        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs August 4, 2015

             MARQUETTE HOUSTON v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                      No. 03-08488 Glenn Ivy Wright, Judge


             No. W2014-02201-CCA-R3-PC - Filed September 28, 2015


       The Petitioner, Marquette Houston, appeals the Shelby County Criminal Court’s
denial of his petition for post-conviction relief from his 2005 conviction for second degree
murder and his twenty-five-year sentence. The Petitioner contends that the post-conviction
court erred by denying him relief on his ineffective assistance of counsel claim. We affirm
the judgment of the post-conviction court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and ROGER A. PAGE, JJ., joined.

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Marquette Houston.

Herbert H. Slatery III, Attorney General and Reporter; Rachel Willis, Senior Counsel; Amy
P. Weirich, District Attorney General; and Carla Taylor, Assistant District Attorney General,
for the appellee, State of Tennessee.


                                        OPINION

       This case arises from the Petitioner’s second degree murder conviction stemming from
the death of a bystander during a 2003 shooting incident between the Petitioner and another
person. This court affirmed the Petitioner’s conviction on appeal but remanded the case for
resentencing. See State v. Marquette Houston, No. W2008-00885-CCA-R3-CD, 2009 WL
2357146 (Tenn. Crim. App. July 30, 2009). Upon resentencing, the Petitioner appealed, and
this court summarized the facts of the case as follows:
       The evidence presented at defendant’s trial established that for several years,
       Bernard “Chuck” Barnes and Albert “Mac Al” Thomas had been engaged in a
       dispute over payment for work done by Mr. Barnes to Mr. Thomas’
       automobile motor. According to Mr. Thomas’ trial testimony, he and the
       defendant were friends and he had told the defendant about his disagreement
       with Mr. Barnes. Mr. Thomas testified that the defendant said he “was going
       to get up” with Mr. Barnes, which Mr. Thomas explained could mean “you
       [were] going to fight him, jump on him. . . shoot him, whatever.” On April 28,
       2003, Mr. Barnes and Mr. Thomas stopped their vehicles on Hollywood Street
       near Vollintine Street. Seconds later, a truck driven by the defendant came
       “zooming” down Hollywood and up a hill onto Vollintine Street. When the
       defendant reached the top of the hill, he stopped the truck and began shooting
       at Mr. Barnes with a .40 caliber handgun. Mr. Barnes returned fire with a
       .9mm handgun. Claude Franklin was mowing the front lawn of his residence
       near Hollywood Street and was fatally wounded in the chest. An autopsy
       report revealed that Mr. Franklin died of internal bleeding caused by a gunshot
       wound to the chest. A .40 caliber bullet was recovered from Mr. Franklin’s
       body. On direct appeal, this court . . . remanded the case for resentencing
       under the sentencing scheme in place prior to the 2005 amendments.

               On March 25, 2008, the trial court conducted a resentencing hearing.
       The defendant testified that he was imprisoned at the Hardeman County
       Correctional Facility. He stated that since his incarceration, he had obtained an
       anger management certificate and had enrolled in a program to earn his GED
       certification. The defendant admitted that prior to his incarceration, he had
       been involved in using and selling drugs. Regarding the killing, he stated that
       he made a mistake and claimed, “I was young and I was misled at the time . . .
       selling drugs, doing what I was doing in [the] street[.]” The defendant asserted
       that he had no father figure and his mother could not work. He admitted that
       he used a gun in commission of the offense and claimed that the incident
       happened because he was standing up for his “supposed to be friend.” The
       defendant stated that he “hated it even happen.” [sic] He claimed that he was
       not aware the victim was present when he fired his gun. According to the
       defendant, “It hurts because . . . I still feel like I didn’t shoot that person.” The
       presentence report revealed that the defendant had one prior conviction for
       vandalism and two prior convictions for assault and battery. The trial court
       again sentenced the defendant as a Range I, violent offender to the maximum
       sentence for a Class A felony, twenty-five years.

Id. at *1-2 (internal citations omitted).

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        This court affirmed the sentence, and the Petitioner filed a petition for post-conviction
relief, which was summarily dismissed by the post-conviction court as time-barred. On
appeal, the State conceded that the petition was timely, and this court reversed and remanded
the case for an evidentiary hearing. See Marquette Houston v. State, No. W2011-01073-
CCA-R3-PC, 2012 WL 1478760 (Tenn. Crim. App. Apr. 25, 2012). The Petitioner amended
his petition for post-conviction relief, alleging multiple ineffective assistance of counsel
claims. After a hearing, the post-conviction court denied relief.

        The Petitioner’s sole claim on appeal is the ineffective assistance of counsel due to
trial counsel’s failure to call mitigating witnesses at the sentencing hearing. Our recitation of
the evidence will be limited to this issue.

       At the post-conviction hearing, trial counsel testified that as part of his pretrial
investigation, he attempted to contact and subpoena witnesses. Counsel said that he was
unable to interview Albert Thomas and that Bernard Barnes refused an interview. Mr.
Barnes told the investigator to review the statement that Mr. Barnes provided to the police
shortly after the shooting. Counsel said the defense theory was that the Petitioner was acting
in defense of another person and that the victim’s death was accidental.

       Trial counsel testified that although he had never tried a capital case, he was familiar
with mitigation evidence. Counsel said he did not present any witnesses at the sentencing
hearing. He did not remember whether the Petitioner’s mother attended the sentencing
hearing or why she was not presented as a witness. The Petitioner testified at the sentencing
hearing.

        Trial counsel testified that he had been a public defender for nineteen years and had
tried thirty to forty first degree murder cases. In preparation for the trial, counsel spoke to the
Petitioner once every forty-five days and more frequently as the trial date approached. He
said that the Petitioner admitted the shooting in a statement to police and that counsel’s goal
was to obtain a verdict of not guilty. Counsel attempted unsuccessfully to suppress the
Petitioner’s statement. Counsel considered a second degree murder verdict to be a success.

       Trial counsel testified that he did not remember if he discussed mitigating factors with
the Petitioner, and that counsel’s file did not reflect that such a discussion was held. Counsel
generally requested a mental health evaluation of his clients in first degree murder cases, but
he could not remember whether he requested it in this case. Counsel did not know of any
obvious mitigating factors in the Petitioner’s case.



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       Trial counsel testified that he was not surprised the trial court imposed the maximum
sentence. He said

       Judge Beasley on . . . murders and cases like that[,] you can expect twenty-five
       or twenty-four [years] usually unless there’s mitigation in the facts . . .
       especially in this case where there was an innocent bystander killed. . . . I was
       expecting either twenty-four or twenty-five [years. That’s] typically what he
       sentences in . . . a murder two [verdict.]

Counsel acknowledged that it was possible mitigation testimony might have reduced the
Petitioner’s sentence from twenty-five years to twenty-four years.

       Upon examination by the post-conviction court, trial counsel testified that he did not
remember whether the State extended a plea offer before the trial. His file did not reflect that
a plea offer was made.

        Angela Houston, the Petitioner’s sister, testified that she did not receive a subpoena to
testify at either sentencing hearing. She said if she had testified, she would have said that she
loved her brother and that he did not have a “fair chance.” The Petitioner’s sister said that
when she was growing up, her brother protected her. He walked her to school and to the
store at night and ensured that she obeyed their mother and stayed out of trouble. She said
that she visited the Petitioner in jail when she could, spoke to him by telephone, and wrote to
him.

       The Petitioner’s sister testified that she was not present at the shooting and that she
could not testify about the Petitioner’s actions that day. She said that the Petitioner was not
violent and that she did not know him to carry a gun.

        Eva Houston, the Petitioner’s mother, testified that she did not receive a subpoena or
testify at either sentencing hearing. She said that if she had testified, she would have said
that the Petitioner lived with her as a child and was a good son. He went to school as a child
and helped care for his two siblings. The Petitioner’s mother said that the Petitioner took his
siblings to the store and to school, played with them, and changed their diapers. She said that
she loved and missed her son and wished he were still at home.

       The Petitioner’s mother testified that she did not know the Petitioner pleaded guilty to
vandalism in 2001 and to three counts of assault in 2001 and one count of assault in 2003.
She said that she suffered from seizures during that time and that the Petitioner was not living
with her. She knew the Petitioner was a good son, but she did not know what the Petitioner
did after he moved out of her home in 2001.

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        The Petitioner testified that trial counsel visited him three times during the twenty
months he was in jail and that each visit was close to the time he was indicted. He said that
counsel provided one-half of the discovery materials to him but that the Petitioner never saw
the autopsy report, witness statements, or the evidence the State intended to present at the
trial. The Petitioner said that he told counsel about the missing materials but that counsel
never gave them to the Petitioner. The Petitioner met with counsel’s investigator about two
weeks before the trial. The Petitioner said that he told counsel everything he knew about the
case.

       The Petitioner testified that on the day of the trial, trial counsel told him that the
prosecutor was ill and did not want a trial. Counsel told the Petitioner that the State made a
plea offer for twenty years’ confinement, but the Petitioner did not want to accept it because
he did not see the victim or intend to shoot him. The Petitioner said that if it meant he could
have received a reduced sentence, he would have wanted his mother and sister to testify at
the sentencing hearing.

       The Petitioner agreed that at the trial, he faced a life sentence but ultimately received a
twenty-five-year sentence. Although the Petitioner admitted that he fired the gun, he felt that
because he did not intend to kill the victim, he should not have been sentenced to twenty-five
years.

        The Petitioner testified that one of his previous assault convictions was the result of a
jail fight after his arrest in this case and that another assault conviction occurred after a
woman intervened during a fight the Petitioner had with another man. The vandalism
conviction related to his throwing a rock at a building. All of the convictions were
misdemeanors.

       The post-conviction court denied relief. Relative to trial counsel’s failure to present
mitigating witnesses, the court found that the decision was tactical. It found that the benefit
of the Petitioner’s mother’s testimony was “unclear” given that she did not know about the
Petitioner’s other convictions. The court found that during the sentencing hearing, the
Petitioner admitted owning a gun, killing an innocent bystander, and buying and selling
drugs. It also found that counsel raised mitigating factors, including the Petitioner’s
“somewhat stable” work history, his youth, and the fact that he was not aiming for the victim.
 The court noted that the Petitioner was a Range I, violent offender, which required a
minimum sentence of twenty years. The court found that the Petitioner’s criminal history
was used to enhance the sentence to twenty-five years. The court concluded that even if
counsel’s performance were deficient, any prejudice to the Petitioner was slight because of
the facts of the case.

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        On appeal, the Petitioner contends that the post-conviction court erred by concluding
that trial counsel provided the effective assistance of counsel. He argues counsel was
ineffective by failing to present his sister and mother as mitigation witnesses at the
sentencing hearing. He asserts he has established prejudice in connection with his ineffective
assistance claim because counsel admitted at the post-conviction hearing that it was possible
the Petitioner might have received twenty-four years instead of twenty-five years had the
witnesses been presented.

       Post-conviction relief is available “when the conviction or sentence is void or voidable
because of the abridgement of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” T.C.A. § 40-30-103 (2012). A petitioner has the burden
of proving his factual allegations by clear and convincing evidence. Id. § 40-30-110(f)
(2012). A post-conviction court’s findings of fact are binding on appeal, and this court must
defer to them “unless the evidence in the record preponderates against those findings.”
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); see Fields v. State, 40 S.W.3d 450, 456-
57 (Tenn. 2001). A post-conviction court’s application of law to its factual findings is
subject to a de novo standard of review without a presumption of correctness. Fields, 40
S.W.3d at 457-58.

       To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364,
368-72 (1993). The Tennessee Supreme Court has applied the Strickland standard to an
accused’s right to counsel under article I, section 9 of the Tennessee Constitution. See State
v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

         A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services rendered . .
. , are [not] within the range of competence demanded of attorneys in criminal cases.” Baxter
v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at 690. The post-
conviction court must determine if these acts or omissions, viewed in light of all of the
circumstances, fell “outside the wide range of professionally competent assistance.”
Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of hindsight, may not
second-guess a reasonably based trial strategy by his counsel, and cannot criticize a sound,
but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.
1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 2008). This deference, however,

                                                 -6-
only applies “if the choices are informed . . . based upon adequate preparation.” Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). To establish the prejudice prong, a
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.” Strickland,
466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id.

       The record reflects that due to the length of time between the trial and the post-
conviction hearing, trial counsel could not recall why the Petitioner’s sister and mother were
not presented as witnesses at the sentencing hearing. Counsel testified that there were no
obvious mitigating factors. The trial court found no statutory mitigating factors during the
sentencing hearing, but it considered the mitigating evidence of the petitioner’s work history
and involvement in GED and anger management classes in prison as “other factor[s].” The
post-conviction court found that counsel made a tactical decision not to present mitigation
witnesses in addition to the mitigation evidence presented and that the benefit of the
Petitioner’s mother’s testimony was “unclear” given her lack of knowledge of the
Petitioner’s criminal record.

        Tennessee Code Annotated sections 40-35-113 and -14 enumerate the statutory
mitigating and enhancement factors available to courts in determining the length of a
sentence. Relative to enhancement factors, the trial court found that enhancement factor (1)
applied given the Petitioner’s previous convictions and their violent nature. See T.C.A. § 40-
35-114(1) (Supp. 2007) (amended 2008, 2012, 2015) (“The defendant has a previous history
of criminal convictions or criminal behavior[.]”). The court also found that enhancement
factor (9) applied because the Petitioner used a firearm during the commission of the offense.
 See id. § 40-35-114(9)(“The defendant possessed or employed a firearm . . . during the
commission of the offense[.]”) Relative to mitigating factors, the court found that the
Petitioner’s work history and involvement in GED and anger management programs in prison
were “other factor[s]” to be considered. See id. § 40-35-113(13) (2014). (Mitigating factors
may include “[a]ny other factor consistent with the purposes of this chapter.”)

      At the sentencing hearing, the trial court placed significant weight on the firearm
enhancement factor. The court discussed the intent of the legislature and the causal
connection between the Petitioner’s carrying and using a firearm and the victim’s death.
When considering the mitigating factors presented by the Petitioner, the trial court stated,

       [I]n weighing those [mitigating] factors against the serious nature of the
       offense [and] the enhancement factors . . . the Court is of the opinion that they
       do not outweigh the weight that should be given to the fact that [the Petitioner]
       used a gun. . . [and] an innocent man’s life was taken.

                                                 -7-
The court also considered the Petitioner’s prior criminal record and criminal behavior, which
included violence, but it placed significant weight on the Petitioner’s having used a gun.
Based on the court’s sentencing determination, the evidence does not preponderate against
the trial court’s findings that trial counsel was not deficient in his failure to present the
Petitioner’s sister and mother to testify about the Petitioner’s behavior before he left their
home and began committing crimes.

        Further the Petitioner has not shown that he was prejudiced by trial counsel’s failure
to present the Petitioner’s mother and sister at the sentencing hearing. Although the
testimony of his sister and mother could have been considered relevant to mitigating factor
(13), the trial court found that the existing enhancement factors far outweighed any
mitigating factors. The court considered the Petitioner’s work history and GED and anger
management classes in prison, which were recent and more relevant mitigating factors.
Given the court’s reliance on the Petitioner’s previous criminal history and use of a firearm in
its sentencing determinations, the post-conviction court did not err in determining that the
proffered testimony would not have changed the outcome of the sentencing hearing. We note
the post-conviction court’s finding that the Petitioner’s mother was not aware of the
Petitioner’s criminal history and that his sister’s testimony was limited to the Petitioner’s
childhood. There is no evidence that the result of the sentencing hearing would have been
different had the witnesses been presented. Counsel’s testimony that the Petitioner might
have received a sentence of twenty-four years if mitigation testimony had been presented was
speculation. The relevance of the proffered mitigation testimony is minimal and is in stark
contrast to overwhelming enhancement factors which the trial court found in determining that
a twenty-five year sentence was appropriate. The Petitioner has not shown that the post-
conviction court erred in concluding that counsel was not deficient and that the Petitioner
was not prejudiced by counsel’s performance at the sentencing hearing.

       In consideration of the foregoing and the record as a whole, we affirm the judgment of
the post-conviction court.


                                        ____________________________________
                                        ROBERT H. MONTGOMERY, JR., JUDGE




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