                                                                                        02/25/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs December 3, 2019

                DAVID BURROWS v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                   No. 11-04221      John W. Campbell, Judge
                     ___________________________________

                           No. W2019-00961-CCA-R3-PC
                       ___________________________________

The Petitioner, David Burrows, appeals from the Shelby County Criminal Court’s denial
of post-conviction relief from his convictions for first degree premeditated murder, first
degree felony murder, and especially aggravated kidnapping. On appeal, the Petitioner
argues that trial counsel provided ineffective assistance in failing to discover his
intelligence quotient (“IQ”) of 76 and in failing to seek a mental evaluation. We affirm
the judgment of the post-conviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and J. ROSS DYER, JJ., joined.

Phyllis L. Aluko, District Public Defender; Harry E. Sayle III (on appeal), and Erim
Sarinoglu (at hearing), Assistant Public Defenders, for the Petitioner, David Burrows.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

      The Shelby County Grand Jury indicted the Petitioner for one count of first degree
premeditated murder, one count of first degree felony murder, and one count of
especially aggravated kidnapping stemming from the May 2011 murder of the
Petitioner’s estranged girlfriend, Marquita Adams. State v. David Burrows, No. W2014-
01785-CCA-R3-CD, 2016 WL 154728, at *1 (Tenn. Crim. App. Jan. 12, 2016), perm.
app. denied (Tenn. May 6, 2016).
        The evidence presented at the Petitioner’s trial showed that the Petitioner and the
victim had a tumultuous and abusive relationship. Id. In February 2011, the victim
applied for an order of protection against the Petitioner after he gave her a black eye, but
the case was dismissed when the victim failed to appear at the hearing. Id. Around the
same time, the Petitioner sent the victim a threatening text, stating, “I’m going to kill you,
you’re not going to see the summertime, and I can’t live without you.” Id. On May 14,
2011, the Petitioner answered the victim’s cell phone and heard the voice of another man,
who mocked him. Id. The Petitioner took the victim’s car keys and cell phone, and when
the victim tried to retrieve them, the Petitioner pushed the victim and told her to “shut up
before I kill your kids[,] too.” Id. The Petitioner then drove the victim to an area in front
of New Chicago Park, where they argued. Id. at *2. When the victim again attempted to
retrieve her cell phone, the Petitioner became angry and struck her in the face, and the
victim fell to the ground. Id. The Petitioner testified at trial that he repeatedly kicked the
victim in her head and all over her body. Id. He also testified that he picked up the
victim and hit her again, and when he did so, the victim “fell straight back and hit the
curb.” Id. The Petitioner said that when he realized the victim was unconscious, he
stopped kicking her and attempted to awaken her. Id. When he was unable to rouse her,
the Petitioner picked up the victim and placed her on the grass, where she vomited. Id.
The Petitioner grabbed the victim, placed her in the trunk of her car, and attempted to
stop the bleeding from the victim’s head. Id. He then placed the victim in the backseat
of the car. Id. The victim began breathing quickly and deeply, and when she stopped
breathing, the Petitioner closed the car door and started running. Id. However, he
quickly returned to the car, picked up the victim’s shoes that had come off during the
beating, put them in the car, and drove to his grandmother’s home. Id. He parked the car
and ran into a nearby park. Id. The Petitioner then got rides to two acquaintances’
homes before asking his cousin to take him to a friend’s house. Id. He stayed with this
friend for two days and then called another cousin to take him to another friend’s home.
Id. Thereafter, the Petitioner traveled to St. Louis, where he stayed with a friend and
used another person’s Social Security card and birth certificate to obtain a Missouri state
identification. Id. Using this identification, the Petitioner purchased a one-way plane
ticket to Alaska, where he was arrested a month and a half later. Id.

       The jury convicted the Petitioner as charged. Id. The trial court merged the first
degree felony murder conviction with the first degree premeditated murder conviction
and imposed an effective sentence of life imprisonment plus twenty-five years. Id. This
court affirmed the Petitioner’s convictions on direct appeal, and the Tennessee Supreme
Court denied permission to appeal. Id. at *1, *8.

        On March 31, 2017, the Petitioner filed a timely pro se petition for post-conviction
relief, alleging, in part, that he had received ineffective assistance of counsel. Following
the appointment of counsel, the Petitioner filed an amended post-conviction petition,
                                            -2-
which included the claim that trial counsel was ineffective in failing to investigate his
presence at the Tall Trees Juvenile Detention Facility and in failing to seek a mental
evaluation to determine his IQ, mental health history, and his competency to stand trial.

        At the March 22, 2019 evidentiary hearing, the trial court admitted, pursuant to the
parties’ stipulation, a February 12, 1998 psychological evaluation of the Petitioner for the
juvenile court. The evaluation noted that the Petitioner had been expelled from ninth
grade for a disorderly conduct charge, that the Petitioner had repeated third grade, and
that the Petitioner had not taken any resource classes at school. It also stated that the
Petitioner’s history was “reportedly negative for any serious medical or psychological
treatment.” This evaluation stated that as a result of testing, the Petitioner “obtained an
estimated IQ of 76, which falls within the Borderline Mentally Retarded range of
intellectual functioning.”

        At the post-conviction hearing, the Petitioner testified that he was twelve or
thirteen years old when he entered the juvenile system. He said that while in the juvenile
system, he saw numerous doctors, who showed him “pictures and numbers” and said that
he was “crazy.” The Petitioner stated that his mental health deteriorated when someone
robbed his grandmother and put a knife to his neck when he was nine years old. He
asserted that this robbery made him “[m]ad” because no one helped them.

        The Petitioner claimed that he “didn’t know what was going on” during his
criminal case. He said that he was confused about the legal process and his options
during his case. The Petitioner said he only understood his choices and options after his
“trial was over.”

       The Petitioner acknowledged that he was expelled from school in the ninth grade
for drug use and then went to the Tall Trees Juvenile Detention Facility. He said he did
not remember ever receiving a mental health diagnosis.

        The Petitioner admitted that after murdering the victim, he picked up the victim’s
shoes, put them in his vehicle, fled to his grandmother’s home and to the homes of
several friends, and then traveled to Alaska. He further admitted that he procured a fake
identification in Missouri by using someone else’s birth certificate and Social Security
card before flying to Alaska.

       Trial counsel testified that he had been practicing exclusively criminal defense for
fourteen or fifteen years when the Petitioner first retained him. He said that with all of
his clients, he generally conducted an intake interview, where he gathered information
about a client’s background, educational history, juvenile record, and past mental health
issues. Trial counsel asserted that he always asked his clients if they had “any mental
                                           -3-
health treatment” or if they had “any mental health issues” and asked his clients’ family
members whether the clients had any mental health issues. He said that in this case, he
would have talked with May Wright, the Petitioner’s grandmother, about whether the
Petitioner “had any mental health issues or history[.]” Trial counsel asserted that
whenever there is a history or any indication of mental health issues, he “definitely
request[s] a mental evaluation.”

        Trial counsel recalled completing the intake evaluation for the Petitioner at the
jail, and his notes from this interview were admitted into evidence. These notes indicated
that the Petitioner obtained a GED while previously incarcerated, that the Petitioner had
attended an after-school “task force” for help in reading, and that the Petitioner had
attended barber school for approximately one month. Trial counsel acknowledged that
his notes did not show that he questioned the Petitioner about his mental health; however,
he said that the absence of any information in his notes about the Petitioner’s mental
health indicated that the Petitioner had provided no information on that topic.

       Trial counsel said he asked the Petitioner about his juvenile record and discovered
that the Petitioner had been sent to “Tall Trees” for two or three months when he was
sixteen before going to the Shelby Training Center for three months. He noted that the
Petitioner was sent to both “Tall Trees” and the Shelby Training Center for his drug use.
There was nothing in trial counsel’s file to indicate that he investigated what sort of
program “Tall Trees” was.

        Trial counsel acknowledged that he did not investigate the Petitioner’s “family
file” from juvenile court, which generally gives “a synopsis of all encounters with the
juvenile system” and provides “general information about the [juvenile’s] family.”
Although trial counsel admitted that he did not conduct any outside investigation
regarding whether any members of the Petitioner’s family had mental health issues, he
said he talked to several members of the Petitioner’s family and discovered no significant
mental health issues or mental disorders. Trial counsel insisted that he would have
followed up on any information regarding the Petitioner’s mental health and would have
noted such in his file.

       Trial counsel said he provided the Petitioner with a copy of all the discovery in his
case. He said that did not ask the Petitioner about his reading level but asserted that he
did not recall his reading level being an issue.

        Trial counsel said that he had represented clients in several felony and murder
trials prior to handling the Petitioner’s first degree murder trial and that during these other
cases, he had evaluated the clients’ mental health issues. He asserted that if there had
been evidence or anything indicating that there were mental issues present in his cases,
                                             -4-
then he obtained a mental health evaluation. He stated that he pursued mental health
issues in several of his murder cases. Trial counsel affirmed that at the time he
represented the Petitioner, he was familiar with requesting expert services under
Tennessee Supreme Court Rule 13 and had requested expert services several times in
other cases. He also said he had presented a diminished capacity defense prior to
handling the Petitioner’s case. Trial counsel said that if he had believed he needed expert
services in the Petitioner’s case, he “would have absolutely petitioned the Court for
funding[.]”

       Trial counsel asserted that it was apparent that the Petitioner had been sent to Tall
Trees Juvenile Detention Facility for his drug usage, and he did not further investigate the
Petitioner’s time there because there was nothing that indicated that the Petitioner
suffered from a mental illness. Trial counsel said he was aware that the Petitioner earned
a GED while previously incarcerated at the Shelby County Correctional Center and that
the Petitioner had attended barber college.

       Trial counsel stated that the facts of the Petitioner’s case indicated that the
Petitioner had a sophisticated degree of functioning. Given his interactions with the
Petitioner and the facts of the Petitioner’s case, trial counsel did not believe that he would
have been successful in pursuing a mental health defense. He asserted that the
Petitioner’s conduct during the crimes did not indicate that he had a mental defect or
disease because it involved executing a plan that “required some degree of higher
thinking.” He explained that after murdering the victim, the Petitioner hid in several
locations, made several calls to family members expressing his remorse for his actions,
obtained a fake identification, and flew to Alaska.

        Trial counsel said the 1998 psychological evaluation, which was admitted during
the hearing, showed that the Petitioner had not undergone any serious medical or
psychological treatment. He acknowledged that this evaluation provided an estimated IQ
for the Petitioner of 76, which placed him in the “Borderline Mentally Retarded range of
intellectual functioning.” Trial counsel candidly admitted that had he seen this
psychological evaluation, he “probably would have requested a mental evaluation[.]”
However, he saw nothing in the psychological evaluation that would have assisted him in
arguing a diminished capacity defense or any other mental health defense on behalf of the
Petitioner. He also did not believe that a mental evaluation of the Petitioner would have
changed the outcome of the case. Trial counsel said that he talked to several members of
the Petitioner’s family and that no one ever indicated that the Petitioner had any mental
health issues or mental defects. He reiterated that there was nothing in this case that
made him believe that the Petitioner had mental health issues that would have assisted
trial counsel in presenting a defense to the jury.

                                            -5-
       Trial counsel acknowledged that his defense theory, which he presented during his
closing argument, focused on the Petitioner’s mental state at the time of the offense. He
argued that the Petitioner did not act with premeditation and was only guilty of a lesser
included offense. He also contended that the incident was a “domestic violence situation
that got out of hand” and that “when [the victim] fell to the ground, she hit her head on
the curb.” Trial counsel maintained that the Petitioner fled the scene because he was
panicked, not because he was trying to escape a murder charge.

         On April 29, 2019, the post-conviction court entered a written order denying
relief. In it, the court noted that “[t]he [P]etitioner has submitted no witnesses who would
have provided testimony that would have changed the outcome of the trial.” The court
also found trial counsel to be “very credible” and asserted that it would “not second guess
trial strategy unless it is unreasonable and not based on adequate preparation.” The court
then made the following findings of fact and conclusions of law regarding the Petitioner’s
claim that trial counsel failed to investigate his mental health:

               As to the allegation that [trial counsel] did not explore whether there
       were any mental health issues that could have been submitted to the jury to
       show diminished capacity, the Court finds that counsel did examine
       whether any mental health issues were present in the [P]etitioner’s case and
       determined that there was nothing useable. Counsel talked to the
       [P]etitioner who provide[d] no useful information. [Trial counsel] went
       further and interviewed the family and they provided no information that
       would have been useful for any mental defense. [Trial counsel] testified
       that he explored these issues and could find no indication of mental disease
       or defect. The investigation revealed that the [P]etitioner had not been
       diagnosed with any mental illnesses and had not been in resource classes in
       school. Furthermore, when the [P]etitioner was incarcerated in an earlier
       case he obtained his GED which would severely undercut an argument that
       the defendant was suffering from some kind of intellectual disability. Even
       though counsel did not obtain the juvenile court file and was unaware that
       the [P]etitioner scored an IQ of 76, there has been no showing that this
       information would have been useful at trial. The fact that the [P]etitioner
       had been incarcerated at “Tall Trees” for drug use as a juvenile in and of
       itself does not give rise to any significance without further context. The
       [P]etitioner has not provided any further context to show that not exploring
       this fact created some kind of prejudice. The [P]etitioner has provided no
       proof that there was any additional information that could have been
       developed that would have changed the outcome of the trial. By his failure
       to specifically allege and prove that additional evidence existed and could
       have been developed had counsel pursued this avenue, the Court finds that
                                            -6-
       the [P]etitioner has failed to meet his burden of proof. Petitioner has the
       burden to establish his claims for relief. The Court will not assume what is
       not in evidence. Since the [P]etitioner has the burden of proving his case,
       and there being no proof to contradict the decision by trial counsel, this
       allegation is without merit. Grindstaff v. State, 279 S.W.3d 208 (Tenn.
       2009).

              ....

              After a review of all the allegations . . . and a review of the trial
       record and the proof adduced at the evidentiary hearing, the Court finds that
       the [P]etitioner has not met his burden of showing counsel was deficient[,]
       much less that there was prejudice.



       Thirty-one days after entry of the order denying post-conviction relief, the
Petitioner filed his notice of appeal.

                                       ANALYSIS

      The Petitioner argues that trial counsel provided ineffective assistance in failing to
discover that he had an IQ of 76 and in failing to request a mental evaluation. The State
responds that the Petitioner is not entitled to relief because trial counsel found no
suggestion of mental disability and because the Petitioner has failed to show how
discovering the psychological evaluation would have changed the outcome of his case.
We conclude that the Petitioner is not entitled to relief.

        Although not raised by either party, we note that the Petitioner’s notice of appeal
is untimely. Tennessee Rule of Appellate Procedure 4(a) states that “the notice of appeal
required by Rule 3 shall be filed with and received by the clerk of the trial court within 30
days after the date of entry of the judgment appealed from . . . .” However, it also states
that “in all criminal cases the ‘notice of appeal’ document is not jurisdictional and the
filing of such document may be waived in the interest of justice.” Tenn. R. App. P. 4(a).
Here, the Petitioner filed his notice of appeal on May 30, 2019, thirty-one days after entry
of the order denying post-conviction relief. The Petitioner fails to provide an explanation
for this untimely filing. Nevertheless, given that the notice of appeal was untimely by
only one day, we conclude that the “interest of justice” is best served by granting a
waiver in this case. See Tenn. R. App. P. 4(a); see also Crittenden v. State, 978 S.W.2d
929, 932 (Tenn. 1998). Accordingly, we will review this appeal on the merits.

                                            -7-
       Post-conviction relief is only warranted when a petitioner establishes that his or
her conviction or sentence is void or voidable because of an abridgement of a
constitutional right. Tenn. Code Ann. § 40-30-103. The Tennessee Supreme Court has
held:

             A post-conviction court’s findings of fact are conclusive on appeal
      unless the evidence preponderates otherwise. When reviewing factual
      issues, the appellate court will not re-weigh or re-evaluate the evidence;
      moreover, factual questions involving the credibility of witnesses or the
      weight of their testimony are matters for the trial court to resolve. The
      appellate court’s review of a legal issue, or of a mixed question of law or
      fact such as a claim of ineffective assistance of counsel, is de novo with no
      presumption of correctness.



Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation
marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State,
303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-
30-110(f); Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94
(Tenn. 2009). Evidence is considered clear and convincing when there is no serious or
substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316
S.W.3d 555, 562 (Tenn. 2010); Grindstaff, 297 S.W.3d at 216; Hicks v. State, 983 S.W.2d
240, 245 (Tenn. Crim. App. 1998).

       In order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish that (1) his lawyer’s performance was deficient and (2) the deficient
performance prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)).
A petitioner successfully demonstrates deficient performance when the petitioner
establishes that his attorney’s conduct fell “below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter, 523 S.W.2d at 936). Prejudice arising
therefrom is demonstrated once the petitioner establishes “‘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.’” Id. at 370 (quoting Strickland, 466 U.S. at 694). “Because a petitioner
must establish both prongs of the test, a failure to prove either deficiency or prejudice
provides a sufficient basis to deny relief on the ineffective assistance claim.” Id.

                                           -8-
        Here, the Petitioner argues that trial counsel provided ineffective assistance in
failing to discover that he had an IQ of 76 and in failing to request a mental evaluation.
In particular, the Petitioner claims trial counsel should have uncovered his 1998
psychological evaluation conducted at the Tall Trees Juvenile Detention Facility, which
stated that he had “an estimated IQ of 76” and that he was in the “Borderline Mentally
Retarded range of intellectual functioning.” He also claims that trial counsel should have
talked to the Petitioner’s family and friends about his mental condition. The Petitioner,
noting that trial counsel’s defense theory was that the Petitioner lacked the intent required
for first degree murder, argues that evidence regarding his mental condition was
“germane to that defense” and “would have substantially bolstered support for the
argument in favor of a lesser[]included offense.” The Petitioner emphasizes that trial
counsel not only admitted that he did not investigate his mental health but also
acknowledged that had he known of the 1998 psychological evaluation, he probably
would have requested a mental evaluation.

       The evidence presented at the post-conviction hearing established that trial counsel
was an experienced criminal defense attorney, who routinely requested mental
evaluations and expert services and who had presented a diminished capacity defense
prior to representing the Petitioner. Trial counsel testified that he spoke to the Petitioner
and the Petitioner’s family and that no one provided any information that the Petitioner
had any mental health issues or mental defects. Trial counsel said he knew that the
Petitioner had been sent to the Tall Trees Juvenile Detention Facility for drug use and did
not further investigate the Petitioner’s time there because there was nothing during his
investigation that indicated that the Petitioner suffered from a mental illness. He was
aware that the Petitioner had earned his GED while previously incarcerated and that the
Petitioner had attended barber college. He also believed that the Petitioner’s conduct
following the victim’s murder, which included hiding in several locations, expressing his
remorse to several family members, and obtaining a fake identification before flying to
Alaska, indicated a sophisticated degree of functioning. In light of the Petitioner’s
background and conduct, he felt that a mental health defense would not be successful.
Trial counsel admitted that he probably would have requested a mental evaluation if he
had seen the 1998 psychological evaluation; however, he asserted that he did not believe
that the psychological evaluation would have assisted him in arguing a diminished
capacity defense or other mental health defense. He also said he did not believe that a
mental evaluation would have changed the outcome of the Petitioner’s case. Trial
counsel insisted that if there had been any indication that the Petitioner had mental issues
or mental disorders, he would have petitioned the trial court for funding for an expert and
would have obtained a mental evaluation of the Petitioner.

       In its order denying relief, the post-conviction court found trial counsel “very
credible” and noted that it would not second guess an attorney’s trial strategy unless it
                                            -9-
was unreasonable or was not based on adequate preparation. The court determined that
trial counsel had talked to the Petitioner and the Petitioner’s family, who provided no
information useful to a mental defense, and that upon exploring this issue, trial counsel
could find no other indication of a mental disease or defect. In addition, the court
recognized that the Petitioner had never been diagnosed with any mental illnesses, had
not been in resource classes at school, and had obtained his GED while previously
incarcerated, which “severely undercut an argument that the [Petitioner] was suffering
from some kind of intellectual disability.” Most importantly, the post-conviction court
found that although trial counsel was unaware that the Petitioner had an estimated IQ of
76, “there ha[d] been no showing that this information would have been useful at trial.”
The record shows that trial counsel’s conduct did not fall below an objective standard of
reasonableness under prevailing professional norms. Accordingly, we conclude that the
Petitioner failed to establish that trial counsel was deficient in not discovering his IQ and
in not requesting a mental evaluation.

       Even if we had concluded that trial counsel was deficient, the Petitioner has failed
to establish that he was in any way prejudiced by trial counsel’s alleged deficiencies. The
Petitioner’s argument specifically focuses on his claim that trial counsel’s deficiencies
prevented him from presenting a diminished capacity defense. Diminished capacity is “a
rule of evidence which allows the introduction of evidence to negate the existence of
specific intent when a defendant is charged with a specific intent crime.” State v. Phipps,
883 S.W.2d 138, 143 (Tenn. Crim. App. 1994) (citing Gayle Cohen, Johnson v. State–
Diminished Capacity Rejected As A Criminal Defense, 42 Md. L. Rev. 522, 524 (1983)).
While proof of an individual’s diminished capacity does not excuse or defeat a criminal
charge, such proof may be relevant and admissible to rebut the requisite mens rea for an
offense. Nesbit v. State, 452 S.W.3d 779, 798 (Tenn. 2014) (citing Phipps, 883 S.W.2d at
143). In essence, diminished capacity “is an attempt to prove that the defendant,
incapable of the requisite intent of the crime charged, is innocent of that crime but may
well be guilty of a lesser one.” Phipps, 883 S.W.3d at 143 (citing United States v.
Cameron, 907 F.2d 1051, 1067 (11th Cir. 1990)).

       Although the Petitioner presented the 1998 psychological evaluation stating that
he had an estimated IQ of 76, the Petitioner failed to prove the feasibility of a mental
impairment defense. The post-conviction court aptly recognized the fact that the
Petitioner had been sent to the Tall Trees Juvenile Facility for drug use as a juvenile “in
and of itself does not give rise to any significance without further context” and that the
Petitioner had failed to show how “not exploring this fact created some kind of
prejudice.” In addition, the court held that the Petitioner had failed to provide any proof
that there was information that could have been developed that would have changed the
outcome of trial, and the record fully supports this conclusion. The Petitioner only
presented the two-page psychological evaluation and presented no witnesses in support of
                                           - 10 -
a mental impairment defense. When a petitioner alleges deficient investigation by
counsel, he or she must present evidence that proves what further investigations would
have uncovered in order to establish prejudice. See Black v. State, 794 S.W.2d 752, 757-
58 (Tenn. Crim. App. 1990). Neither the post-conviction court nor this court “can
speculate or guess on the question of whether further investigation would have revealed a
material witness or what a witness’s testimony might have been if introduced by defense
counsel.” Id. at 757. Because the Petitioner did not show what further investigation of
his mental health would have revealed, he has failed to prove prejudice. We also
conclude that the details of the Petitioner’s crimes were indicative of premeditation and
that the Petitioner’s conduct following the victim’s death showed a particularly
sophisticated degree of functioning. Accordingly, there is no reasonable probability that,
had trial counsel discovered the Petitioner’s IQ or requested a mental evaluation, the
outcome of the Petitioner’s case would have been different. Because the Petitioner has
failed to establish that that trial counsel’s performance was deficient and prejudicial, he is
not entitled to relief.

                                      CONCLUSION

       Based on the aforementioned authorities and analysis, we affirm the judgment of
the post-conviction court.




                                              ____________________________________
                                              CAMILLE R. MCMULLEN, JUDGE




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