        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs January 25, 2011

                 TERRY D. SNEED v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Johnson County
           Nos. C4285 and C4304      R. Jerry Beck, Judge (by designation)


                 No. E2010-00323-CCA-R3-PC - Filed March 14, 2011


The petitioner, Terry D. Sneed, aggrieved of his convictions of aggravated robbery,
aggravated kidnapping, aggravated rape, and two counts of aiding and abetting aggravated
rape for which he received sentences totaling 124 years’ incarceration, filed a timely pro se
petition for post-conviction relief. Following multiple appointments of counsel, amendments
to the petition, and other procedural matters spanning over nine years, the post-conviction
court denied relief after a full evidentiary hearing. On appeal, the petitioner contends that
the post-conviction court erred by (1) denying his motion to sever his post-conviction hearing
from that of his co-defendant, (2) denying his motion to continue the evidentiary hearing
based upon the unavailability of two witnesses, and (3) denying relief for his claim of
ineffective assistance of counsel based upon the single allegation that trial counsel failed to
introduce evidence of a Federal Bureau of Investigation (FBI) laboratory report at trial.
Discerning no error, we affirm the judgment of the post-conviction court.

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

J AMES C URWOOD W ITT, JR., J, delivered the opinion of the Court, in which JOSEPH M.
T IPTON, P.J., and N ORMA M CG EE O GLE, J., joined.

Ilya I. Berenshteyn, Bristol, Tennessee, for the appellant, Terry D. Sneed.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; and Anthony Wade Clark, District Attorney General, for the appellee, State of
Tennessee.

                                         OPINION

                The petitioner and his co-defendant, Billy Joe Smith, were convicted in
separate trials of the 1992 robbery of a Carter County market during which the men abducted
the female store clerk and took her to a family cemetery in Unicoi County, where the men
raped the victim three times. After being held captive for approximately seven hours, the
victim eventually escaped when the men stopped at a local motel to inquire about renting a
room. At trial, the motel night clerk identified the petitioner as one of the men at the motel
that night; the victim “stated unequivocally that the [petitioner] was the same man who
abducted and raped her.” State v. Terry Dean Sneed, No. 03C01-9702-CR-00076, slip op.
at 6 (Tenn. Crim. App., Knoxville, Nov. 5, 1998) (affirming the petitioner’s convictions and
sentence on direct appeal), perm. app. denied (Tenn. Apr. 5, 1999).

               On March 15, 2000, the petitioner filed a timely pro se petition for post-
conviction relief. Subsequently, the petitioner, although represented by six different
attorneys, filed prolific pro se pleadings concerning the post-conviction action. Additionally,
he filed lawsuits against virtually every person involved in the trial of his case, including
attorneys, judges, grand jurors, petit jurors, law enforcement personnel, and other court
personnel. Numerous appeals to this court proved equally futile, generally because the
petitioner filed appeals of particular rulings in the absence of any final judgment from the
post-conviction court. The post-conviction court noted that the case was “fraught with
delay,” and we note that much of the almost 10-year delay in bringing this post-conviction
action to a hearing can be attributed to the petitioner.

              Ultimately, the post-conviction court held an evidentiary hearing on November
23 and 25, 2009. Following the presentation of proof and arguments of counsel, the post-
conviction court denied relief. The petitioner timely appealed the post-conviction court’s
action. On appeal, he contends that he was entitled to a severance of his post-conviction
evidentiary hearing from that of his separately-tried co-defendant, that the post-conviction
court erroneously denied a continuance of the evidentiary hearing, and that the post-
conviction court erroneously found that trial counsel was not deficient by failing to present
an FBI laboratory report at trial. The State argues that the petitioner was not entitled to a
severance or a continuance and that the post-conviction court’s denial of relief should be
affirmed.

                 The 57-page pro se petition filed on March 15, 2000, is a rambling and
conclusory list of claims attacking the petitioner’s convictions. At the evidentiary hearing,
the petitioner relied upon the allegations contained in the amended post-conviction petition
filed by his fifth attorney on July 5, 2006, and the allegations contained in the “supplemental”
post-conviction petition filed by his sixth attorney on October 19, 2009. Many of the
allegations attacked the legality of the grand jury and petit jury, the sufficiency of the
indictments, and the actions of the trial court in consolidating the cases for trial in Unicoi




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County.1 Because the petitioner claims no issue on appeal relative to the post-conviction
court’s denial of relief on these bases, we will limit our discussion of the evidence presented
at the evidentiary hearing to only the evidence pertinent to this appeal.

                Lisa Nidiffer Rice testified that she prosecuted the case at trial. She
acknowledged that the FBI lab report showed that there was no serology evidence linking the
petitioner to the crimes. She recalled, however, that the victim had a very good recollection
of the events of the offenses and “was extremely effective as a witness.” According to Ms.
Rice, the victim identified the petitioner and his co-defendant as her abductors and attackers
“without equivocation.” Ms. Rice also recalled that the petitioner’s trial attorneys did “an
excellent job” but that the case was an “extremely strong” case for the State.

              Trial counsel testified that there was no serology evidence linking the petitioner
to the crimes. He recalled that although the FBI expert was present for the trial, counsel
chose not to call the expert as a witness because other “damaging” evidence may have come
in through his testimony.

              The petitioner testified that he wanted the FBI report admitted at trial, that trial
counsel failed to introduce the report, and that trial counsel failed to question the expert.
Throughout his evidentiary hearing testimony, the petitioner claimed that his attorneys could
have represented him better “as the law requires” and that “criminal conspiracy stuff [had
been] committed against [him].”

                                 Severance of Evidentiary Hearing

              The petitioner contends that the trial court erred by ordering a joint evidentiary
hearing with his separately tried co-defendant and denying his subsequent requests for
severance. The State argues that the petitioner was not entitled to a severance at the
evidentiary hearing.

               Both the petitioner’s and his co-defendant’s post-conviction cases remained
pending in the court for several years. The post-conviction court, upon being designated to
hear the cases, noted that the petitioner and his co-defendant generally “raised identical
issues” in their petitions. Accordingly, the post-conviction court joined the cases for hearing
in an effort to expedite their completion. Although unorthodox, no rule or statute of post-
conviction procedure precludes such a procedure. Furthermore, the petitioner has failed to


        1
         The petitioner was indicted in Carter County for the aggravated robbery and aggravated kidnapping
offenses. He was indicted in Unicoi County, however, for the rape offenses. The trial court consolidated
the cases for trial in Unicoi County by agreement of the parties.

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show that he was prejudiced by this procedure, other than his general allegation that “[i]t is
unquestionable that [he] would have received more attention from the judge if his Motion
for Severance was granted.” We discern no prejudice from the record before us.
Accordingly, we conclude that the trial court did not abuse its discretion by joining the cases
for hearing.

                                   Denial of Continuance

               The petitioner argues that the trial court should have granted his request for a
continuance due to the unavailability of two witnesses, Lillian and Gary Ambrose. The State
argues that the trial court correctly denied the motion for continuance because the witnesses
could not be located, a fact known for several months leading up to the hearing, and there
was no showing of “manifest necessity” as required by Rule 28, §8(B) of the Rules of the
Tennessee Supreme Court.

              “[T]he granting or denying of a continuance is a matter which addresses itself
to the sound discretion of the trial judge.” Moorehead v. State, 409 S.W.2d 357, 358 (Tenn.
1966) (citing Bass v. State, 231 S.W.2d 707, 710-11 (Tenn. 1950)). An abuse of discretion
is demonstrated by showing that the failure to grant a continuance denied the defendant a fair
hearing or that it could be reasonably concluded that a different result would have followed
had the continuance been granted. State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995) (citing
State v. Wooden, 658 S.W.2d 553, 558 (Tenn. Crim. App. 1983)). “The burden rests upon
the party seeking the continuance to show how the court’s action was prejudicial. The only
test is whether the defendant has been deprived of his rights and an injustice done.” State
v. Goodman, 643 S.W.2d 375, 378 (Tenn. Crim. App. 1982) (citing Baxter v. State, 503
S.W.2d 226, 230 (Tenn. Crim. App. 1973)). Tennessee Supreme Court Rule 28, §8(B)
provides that an evidentiary hearing “shall not be continued except by order of the court
finding that unforeseeable circumstances render a continuance a manifest necessity.”

               On the first day of the evidentiary hearing, the petitioner requested that the
clerk’s office reissue any unserved subpoenas in a final attempt to locate several witnesses
who had been “unservable” in the months preceding the evidentiary hearing. One such
witness, Lillian Ambrose, was allegedly a victim of a burglary for which the petitioner had
been charged but never convicted. The petitioner alleged that another unfound witness, Gary
Ambrose, was Mr. Ambrose’s son and that he served on the jury. The trial court delayed
completion of the evidentiary hearing for an additional day in an effort to locate the
witnesses. Nevertheless, they could not be located. The petitioner knew that the witnesses
had been “unservable” as evidenced by the three failed attempts at locating them. The post-
conviction action had been pending more than nine years at the time it came to hearing.
Under these circumstances, we conclude that the trial court did not abuse its discretion by

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denying further continuances.

                              Ineffective Assistance of Counsel

               The petitioner contends that the trial court erred by denying his petition for
post-conviction relief based upon the alleged deficient performance of trial counsel for
failing to present evidence and testimony concerning the lack of serology evidence linking
him to the crimes. The State argues that the trial court correctly denied relief because the
evidence at trial showed the lack of serology evidence and the petitioner failed to prove his
allegation by clear and convincing evidence.

               The post-conviction petitioner bears the burden of proving his allegations by
clear and convincing evidence. 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,” 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).

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               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).

               Regarding the FBI laboratory report, the post-conviction court found that the
report indicated that samples from the petitioner were “unusable for DNA analysis,” thus
leaving “the jury in a position to speculate.” The post-conviction court also found that trial
counsel made a strategic decision not to call the laboratory expert. The court then concluded
that the failure to call the expert was “harmless beyond a reasonable doubt” due to the
“overwhelming” evidence of the petitioner’s guilt of the offenses. In summary, the post-
conviction court found that the petitioner failed to present clear and convincing proof to
establish his claim relative to counsel’s failure to present either evidence or testimony
concerning the lab report.

               The evidence supports the post-conviction court’s conclusions. The FBI
laboratory report contains no information linking the petitioner to the crime. This lack of
evidence, however, was presented at trial through other witnesses. Terry Dean Sneed, slip
op. at 6 (noting that “the police were unable to link the [d]efendant with the crime through
DNA evidence”). Furthermore, the petitioner failed to present the testimony of any FBI
laboratory expert who may have elaborated on this lack of evidence in order to establish his
claim of deficient performance. “When a [post-conviction] petitioner contends that trial
counsel failed to discover, interview, or present witnesses in support of his defense, these
witnesses should be presented by the petitioner at the evidentiary hearing.” Black v. State,
794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). If he fails to do so, he generally fails to
establish ineffective assistance of counsel. Id. The post-conviction court may not speculate
“on the question of . . . what a witness’s testimony might have been if introduced” at trial.
Id.; see also Wade v. State, 914 S.W.2d 97, 102 (Tenn. Crim. App. 1995). Therefore, we
agree with the post-conviction court that the petitioner failed to establish entitlement to post-
conviction relief.

              Accordingly, the order of the post-conviction court is affirmed.


                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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