         true to a probation violation warrant which resulted in consecutive sentencing to


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         the case under attack, (2) allowing the petitioner to plead true to the probation
         violation warrant when the petitioner had a meritorious defense to the warrant, (3)
         failing to file a motion to recuse the trial judge in violation of the petitioner’s right
         of the Sixth Amendment of the United States Constitution and Article I, Section
         9, of the Tennessee Constitution, and (4) was it obligatory on the Trial Court to
         sua sponte raise the issue of recusal, and if so, what evidence is there to support
         the allegation that the Trial Judge’s impartiality can reasonably be questioned.

        The trial court stated, “[t]he four issues raised by the petitioner at the evidentiary hearing are
issues which this Court finds to be allegations supporting his claim of the ineffectiveness of Davis
as the petitioner’s trial and appellant [sic] attorney.” In other words, the trial court did not address
the particular issue of whether Petitioner’s sentence actually expired prior to the initiation of the
revocation proceedings. The court referred to its order dated October 12, 2001, which dismissed
Petitioner’s attack on the prior convictions as untimely. The trial court further found that, pursuant
to Tennessee Code Annotated section 40-30-204(c), a petition for post-conviction relief shall be
limited to the assertion of claims for relief from the judgment(s) entered in a single trial or
proceeding. The trial court noted, however, that while Petitioner’s challenge to the probation
revocation warrant from a prior case was not a proper ground for relief under the Post-Conviction
Procedure Act, it “may constitute grounds for the granting of a writ of habeas corpus.”

       The trial court found that the allegation that counsel was ineffective for advising Petitioner
to plead true to the probation violation was not an appropriate ground for relief under the Post-
Conviction Procedure Act. The court stated in its order:

         [E]ven if this Court believed that these claims were properly before the Court, this
         Court finds that allegations of ineffective assistance of counsel at a probation
         violation hearing are not appropriate grounds for relief under the Post-Conviction
         Act in this case. The Court finds that Davis’ performance as counsel for the
         Petitioner at his probation revocation hearing was a performance that in no way
         violated any constitutionally guaranteed rights afforded Petitioner. The Petitioner
         has failed to show by clear and convincing evidence that Davis’ performance in
         representing the Petitioner at the revocation hearing on April 23, 1999, was not
         within the range of competence demanded of attorneys in criminal cases.

        Additionally, the trial court found that trial counsel was not ineffective for failing to file a
motion to recuse. The trial court found that Mr. Davis, “an experienced trial attorney of nearly
thirteen years at the time of this trial, six of which as an assistant district attorney, did file motions
for discovery, to suppress, for mistrial, for new trial and properly perfected an appeal to the Court
of Criminal Appeals on behalf of the Petitioner.” The trial court also found that the evidence
presented at the post-conviction hearing established that Judge Easter, while working as an Assistant
District Attorney, prosecuted a case against Petitioner’s brother, Chris Land, and that the prosecution
occurred six years prior to the trial in this case.



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        The trial court found that the fact that it made rulings adverse to Petitioner did not require
recusal. The court noted that its prior rulings involving the motion to suppress, the admission of
hearsay evidence, and the motion for mistrial had been reviewed by the Court of Criminal Appeals.
The court concluded that the record did not establish any prejudice or bias as a result of the court’s
presiding over Petitioner’s trial.

Issues Presented for Review

        In this appeal from the trial court’s denial of post-conviction relief, Petitioner challenges: (1)
the validity of the probation violation warrant issued on September 23, 1998; (2) the effectiveness
of trial counsel in advising Petitioner to plead true to the probation violation warrant; (3) the
effectiveness of trial counsel in failing to file a motion to recuse the trial judge; and (4) the trial
court’s failure to sua sponte raise the issue of recusal.

Probation Violation Warrant

        The first issue presented for our review is whether Petitioner’s sentence should be reduced
because, Petitioner alleges, the September 23, 1998, probation violation warrant was issued after the
expiration of the underlying sentences. The convictions that are the basis of the revocation
proceeding that Petitioner challenges are from prior unrelated cases, and as the State correctly
observes, are not the subject of review in this case. The record does not indicate that Petitioner
appealed his convictions or sentences in those cases. Petitioner also did not pursue a direct appeal
from the revocation hearing. “A ground for relief is waived if the petitioner personally or through
an attorney failed to present it for determination in any proceeding before a court of competent
jurisdiction in which the ground could have been presented.” Tenn. Code Ann. § 40-30-106(g)
(2003). Moreover, this Court recently held in Young v. State, 101 S.W.3d 430, 431 (Tenn. Crim.
App. 2002), that the Post-Conviction Procedure Act does not provide a cause of action for a
collateral attack on a probation revocation proceeding. Petitioner is not entitled to relief on this
issue.

Ineffective Assistance of Counsel

      Petitioner argues that trial counsel was ineffective for allowing Petitioner to plead true to the
September 23, 1998, probation violation warrant.

        The trial judge's findings of fact on post-conviction hearings are conclusive on appeal unless
the evidence preponderates otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). On appeal,
this Court may not reweigh or reevaluate the evidence, nor substitute its inferences for those drawn
by the trial judge. State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). Questions concerning the
credibility of witnesses and the weight and value to be given to their testimony are resolved by the
trial court, not this Court. Burns, 6 S.W.3d at 461. The burden of establishing that the evidence
preponderates otherwise is on petitioner. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). The



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trial court’s conclusions of law, however, are reviewed under a purely de novo standard with no
presumption of correctness. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

        We review a claim of ineffective assistance of counsel under the standards of Baxter v. Rose,
523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984). The petitioner has the burden to prove that (1) the attorney’s performance was
deficient, and (2) the deficient performance resulted in prejudice to the defendant so as to deprive
him of a fair trial. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State, 938 S.W.2d 363,
369 (Tenn. 1996); Butler v. State, 789 S.W.2d 898, 899 (Tenn. 1990). The failure to prove either
deficiency or prejudice justifies denial of relief; therefore, the court need not address the components
in any particular order or even address both if one is insufficient. Goad, 938 S.W.2d at 370. In order
to establish prejudice, the petitioner must establish a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S.
at 694, 104 S. Ct. at 2068.

        The State argues that this Court’s holding in Young v. State does not allow Petitioner to
collaterally attack the validity of a revocation proceeding. We agree. As previously stated, in Young
v. State, this Court held that a petitioner in a post-conviction proceeding may not attack collaterally
any alleged constitutional deprivation that occurred at a probation revocation hearing. 101 S.W.3d
at 433.

        Furthermore, Petitioner’s claim would be time-barred. A petitioner has one year from the
date the judgment became final in which to timely file a petition for post-conviction relief. Tenn.
Code Ann. § 40-30-102(a) (2003). Petitioner pled true to the probation revocation warrant on April
23, 1999, the same day he was sentenced in this case. No appeal was taken. Petitioner filed the first
petition for post-conviction relief on September 7, 2001, after the statute of limitations had expired.
Petitioner is not entitled to relief on this issue.

Recusal

        Petitioner argues that trial counsel was ineffective for failing to seek recusal of the trial judge.
Petitioner also argues that the trial court should have sua sponte recused itself from these
proceedings. Petitioner has waived the latter issue by not asserting this issue on direct appeal. If a
petitioner for post-conviction relief fails to present a ground for relief to a court of competent
jurisdiction, the petitioner has waived that ground for relief. See Tenn. Code Ann. § 40-30-106(g)
(2003). Moreover, if a petitioner’s counsel decides not to pursue an issue regarding judicial bias on
direct appeal, the petitioner is bound by that decision. State v. Benson, 973 S.W.2d 202, 207 (Tenn.
1998).

         The waiver of the substantive issue of whether the trial court should have sua sponte recused
itself, however, does not preclude addressing the issue of whether counsel was ineffective for not
requesting recusal at trial and on appeal. This Court will defer to counsel’s tactical and strategic


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choices where those choices are informed ones predicated upon adequate preparation. Goad, 938
S.W.2d at 369; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982).

         Judge Easter presided over Petitioner’s trial and sentencing hearing and the post-conviction
proceedings in this case. Petitioner asserts that Judge Easter prosecuted a prior case in which
Petitioner and his brother were co-defendants. The fact that a trial judge was a prosecuting attorney
in a trial which led to a prior conviction does not entitle a defendant to recusal where the record does
not indicate bias. State v. Conway, 77 S.W.3d 213, 225 (Tenn. Crim. App. 2001). The Commentary
to the relevant section of the Code of Judicial Conduct states,

                A lawyer in a government agency does not ordinarily have an association
         with other lawyers employed by that agency within the meaning of Section
         3E(1)(b); a judge formerly employed by a government agency, however, should
         disqualify himself or herself in a proceeding if the judge’s impartiality might
         reasonably be questioned because of such association.

Tenn. R. Sup. Ct. 10, Canon 3(E)(1)(b) (Commentary).

        At the post-conviction hearing, trial counsel testified that Petitioner had expressed a
preference for Judge Donald Harris to preside over his trial and sentencing because Judge Harris had
a reputation for being more lenient that Judge Easter. Trial counsel testified that he did not file a
motion to recuse on that basis, believing it to be frivolous. Trial counsel properly exercised his
discretion based upon his professional judgment and adequate preparation. Counsel’s performance
was not deficient.

        Furthermore, Petitioner has not demonstrated prejudice. At the post-conviction hearing,
Petitioner’s counsel testified that Judge Easter, a former Assistant District Attorney, had prosecuted
a case in which Petitioner and his brother were co-defendants. A judgment of conviction, which is
included in the record on appeal, indicates that Petitioner’s brother, Chris Land, pled guilty to a
charge of theft on January 26, 1993. The prosecuting attorney in that case was Timothy Easter. In
its order denying post-conviction relief, the trial court found that there was “no evidence in the
record that the Trial Judge (this Court) was ever involved in the prosecution of cases against the
Petitioner as an assistant district attorney.” In its order denying relief, the trial court further stated,
“The Petitioner has failed to point out any information that the Trial Court learned through the 1993
prosecution of the Petitioner’s brother or the 1993 prosecution of the Petitioner that affected the
outcome of the Petitioner’s jury trial in 1999.”

        Petitioner alleges three incidents during his trial in which the trial judge showed bias.
Petitioner argues that the trial court showed bias by denying a motion to suppress a statement made
by Petitioner to Detective Ricky Brown. On appeal, this Court found that the trial court accredited
Detective Brown’s testimony at the suppression hearing that the statement was unsolicited and
concluded that the trial court properly denied the motion. Land, 34 S.W.3d at 524-25. Additionally,
Petitioner alleges bias in the following statement made by the trial court to the jury:


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         Ladies and Gentlemen, the case I anticipate trying today is State of Tennessee v.
         David Land. The defendant has filed some late-filed notices this morning, which
         is going to cause us to take a short recess and a delay. I do not anticipate our
         delay will be over 10 minutes.

         Following that statement by the trial court to the jury, Petitioner moved for a mistrial, which
the trial court denied. On direct appeal, this Court found that “the comments [of the trial court]
could be construed as a criticism of defense counsel,” but the trial court did not err by not granting
a mistrial. Land, 34 S.W.3d at 527. Petitioner also alleges bias in the trial court’s admission into
evidence of statement made by Petitioner’s mother. This issue was also addressed by this Court in
the direct appeal. This Court held that the statement, although an excited utterance, was admitted
in error because Ms. Land did not have personal knowledge of the facts about which she spoke, but
the error was harmless. Id. at 530.

        Adverse rulings by a trial court are not usually sufficient grounds to establish bias. Alley v.
State, 882 S.W.2d 810, 821 (Tenn. Crim. App. 1994). “Rulings of a trial judge, even if erroneous,
numerous and continuous, do not, without more, justify disqualification.” Id. There is no indication
in the record of any personal bias against Petitioner by the trial court.

        Petitioner has not established that counsel was ineffective or that Petitioner was prejudiced.
Petitioner is not entitled to relief on this issue.

                                          CONCLUSION

       The judgment of the trial court is affirmed.

                                               ___________________________________
                                               THOMAS T. WOODALL, JUDGE




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