        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs January 8, 2013

                   JOSEPH SHAW v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Madison County
                      No. C-11-313     David G. Hayes, Judge


                  No. W2012-00630-CCA-R3-PC - Filed April 4, 2013


The Petitioner, Joseph Shaw, appeals as of right from the Madison County Circuit Court’s
denial of his petition for post-conviction relief. The Petitioner contends (1) that he received
ineffective assistance from his trial counsel because trial counsel failed to challenge a juror
who was previously acquainted with the Petitioner; (2) that trial counsel was ineffective for
failing to call several witnesses to testify as to the Petitioner’s character; and (3) that the
Petitioner was denied his right to trial by a fair and impartial jury. Following our review, we
affirm the judgment of the post-conviction court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which J ERRY L. S MITH and
T HOMAS T. W OODALL, JJ., joined.

Joseph T. Howell, Jackson, Tennessee, for the appellant, Joseph Shaw.

Robert E. Cooper, Jr., Attorney General and Reporter; Jennifer L. Smith, Associate Deputy
Attorney General; James G. Woodall, District Attorney General; and James W. Thompson,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                               FACTUAL BACKGROUND

        Following a jury trial, the Petitioner was convicted of one count of rape and sentenced
to eleven years to be served at 100%. See State v. Joseph Shaw, Jr., No. W2009-02326-
CCA-R3-CD, 2010 WL 3384988 (Tenn. Crim. App. Aug. 27, 2010), perm. app. denied,
(Tenn. Jan. 13, 2011). The Petitioner’s conviction arose from his August 30, 2008 attack on
his girlfriend’s thirteen-year-old daughter. The Petitioner, at the victim’s mother’s request,
brought some food for the victim to her apartment and was alone with the victim when he
attacked her, “grabbing her breasts and buttocks and penetrating her labia with his fingers.”
Id. at *1. At trial, the Petitioner testified that it was the victim who attacked him after he told
her that R&B singer Chris Brown would never date “a fat big juju” like her. Id. at *3. The
Petitioner denied penetrating the victim’s vagina and claimed that any touching of the
victim’s breasts or buttocks was unintentional. Id. at *4. The victim rebutted the Petitioner’s
claims, denying that she had attacked the Petitioner. Id. On direct appeal, this court affirmed
the Petitioner’s conviction and sentence. Id. at *1. Our supreme court declined to review
this court’s opinion.

        The Petitioner filed a timely petition for post-conviction relief. At the post-conviction
hearing, the Petitioner testified that during voir dire, he recognized one of the potential
jurors, Tony Brooks. According to the Petitioner, he went to high school with Mr. Brooks
and later worked at a factory with Mr. Brooks sometime in the mid-1970s. The Petitioner
testified that he and Mr. Brooks were not friends but that they “just kind of [knew] one
another.” The Petitioner further claimed that he and Mr. Brooks had “a liking for the same
young lady” when they worked together and that he believed that caused Mr. Brooks to be
biased against him. The Petitioner testified that he told trial counsel that Mr. Brooks had lied
about knowing him but that trial counsel failed to “call [Mr. Brooks] out.” Mr. Brooks was
eventually selected as a juror and served as foreman of the jury. The Petitioner also testified
that trial counsel failed to investigate and call several witnesses that the Petitioner wanted
to testify about his character and “stuff [of] that nature.” These witnesses included his
neighbors Harry and Georgia Jenkins, his sister Betty Shaw, and his “lady friend” Patricia
Mercer. However, the Petitioner testified that he never asked trial counsel to call the
witnesses or gave trial counsel their names.

        Mr. Brooks testified that he served as jury foreman at the Petitioner’s trial. Mr.
Brooks testified that he went to the same high school as the Petitioner but that he did not
recall being in the same class with the Petitioner. Mr. Brooks also testified that he worked
at the same factory as the Petitioner but that he did not recall working with the Petitioner.
Mr. Brooks also did not recall dating the woman that the Petitioner claimed they competed
over. Mr. Brooks testified that when asked during voir dire if he knew the Petitioner, he
stated that he did not because he genuinely did not recognize the Petitioner or recall knowing
him. Mr. Brooks testified that it had been almost forty years since he was in high school and
had worked at that particular factory, so any memories he had from back then were “very
vague.” Mr. Brooks further testified that his verdict was based upon the evidence at trial and
not “on whether or not [he] knew [the Petitioner].”

      The Petitioner’s brother, Otis Shaw, testified that prior to the post-conviction hearing,
Mr. Brooks approached him, asked him how he was doing, and shook his hand. Mr. Shaw

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testified that he grew up with Mr. Brooks and that Mr. Brooks knew his “whole family,”
including the Petitioner. Mr. Brooks did admit that he had “seen [Mr. Shaw] before” but that
he did not know him well enough to know his name. Mr. Brooks admitted that prior to the
post-conviction hearing he said, “Hey, there,” and shook Mr. Shaw’s hand but testified that
he would “greet [anybody] the same” way. Mr. Shaw testified that he did not know of any
reason why Mr. Brooks would be biased against the Petitioner.

       Georgia Jenkins testified that she was the Petitioner’s neighbor and that she would
have testified at trial that he was “not violent at all.” According to Ms. Jenkins, no one ever
interviewed her about the Petitioner nor was she called to testify at trial. However, Ms.
Jenkins admitted that the Petitioner never asked her to contact his attorney or talked to her
about testifying on his behalf. The Petitioner’s sister, Betty Shaw, also testified that she
would have testified at trial that she had never known the Petitioner to be violent towards
women, but no one ever asked her to testify on the Petitioner’s behalf. However, Ms. Shaw
admitted that the Petitioner never asked her to testify and that she never tried to contact trial
counsel.

       Trial counsel testified that during voir dire, the Petitioner “indicated that he believed
he knew Mr. Brooks and that Mr. Brooks should have known him.” Trial counsel asked the
Petitioner if “he had any hard feelings towards Mr. Brooks,” and the Petitioner said no. Trial
counsel also asked the Petitioner “if he wanted [trial counsel] to excuse Mr. Brooks and he
said no.” Trial counsel further testified that he sent the Petitioner a letter requesting the
names of any witnesses that he should speak to. According to trial counsel, the Petitioner
never provided him the names of Mr. and Ms. Jenkins, Ms. Shaw, or Ms. Mercer.

        Following the hearing, the post-conviction court denied the Petitioner post-conviction
relief. In its written order, the post-conviction court accredited Mr. Brooks’s testimony that
he had no bias against the Petitioner because he did not remember him. The post-conviction
court also accredited trial counsel’s testimony that the Petitioner said no when he was asked
if he wanted Mr. Brooks removed from the jury. As such, the post-conviction court
concluded that the issue was without merit. With respect to the Petitioner’s claim that trial
counsel failed to call several character witnesses, the post-conviction court noted that the
Petitioner admitted that he never requested trial counsel to subpoena any of the witnesses.
The post-conviction court also noted that the Petitioner had a prior criminal history which
would not have supported his assertion of a good character. Accordingly, the post-conviction
court denied relief on this issue.

                                         ANALYSIS




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        The Petitioner contends that the post-conviction court erred by denying him post-
conviction relief.1 The Petitioner argues that trial counsel was ineffective for allowing Mr.
Brooks to remain on the jury despite the Petitioner’s statement that they knew each other.
The Petitioner also argues that trial counsel was ineffective for failing to call several
character witnesses to testify at trial that the Petitioner was not violent. The Petitioner further
argues that he was denied his right to trial by a fair and impartial jury because Mr. Brooks
was biased against him. The State responds that the Petitioner told his counsel that he did
not want Mr. Brooks removed from the jury and Mr. Brooks testified that he did not recall
the Petitioner or have any reason to be biased against him. The State further responds that
trial counsel cannot be faulted for failing to call witnesses the Petitioner never informed him
of. With respect to the Petitioner’s claim that he was denied a fair and impartial jury, the
State responds that the Petitioner has waived this issue by failing to raise it on direct appeal.

        The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence. Tenn.
Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
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 (Tenn. 2001). Additionally, “questions concerning the credibility of the witnesses, the
weight and value to be given their testimony, and the factual issues raised by the evidence
are to be resolved” by the post-conviction court. Id. Because they relate to mixed questions
of law and fact, we review the post-conviction court’s 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.

        Under the Sixth Amendment to the United States Constitution, 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 falls below a reasonable
standard is not enough; rather, the petitioner must also show that but for the substandard
performance, there is a reasonable probability that “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).



1
 The Petitioner raised other issues in his petition for post-conviction relief. The post-conviction court denied
post-conviction relief on these claims as well. The Petitioner has waived appellate review of these issues
by not raising them in his brief. See Tenn. R. App. P. 13(b).

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        The Petitioner has failed to establish by clear and convincing evidence that trial
counsel’s performance was deficient. Mr. Brooks testified that, while he went to the same
high school as the Petitioner and had worked at the same factory as the Petitioner, he did not
recall the Petitioner and genuinely believed that he did not know the Petitioner when asked
at voir dire. Additionally, Mr. Brooks testified that he had no reason to be biased against the
Petitioner and that his verdict was based solely upon the evidence presented at trial.
Furthermore, trial counsel testified that, when asked, the Petitioner said that he did not want
Mr. Brooks removed from the jury and that there were no “hard feelings” between the two.
With respect to the Petitioner’s claim that trial counsel failed to subpoena several character
witnesses to testify at trial, the Petitioner admitted that he never provided the names of the
witnesses to trial counsel. Trial counsel testified that he sent the Petitioner a letter requesting
the names of any witnesses the Petitioner wanted subpoenaed. Trial counsel cannot be
faulted for failing to call these character witnesses when the Petitioner never asked him to.
Accordingly, we affirm the post-conviction court’s denial of post-conviction relief.

        Tennessee Code Annotated section 40-30-106(g) provides that “[a] ground for relief
is waived if the petitioner personally or through an attorney failed to present it for
determination in any proceeding before a court of competent jurisdiction in which the ground
could have been presented . . . .” Here, the Petitioner testified that he was aware at trial that
he knew Mr. Brooks and that he believed Mr. Brooks to be biased against him. The
Petitioner failed to raise this issue in his motion for new trial and on direct appeal to this
court. Accordingly, we conclude that the Petitioner has waived post-conviction review of
his claim that he was denied his right to trial by a fair and impartial jury.

                                         CONCLUSION

       Upon consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.




                                                      _________________________________
                                                      D. KELLY THOMAS, JR., JUDGE




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