        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 7, 2011

       ATAVIS CORTEZ CUNNINGHAM v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Dyer County
                       No. 08-CR-227     R. Lee Moore, Judge


                  No. W2010-01405-CCA-R3-PC - Filed July 7, 2011


Following his conviction by a Dyer County Circuit Court jury of one count of aggravated
assault for which he received a sentence of eight years’ incarceration as a Range II, multiple
offender, the petitioner, Atavis Cortez Cunningham, filed a timely petition for post-
conviction relief based upon allegations of ineffective assistance of counsel and an
unconstitutional jury composition. The Dyer County Circuit Court denied relief following
an evidentiary hearing. On appeal, the petitioner contends that the post-conviction court
erred by denying relief. Discerning no error, we affirm the order of the circuit court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and A LAN E. G LENN, JJ., joined.

Danny H. Goodman, Tiptonville, Tennessee, for the appellant, Atavis Cortez Cunningham.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; and C. Phillip Bivens, District Attorney General, for the appellee, State of
Tennessee.

                                         OPINION

              The petitioner’s conviction arose from the April 12, 2008 assault of the victim,
Philip Graff. As taken from the facts of our direct appeal opinion, the petitioner telephoned
the victim and asked for a ride. The petitioner, however, told witnesses that he actually
planned to “steal the victim’s laptop computer and then ‘beat his ass’” in retaliation for the
victim’s supposedly telling the police that the defendant “‘had a failure to appear.’” State
v. Atavis Cortez Cunningham, No. W2009-00744-CCA-R3-CD, slip op. at 2 (Tenn. Crim.
App., Jackson, Sept. 16, 2009). Witnesses testified that the petitioner punched and kicked
the victim repeatedly in the ribs and head. Id. at 2-3. At some point, the victim was able to
drive himself to a gas station where he passed out. Id. He was taken by ambulance to a local
hospital and then transported by ambulance to the Regional Medical Center in Memphis
where he required surgery to repair injuries to his jaw. Id.

               On direct appeal, the petitioner argued that his jury was unconstitutionally
empaneled and that the evidence was insufficient to support his conviction. We concluded
that the defendant failed to show a systematic exclusion of African-American jurors from the
venire and that the evidence was sufficient to support his conviction of aggravated assault.
Accordingly, we affirmed the defendant’s conviction. Id. at 8.

               On February 19, 2010, the petitioner filed a pro se petition for post-conviction
relief alleging that his jury was unconstitutionally empaneled and that his trial counsel
committed ineffective assistance by failing to (1) maintain contact and develop a theory of
defense with the petitioner, (2) investigate the case and witnesses, (3) present evidence –
specifically the clothing worn at the time of his arrest, (4) secure a plea agreement, and (5)
raise an objection to the composition of the jury. Following the appointment of counsel and
amendment of the petition, the post-conviction court held an evidentiary hearing on May 3,
2010.

               The petitioner testified at the evidentiary hearing that only one African
American served on his jury and that he could not recall how many African Americans were
included in the venire. He said that he and trial counsel did not have any discussions
concerning the racial composition of the venire or jury, and he acknowledged that he only
became concerned about the racial composition following his conviction. He opined that “a
mixed jury, I feel the chances would’ve been a little better and the people would’ve been a
little more open” had there been a fair racial composition in the venire.

               The petitioner also testified that trial counsel met with him only two or three
times between her appointment at his arraignment in general sessions court and his trial
several weeks later.1 He recalled that the State initially offered him a sentence of three years’
incarceration in exchange for his guilty plea, but he rejected the offer. He said that trial
counsel presented him with a second plea offer from the State on the day before trial. This
time, the State offered the petitioner a six-year suspended sentence in exchange for his guilty
plea, and the petitioner told counsel that he wanted to “take it.” The petitioner recalled,
however, that the trial court’s policy of not taking guilty pleas on the eve of trial precluded


        1
         Trial counsel testified that, at his arraignment, the petitioner requested a speedy trial “before [she]
could get him to be quiet.” Accordingly, the petitioner’s case progressed from preliminary hearing to
indictment and trial rather quickly.

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the plea agreement.

                The petitioner also testified that he instructed trial counsel to present as
evidence at trial the clothing he was wearing when arrested to show that there was no blood
on his clothing and, thus, he could not have been involved in the attack on the victim. He
said that trial counsel never responded to his request to present this evidence. He claimed
that trial counsel did not review the preliminary hearing testimony of the State’s witnesses
so that counsel might impeach the witnesses with discrepancies in their testimonies. He also
claimed that, after alleging ineffective assistance of counsel in a pro se pretrial motion, trial
counsel told him “not to call her office, at all.” The petitioner said that he kept calling, but
trial counsel ignored his telephone calls.

                On cross-examination, the petitioner conceded that the first plea offer included
a notice that if the petitioner rejected that offer, the State would seek to have him sentenced
as a multiple offender and request consecutive sentencing. The petitioner ultimately received
a Range II sentence to be served concurrently with a previously imposed sentence.

              Trial counsel testified that she had been licensed since 1995. Upon her
appointment at arraignment, trial counsel reviewed the arrest warrant and police report. She
recalled conducting a “lengthy preliminary hearing” during which she cross-examined
witnesses and presented some witnesses on the petitioner’s behalf. She interviewed all
eyewitnesses and two police officers involved in the investigation of the petitioner’s case in
preparation for trial.

                Trial counsel testified that she was well aware of all the witness testimony
because she had typed the preliminary hearing transcript herself and utilized it on cross-
examination to impeach several witnesses. She recalled, however, that none of the witnesses
testified in any materially contradictory manner and that “all [of the witnesses] indicated that
[the petitioner] had kicked or stomped [the victim].” She reiterated that no eyewitness
exculpated the petitioner and that “basically, [she] was just doing the best [she] could with
[the petitioner], because he was very unreasonable and wouldn’t listen to [her].” At the
petitioner’s behest, trial counsel called one witness she described as “probably the most
damaging witness” to testify at trial.

               Trial counsel admitted that she refused to present as evidence the clothing worn
by the petitioner at his arrest. She explained that the petitioner asked that she present the
clothing on the day before trial and that the clothing had not been tested for the presence of
any blood. Therefore, trial counsel did not know if the clothing, in fact, contained blood
stains. Furthermore, she did not know whether the clothing was actually the same as that
worn by the petitioner during the incident. Accordingly, she testified that it would have been

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“malpractice” for her to present the clothing as evidence at trial. Trial counsel also recalled
that the petitioner insisted upon testifying, against her advice, but he then refused to testify
when she called him to the stand.

               Trial counsel testified that the petitioner telephoned her office four to five
times a day and that she spent no less than one hour a week visiting the petitioner at the jail
throughout her representation. She said that the petitioner rejected the first plea offer
because he claimed that “he was totally innocent.” She recalled that the petitioner “didn’t
want to go to jail . . . [and] kept whining about it” so she solicited the second plea offer on
the eve of trial, although she was doubtful the trial court would accept it.

                The post-conviction court commented that the petitioner had presented a “good
attitude” at the evidentiary hearing. By comparison, the post-conviction court noted that the
petitioner “always [had] a bad attitude” at trial. The court recalled that “everything [the
petitioner was] doing back then was a demand,” explaining why the case progressed to trial
so quickly. The court noted that it was obvious that the petitioner was “calling the shots” at
the trial stage.

               The post-conviction court then found that there were no material differences
between the preliminary hearing testimony and trial testimony of the State’s witnesses which
suggested any deficient performance by trial counsel’s cross-examination of the witnesses.
The court also found that the jury composition issue had been previously determined and that,
furthermore, counsel had not committed ineffective assistance in handling issues related to
the jury because the venire in Dyer County was drawn from a fair cross-section of the
community. The court found that trial counsel did not perform deficiently by not presenting
the clothing as evidence and that the petitioner failed to present proof at the evidentiary
hearing that the clothing would have exonerated him in any way. The court found that the
petitioner was opposed to accepting any plea offer and that all of the witnesses “testified
clearly that [the petitioner] kicked and stomped . . . this boy’s head . . . [and] that [the
petitioner] did just exactly what [he] was charged with doing.” As such, the court ruled that
the petitioner failed to show any prejudice stemming from the alleged deficient performance
of counsel. Therefore, the post-conviction court denied relief.

              The petitioner filed a timely notice of appeal from the post-conviction court’s
order denying relief. This case is properly before this court. On appeal, the petitioner
contends that his conviction is the result of the ineffective assistance of counsel.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the

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Constitution of the United States.” T.C.A. § 40-30-103 (2006). The post-conviction
petitioner bears the burden of proving his allegations by clear and convincing evidence. See
T.C.A. § 40-30-110(f) (2006). On appeal, the appellate court accords to the post-conviction
court’s findings of fact the weight of a jury verdict, and these findings are conclusive on
appeal unless the evidence preponderates against them. Henley v. State, 960 S.W.2d 572,
578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App. 1997). By
contrast, the post-conviction court’s conclusions of law receive no deference or presumption
of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 (Tenn. 2001).

                To establish entitlement to post-conviction relief via a claim of ineffective
assistance of counsel, the post-conviction petitioner must affirmatively establish first that
“the advice given, or the services rendered by the attorney, are [not] within the range of
competence demanded of attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975), and second that his counsel’s deficient performance “actually had an
adverse effect on the defense,” Strickland v. Washington, 466 U.S. 668, 693 (1984). In other
words, the petitioner “must show 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.
Should the petitioner fail to establish either deficient performance or prejudice, he is not
entitled to relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f
it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.

               When reviewing a claim of ineffective assistance of counsel, we will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of a sound, but unsuccessful, tactical decision made during the
course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994).
Such deference to the tactical decisions of counsel, however, applies only if the choices are
made after adequate preparation for the case. Cooper v. State, 847 S.W.2d 521, 528 (Tenn.
Crim. App. 1992).

               Claims of ineffective assistance of counsel are mixed questions of law and fact.
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6, S.W.3d 453, 461
(Tenn. 1999). When reviewing the application of law to the post-conviction court’s factual
findings, our review is de novo, and the post-conviction court’s conclusions of law are given
no presumption of correctness. Fields, 40 S.W.3d at 457-58; see also State v. England, 19
S.W.3d 762, 766 (Tenn. 2000).

              Initially, we note that the post-conviction court correctly ruled that any free-
standing claim concerning the composition of the jury was previously determined on direct
appeal. See T.C.A. § 40-30-106(h). That being said, we conclude that the record in this case

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fully supports the findings of fact and conclusions of law of the post-conviction court. The
petitioner failed to show any deficient performance by counsel’s communication with the
petitioner, investigation of the case, or presentation of the evidence. To the extent that the
petitioner claims that counsel failed to call certain witnesses or present evidence –
specifically the clothing – the petitioner also failed to present any evidence in support of
these claims at the evidentiary hearing. Accordingly, the petitioner failed to establish his
claims related to the presentation of evidence or witnesses. See Black v. State, 794 S.W.2d
752, 757 (Tenn. Crim. App. 1990) (holding that a post-conviction petitioner generally fails
to establish his claim that counsel did not properly investigate or call a witness if he does not
present the witness to the post-conviction court because a post-conviction court may not
speculate “on the question of . . . what a witness’s testimony might have been if introduced”
at trial). Likewise, the petitioner failed to present any proof to establish any claim related to
trial counsel’s handling of issues concerning the composition of the jury in his case.
Therefore, the petitioner failed to establish his entitlement to post-conviction relief.
Accordingly, the order of the post-conviction court is affirmed.

                                          Conclusion

             The record supports the findings of fact and conclusions of law of the post-
conviction court. Accordingly, we affirm the post-conviction court’s order denying relief.

                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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