             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                  Assigned on Briefs October 30, 2001

             STATE OF TENNESSEE v. MARK CHRISTOPHER DAVIS

                         Appeal from the Criminal Court for Hamilton County
                                No. 219140   Stephen M. Bevil, Judge



                                         No. E2001-00323-CCA-R3-PC
                                               January 14, 2002

Mark Christopher Davis appeals the Hamilton County Criminal Court’s denial of his petition for
post-conviction relief. Because Davis has not demonstrated error in the lower court’s determination
that he was provided the effective assistance of trial counsel in the conviction proceedings, we
affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID G. HAYES and
JOHN EVERETT WILLIAMS, JJ., joined.

Ardena J. Garth, District Public Defender; and Donna Robinson Miller, Assistant District Public
Defender, Chattanooga, Tennessee, for the Appellant, Mark Christopher Davis.

Paul G. Summers, Attorney General & Reporter; Gill R. Geldrich, Assistant Attorney General;
William H. Cox, III, District Attorney General; and Barry A. Steelman, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                                       OPINION

                The petitioner was convicted of second degree murder and sentenced to twenty years
in the Department of Correction. Following an unsuccessful appeal to this court, he filed this post-
conviction action in which he alleged that the attorney who represented him at trial and on appeal
did not provide effective assistance and that he had been deprived of his constitutional rights to a fair
trial and to due process.1 At the post-conviction hearing, he pursued several allegations of
ineffective assistance of counsel.




         1
           The petition contains no factual allegations supporting the fair trial and due process allegations, and they were
not p ursued at th e hea ring and have not been me ntion ed in this appeal.
                  The petitioner testified on his own behalf at the post-conviction hearing. He voiced
various complaints which generally fell into the categories of (1) complaints about counsel’s choice
of strategy, and (2) failure to prepare adequately for trial. The petitioner’s trial attorney’s testimony
contradicted that of the petitioner on several salient points. To the extent that resolution of the issues
required evaluating the credibility of the petitioner versus his trial attorney, the lower court made
each such determination adversely to the petitioner. On other points, particularly those relative to
trial strategy, the court accredited counsel’s testimony that his decisions were considered ones based
upon preparation. The lower court determined another issue by apparent reference to documents in
the court file of the conviction proceeding. Finding no ineffective assistance issues in the
petitioner’s favor, the lower court denied relief. This appeal followed.

                When a petitioner challenges the effective assistance of counsel, he has the burden
of establishing (1) deficient representation and (2) prejudice resulting from that deficiency.
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984); Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). Deficient representation occurs when counsel provides assistance
that falls below the range of competence demanded of criminal attorneys. Bankston v. State, 815
S.W.2d 213, 215 (Tenn. Crim. App. 1991). Prejudice is the reasonable likelihood that, but for
deficient representation, the outcome of the proceedings would have been different. Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994). On review, there is a strong presumption of satisfactory
representation. Barr v. State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995).

                In post-conviction proceedings, the petitioner has the burden of proving the claims
raised by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (1997). On appeal, the
lower court’s findings of fact are reviewed de novo with a presumption of correctness that may only
be overcome if the evidence preponderates against those findings. Fields v. State, 40 S.W.3d 450,
458 (Tenn. Crim. App. 2001).

                In this case, the lower court determined that the petitioner failed to carry his burden
of proving any of his claims by clear and convincing evidence. In no case did the petitioner prove
either prong of the Strickland test; that is, he proved neither that counsel’s performance was deficient
nor that he suffered any prejudice as a result of counsel’s actions. Specifically, as to issues which
turned on witness credibility, he has failed to demonstrate that the evidence preponderates against
the lower court’s accreditation of counsel’s testimony and rejection of the petitioner’s testimony.
With respect to issues of trial strategy, the petitioner has failed to show that counsel’s strategies were
uninformed, and the petitioner has failed to provide any evidence other than his own vague
speculations to demonstrate that other strategies would have yielded more favorable results.
Regarding the issue determined by reference to the court file of the conviction proceedings, the
petitioner has failed to demonstrate that the evidence preponderates against this determination.

               In this appeal, the petitioner has failed once again -- he has not demonstrated that the
evidence preponderates against the lower court’s findings. We therefore affirm the denial of post-
conviction relief.

                                                         ___________________________________

                                                   -2-
      JAMES CURWOOD WITT, JR., JUDGE




-3-
