        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                        AUGUST SESSION, 1999     FILED
                                                  Ocotber 21, 1999
CURTIS WATKINS,              )    C.C.A. NO. 02C01-9808-CR-00236
                             )                 Cecil Crowson, Jr.
                                              Appellate Court Clerk
      Appe llant,            )
                             )
                             )    SHELBY COUNTY
VS.                          )
                             )    HON. CAROLYN WADE BLACKETT,
STATE OF TENNESSEE,          )    JUDGE
                             )
      Appellee.              )    (Post-Conviction)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:                FOR THE APPELLEE:

DANIEL SEWARD                     PAUL G. SUMMERS
200 Jefferson Avenue, Suite 210   Attorney General and Reporter
Memphis, TN 38103
                                  PATRICIA C. KUSSMANN
                                  Assistant Attorney General
                                  425 Fifth Avenu e North
                                  Nashville, TN 37243

                                  WILLIAM GIBBONS
                                  District Attorney General

                                  JANET SHIPMAN
                                  Assistant District Attorney General
                                  Criminal Justice Complex, Suite 301
                                  201 Poplar Avenue
                                  Memphis, TN 38103




ORDER FILED ________________________

AFFIRMED PURSU ANT TO RULE 20

JERRY L. SMITH, JUDGE
                                      ORDER

       The Petitioner, Curtis W atkins, ap peals the order of th e Shelb y Coun ty

Criminal Court denying his petition for post-conviction relief. The Petitioner pled

guilty to aggravated rape in 1981 and received a sentence of twenty (20) years.

In 1992, h e filed the present petition alleging that, (1) his guilty plea was

involuntary becau se he w as not ad vised of his right again st self-incrimination, and

(2) that he received ine ffective assistance of cou nsel. 1 The trial court denied the

petition after an evidentiary hearing. After a thorough re view of the record before

this Court, we affirm the trial court’s judgment pursuant to Rule 20 of the

Tennessee Court of Criminal Appeals.



       The Petitioner argues that his guilty plea in 1981 2 was involuntary because

he was not advised of his right against self-incrimination. However, at the post-

conviction hearing, the Petitioner acknowledged on several occasions that he

was, in fact, advised that he had a right not to testify at trial. The transcript of the

guilty plea hea ring corro borates this testimony. T hus, th ere is n o factu al bas is

for the Petitioner’s claim in this regard.



1
   The Petitioner filed a prior petition in 1984, which was dismissed without a hearing in
1985. After the Petitioner filed his second petition in 1992, the trial court dismissed the
petition on the basis that it was barred by the statute of limitations. The Petitioner
appealed, claiming that he was unable to proceed with his original petition due to mental
incompetence. This Court held that “mental incompetence tolls the limiting effect of
T.C.A. § 40-30-102 in cases where the disability existed when the statute began to run.”
Curtis Watkins v. State, C.C.A. 02C01-9209-CR-00212, 1993 Tenn. Crim. App. LEXIS
746, at *2, Shelby County (Tenn. Crim. App. filed November 3, 1993), aff’d Watkins v.
State, 903 S.W.2d 302 (Tenn. 1995). The case was remanded to the trial court for an
evidentiary hearing to determine when the petitioner regained competence. In lieu of
such a hearing, the parties agreed to proceed with a determination of the petition on its
merits.
2
  The Petitioner testified at the post-conviction hearing that he completed his sentence
for the crime of aggravated rape in 1995.

                                              -2-
       The Petitioner maintains that he received ineffective assistance of counsel

due to trial couns el’s failure to secure scientific bloo d tests to neg ate the state’s

theory that he raped the victim. Trial counsel testified at the post-conviction

hearing that the forensics report indicated that no sperm or other physical

evidence was found, and as a result, a blood test would not have been fruitful.



       Additionally, the Petitioner contends that trial counsel was ineffective for

failing to pursue an alibi defense. The Petitioner testified at the post-conviction

hearing that, at the time the crime was committed, he was with his sister.

Howeve r, trial counsel subp oena ed the petition er’s sister to testify at trial, and the

petitioner conceded that his sister was prese nt in the co urtroo m on the da y of his

guilty plea. According to trial counsel, the Petitioner pled guilty on the day the

case was set for trial and therefore, the testimony of Petitioner’s sister was not

neces sary.



       This Court reviews a claim of ineffective assistance of counsel under the

standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), and Strickland v.

W a shington, 466 U.S. 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The Petitioner has the burden to demonstrate that (1) his a ttorney ’s performance

was deficie nt, and (2) the d eficien t perfor man ce res ulted in prejudice to the

Defendant so as to deprive him of a fair trial. Strickland v. Washington, 466 U.S.

at 687, 104 S.C t. at 2064; Goad v. State, 938 S.W.2d 363, 369 (Tenn . 1996). In

Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Supreme

Court applied th e two-part Strickland standard to ineffective assistance of counsel

claims arising out of a guilty plea. U nder Hill, a petitioner is required to show that

there is a rea sona ble probability that, but for counsel’s errors , he would no t have

                                           -3-
pled guilty and would have insisted on going to trial. 474 U .S. at 59, 10 6 S.Ct.

at 370.



      The trial court found that the Petitioner h ad no t dem onstra ted tha t his

attorney was deficient under the standards of Baxter and Strickland. The court

also found that the Petitioner was fully advised of his right against se lf-

incrimination. The re cord fully su pports the trial court’s findings. Accordingly, we

affirm the judgment of the trial court pursuant to Rule 20 of the Tennes see Cou rt

of Criminal Appeals. Costs of the appeal will be paid by the State of Tennessee

as it appe ars that the Petitioner is indigent.




                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID H. WELLES, JUDGE


___________________________________
JAMES CURWOOD WITT, JR., JUDGE




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