        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                August 9, 2016 Session

       DENNIS CEDRIC WOODARD, JR. v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Bedford County
                      No. 10392 Forrest Durard, Jr. Judge


             No. M 2015-02002-CCA-R3-ECN – Filed November 8, 2016


The Petitioner, Dennis Cedric Woodard, Jr., appeals the Bedford County Circuit Court‟s
denial of his petitions for post-conviction relief and for a writ of error coram nobis from
his first degree premeditated murder conviction and his resulting life sentence. The
Petitioner contends that the court erred by denying (1) post-conviction relief and (2)
coram nobis relief. We affirm the judgments of the post-conviction and coram nobis
court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which THOMAS
T. WOODALL, P.J., and J. ROSS DYER, J., joined.

Andrew Love, Nashville, Tennessee, for the appellant, Dennis Cedric Woodard, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Robert J. Carter, District Attorney General; Michael D. Randles, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

       This case relates to the shooting death of Scott Shafter. On the night of April 12,
2001, the Petitioner confronted and fatally shot the victim after a physical altercation
between them occurred earlier that day. See State v. Dennis Cedric Woodard, Jr., No.
M2002-00122-CCA-R3-CD, 2003 WL 169082, at *1 (Tenn. Crim. App. Jan. 24, 2003),
perm. app. denied (Tenn. May 12, 2003). The Petitioner appealed, and in its opinion
affirming the conviction, this court summarized the facts as follows:
        The proof offered by the State demonstrated that on the night of
April 13, 2001, the homicide victim, Scott Shafer, was shot near Derry
Street in Shelbyville. Earlier that day, at around four o‟clock, the victim
had been visiting the home of LaShawn Nunnally. Ms. Nunnally testified
that sometime later the [Petitioner] arrived at her house carrying a gun. The
[Petitioner] pointed the gun at the victim and said, “Nigga, are you real or
are you fake?” The victim responded to the [Petitioner], who was
commonly referred to as “Junior,” by saying, “Junior, man, quit playing.
I‟m fucked up.” The [Petitioner], still pointing the gun at the victim, then
repeated his question. At that point, Ms. Nunnally requested that the two
men leave the front of her house. The [Petitioner] and the victim went to
the rear of the house, and Ms. Nunnally followed. She asked the
[Petitioner] for the gun, and he gave it to her. Immediately thereafter,
Jarmaine Hill, Ms. Nunnally‟s boyfriend, and Mike Jones arrived. Mr. Hill
inquired what Ms. Nunnally was doing with the [Petitioner]‟s gun. She
responded that she was trying to “prevent trouble.” Mr. Hill then
demanded that she return the [Petitioner]‟s gun, which she did, but she kept
the clip that contained the bullets and went back around to the front porch
of her house. A few minutes later, the four men came to the front of the
house, and the [Petitioner]‟s mouth was bleeding. When Ms. Nunnally
asked what had happened, the victim replied, “I dunked him on his head.”
The [Petitioner] then said to the victim, “Man, you fucked up my grill.”
Then the [Petitioner] smiled at the victim and added, “You are going to
remember this tonight.” However, Ms. Nunnally testified that the
[Petitioner] and the victim then hugged, made up, and left together in the
victim‟s car. After all the men left, Ms. Nunnally wrapped the pistol clip in
toilet paper and tossed it into a creek.

        About two hours later, Ms. Nunnally had gone to another house to
visit with friends. Jarmaine Hill and Mike Jones arrived; then a few
minutes later, the [Petitioner] and the victim drove up. As the day got later,
Ms. Nunnally, her two daughters, and the victim decided to walk back to
Ms. Nunnally‟s house to get their jackets. As they returned from getting
their coats, the [Petitioner] walked up, pointed the gun at the victim, and
said, “Nigga, are you ready to die?” The [Petitioner] then shot the victim,
who fell down. He pulled the trigger several more times, but the gun would
not fire because the clip had been removed. The [Petitioner], who then ran
away, was wearing a yellow shirt, black denim shorts, black Nike shoes,
and black socks. Ms. Nunnally ran to a pay telephone and called 911. She
then located the victim, who had run a short distance and fallen down, and
she applied a blanket to his wound.


                                     -2-
       On cross-examination, Ms. Nunnally said that the [Petitioner]
appeared intoxicated while he was at her house. She said that his speech
was slurred and he was staggering. He also appeared to be intoxicated
when she left her friend‟s house to get the jackets from her house. She said
that when the police arrived, she was beside the victim, rendering aid.

      Thomas Thompson testified that on the evening of April 13, 2001,
he was in his house at 101 Byrd Street. At around 7:40 that night, he heard
what sounded like a gunshot. He then looked out his window and saw a
white man run between 714 and 716 Derry Street, fall down on the ground,
and yell that he had been shot. Then Mr. Thompson looked behind Smith‟s
Food Town on Derry Street and saw a black man in a yellow shirt run
behind the store.

        James Wheeler testified that at around nine o‟clock on the night of
April 13, 2001, a young black man, whom he identified as the [Petitioner],
knocked on his door. Mr. Wheeler testified that the [Petitioner] was
bleeding from his mouth, and he initially thought that the [Petitioner] had
been in a car accident. However, the [Petitioner] said that he had been
beaten up, and he asked to use the telephone. While Mr. Wheeler was
inside his house retrieving a cordless phone for the [Petitioner], he decided
to call 911 to have an ambulance come render aid to the [Petitioner]. When
Mr. Wheeler went outside to give the [Petitioner] the telephone, he
observed a car drive up with a young man and woman inside. Mr. Wheeler
recognized the driver of the car as a man named Matt Kelly. The
[Petitioner], who Mr. Wheeler said was “fidgety” and “obviously wanting
to leave,” got in the car with Mr. Kelly and drove away. On cross-
examination, Mr. Wheeler testified that the [Petitioner] was having
difficulty breathing and speaking because of the condition of his mouth.

        David Williams, an officer with the Bedford County Sheriff‟s
Department, testified that he accompanied the ambulance to Mr. Wheeler‟s
residence in response to Mr. Wheeler‟s 911 call. As he was driving, he
passed a white Honda Accord. Upon speaking with Mr. Wheeler, he
learned that the subject had left in that car. Officer Williams then followed
the Accord to the emergency room parking lot, where he stopped the
vehicle. The [Petitioner] was in the back seat, and Officer Williams noticed
that he had injuries to his face, he had blood down the front of his body,
and he was not wearing a shirt. When the officer asked for his name, the
[Petitioner] replied that his name was Simms. However, the driver of the
car, Matt Kelly, told the [Petitioner] to tell the truth, and the [Petitioner]
then told the officer that his name was Junior Woodard. Officer Williams

                                     -3-
asked another officer, D‟Angelo Inman of the Tennessee Highway Patrol,
to pat down the [Petitioner] for weapons. Officer Inman located a Taurus
.40 caliber semi-automatic pistol in the [Petitioner]‟s pocket. The weapon
had no clip in the grip. Officer Williams then placed the [Petitioner] in his
patrol car and called for the city police. Officer Williams testified that he
smelled alcohol on the [Petitioner], but that the [Petitioner] was coherent
and had no trouble walking. Officer Inman, on the other hand, testified that
he did not notice an odor of alcohol about the [Petitioner].

       Back at the scene of the shooting, Rod Stacey was the patrolman
with the Shelbyville Police Department who first arrived. He testified that
he located a white male, whom he recognized as the victim, Scott Shafer,
lying on the ground in between 714 and 716 Derry Street. Officer Stacey
observed an entrance wound and an exit wound in the victim‟s left arm and
an entrance wound in the victim‟s abdomen. Officer Stacey testified that
the victim did not tell him who shot him or the circumstances surrounding
the shooting.

        Detective Eric Ely of the Shelbyville Police Department arrived on
the scene after other officers had already secured the area and begun
searching for evidence. He was directed to an area where David Williams
of the Bedford County Sheriff‟s Department had located a shell casing
earlier that evening. Detective Ely photographed the cartridge and took it
into evidence. He testified that it was the casing of a .40 caliber bullet. At
around 10:25 that evening, Detective Ely went to the hospital where other
officers had the [Petitioner] in custody. There he received the Taurus pistol
that Trooper Inman had found in the [Petitioner]‟s pocket. Detective Ely
stated that he read the [Petitioner] his rights. Noticing that the [Petitioner]
had blood on his lip and some of his teeth were dislodged, he asked him,
“What happened to your mouth?” The [Petitioner] replied, “I didn‟t shoot
anybody.” The detective testified that he did not smell alcohol on the
[Petitioner] during this conversation. Later in his investigation, Detective
Ely went to the office of the state medical examiner, where he received the
bullet that had been removed from the body of the victim.

       Teri Arney is a forensic scientist with the Tennessee Bureau of
Investigation. She examined the shell casing found at the scene of the
shooting, the bullet extracted from the victim‟s body, and the handgun
found in the [Petitioner]‟s pocket. She testified that the gun was a Taurus
model PT140 .40 caliber semi-automatic pistol. She determined that the
bullet and shell casing had been fired and ejected from the [Petitioner]‟s
gun.

                                     -4-
       Jeff Long is the EMT worker who administered medical aid to the
victim. Mr. Long testified that when he encountered the victim, he was
pale and sweating. The victim‟s lack of color indicated blood loss, and the
perspiration indicated that he was beginning to go into shock. These signs
suggested that the victim was bleeding internally and needed to be flown
via helicopter to Nashville for surgery.

       Jeffery Guy is a surgeon at Vanderbilt Hospital who treated the
victim. He testified that the victim had extremely low blood pressure when
he arrived at Vanderbilt. Despite the efforts of the surgical team, Scott
Shafer died from blood loss as a result of gunshot wounds to the spleen,
pancreas, and intestines.

       Feng Li of the state medical examiner‟s office performed an autopsy
on the victim‟s body on April 14, 2001. He testified that the victim died of
gunshot wounds to different internal organs, and that all of the wounds had
been caused by a single bullet. He also testified that no alcohol or drugs
were detected in the victim‟s blood.

        Rhonda Hill testified that her son Chris received a letter in May of
2001. She recognized the return address on the envelope as being the
Bedford County Jail; so she decided to read the letter. The letter was dated
May 23, 2001, the day after the [Petitioner]‟s preliminary hearing. The
letter was from the [Petitioner], who referred to himself as “Juvy.” In the
letter, the [Petitioner] stated that a girl named Shawn is “running her
mouth.”1 The [Petitioner]‟s letter asked Chris to prevent Ms. Nunnally
from making the June 18 court date, which is the date on which the
[Petitioner]‟s case was presented to the grand jury. Finally, the [Petitioner]
requested Chris to “hook up with Mickey and burn this [b----] house
down.” After reading the letter, Ms. Hill went to the police station and gave
the police the letter. Henry Young, who was in jail with the [Petitioner],
testified that he observed the [Petitioner] writing the letter. Mr. Young
testified that after his preliminary hearing on May 22, 2001, the [Petitioner]
mentioned LaShawn Nunnally‟s testimony and that it “needed to be taken
care of.”

       After the State rested its case, the [Petitioner] testified on his own
behalf. He stated that, on the afternoon of April 13, 2001, he had been out
riding with the victim, Scott Shafer. The [Petitioner] had drunk three quarts
of Budweiser beer in thirty minutes when he first joined the victim. After

1
    “Shawn” refers to LaShawn Nunnally.

                                          -5-
the [Petitioner] left the victim‟s car, the [Petitioner] decided to walk to
LaShawn Nunnally‟s house. When he arrived, the victim was already
there. The two men exchanged words regarding whether the victim had
tried to “holler” at the [Petitioner]‟s girlfriend. At this point, the
[Petitioner] testified that his gun was in his pocket. He handed the gun to
Ms. Nunnally, and the argument between the [Petitioner] and the victim
escalated into a fight. The victim punched the [Petitioner] in the mouth,
and the two wrestled on the ground. During the fight, the [Petitioner]
suffered a busted lip and lost a tooth. After the fight, the two men
apologized to each other, hugged, and left in the victim‟s car. The
[Petitioner] stated that when they left, Ms. Nunnally still had the gun.

        The [Petitioner] and the victim then went to a store, where the
[Petitioner] bought another quart of beer. After riding around for awhile,
the two men returned to Ms. Nunnally‟s house. When they arrived, Ms.
Nunnally and Mike Jones were there. The group was sitting on the front
porch talking, when Jarmaine Hill showed up. Mr. Hill and Ms. Nunnally
went inside the house for fifteen to thirty minutes. When Mr. Hill came
back onto the front porch, he told the [Petitioner] that he wanted to speak
with him. The two men walked down the street and talked. The [Petitioner]
testified that when they returned, he sat back down on Ms. Nunnally‟s front
porch. Then the [Petitioner] looked up and observed Mr. Hill pointing a
gun at the victim. The [Petitioner] stated that Mr. Hill shot the victim. Mr.
Hill ran away, but the [Petitioner] remained on the porch. At that time, Ms.
Nunnally approached the [Petitioner], said “Here,” and handed him the
pistol. The [Petitioner] took the gun and ran. The [Petitioner] said that he
ran past Smith‟s Food Town, and he stopped and knocked on the door of
James Wheeler because he did not know how to get to his friend Matt
Kelly‟s house. While he was at Mr. Wheeler‟s house, Matt Kelly drove up,
and the [Petitioner] got in his car. The [Petitioner] testified that they drove
to the hospital because he was concerned about the victim. Later on in his
testimony, the [Petitioner] admitted writing the letter to Chris Hodge asking
him to burn down the house of LaShawn Nunnally “to make her stop lying
on [him].”

       The defense called Jarmaine Hill as a witness, but he asserted his
Fifth Amendment privilege against self-incrimination. Therefore, the trial
court declared Mr. Hill unavailable, and the defense called Randall Lottie.
Mr. Lottie testified that, while he was incarcerated with Mr. Hill, he heard
Mr. Hill say that he killed Scott Shafer. Mr. Hill said that Mr. Shafer owed
him money for drugs, and that another person was in jail for his crime.


                                     -6-
Dennis Cedric Woodard, Jr., 2003 WL 169082, at *1-5.

        On April 19, 2005, the Petitioner filed a pro se petition for post-conviction relief,
alleging that he received the ineffective assistance of counsel. The Petitioner argued in
his petition that the post-conviction court should toll the one-year statute of limitations
because he did not learn the supreme court denied his application for permission to
appeal until after the statute of limitations in which to file his petition for post-conviction
relief expired. The post-conviction court determined that the petition was untimely and
that tolling of the statute of limitations was not warranted. The Petitioner did not appeal
the dismissal of the petition, but he filed a second petition on May 10, 2013, requesting
post-conviction relief and a writ of error coram nobis. See Dennis Cedric Woodard, Jr. v.
State, No. M2013-01857-CCA-R3-PC, 2014 WL 4536641, at *5 (Tenn. Crim. App. Sept.
15, 2014), no perm. app. field. Although the Petitioner conceded his second petition was
untimely, he requested tolling of the statute of limitations period in the interests of justice
based upon his allegation that trial counsel deliberately deceived him by failing to
disclose that counsel previously represented one of the State‟s witnesses. Id. at *6. The
Petitioner, likewise, alleged multiple grounds of the ineffective assistance of counsel.
The post-conviction court dismissed the petition as untimely and did not render findings
of fact or conclusions of law relative to the request for a writ of error coram nobis. Id.
This court reversed the summary dismissal based upon the Petitioner‟s diligent pursuit of
appellate relief and remanded the case for an evidentiary hearing on the post-conviction
and coram nobis claims. Id. at *11.

        At the evidentiary hearing, trial counsel testified that he had practiced law for
twenty-five years and that he had been an assistant public defender for sixteen years.
Counsel said that he had worked in the public defender‟s office for two years at the time
he represented the Petitioner. Counsel said that he investigated the Petitioner‟s case by
interviewing witnesses, talking to the Petitioner, following up on discovery, and
reviewing the autopsy and laboratory reports. He said he interviewed the police officers
involved, although he did not have any records relative to their conversations. He said
the physicians were interviewed before the trial, although he could not recall whether he
or the investigator interviewed them.

        Trial counsel testified that he previously represented Brooke Whitaker but not
when he represented the Petitioner. Counsel said that relative to the Petitioner‟s case, he
first heard Ms. Whitaker‟s name when he read the post-conviction petition. Counsel was
unsure whether he knew the offense occurred near Ms. Whitaker‟s home and said that he
did not know where she lived at the time of the offense and that nobody mentioned Ms.
Whitaker‟s name in connection with the Petitioner‟s case.




                                             -7-
       Trial counsel testified that the Petitioner claimed he was innocent and that counsel
determined a mental health expert was unnecessary relative to the Petitioner‟s intent at
the time of the offense. Counsel knew about the Petitioner‟s juvenile psychiatric records
and said that had an expert testified, the jury would have heard evidence the Petitioner
had been previously diagnosed with “intermittent explosive disorder,” which counsel
described as “flying off the handle” and committing violent acts. Counsel said that he
recalled the Petitioner had been previously evaluated for mental health reasons but did
not recall the Petitioner‟s being hospitalized in a mental health facility. Counsel recalled
that the Petitioner‟s diagnosis was depression caused by legal difficulties. Counsel said
that based upon the diagnosis, requesting an expert was pointless. Counsel was unsure
whether the trial court would have granted a request for expert funding.

       Trial counsel testified that he did not obtain an expert to testify about the
Petitioner‟s intoxication because the evidence showed the Petitioner had been drinking on
the day of the offense. Counsel said that after reviewing the records and the witness
statements and speaking with the Petitioner, counsel determined an intoxication expert
was unnecessary.

        Trial counsel testified that he was familiar with Henry Young, that he had
represented Mr. Young, and that Mr. Young had been a long-time client of the public
defender‟s office. Counsel denied, though, that he represented the Petitioner and Mr.
Young simultaneously. Counsel said that the public defender‟s office represented Mr.
Young before the homicide in the Petitioner‟s case, that Mr. Young pleaded guilty, and
that Mr. Young, ultimately, violated the conditions of his community corrections
sentence. Counsel said that at some point, Mr. Young incurred additional charges, that
the public defender‟s office represented Mr. Young, that Mr. Young pleaded guilty, and
that this charge occurred when the Petitioner‟s case was pending. Counsel said that after
Mr. Young pleaded guilty in the subsequent case, counsel received the State‟s
supplemental witness list in the Petitioner‟s case, which included Mr. Young. Counsel
said that at that point, the public defender‟s office had ended its representation of Mr.
Young.

       Trial counsel testified that the Petitioner reported counsel to the Board of
Professional Responsibility, alleging that counsel represented the Petitioner and Mr.
Young simultaneously and that counsel advised Mr. Young to testify against the
Petitioner. Counsel denied the allegations and said that the Board of Professional
Responsibility opened an investigation and, ultimately, dismissed the complaint. Counsel
admitted he represented Mr. Young while the Petitioner‟s case was pending but said he
did not represent Mr. Young at the time of the Petitioner‟s trial. Counsel agreed he
represented the Petitioner when counsel represented Mr. Young at an August 2, 2001
guilty plea hearing but said that he and the public defender‟s office had no information or
knowledge that Mr. Young was involved with or connected to the Petitioner‟s case.

                                            -8-
Counsel agreed the supplemental witness list relative to the Petitioner‟s case was received
on October 5, 2001. Counsel said he did not file a motion to withdraw as the Petitioner‟s
counsel because neither counsel nor the public defender‟s office represented Mr. Young
when counsel learned Mr. Young was a State‟s witness at the Petitioner‟s trial. Counsel
said he probably considered whether a motion to withdraw was necessary but said his
office no longer represented Mr. Young. Counsel recalled that he received the
supplemental witness list sixty days after his office ended its representation of Mr. Young
and that no conflict of interests existed at that point. Counsel said that the Petitioner
knew counsel represented Mr. Young because the Petitioner mentioned it to counsel.

       Trial counsel testified that Mr. Young‟s testifying at the Petitioner‟s trial was not
“as big a deal” as the woman who testified that she saw the Petitioner shoot the victim
and that the woman was identified as a State‟s witness in the initial witness list. He said
that although Mr. Young was not his client when counsel received the supplemental
witness list, counsel spoke to Mr. Young, who said that he saw the Petitioner write a
letter while Mr. Young and the Petitioner were confined in the jail. Counsel said co-
counsel cross-examined Mr. Young at the trial. Counsel said that his office did not work
on the Petitioner‟s appeal and that a private attorney was appointed for the appeal.

       Trial counsel testified that the State obtained permission from the trial court to
introduce a letter written by the Petitioner in which the Petitioner attempted to solicit the
killing of Ms. Nunnally and that the defense did not object to the letter because the
Petitioner admitted writing it. Counsel said that he received a notice of intent to
introduce the letter and that a pretrial hearing was probably held, although he had no
recollection of it. He agreed the transcript reflected that the parties discussed Mr.
Young‟s testifying relative to the letter and that counsel told the trial court the defense
had interviewed Mr. Young before the trial. Counsel said he told the trial court that he
would object on the basis of relevance to questions about who represented Mr. Young
when Mr. Young obtained his convictions. Counsel said the Petitioner was told that Mr.
Young saw the Petitioner write the letter and would testify against the Petitioner.
Counsel said that he last represented Mr. Young at a guilty plea hearing on August 2,
2001, and that during the plea negotiations, no discussion occurred about Mr. Young‟s
receiving any benefit for testifying against the Petitioner.

       Trial counsel testified that although he did not maintain records about how much
time he spent on trial preparation, he estimated he spent at least forty hours preparing for
the Petitioner‟s trial. Counsel said that he and the Petitioner discussed the possibility of
an intoxication defense in conjunction with the Petitioner‟s mental health issues, although
counsel did not specifically recall the conversation. Counsel initially believed the State
extended a plea offer for second degree murder but said after reviewing his file and
speaking to the prosecutor, that no offer was made to the Petitioner. Counsel recalled
attempting to solicit an offer and focusing on the Petitioner‟s youth and psychiatric

                                             -9-
problems as a basis for a guilty plea to a lesser included offense. Counsel said that the
State believed it had adequate proof for a first degree murder conviction and that the
Petitioner‟s only options were to plead guilty to first degree murder or to go to trial.
Counsel said he spoke to the prosecutor and did not write correspondence during
negotiations. Counsel agreed that his goal was to negotiate a plea agreement for anything
less than first degree murder but that the prosecutor was unwilling to negotiate.

       Trial counsel testified that he did not know when the defense received the letter
the Petitioner wrote while in jail. Counsel did not recall what questions were asked of
Mr. Young during co-counsel‟s cross-examination. Counsel also did not recall opening
statements or closing arguments. Counsel was familiar with the name Jermaine Hill,
although counsel did not know Mr. Hill personally. Counsel did not recall whether Mr.
Hill was the person the defense identified as the perpetrator.

       On cross-examination, trial counsel testified that before the Petitioner‟s trial,
counsel did not know Ms. Whitaker but that counsel represented Ms. Whitaker multiple
times after the Petitioner‟s trial. Counsel said that the Petitioner never mentioned Ms.
Whitaker. Counsel agreed that the trial evidence showed that the Petitioner drank several
“quarts” of beer on the day of the shooting and that the jury knew of the Petitioner‟s
intoxication. Counsel said he did not want the jury to hear evidence of the Petitioner‟s
intermittent explosive disorder diagnosis because counsel knew the trial evidence would
show the Petitioner and the victim had an altercation hours before the shooting.

       Trial counsel testified that he learned of Mr. Young‟s involvement in the
Petitioner‟s case when the State filed its supplemental witness list and that generally, the
State provided the defense with information about additional witnesses and how the
witnesses related to a case. Counsel said that even if he had learned confidential
information during his representation of Mr. Young, any confidential information learned
would not have been to the Petitioner‟s detriment. Counsel agreed his and the public
defender‟s office‟s practices were to contact the Board of Professional Responsibility to
determine whether a conflict might prevent counsel or his office from representing a
defendant. Counsel agreed that no discussions were held with Mr. Young about the
Petitioner‟s case until the State filed its supplemental witness list. Counsel said the trial
judge was told about counsel‟s previously representing Mr. Young.

       Trial counsel testified that the letter written by the Petitioner while in jail was
discovered by the State after the preliminary hearing and that the letter was postmarked
May 24, two days after the preliminary hearing. Counsel said the Petitioner admitted
writing the letter to Chris Hodge and requesting that Mr. Hodge kill Ms. Nunnally by
burning her home. Counsel agreed that the extent of Mr. Young‟s trial testimony was
that Mr. Young witnessed the Petitioner write the letter and that the Petitioner asked Mr.
Young for assistance spelling a couple of words.

                                            -10-
       Trial counsel testified that had he sought to admit the Petitioner‟s mental health
records, the jury would have heard evidence of the Petitioner‟s owning a firearm and
firing the gun during a struggle with his father. Counsel agreed the evaluating
psychiatrist would have been subject to cross-examination. Counsel said he was
concerned about the psychiatrist‟s testifying about the Petitioner‟s disruptive, aggressive,
and violent behaviors and about the psychiatrist‟s conclusion that the Petitioner did not
have any mental health illness requiring inpatient treatment.

       On redirect examination, trial counsel testified that he did not know Dana Brown
and that he did not recall the name associated with the return address on the envelope of
the Petitioner‟s letter to Mr. Hodge.

       Upon questioning by the post-conviction court, trial counsel testified that Mr.
Young did not disclose any impeachable conduct or prior bad acts during counsel‟s
representation of Mr. Young. Relative to the Petitioner‟s letter, counsel said the
Petitioner admitted writing the letter to counsel privately, and counsel thought the
Petitioner was questioned about the letter at the trial.

       Co-counsel testified that he had been a licensed attorney since 1999 and that his
career had been devoted to criminal defense work. He recalled working on the
preliminary hearing in the Petitioner‟s case but said trial counsel was the primary
attorney. Co-counsel said that at the time of the Petitioner‟s case, co-counsel was
relatively inexperienced, handled general sessions court, and assisted trial counsel in
criminal court. Co-counsel recalled the Petitioner insisted on attempting to obtain a not
guilty verdict and did not want to pursue an intoxication defense.

        Co-counsel testified that Mr. Young was a witness for the State and that although
the public defender‟s office represented Mr. Young before the Petitioner‟s case, the
public defender‟s office did not represent the Petitioner and Mr. Young simultaneously.
Co-counsel said that a conflict of interests existed if the public defender‟s office
represented a defendant and a State‟s witness simultaneously. Co-counsel said that he
cross-examined Mr. Young at the trial and that co-counsel asked Mr. Young if the
Petitioner told him that Ms. Nunnally was lying and whether Mr. Young read the
Petitioner‟s letter. Co-counsel agreed he did not ask Mr. Young about his burglary-
related convictions and said the evidence about Mr. Young‟s previous convictions was
elicited by the prosecutor on direct examination. Co-counsel said he cross-examined Mr.
Young in an effort to gain experience, not because trial counsel might have had a conflict
of interests.

        Henry Young testified that the Petitioner was a friend and that they were confined
at the same jail. Mr. Young said that just before the Petitioner‟s trial, trial counsel came
to the jail to talk to Mr. Young. Mr. Young said that counsel had represented him a few

                                           -11-
times. He said that at the time of the Petitioner‟s trial, he had a previous conviction for
burglary and that counsel was his attorney. He said he received a two-year sentence,
served one year in jail before being released, and returned to jail after being arrested for
driving with a suspended license. He said that after his release was revoked, counsel
came to the jail to talk to him. Mr. Young considered counsel his attorney at that time
and said counsel asked what Mr. Young knew about the Petitioner‟s case. Mr. Young
said he told counsel, “Nothing.” Mr. Young said he told counsel that Mr. Young
frequently assisted the Petitioner with writing letters. Mr. Young said he and counsel
spoke about other topics, but he could not recall what they discussed. Mr. Young said
that he did not know counsel represented the Petitioner at the time of their conversation.
Mr. Young did not recall talking to the police or to the prosecutor about the Petitioner‟s
letter.

       On cross-examination, Mr. Young testified that he received a community
corrections sentence upon being convicted of burglary in 1999, that he served one year in
jail before being released to community corrections, that he violated the terms of his
release, and that he was ordered to serve his sentence, which was enhanced to three years.
Mr. Young said trial counsel represented him for the burglary charge and the community
corrections violation. Mr. Young stated that he pleaded guilty to two counts of
aggravated burglary on August 2, 2001, that he received an effective four-year sentence,
and that counsel was his attorney. Mr. Young denied telling counsel that he committed
crimes for which he was not charged while counsel represented him.

        Mr. Young testified that trial counsel came to speak with him about the
Petitioner‟s case, that counsel discussed the prosecutor‟s adding Mr. Young‟s name to the
witness list relative to the Petitioner‟s trial, that counsel said the reason was based upon a
letter, and that counsel asked what he knew about the letter. Mr. Young said that he did
not regard the conversation as important or confidential at the time. Mr. Young agreed
that the aggravated burglary cases had been resolved by plea agreement at the time
counsel came to talk to him about the Petitioner‟s case but that he was unsure whether he
had been sentenced. Mr. Young agreed the aggravated burglary judgments were entered
on August 2, 2001, and that his case had ended when the Petitioner‟s trial began in
October 2001. Mr. Young agreed that he did not return to court after he pleaded guilty to
aggravated burglary. Mr. Young stated that at the time of the post-conviction hearing, he
was on probation and that counsel was not his attorney for this matter.

        The Petitioner testified that trial counsel and co-counsel visited him at the jail
three times before the trial. The Petitioner said that as a juvenile, he used drugs, had a
history with the police, and had obtained mental health counseling and treatment at two
hospitals. The Petitioner agreed that he had been drinking on the night of the shooting
and said that no physicians evaluated him before the trial. He agreed he testified at the
trial and said had he known trial counsel had represented Mr. Young, the Petitioner

                                            -12-
would not have testified. The Petitioner said information related to counsel‟s
representing Mr. Young was “kept from” him. He said he learned counsel had previously
represented Mr. Young about two years before the post-conviction hearing.

       The Petitioner testified that he told trial counsel and co-counsel that he was not
guilty but that the Petitioner did not discuss the details of the day of the shooting with
counsel. The Petitioner said, though, he provided detailed information to defense
investigators. He said he filed the instant post-conviction petition after learning that
counsel previously represented Mr. Young and that a conflict of interests existed.

       The Petitioner testified that the prosecutor engaged in misconduct at the trial by
introducing the pending solicitation to commit murder charge stemming from the letter
discussed during Mr. Young‟s trial testimony and that trial counsel and co-counsel did
not object to the evidence because counsel had previously represented Mr. Young. Upon
examination of the trial transcript, the parties agreed that a jury-out hearing was held and
that the jury never heard evidence of the pending solicitation to commit murder charge.
The Petitioner stated, though, his issue stemmed from counsel‟s failure to object to the
admission of the letter in which Mr. Young assisted. The Petitioner said that he would
not have testified at the trial had he known of the conflict of interests.

       The Petitioner testified that during the trial, the attorneys and the judge had
conferences in an office adjoining the courtroom and that he did not know what
transpired. The Petitioner said the State extended a plea offer for second degree murder
in exchange for twenty-five years at 85% service. He said that had he known of the
conflict of interests he would have not gone to trial.

       The Petitioner testified that trial counsel told the jury during opening statements
that the Petitioner was innocent but that counsel presented evidence of intoxication. The
Petitioner said that counsel did not retain an expert to establish his intoxication but rather
attempted to introduce a toxicology report reflecting the Petitioner‟s intoxication level
through the medical examiner. The Petitioner said that the report was not admitted in
evidence because counsel could not establish the chain of custody and that the trial court
would not permit counsel to present the witness who performed the analysis because
counsel failed to provide notice of the witness‟s testimony. The Petitioner agreed,
though, counsel cross-examined the medical examiner about the effects of the Petitioner‟s
blood alcohol concentration of .235.

        The Petitioner testified that he only received Randall Lotti‟s police statement
before the trial. The Petitioner said that Brooke Whitaker and Evette McGee could have
testified at the trial about his state of mind on the night of the shooting. The Petitioner
said he told trial counsel about Ms. Whitaker because the shooting occurred at her home.
The Petitioner said counsel also did not investigate the second bullet hole in the victim‟s

                                            -13-
car. The Petitioner said that counsel did not prepare a closing argument. The Petitioner
said counsel told the jury that his closing argument was based upon counsel‟s memory of
the testimony and that if counsel said something incorrect, the jurors should rely upon
their memories.

       On cross-examination, the Petitioner testified that his defense was he did not shoot
the victim and that he knew who shot the victim. The Petitioner agreed that he wanted
the jury to believe his testimony that he did not kill the victim and that he had a clear
mind at the time of the shooting. The Petitioner said, though, that counsel should have
presented evidence of his intoxication at the time of the shooting because the “mitigating
evidence” could have resulted in a “dismissal” of the murder charge. He agreed the jury
heard evidence that the Petitioner had consumed four quarts of beer and that he was
intoxicated.

        The Petitioner testified that had he “may have” pleaded guilty in exchange for
twenty-five years at 85% had he known trial counsel represented Mr. Young. The
Petitioner agreed that counsel learned Mr. Young would testify about five days before the
trial and said that he would not have proceeded to the trial with counsel regardless of
whether the plea offer was still available had he known of the conflict of interests. The
Petitioner said he would have requested a new attorney because he would not have been
able to trust counsel. The Petitioner agreed that Mr. Young testified that the Petitioner
wrote a letter and that the Petitioner testified he wrote the letter. The Petitioner said the
letter should not have been admitted at the trial because the trial was about LaShawn
Nunnally‟s seeing the Petitioner shoot the victim and about the police officer‟s finding
the murder weapon in the Petitioner‟s pants pocket. The Petitioner said that he was not
on trial for the solicitation charge and that the letter was irrelevant to the murder charge.
The Petitioner said that he would not have testified at the trial had he known counsel
previously represented Mr. Young. The Petitioner agreed that his defense of innocence
would have been the same with another attorney.

        The Petitioner testified that after the trial, he pleaded guilty to the solicitation
charge related to the letter and that trial counsel represented him at the guilty plea
hearing. The Petitioner acknowledged he testified at the homicide trial that he wrote the
letter and that he would have been convicted of solicitation had he gone to trial.

        The post-conviction court denied relief. Relative to the Petitioner‟s claim that trial
counsel failed to investigate the circumstances of the Petitioner‟s case adequately and
failed to gather exculpatory and mitigating evidence, the court found that the allegations
were “mere conclusion[s]” without supporting evidence. The court credited counsel‟s
testimony and found that counsel reviewed the preliminary hearing testimony with co-
counsel, who conducted the hearing, spoke with the investigating police officers and


                                            -14-
witnesses, and reviewed the Petitioner‟s medical and psychological records. The court
found that the Petitioner had failed to show any deficient performance or prejudice.

       Relative to the Petitioner‟s claim that trial counsel and co-counsel failed to
interview witnesses to the shooting and that counsel failed to interview and obtain
exculpatory evidence from Evetta McGee, the post-conviction court found that Ms.
McGee did not testify at the evidentiary hearing and that as a result, the Petitioner had
failed to establish any deficient performance or prejudice. The court noted that Ms.
McGee was incarcerated at the time of the post-conviction hearing.

       Relative to the Petitioner‟s claim that trial counsel failed to present as a defense
witness Brooke Whitaker, who would have provided exculpatory testimony, the post-
conviction court found that counsel was unaware until the post-conviction hearing that
Ms. Whitaker was a potential trial witness. The court found that Ms. Whitaker was not
presented at the evidentiary hearing and that counsel did not provide deficient
performance because Ms. Whitaker‟s name was not provided to trial counsel, although
Ms. Whitaker was known to the Petitioner. The court found that the Petitioner presented
no evidence that the outcome of the trial would have been different had Ms. Whitaker‟s
testimony been offered. The court noted that Ms. Whitaker was incarcerated, along with
Ms. McGee, for a rape committed at the Bedford County Jail.

        Relative to the Petitioner‟s claim that trial counsel failed to investigate and employ
the use of experts relative to the scientific evidence, the post-conviction court found that
little evidence was presented at the evidentiary hearing that the use of experts would have
had a reasonable probability of affecting the jury‟s verdict. The court found that the jury
was presented with evidence relative to the Petitioner‟s consuming four quarts of beer
shortly before the shooting and that counsel cross-examined the medical examiner about
the effects of alcohol. The court stated that the Petitioner‟s claim that counsel was
deficient by failing to obtain experts on the issue of intoxication to rebut proof of
premeditation was “curious” based upon the claim counsel was deficient by changing the
defense theory during the trial.

        Relative to the Petitioner‟s claim that trial counsel was representing Mr. Young at
the time of the Petitioner‟s trial, the post-conviction court found that counsel had
previously represented Mr. Young but that the representation had ended before the
Petitioner‟s trial. The court found that Mr. Young was not identified as a State‟s witness
on the original witness list and that Mr. Young‟s name was provided to counsel days
before the trial. The court noted that counsel‟s representation of Mr. Young ended on
August 2, 2001, and found that counsel did not speak to Mr. Young regarding the
Petitioner‟s case before the supplemental witness list was received by counsel. The court
found that Mr. Young could not and did not receive any consideration for his testimony
in the Petitioner‟s case because Mr. Young‟s case had been resolved by August 2.

                                            -15-
       Relative to the Petitioner‟s claim that trial counsel failed to disclose a conflict of
interests regarding Mr. Young, the post-conviction court found that no conflict existed.
The court found that counsel learned nothing from his representing Mr. Young that would
have impaired counsel‟s ability to represent the Petitioner and that the issue was
disclosed to the trial court when it arose. The court noted that the Board of Professional
Responsibility dismissed the Petitioner‟s complaint. The court found that although
counsel met with Mr. Young after the supplemental witness list was provided to the
defense in October 2001, counsel did not advise Mr. Young to testify against the
Petitioner. The court noted that counsel would have been negligent by not attempting to
ascertain what Mr. Young knew about the Petitioner‟s case.

        Relative to the Petitioner‟s claim that trial counsel failed to impeach Mr. Young‟s
credibility with his previous felony convictions, other specific instances of conduct, and
his benefiting from his testimony, the post-conviction court found that the prosecutor
elicited testimony on direct examination about Mr. Young‟s convictions. The court
found that counsel did not receive information about any specific instances of conduct
that could have impeached Mr. Young‟s credibility and that no instances of conduct were
presented at the post-conviction hearing. The court noted that Mr. Young testified at the
hearing that he never disclosed to counsel any conduct that could have provided a basis
for impeachment. The court found that Mr. Young‟s conversations with counsel were
confined to Mr. Young‟s pending charges and that no evidence showed Mr. Young
received any benefit for testifying at the Petitioner‟s trial.

       Relative to the Petitioner‟s claim that trial counsel failed to impeach Ms. Nunnally
with her prior inconsistent statements regarding the night of the shooting, the post-
conviction court found that no evidence was presented regarding the allegation. The
court found that the Petitioner did not present proof at the post-conviction hearing about
what evidence counsel should have used to impeach Ms. Nunnally and whether the
evidence would have had a reasonable probability of affecting the jury‟s verdict.

       Relative to the Petitioner‟s claim that trial counsel failed to review laboratory
reports and medical records and failed to obtain an expert to review these documents, the
post-conviction court found that counsel reviewed these records and knew the Petitioner
had been diagnosed with intermittent explosive disorder. The court determined that,
given the nature of the first degree murder charge, presenting the records at the trial
would have caused harm because the records discussed the Petitioner‟s violent
tendencies. The court found that no evidence offered at the post-conviction hearing
would have affected the jury‟s verdict if it had been presented at the trial. The court
noted that the Petitioner adamantly claimed he was innocent and found that the chosen
defense strategy resulted in the records having little evidentiary value.



                                            -16-
       Relative to the Petitioner‟s claim that trial counsel failed to procure funding for
expert witnesses relative to the Petitioner‟s intoxication and mental state at the time of the
offense, the post-conviction court found that counsel cross-examined the medical
examiner on the effects of consuming alcohol. The court found that the jury heard
evidence of the Petitioner‟s intoxication at the time of the shooting and that as a result,
the evidence was presented to the jury. The court noted that the evidence of the
Petitioner‟s intoxication and the effects of alcohol was immaterial because the Petitioner
claimed he was innocent.

       Relative to the Petitioner‟s claim that trial counsel failed to obtain an expert
witness to challenge the medical examiner‟s conclusions in relation to other witness
testimony, the post-conviction court found that no evidence regarding this allegation was
presented at the evidentiary hearing. The court noted that the Petitioner did not identify
the witnesses to which he referred in his petition.

        Relative to the Petitioner‟s claim that trial counsel failed to choose a trial strategy
based upon adequate investigation, the post-conviction court found that the Petitioner
claimed he did not shoot the victim, rendering his mental health problems and
intoxication at the time of the shooting immaterial. The court concluded that the
Petitioner‟s guilt was established with “considerable proof” at the trial and found that the
Petitioner forced counsel to defend the case based upon the Petitioner‟s innocence rather
than by offering mitigating evidence that “might or might not have” resulted in a
conviction for a lesser included offense. The court found that the Petitioner testified at
the trial and at the post-conviction hearing that he was not guilty and identified Jermaine
Hill as the perpetrator. The court found that Mr. Hill invoked his privilege against self-
incrimination and that Randall Lottie testified about Mr. Hill‟s involvement in the
shooting. The court found that the jury heard evidence that the Petitioner was not the
shooter and that the jury‟s verdict reflects it rejected this theory.

       The post-conviction court found that no evidence was presented to support the
Petitioner‟s claim that trial counsel failed to prepare the Petitioner to testify at the trial.
The court found that the Petitioner had failed to establish prejudice.

       Relative to the Petitioner‟s claim that trial counsel abandoned the initial defense
that the Petitioner was not the shooter and presented evidence at the trial of the
Petitioner‟s intoxication as a means to negate the element of premeditation, the post-
conviction court found after reviewing the trial transcript that counsel did not change
defense strategy mid-trial. The court found that counsel‟s focus during the opening
statement, the proof, and the closing argument was that Mr. Hill was the shooter. The
court found that questioning the medical examiner about the effects of intoxication was
not inconsistent with the chosen defense.


                                             -17-
        The coram nobis court also denied the petition for a writ of error coram nobis.
Relative to the Petitioner‟s claim that trial counsel failed to disclose and intentionally
concealed a conflict of interests, the court found that no new evidence was presented.
The court found that although the record reflected a side-bar discussion was held with the
trial judge, counsel, and the prosecutor, no evidence showed the Petitioner was present
for the discussion. The court found that it was likely the Petitioner was unaware of the
former representation and that the Petitioner would not have been at fault for not
discovering the previous representation earlier. The court found, though, that the
previous representation did not have an impact on the outcome of the trial. The court
found that the previous representation had ended before the State supplemented its
witness list to include Mr. Young and that Mr. Young and counsel did not discuss any
conduct that could have been used to impeach Mr. Young. This appeal followed.

       As a preliminary matter, the State argues the Petitioner is barred from receiving
post-conviction relief. The State initially asserts that this court‟s previous opinion
ordered an evidentiary hearing not on the merits of the Petitioner‟s allegations contained
in the petitions but, rather, for the purpose of providing the Petitioner an opportunity to
present proof of whether appellate counsel informed the Petitioner that the supreme court
denied his application for permission to appeal because “[i]t appears that the petitioner‟s
timely pursuit of relief was hindered by, if true, his appellate counsel not informing him
of the denial of his application for permission to appeal to the supreme court in 2003.”
Dennis Cedric Woodard, Jr., 2014 WL 4536641, at *11. We disagree with the State‟s
interpretation of this court‟s instructions. This court concluded that “[c]onsidering the
procedural situation and cumulative claims in this case, the record suggests that the
petitioner has been „pursuing his rights diligently‟ upon learning of such rights . . . and
that due process at least requires that the petitioner be afforded the opportunity to present
proof as to his claims.” Dennis Cedric Woodard, Jr., 2014 WL 4536641, at *11. This
court determined that the statute of limitations was tolled and ordered an evidentiary
hearing on the merits of the Petitioner‟s post-conviction and coram nobis allegations. We
note the State did not file an application for permission to appeal to our supreme court.

        Likewise, the State asserts that the post-conviction petition court‟s 2005 summary
dismissal of the original petition as untimely prevents the Petitioner from obtaining post-
conviction relief from the present petition. See T.C.A. § 40-30-102(c) (2014) (stating the
Post-Conviction Act “contemplates the filing of only one (1) petition for post-conviction
relief be filed attacking a single judgment”). However, Code section 40-30-102(c) also
states, “If a prior petition has been filed which was resolved on the merits by a court of
competent jurisdiction, any second or subsequent petition shall be summarily dismissed.”
(emphasis added). The record reflects that the Petitioner‟s petition was not resolved on
the merits, and this court concluded in the previous appeal that the Petitioner was entitled
to an evidentiary hearing on the petitions for post-conviction relief and for a writ of error


                                            -18-
coram nobis. See Dennis Cedric Woodard, Jr., 2014 WL 4536641, at *11. We will
consider the Petitioner‟s allegations on their merits.

                       I.      Petition for Post-Conviction Relief

       Post-conviction relief is available “when the conviction or sentence is void or
voidable because of the abridgement of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2012). A
petitioner has the burden of proving his factual allegations by clear and convincing
evidence. Id. § 40-30-110(f) (2012). A post-conviction court‟s findings of fact are
binding on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction
court‟s application of law to its factual findings is subject to a de novo standard of review
without a presumption of correctness. Fields, 40 S.W.3d at 457-58.

                        A.      Ineffective Assistance of Counsel

       To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1)
counsel‟s performance was deficient and (2) the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell,
506 U.S. 364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland
standard to an accused‟s right to counsel under article I, section 9 of the Tennessee
Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure 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). To establish the
performance prong, a petitioner must show that “the advice given, or the services
rendered . . . , are [not] within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at
690. The post-conviction court must determine if these acts or omissions, viewed in light
of all of the circumstances, fell “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy by his counsel, and
cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d
334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn.
2008). This deference, however, only applies “if the choices are informed . . . based upon
adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
To establish the prejudice prong, a petitioner must show that “there is a reasonable

                                            -19-
probability that, but for counsel‟s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.

                     1.     Failure to Investigate Possible Defenses

        The Petitioner argues that trial counsel failed to investigate adequately the
viability of possible defenses associated with the Petitioner‟s mental health and
intoxication. The State responds that the post-conviction court properly denied relief.

       Trial counsel‟s credited testimony reflects that his investigation efforts included
interviewing witnesses, talking to the Petitioner, reviewing the discovery materials,
reviewing the autopsy and laboratory reports, and interviewing police officers and
physicians. Counsel estimated spending forty hours preparing for the Petitioner‟s trial.
Counsel testified that the Petitioner claimed he was innocent but knew who killed the
victim. Although counsel reviewed the Petitioner‟s mental health records and was aware
of the intermittent explosive disorder diagnosis, counsel concluded that a mental health
expert was unnecessary because the defense strategy was that the Petitioner did not shoot
the victim. Counsel concluded that evidence of the Petitioner‟s mental health was not
relevant to the chosen defense and that presenting an expert to testify about the
Petitioner‟s violent tendencies would have been detrimental to the Petitioner. The proof
at the trial established that the Petitioner and the victim were involved in a physical
altercation hours before the shooting, and counsel did not want the jury to learn of the
Petitioner‟s violent behaviors. We note that the Petitioner did not present an expert
witness at the post-conviction hearing to show how the use of his mental health history
would have impacted the outcome of the trial notwithstanding his claim he was not the
shooter. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

        Likewise, trial counsel considered the evidence of the Petitioner‟s intoxication and
concluded that the Petitioner‟s intoxication on the night of the shooting was also
irrelevant to the Petitioner‟s innocence defense. In any event, the record reflects that
counsel presented evidence to the jury of the Petitioner‟s consuming four quarts of beer
shortly before the shooting and that counsel questioned the medical examiner about the
effects of alcohol, while maintaining the Petitioner did not shoot the victim. We note the
Petitioner testified at the trial that he was innocent, that he saw Jermaine Hill shoot the
victim, and that he had drank alcohol on the night of the shooting. The effects of the
Petitioner‟s intoxication were minimally relevant to the chosen defense but nonetheless
were before the jury for its consideration. Again, the Petitioner did not present an expert
witness at the post-conviction hearing to show how the use of the Petitioner‟s
intoxication would have changed the outcome of the trial notwithstanding his claim he
was not the shooter, preventing him from establishing prejudice. See Black, 794 S.W.2d
at 757.

                                           -20-
       The record supports the post-conviction court‟s findings that the Petitioner‟s claim
of innocence rendered immaterial the Petitioner‟s mental health and intoxication and that
the Petitioner‟s denial of involvement in the shooting prevented a defense of mitigating
evidence in an effort to obtain a conviction for a lesser included offense of first degree
murder. The record does not preponderate against the court‟s findings that counsel did
not provide deficient performance and that the Petitioner failed to establish prejudice.
The Petitioner is not entitled to relief on this basis.

              2.     Admission of the Petitioner’s Handwritten Letter

        The Petitioner argues that trial counsel failed to challenge the admission of the
letter the Petitioner wrote while in the jail. He asserts that no trial witnesses identified
the handwriting as the Petitioner‟s and that “it is possible that the State might not have
been able to introduce the letter if counsel would have objected to its admission.” The
State responds that the post-conviction court properly denied relief.

       The record reflects that the letter was read to jury by State‟s witness Rhonda Hill.
She testified that she received the letter in the mail, although it was addressed to her son,
Chris Hodge. She said that the return address was the jail and that the name associated
with the return address was Dana Brown, Ms. Hill‟s former neighbor. Ms. Hill noted Mr.
Brown‟s name was misspelled and said she opened the letter. The letter stated the
following:

       Chris, . . . [t]his s--- is real. I need you to do something cause this stupid . .
       . b---- named Shawn is running her mouth, tell s---. Hey, I need you to stop
       this ho from making this court date, June 18th. Hook up with Micky and
       burn this b---- house down. Micky will tell you where the ho lives at. You
       dig. This is the ho that is making the charge, me with first-degree murder
       and this 51 top off. That‟s life. Stay on your feet. Much love, Juvy.

        Mr. Young testified at the trial that he and the Petitioner were housed in the same
cell block at the jail and that after the Petitioner‟s preliminary hearing, the Petitioner
began writing a letter. Mr. Young stated that he knew “a little” about the letter‟s content
and that the Petitioner was attempting to “get something taken care of with Shawn”
Nunnally. Mr. Young said he saw the Petitioner writing the letter and that the Petitioner
asked him how to spell a couple of words. Mr. Young identified the letter read by Ms.
Hill as the letter the Petitioner wrote. Mr. Young said the Petitioner‟s nickname was
“Juvy.” On cross-examination, Mr. Young testified that he did not read the Petitioner‟s
letter and that the Petitioner claimed Ms. Nunnally was lying to the police.




                                             -21-
      The Petitioner testified at the trial that he wrote the letter and admitted he asked
Mr. Hodge to burn Ms. Nunnally‟s house because Ms. Nunnally was lying and because
he was scared. The Petitioner said he did not know what else to do to make Ms.
Nunnally stop lying about whether he shot the victim.

        The record reflects that counsel did not object to the admission of the letter
because the Petitioner admitted to counsel that he wrote the letter. The Petitioner
testified at the trial that he wrote the letter, rendering a handwriting expert unnecessary.
Likewise, the Petitioner did not deny writing the letter at the post-conviction hearing. In
any event, the Petitioner did not present a handwriting expert at the post-conviction
hearing, nor did he offer any evidence to show that he did not write the letter or that the
letter was inadmissible. See Black, 794 S.W.2d at 757. Therefore, we conclude that the
record does not preponderate against the post-conviction court‟s conclusion that counsel
did not provide ineffective assistance of counsel. The Petitioner is not entitled to relief
on this basis.

                       B.     Sixth Amendment Right to Counsel

        The Petitioner contends that his Sixth Amendment right to counsel was violated
because trial counsel simultaneously represented the Petitioner and Mr. Young, creating a
conflict of interests. The State responds that the post-conviction court properly denied
relief.

       A criminal defendant is “entitled to zealous representation by an attorney
unfettered by a conflicting interest.” State v. Thompson, 768 S.W.2d 239, 245 (Tenn.
1989). “In order to demonstrate a violation of his Sixth Amendment rights, a defendant
must establish that an actual conflict of interest adversely affected his lawyer‟s
performance.” Cuyler v. Sullivan, 446 U.S. 335, 350 (1980); see Thompson, 768 S.W.2d
at 245. A possible conflict of interests is insufficient to establish the constitutional
violation. Cuyler, 446 U.S. at 350. “If an attorney actively represents conflicting
interests, no analysis of prejudice is necessary; it is presumed that his divided interests
adversely affected his representation.” Thompson, 768 S.W.2d at 245.

       No conflict of interests existed. The offense date in the Petitioner‟s case was April
13, 2001, and the trial occurred in October 2001. Trial counsel admitted previously
representing Mr. Young and said his representation ended on August 2, 2001. Counsel
was unaware of Mr. Young‟s connection to the Petitioner‟s case during counsel‟s
representation of Mr. Young, and counsel and Mr. Young confirmed they never discussed
the Petitioner‟s case during counsel‟s representation of Mr. Young. On October 5, 2001,
more than two months after counsel ended his representation of Mr. Young, counsel
received the State‟s supplemental witness list in the Petitioner‟s case, which indicated
Mr. Young would testify at the Petitioner‟s trial. At that time, counsel did not represent

                                           -22-
Mr. Young, and it had been two months since counsel had spoken with Mr. Young.
Upon learning Mr. Young would testify at the Petitioner‟s trial, counsel spoke with Mr.
Young, who provided limited information to counsel consistent with his trial testimony
regarding the Petitioner‟s letter. Mr. Young testified at the post-conviction hearing that
he did not regard this conversation with counsel as important or confidential. The record
reflects that Mr. Young did not receive any benefit from the State in exchange for his
testimony because his criminal cases had been resolved by August 2, 2001. We note the
Petitioner did not present evidence that Mr. Young received any benefit from testifying at
the Petitioner‟s trial.

       Likewise, trial counsel and Mr. Young both testified at the post-conviction hearing
that counsel did not advise him to testify against the Petitioner. Counsel‟s credited
testimony reflects that counsel did not obtain confidential information relevant to the
Petitioner‟s case during counsel‟s representation of Mr. Young and that counsel and Mr.
Young did not discuss any prior bad acts, criminal conduct, or specific instances of
conduct that could have been used to impeach Mr. Young at the Petitioner‟s trial.
Nothing about counsel‟s representation of Mr. Young would have impaired counsel‟s
ability to represent the Petitioner. We note that the Petitioner did not present any
impeaching evidence at the post-conviction hearing and that the record reflects the
prosecutor questioned Mr. Young on direct examination about Mr. Young‟s previous
criminal convictions and criminal behavior.

       As a result, the record does not preponderate against the post-conviction court‟s
finding that no conflict of interests existed and that counsel did not fail to impeach Mr.
Young properly. The Defendant has failed to show an actual conflict of interests existed,
and he is not entitled to relief on this basis.

                   II.    Petition for a Writ of Error Coram Nobis

       The Petitioner asserts that trial counsel did not disclose the conflict of interests
created by counsel‟s representing Mr. Young, that information related to the conflict of
interests was intentionally concealed from the Petitioner, and that the Petitioner would
not have proceeded to the trial with counsel as his attorney had he known of the
representation.

        Tennessee Code Annotated section 40-26-105(b) (2012) provides that coram nobis
relief is available in criminal cases as follows:

      The relief obtainable by this proceeding shall be confined to errors dehors
      the record and to matters that were not or could not have been litigated on
      the trial of the case, on a motion for a new trial, on appeal in the nature of a
      writ of error, on writ of error, or in a habeas corpus proceeding. Upon a

                                           -23-
       showing by the defendant that the defendant was without fault in failing to
       present certain evidence at the proper time, a writ of error coram nobis will
       lie for subsequently or newly discovered evidence relating to matters which
       were litigated at the trial if the judge determines that such evidence may
       have resulted in a different judgment, had it been presented at the trial.

       Unlike the grounds for reopening a post-conviction petition, the grounds for
seeking a writ of error coram nobis are not limited to specific categories. Harris v. State,
102 S.W.3d 587, 592 (Tenn. 2003). Coram nobis claims may be based upon any “newly
discovered evidence relating to matters litigated at trial” so long as the petitioner
establishes that he or she was “without fault in failing to present the evidence at the
proper time.” Id. at 592-93. In a coram nobis proceeding, the trial court first must
consider the newly discovered evidence and be “reasonably well satisfied with its
veracity.” State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007). If the defendant is
without fault because the exercise of reasonable diligence would not have led to a timely
discovery of the new information, the trial court must examine both the evidence
presented at the trial and during the coram nobis proceedings to determine whether the
new evidence may have led to a different result. Id. The decision to grant or deny coram
nobis relief rests within the sound discretion of the trial court. Id. at 527-28.

       The record reflects, as we have concluded above, that no conflict of interests
existed because trial counsel‟s representation of Mr. Young ended on August 2, 2001,
and because counsel did not obtain any information during his representation of Mr.
Young that could have been used to impeach Mr. Young at the Petitioner‟s trial.
Likewise, no evidence was presented at the evidentiary hearing reflecting that counsel
concealed any conflict of interests from the Petitioner. The record shows that at the trial,
a side-bar discussion was held between the trial judge, the prosecutor, and counsel
relative to any potential conflict of interests and that the Petitioner was not present during
the discussion. The trial court was informed of counsel‟s previously representing Mr.
Young. Likewise, counsel testified at the post-conviction hearing that the Petitioner
knew counsel had represented Mr. Young because the Petitioner mentioned it to counsel.

        In any event, coram nobis relief is limited to matters involving “subsequently or
newly discovered evidence relating to matters which were litigated at the trial if the judge
determines that such evidence may have resulted in a different judgment, had it been
presented at the trial.” T.C.A. § 40-26-105(b). Evidence of a conflict of interests does
not qualify as newly discovered evidence as contemplated by our statutes. Trial
counsel‟s previous representation had no impact on the outcome of the Petitioner‟s trial
because it had no relevance to whether the Petitioner shot and killed the victim. As a
result, the Petitioner is not entitled to relief on this basis.



                                            -24-
       In consideration of the foregoing and the record as a whole, the judgments of the
post-conviction and coram nobis court are affirmed.




                                          _____________________________________
                                           ROBERT H. MONTGOMERY, JR., JUDGE




                                         -25-
