        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  May 6, 2014 Session

              ANTHONY BOYLAND v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                        No. 07-04685 Lee V. Coffee, Judge


               No. W2013-01226-CCA-MR3-PC - Filed August 4, 2014


The Petitioner, Anthony Boyland, appeals the Shelby County Criminal Court’s denial of his
petition for post-conviction relief from his convictions for first degree felony murder,
aggravated assault, and aggravated burglary and his effective life sentence. The Petitioner
contends that he received the ineffective assistance of counsel. We affirm the judgment of
the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which A LAN E. G LENN and
C AMILLE R. M CM ULLEN, JJ., joined.

Lance R. Chism (on appeal) and James Prentice DeRossitt, IV (at hearing), Memphis,
Tennessee, for the appellant, Anthony Boyland.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Amy P. Weirich, District Attorney General; and Susan Taylor, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

      This court summarized the facts of the Petitioner’s crimes in his appeal of the
convictions:

              On the morning of February 13, 2007, Starkeshia Swift, Curtis Bonds,
       Marcus Kuyendall, and Joesette Carter returned to Ms. Swift’s apartment to
       find the defendant hiding in a bedroom closet. An argument concerning the
       defendant’s unwelcome presence quickly evolved into a physical confrontation
       between the defendant and Mr. Bonds in the living room of the apartment. At
one point, the defendant retreated to the bedroom, returned to the living room
armed with a knife, and stabbed Mr. Bonds. The defendant continued his
pursuit of Mr. Bonds outside the apartment as the others attempted to flee.
The defendant, still armed with a knife, then turned to Ms. Swift and engaged
her in a confrontation during which Ms. Swift suffered a severe cut to her
thigh. The defendant eventually fled the area on foot. Ms. Swift and Ms.
Carter found Mr. Bonds lying in the parking lot, bleeding severely from his
wounds. Mr. Bonds died a short time later as the women waited for the police
and ambulance to arrive. Ms. Swift was transported via ambulance to a local
hospital where she received nine staples to treat the wound to her leg.

        The defendant turned himself in to the police within hours of the
incident. In his statement to the police, the defendant admitted hiding the
knife in the mattress of a bed, but he claimed that he had acted in self-defense.
The defendant received no bruises or abrasions of any kind from the incident.

        Starkeshia Swift testified that she and the defendant had a child
together, but they had broken up in 2006 when their son was two-years-old.
Following their breakup, Ms. Swift did not maintain direct contact with the
defendant and, in fact, had obtained a restraining order against him. She did,
however, allow the defendant a relationship with his son through the assistance
of the defendant’s mother. Ms. Swift said that she never gave the defendant a
key or invited him to her apartment. She said that the defendant was not
welcome in her apartment. The defendant had never fought Messers Bonds or
Kuyendall at any time before this date. She maintained that no one had
initiated a fight with the defendant or prevented him from leaving the
apartment on the day of the incident. Likewise, neither she nor her friends
were armed at any time during the incident.

        After visiting at her mother’s home on the night of February 12, Ms.
Swift and her friends returned to her apartment. As they walked down the
hallway to her bedroom, Mr. Bonds entered the room first and opened the
closet door to discover the defendant inside. When Ms. Swift saw the
defendant leaving the closet, she immediately returned to the living room
where she could telephone the police “[b]ecause [the defendant] wasn’t
supposed to be in [her] house.” As Ms. Swift spoke to the 9-1-1 operator, she
turned to see the defendant and Mr. Bonds fighting. Initially, neither the
defendant nor Mr. Bonds had any weapons. The defendant, however, retreated
to the bedroom and soon returned to the living room armed with a knife. The
defendant pushed Mr. Bonds into a china cabinet and “stuck” him.

                                       -2-
       Ms. Swift, who was “in shock” when she saw the defendant stab Mr.
Bonds, quickly ran to the door and unlocked the deadbolt so that they could all
escape. She recalled that Mr. Bonds ran out, followed by Mr. Kuyendall and
Ms. Carter. Ms. Swift tried to run out onto the threshold stair landing, but the
defendant “came after” her and “stuck” her in the leg. Mr. Bonds, who saw
the defendant fighting Ms. Swift, yelled for the defendant to stop. The
defendant then ran to Mr. Bonds and fled the apartment complex parking lot
on foot. Ms. Swift and Ms. Carter drove to the entrance of the apartment
complex to find Mr. Bonds lying in the street in a pool of blood. A neighbor
gave Ms. Carter a towel, and she attempted to apply pressure to Mr. Bond’s
wound to stop the bleeding. He died before the ambulance arrived.

        Joesette Carter testified consistently with Ms. Swift’s account of the
incident. She also recalled that she went to the kitchen when they first arrived
at the apartment. She said that she had given Ms. Swift a knife set and that
when she looked in the kitchen drawer that morning, “every last one” of the
knives was gone. When she heard the defendant and Mr. Bonds arguing in the
hallway, she just “froze up.” Ms. Carter recalled that the argument escalated
into a fight within a minute. She heard the defendant say to Mr. Bonds,
“[B]itch, you want to f*** with me.” Soon thereafter, she heard the defendant
stab Mr. Bonds. She said that “everything happened fast.”

       On February 13, 2007, Memphis Police Department (MPD) Officer
Victor Lester responded to a call at the Ridgecrest Apartments concerning a
“boyfriend who refused to leave” the caller’s apartment. When Officer Lester
arrived, he found Mr. Bonds lying in the street in a puddle of blood while Ms.
Carter and Ms. Swift attempted to control the bleeding with a towel. Officer
Lester recalled that Mr. Bonds “didn’t appear to be breathing and his eyes had
turned in his head.” He said that “when [Ms. Carter] removed the towel[, Mr.
Bonds] was out of blood.” An ambulance soon arrived and attempted to
resuscitate Mr. Bonds without success.

        Both Ms. Carter and Ms. Swift told Officer Lester that the defendant
had stabbed Mr. Bonds. Officer Lester issued a “BOLO” (be on the lookout
alert) containing the defendant’s description and information that he was
armed with a knife. Approximately two hours later, the defendant’s “auntie”
telephoned the police and told them that the defendant wanted to turn himself
in. The defendant was arrested without incident that afternoon. He told
officers that he had disposed of the knife near the apartment complex. When
officers searched the area, however, they did not recover the knife. Officer

                                      -3-
Lester recalled that the defendant was calm and did not have any physical
indicia of having been in a fight earlier that day.

       MPD Officer Darron Smith arrived at the apartment complex a short
time after Officer Lester. He recalled that Mr. Bonds was “lying in the parking
lot” and “was pretty much deceased” at the time he arrived. Officer Smith
assisted in the defendant’s arrest later that afternoon. He described the
defendant as “slightly nervous” yet “rather polite.” He said that the defendant
was “very cooperative and gave us no problem.”

        MPD Sergeant Anthony Mullins, a member of the homicide bureau,
arrived at the apartment complex after Mr. Bonds and Ms. Swift were
transported to the hospital. He secured the scene and evidence and then went
to the hospital to collect evidence from Mr. Bonds. He recalled collecting Mr.
Bonds’s clothing and said that it was “so bloody” that it had to be taken to a
special facility to be dried.

        Sergeant Mullins assisted in questioning the defendant later that day.
He recalled the circumstances of the defendant’s execution of his waiver of
rights and that the defendant had some difficulty reading the form. Sergeant
Mullins said, however, that the defendant indicated his understanding of each
right by initialing each prior to signing the waiver. The defendant appeared
calm with a “very even temperament” throughout the interrogation. Sergeant
Mullins said that his previous assignment as a crisis officer had given him
experience with individuals suffering from chemical dependency or mental
health issues and that the defendant exhibited no signs of distress or lack of
understanding. He testified that he would have stopped an interrogation if he
suspected a defendant had “mental issues, learning disabilities, [or] ... [was]
not really understanding.” The defendant gave a statement which was
transcribed. Following the interrogation, the officers read the statement to the
defendant. The defendant signed the statement, acknowledging it as his
account of the incident.

        MPD Sergeant David Parks acted as case coordinator over the
investigation of the incident. As case coordinator, he assigned officers various
tasks, including canvassing areas where the defendant might be in an effort to
locate him for questioning. To this end, the officers spoke with several of the
defendant’s family members in the hours following the incident. Sergeant
Parks said that the defendant turned himself in and was brought to the police
station later that afternoon. He described the defendant as “calm under the

                                      -4-
circumstances. It was obvious he realized what he had done[,] but he was
calm.”

       Sergeant Parks said that the defendant signed a waiver of his rights after
being provided Miranda warnings and confessed to stabbing Mr. Bonds and
Ms. Swift. The defendant told Sergeants Parks and Mullins that Ms. Swift
asked him to come to her apartment to clean it. He arrived on the afternoon
of February 12 and stayed overnight while Ms. Swift and the others were gone.
The defendant said that when the group discovered him at the apartment the
next morning, Mr. Bonds told the defendant that he was not supposed to be
there. The defendant said that he thought Mr. Bonds was walking away when
suddenly Mr. Bonds hit him. The two began to fight. The defendant ran to
the bedroom to get the knife that, he explained, he had put under the mattress
the night before “in case [Ms. Swift] came back with anybody ... being safe.”
The defendant then “stuck” Mr. Bonds with the knife. The defendant said that
Ms. Swift attempted to stop him from leaving the apartment, so he swung the
knife and cut her leg. In summary, the defendant claimed that he “was just
defending himself.”

       Sergeant Parks testified that the defendant could have stopped the
interrogation at any time but did not do so. Furthermore, he could have
“walked away” from the statement, but he initialed each page and signed it
instead. Sergeant Parks said that the defendant had a basic understanding of
“what was going on” during the interrogation. Lieutenant Walter Davidson
read the statement to the defendant because the defendant told the officers that
he could not read well. Lieutenant Davidson recalled that the defendant
understood “everything.”

       Doctor Lisa Funte, a forensic pathologist with the Shelby County
Regional Forensic Center, performed the autopsy of Mr. Bonds. She
determined that Mr. Bonds died from a stab wound to his right shoulder that
penetrated into his chest cavity, through his lung and near his heart.
Additionally, Mr. Bonds suffered a perforating wound to his right arm and
several abrasions. Although Mr. Bonds’s toxicology report revealed the
presence of marijuana, Doctor Funte testified that the amount was “barely
above the detectable level” and would not “have [had] much effect on [Mr.
Bonds] at all.”

....



                                       -5-
               Barbara Faulkner, manager of the Ridgecrest Apartments, testified that
       Ms. Swift’s tenant file showed that Ms. Swift requested both mailbox keys and
       apartment keys on five separate occasions in 2007. She further testified,
       however, that the first request was made in May 2007, almost three months
       after the stabbing. The defendant recalled as a witness Ms. Swift who testified
       that the defendant did not have a key to her apartment. She admitted, however,
       that she had lost a key and asked for a replacement sometime in 2007.

               Cleetris Boyland, the defendant’s mother, testified that the defendant
       was “very slow” and could not comprehend things well. She said that he was
       diagnosed with mild mental retardation at the age of three. The defendant
       graduated at the age of 18 with a special education diploma and maintained
       employment as a grocery sacker for a period of time after graduation. When
       she learned from her sister that the defendant had been involved in a fight and
       that the police were looking for him, she went to her sister’s home where the
       defendant later turned himself in to the police. She recalled that the officers
       “put [the defendant] in the car and told [her] that [she] didn’t have to worry
       about him, he’d be okay.” No one asked Ms. Boyland anything concerning the
       defendant’s intellectual ability.

              Doctor Joseph Charles Angellilo, a forensic psychologist, testified that
       the defendant’s educational records revealed an intelligence quotient (IQ) of
       56 at age 10. Testing performed by Doctor Angellilo when the defendant was
       25 years old revealed an IQ of 53. Doctor Angellilo opined that the
       defendant’s immediate memory was “not so great.” On cross-examination, he
       admitted that the defendant’s concealing the knife in the mattress showed a
       higher level of cognition and required some planning.

State v. Anthony Boyland, No. W2010-00677-CCA-R3-CD, slip op. at 1-6 (Tenn. Crim. App.
June 21, 2011) (footnotes omitted), perm. app. denied (Tenn. Oct. 18, 2011).

        At the post-conviction hearing, the Petitioner testified that he chose not to testify at
his trial. He understood that if granted post-conviction relief, he would have the choice
whether to testify at a new trial.

        The Petitioner testified that he had a low IQ and agreed his mental state was an issue
in the conviction proceedings. He said he did not understand the meaning of “competent”
but agreed the trial judge determined that he was competent to stand trial. He said he “did
not know how to say” why trial counsel was not a good attorney in his case.



                                              -6-
       On cross-examination, the Petitioner testified that he did not remember how long he
worked with trial counsel before the trial. When asked if he could indicate the ways in which
counsel performed deficiently, he said he could not. He said another inmate helped him draft
his post-conviction petition.

       On questioning by the trial court, the Petitioner testified that he graduated from a
special education program in 2003. He recalled the school had a male principal but did not
remember the man’s name.

        The Petitioner testified that he remembered “a little” when an assistant public
defender was appointed to his case. He said she was relieved of representation after she told
the judge she did not know how to handle the case. He agreed trial counsel represented him
for a while before the trial. He agreed an inmate told him to file a post-conviction claim
against his attorney and helped him prepare the petition. When asked to identify the reasons
he did not think counsel did a good job, he said she was busy when he wanted to see her. He
said he wanted information about his case. He said counsel saw him in jail “[a]t least three
or just a couple of times, but it wasn’t a lot.” He said his attorneys never gave him any
paperwork about the State’s evidence, police reports, or witness statements. He identified
papers he had in the courtroom as the trial transcript, which he received from post-conviction
counsel. He said he asked trial counsel for a copy of the transcript, but she never provided
it. He said he needed the transcript because he did not understand what occurred during the
trial. He acknowledged he did not tell the trial judge that he did not understand what was
occurring.

        The Petitioner testified that trial counsel had two doctors talk to him. He agreed that
the trial court conducted a hearing and that the court determined he “understood everything.”
He did not remember if he gave counsel the names of possible defense witnesses but said she
called defense witnesses at the trial. He agreed, though, that she would have known of the
witnesses because he or someone else identified them to her. He said he wanted “[t]he
people that was at Ridgecrest when I caught my case” to testify. He said that he could not
identify anyone by name but that he had given the information to counsel. He agreed the
witnesses to the stabbing did not testify.

       The Petitioner testified that trial counsel “could fight harder” for him. He
acknowledged he was unhappy with his first degree murder conviction and thought he should
have received a more favorable result. He agreed counsel was appointed and worked on his
case for over a year before the trial. He agreed counsel sought and obtained a mental health
evaluation based upon his history of special education classes. He said counsel did not spend
enough time with him on his court dates.



                                              -7-
       On redirect examination, the Petitioner testified that trial counsel did not provide him
with pretrial discovery. He agreed he gave post-conviction counsel a note written by another
inmate regarding pretrial discovery.

       Cleetris Boyland, the Petitioner’s mother, testified that the Petitioner was twenty-
seven years old and that he had always lived with her until his incarceration. She said that
as a child, the Petitioner could not do the same things as other children his age. She said he
had language deficits at four or five years old. She said that she had him evaluated by
doctors with the Memphis schools and the Social Security Administration and that he was
diagnosed with a disability. She said he did not understand things and that things had to be
explained to him using small words. She agreed the trial proof showed that the Petitioner’s
childhood IQ was fifty-six and that his IQ at the time of the trial was fifty-three.

        Ms. Boyland testified that she worked with trial counsel in the months leading up to
the trial. She said counsel told her things to tell the Petitioner. She said the Petitioner trusted
counsel. She said he did not want to talk to anyone other than counsel about his case. She
said that she told the Petitioner things counsel said but that the Petitioner told her she did not
know the law. She said the Petitioner wanted to hear it from counsel, not her. She said the
Petitioner did not think counsel was doing her job when he could not get in touch with
counsel. She said the Petitioner called her every other day stating he needed to talk to
counsel. She said the Petitioner’s childlike state affected his trust in counsel. She agreed the
Petitioner completed his special education program because she made sure he kept attending.
She said the Petitioner loved school and learning. She agreed the Petitioner was not
competent.

        On cross-examination, Ms. Boyland stated that she testified at the Petitioner’s
competency hearing and trial. She remembered trial counsel’s having talked about “some
people” but did not remember if counsel said she had several witnesses prepared to testify.
She agreed counsel was in contact with her during the trial and appellate processes. She said
that counsel sent the Petitioner a letter advising him on further action he might take and that
the Petitioner sent the letter to her. She said it was better to talk to her because the Petitioner
did not understand. She did not recall whether counsel’s advice was to seek post-conviction
relief with a new attorney.

       On questioning by the trial court, Ms. Boyland testified that trial counsel worked on
the Petitioner’s case and kept in contact with her in order for Ms. Boyland to provide
information to the Petitioner. She said, though, that counsel should have stayed in contact
with the Petitioner. She said she could not answer the Petitioner’s questions. She said she
met with counsel three or four times. She agreed counsel told her about the State’s evidence,
the State’s theory, and the defense theory. She agreed counsel pursued a competency

                                                -8-
hearing. She thought counsel should have obtained a shorter sentence for the Petitioner. She
agreed counsel did the best she could to present a defense to the charges. She said she gave
counsel all the information she had that might help the defense. She could not identify
anything counsel could have done to make a difference in the Petitioner’s case. She said that
after the case was over, counsel checked the Petitioner’s welfare.

       Trial counsel agreed that she was appointed to represent the Petitioner around July 24,
2008. She agreed she filed a discovery motion, a motion in limine to exclude the Petitioner’s
prior bad acts, a notice of mental disease or defect, a request to determine competency, and
requests for special jury instructions. She agreed the court denied her requests for special
instructions on diminished capacity, self-defense, and “imperfect self-defense.”

       Trial counsel testified that she was the Petitioner’s second attorney. She said it was
apparent at the beginning of her representation that the Petitioner’s competency was an
important issue. She said the Petitioner was evaluated by Dr. Joseph Angelillo, who testified
at the competency hearing and the trial. She agreed with the Petitioner’s mother’s post-
conviction testimony that the Petitioner had prior mental evaluations by the Memphis schools
and the Social Security Administration. She said the Petitioner’s IQ had decreased from
seventy-two to fifty-three with age. She agreed that at age twenty-five, his ability to “sound
out” words was that of a six-and-one-half-year-old. She agreed his ability to comprehend
written passages was that of a person who was 6.1 years old with a grade equivalent of “eight
months into kindergarten.” She agreed his arithmetic ability was equivalent to that of a
seven-year-old with a grade equivalent of “eight months into his first-grade year.” She
agreed the State’s expert was Dr. William Fulliton. She said both experts agreed about the
Petitioner’s mental retardation,1 although the State contended the Petitioner was competent
despite his mental retardation. She said it was difficult to obtain a clear diagnosis from an
expert. She said an expert would testify about the tests administered and results obtained.

         Trial counsel testified that according to Dr. Angelillo’s testimony, the Petitioner’s lack
of comprehension showed diminished capacity. She agreed she sought a jury instruction on
diminished capacity. She said the diminished capacity statute provided that it could apply
if there was evidence of mental retardation. When asked about the trial court’s statement’s
in the trial record that diminished capacity was not mentioned at the competency hearing, she
said that after significant preparation and Dr. Angelillo’s evaluation, she decided to focus in
the competency hearing on the Petitioner’s deficits in functioning and comprehension. She
said that strategically, she thought she “had everything out” that she needed to pursue a


        1
         We note that on April 9, 2010, the General Assembly ordered all references to “mental retardation”
in Tennessee Code Annotated to be changed to “intellectual disability.” See 2010 Tenn. Pub. Acts 734. The
testimony of the witnesses is provided here as given.

                                                   -9-
diminished capacity defense. She said the court’s order regarding competency stated that the
Petitioner was competent to stand trial and that there was no insanity issue. She said, “That’s
what [the court] used, which is not what I was arguing and not the proof that I had presented
during the hearing[.]”

       Trial counsel testified that she did not file a motion to suppress the Petitioner’s
statement. She said she chose, as a matter of strategy, to argue that the Petitioner was not
competent to stand trial. She said the police officers who testified thought the Petitioner was
competent. She agreed Dr. Angelillo testified that the Petitioner had a very limited
understanding of the proceedings. She agreed that when Dr. Angelillo asked the Petitioner
what a judge was, the Petitioner could only explain, “He’s the one who wears the robe.” She
agreed that both mental health experts testified that the Petitioner had difficulty knowing
counsel’s name. She agreed the Petitioner did not have a good idea what a criminal
prosecution was. She said Dr. Angelillo testified at the competency hearing that sentences
needed to be simple for the Petitioner to understand them. She said that Dr. Angelillo gave
the Petitioner a test relative to his understanding of the Miranda warnings, that the warnings
were broken down into small sentences, and that the Petitioner had a very low score. She
said the officers testified at the trial that they “did cut it into little pieces” when they advised
the Petitioner of his Miranda rights.

       On cross-examination, trial counsel testified that she viewed diminished capacity as
“kind of bound together with” her motion to determine the Petitioner’s competency. She
agreed she was surprised that the Petitioner decided to testify. She agreed the Petitioner
probably did not understand what was said in court.

        Trial counsel testified that Dr. Angelillo stated at the competency hearing that he
could use medical terms but not legal terms. She said he testified in descriptive terms about
the Petitioner’s diminished capacity but could not use the legal term. She said Dr. Angelillo
testified in descriptive terms about the Petitioner’s mental retardation because it was a
component of the proof of diminished capacity. When asked if she thought the judge
misunderstood her arguments, she said she thought the competency and diminished capacity
issues were confusing for everyone involved. She said that although Dr. Angelillo testified
at the competency hearing about the Petitioner’s mental retardation, the judge said the issue
had not been raised. She agreed she filed a notice of mental disease or defect and a notice
of intent to offer expert proof on the issue. She said that she requested jury instructions on
self-defense, “passion language,” and lesser included offenses and that she requested
instructions during the sentencing phase on reduced culpability due to mental disease or
defect. She said, “I tried to go each and every route I could find.” She said the Petitioner’s
mental disease or defect was her “main theme” in the trial and the appeal. She said she filed
an application for permission to appeal to the Tennessee Supreme Court, but it was denied.

                                               -10-
She said that at that point, she told the Petitioner’s mother that a post-conviction petition
alleging that counsel did something wrong was the only remaining avenue for relief.

       Trial counsel testified that every time she spoke with the Petitioner, she reiterated
what she had said to his mother. She said they worked together to explain things to the
Petitioner. She said she did not feel like the Petitioner understood things and needed his
mother’s help. She said that she also used her investigator to reinforce things with the
Petitioner.

        Trial counsel testified that although she did not know how many times she visited the
Petitioner, it was more than three. She said she and her investigator made numerous jail
visits to prepare for the competency hearing. She said it took her a long time to gain the
Petitioner’s trust and that she had to explain to him repeatedly that he should cooperate with
the doctor who would visit him. She said that after the appeal, she continued to talk to the
Petitioner’s mother because the Petitioner did not understand things. She said that “at the
end,” she sent a “package” to the Petitioner and sent a copy of the letter to the Petitioner’s
mother.

       Trial counsel testified that when she was appointed, the Petitioner’s previous attorney
had given the Petitioner a copy of the discovery materials. She said she gave the Petitioner
copies of her investigator’s reports and that she explained and reviewed the documents with
him. On questioning by the trial court, counsel agreed that she did everything she could to
convince the trial judge to give a diminished capacity instruction. The court received as
exhibits pleadings filed by counsel and documents related to the appeal.

        After receiving the proof, the trial court found that the Petitioner failed to articulate
any reasons why trial counsel was ineffective. The court found that counsel was “one of the
most meticulous, . . . persistent, . . . conscientious, [and] professional attorneys” in Shelby
County. The court found that counsel filed all possible motions, had the Petitioner evaluated
for competency, and presented proof and argument at a competency hearing. The court noted
that the order finding the Petitioner competent was filed on November 16, 2009, and that the
trial began on November 20, 2009. The court stated that counsel filed proper motions and
notices, that they were not addressed by the trial judge, and that the judge decided not to hear
them when they were brought to her attention on the trial date. The court found that
implicitly, the trial judge found that diminished capacity did not apply. The court found that
despite law requiring an expert to state that a defendant was incapable due to mental disease
or defect of forming intent, the trial judge allowed Dr. Angelillo to testify even though Dr.
Angelillo did not state that the Petitioner was incapable of forming the intent for first degree
murder. The court noted this court’s determination in the previous appeal that evidence of
diminished capacity was properly excluded. The court found that the Petitioner had not

                                              -11-
offered proof at the post-conviction hearing of the Petitioner’s lack of capacity to form the
intent for the crimes and declined to speculate about what non-testifying witnesses might
have said.

        Regarding trial counsel’s decision not to file a motion to suppress, the trial court
found that the Petitioner’s pretrial statement was “largely” exculpatory and did not damage
the defense. The court noted that the officers who took the statement did not question the
Petitioner’s competency and that there were no defense witnesses who could have testified
at the suppression hearing. The court found that counsel made a strategic decision not to file
a motion to suppress and that the statement was the only way to show the jury the Petitioner’s
version of events.

       The trial court noted the overwhelming evidence of the Petitioner’s breaking into the
house where the crimes occurred, lying in wait, and attacking a person who tried to intervene
during his attack on the victim. The court noted that the trial court gave a self-defense but
not a diminished capacity instruction. The court found that trial counsel did everything she
could but that the jury rejected the defenses raised.

       The trial court found that the Petitioner’s testimony about his having never really
talked to trial counsel was not credible. The court found that counsel visited the Petitioner
many times in jail and on court dates and that she was in “constant communication” with the
Petitioner’s mother.

        The trial court found that the Petitioner was “more than adequately” represented by
trial counsel. The court denied the petition for post-conviction relief. The findings and
conclusions in the trial court’s written order were consistent with its ruling from the bench.
This appeal followed.

                                               I

       The Petitioner contends that trial counsel was ineffective for failing to file a motion
to suppress his statement based upon his inability to knowingly, intelligently, and voluntarily
waive his Miranda rights. The State contends that the record supports the trial court’s
determination. We conclude that the Petitioner is not entitled to relief.

        The burden in a post-conviction proceeding is on the petitioner to prove his grounds
for relief by clear and convincing evidence. T.C.A. § 40-30-110(f) (2012). On appeal, we
are bound by the trial court’s findings of fact unless we conclude that the evidence in the
record preponderates against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn.
2001). Because they relate to mixed questions of law and fact, we review the trial court’s

                                             -12-
conclusions as to whether counsel’s performance was deficient and whether that deficiency
was prejudicial under a de novo standard with no presumption of correctness. Id. at 457.
Post-conviction relief may only be given if a conviction or sentence is void or voidable
because of a violation of a constitutional right. T.C.A. § 40-30-103 (2012).

       Under the Sixth Amendment, when a claim of ineffective assistance of counsel is
made, the burden is on the Petitioner to show (1) that counsel’s performance was deficient
and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687
(1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). In other words, a showing
that counsel’s performance fell below a reasonable standard is not enough because the
Petitioner must also show that but for the substandard performance, “the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. The Strickland
standard has been applied to the right to counsel under article I, section 9 of the Tennessee
Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

        A petitioner will only prevail on a claim of ineffective assistance of counsel after
satisfying both prongs of the Strickland test. Henley v. State, 960 S.W.2d 572, 580 (Tenn.
1997). The performance prong requires a petitioner raising a claim of ineffectiveness to
show that counsel’s representation fell below an objective standard of reasonableness or
“outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.
The prejudice prong requires a petitioner to demonstrate that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. A reasonable probability means a “probability sufficient
to undermine confidence in the outcome.” Id.

       The Petitioner argues that although trial counsel focused on challenging the
Petitioner’s competency to stand trial, she “simply overlooked” filing a motion to suppress
the pretrial statement. He argues that had the motion been filed, his statement would have
been suppressed. He also argues that without his statement in evidence, a reasonable
probability exists that the outcome of his trial would have been different because the
statement provided the only evidence the Petitioner hid a knife under a mattress. He also
notes that the statement referred to an altercation he had with Ms. Swift the night before the
crimes.

      When asked at the post-conviction hearing if she filed a motion to suppress, trial
counsel said, “No. That motion was based on what the ruling for competency was going to
be.” When asked why she would “hinge filing a motion to suppress on the ruling on the
competency issue,” counsel explained:




                                             -13-
              Because from the very beginning, I found that [the Petitioner]
              was not competent to stand trial. That was my defense attorney
              analysis of my case. I tried to go that route, so it was strategy.
              I mean, based on the evidence that I had gathered, I thought that
              [the Petitioner] should not have gone to trial; therefore, I did
              everything that I could to follow that direction.

                      The statement issue was addressed with the officers
              during the trial, and I don’t remember exactly what the proof
              was with the officers, but they found him competent, according
              to their testimony, because they have [a] tendency to mark . . .
              the level of competency on the right corner of the statement. So
              there was no issue – they didn’t find – nobody found any issue
              with his competency.

She agreed that in Dr. Angelillo’s opinion, the Petitioner was unable to understand the
Miranda warnings in the standard form they were given and that the sentences needed to be
simplified for his benefit. On cross-examination, counsel explained further, “[I]f you ask
why I didn’t file a specific motion for suppression was because it was kind of bound together
with my motion of competency. I did make those requirements of Dr. Angelillo to ask [a]
specific question as to the validity of his understanding for a Miranda warning, for giving
a statement.”

       In its order denying post-conviction relief, the court found:

               Trial counsel testified that her strategy hinged on the contested
       competency ruling. There was no expert testimony presented at the
       competency hearing that conclusively established that the defendant was
       actually mentally retarded and therefore unable to effectively waive his rights.
       There was no expert proof presented at the trial or at the evidentiary hearing
       that established that the petitioner could not have knowingly understood and
       waived his rights. The statement given by the petitioner was largely
       exculpatory and attempted to establish self-defense. As trial counsel had no
       other witnesses who could establish self-defense, trial counsel [made] a
       strategic decision not to file a motion to suppress after the trial judge
       determined that the petitioner was indeed competent. No expert proof has ever
       been presented that conclusively shows that the defendant is mentally
       retarded/intellectually disabled to the extent that the petitioner could not
       understand and knowingly waive his Miranda rights.



                                             -14-
The court credited trial counsel’s testimony. It found that counsel provided effective
assistance and that the Petitioner was not entitled to relief.

       Upon reviewing claims of ineffective assistance of counsel, the court “must indulge
a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’” Strickland,
466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Trial counsel
explained that she thought the Petitioner was not competent to stand trial and chose, as a
matter of trial strategy, to focus on challenging his competency for a trial. She also testified
that she attempted to present a diminished capacity defense, and despite the trial court’s
rulings limiting her ability to pursue diminished capacity, she was able to present Dr.
Angelillo’s testimony at the trial about the Petitioner’s mental capacity.

       In determining whether trial counsel’s decision was an informed one, we have
reviewed the Petitioner’s statement, in which he acknowledged stabbing the victim during
an altercation and cutting Ms. Swift during the altercation with the victim, and the law
related to suppression of confessions. In the statement, the Petitioner said that he argued
with the victim and that the victim struck him first. The Petitioner said that after the
altercation began, he retrieved a knife he put under a mattress previously. He argues that the
statement provided the only evidence he hid the knife before the altercation and that it
contained references to an altercation the Petitioner had with Ms. Swift the previous night.

       The trial court’s post-conviction order focused on the prejudice prong and did not
address whether counsel’s performance was deficient. See Strickland, 466 U.S. at 687.
Regarding deficient performance, we note the evidence from multiple witnesses of the
Petitioner’s cognitive function. This evidence was relevant to the Petitioner’s ability to
understand his Miranda rights and to whether he could knowingly, voluntarily, and
understandingly waive his rights. Trial counsel’s filing a motion to suppress would not have
precluded her from challenging his competency to stand trial and pursuing a diminished
capacity defense if the motion to suppress and competency hearing rulings did not favor the
defense. We conclude that counsel should have filed a motion to suppress.

       The issue becomes whether the Petitioner was prejudiced by counsel’s failure.
Although evidence existed to support a conclusion that the Petitioner was intellectually
disabled, the fact of intellectual disability does not, alone, render an individual incapable of
making a knowing, voluntary, and intelligent decision to waive his Miranda rights and give
a statement. See, e.g., State v. Blackstock, 19 S.W.3d 200, 208 (Tenn. 2000); State v. Bush,
942 S.W.2d 489, 500-01 (Tenn. 1997). In determining whether the State has established a



                                              -15-
knowing, intelligent, and voluntary waiver of rights, the courts view the totality of the
circumstances. Bush, 942 S.W.2d at 500.

       Among the circumstances courts have considered are the defendant’s age,
       background, level of functioning, reading and writing skills, prior experience
       with the criminal justice system, demeanor, responsiveness to questioning,
       possible malingering, and the manner, detail, and language in which the
       Miranda rights are explained. As a result, courts tend to reach results that are
       somewhat fact-specific.

Blackstock, 19 S.W.3d at 208.

       Trial counsel testified that the officers who interviewed the Petitioner did not think
there was an issue with the Petitioner’s ability to waive his rights. The record of the
Petitioner’s direct appeal reflects that the officers’ trial testimony was consistent with
counsel’s recollection.

        Regarding the Petitioner’s claim that his statement provided the only evidence he hid
the knife before the altercation, the record of the Petitioner’s appeal reflects that Ms. Swift
testified that when she and friends arrived at her apartment, the victim opened a bedroom
closet door and found the Petitioner inside. She went to the living room to call 9-1-1, and
she saw the victim and the Petitioner fighting. The Petitioner “retreated to the bedroom and
soon returned to the living room armed with a knife.” Ms. Carter testified that she had given
Ms. Swift a knife set, that she went into the kitchen when she arrived at Ms. Swift’s
apartment, and that the knives were missing from the drawer. Anthony Boyland, slip op. at
3.

        We conclude that the evidence does not preponderate against the trial court’s
conclusion that the Petitioner failed to show prejudice. Trial counsel investigated the case,
obtained expert assistance, and determined that the best trial strategy was to challenge the
Petitioner’s competency. When the court found the Petitioner competent, counsel presented
trial evidence related to the circumstances of the Petitioner’s waiving his rights and giving
a statement and to the question of diminished capacity. The statement provided the
Petitioner’s version of the relevant events and supported a claim of self-defense without
requiring the Petitioner to testify. It was not the only evidence from which the jury could
conclude the Petitioner hid a knife before retrieving it and assaulting the victim. We
conclude that the trial court did not err in denying post-conviction relief.




                                             -16-
                                              II

       The Petitioner contends that even if he is not granted relief for ineffective assistance
of counsel, the case should be remanded for a suppression hearing as part of the post-
conviction hearing. He argues that this action is appropriate because post-conviction counsel
“did not fulfill his statutory duties and duties under Supreme Court Rule 28 when he failed
to conduct a suppression hearing at the post-conviction hearing.” The State contends that the
Petitioner is seeking a second evidentiary hearing on his ineffective assistance of counsel
claim, for which there is no legal authority. We agree with the State.

       In pertinent part, Tennessee Supreme Court Rule 28 provides:

       Appointed or retained counsel shall be required to review the pro se petition,
       file an amended petition asserting other claims which petitioner arguably has
       or a written notice that no amended petition will be filed, interview relevant
       witnesses, including petitioner and prior counsel, and diligently investigate and
       present all reasonable claims.

Tenn. Sup. Ct. R. 28, § 6(C)(2). The Petitioner has not cited any authority to support this
court’s granting the remand he requests, nor has he shown that if such authority existed, he
would be entitled to a remand.

        As the Petitioner notes, a deficiency in Rule 28 compliance does not entitle a
petitioner to a second post-conviction hearing. See, e.g., Hollis G. Williams v. State, No.
W2006-00779-CCA-MR3-PC, slip op. at 7 (Tenn. Crim. App. June 13, 2007), perm. app.
denied (Tenn. Nov. 19, 2007), Richard L. Elliott v. State, No. M2004-00853-CCA-R3-PC,
slip op. at 3 (Tenn. Crim. App. June 3, 2005), perm. app. denied (Tenn. Dec. 5, 2005). The
record does not reflect, in any event, that post-conviction counsel failed to comply with Rule
28. We note that the record of the Petitioner’s trial reflects extensive expert proof regarding
the Petitioner’s mental capacity and intellectual disability. The Petitioner and his mother
testified at the post-conviction hearing about these matters. Post-conviction counsel litigated
the question of whether trial counsel was ineffective in failing to pursue a motion to
suppress, and the trial court ruled on the matter. The Petitioner is not entitled to another
hearing in the trial court related to the issue.




                                             -17-
        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.


                                           ____________________________________
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




                                             -18-
