         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                      July 10, 2007 Session

              ALLEN JEAN STEPHENS v. STATE OF TENNESSEE

                  Direct Appeal from the Circuit Court for Weakley County
                        No. CR82-2006 William B. Acree, Jr., Judge



                    No. W2006-02773-CCA-R3-PC - Filed October 3, 2007


A Weakley County Circuit Court jury convicted the petitioner, Allen Jean Stephens, of possession
of more than one-half gram of cocaine with intent to sell and possession of drug paraphernalia, and
the trial court sentenced him as a Range III, persistent offender to an effective sentence of twenty-
three years in confinement. This court affirmed the petitioner’s convictions. See State v. Allen Jean
Stephens, No. M2004-00531-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 668 (Jackson, June 23,
2005), perm. to appeal denied, (Tenn. 2005). Subsequently, the petitioner filed a petition for post-
conviction relief, and the post-conviction court denied the petition after an evidentiary hearing. On
appeal, the petitioner contends that he received the ineffective assistance of counsel because his trial
attorney failed to argue at his pretrial suppression hearing that no probable cause existed for a search
warrant to be issued for his home and failed to argue on direct appeal that the trial court did not make
a necessary finding of fact regarding the motion to suppress. Based upon the record and the parties’
briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS
T. WOODALL, JJ., joined.

Robert Brooks, Memphis, Tennessee, for the appellant, Allen Jean Stephens.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
Thomas A. Thomas, District Attorney General; and Kevin McAlpin, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

                                      I. Factual Background

       On appeal, this court stated the following facts:
                       Lieutenant Sammy Liles with the Martin Police Department
               met with DeAndre Butler, a confidential informant, around noon on
               July 11, 2003. Lieutenant Liles searched Mr. Butler and his vehicle,
               furnished him a wireless transmitter, and gave him $200.00 marked
               money with which to purchase cocaine from Defendant. Lieutenant
               Liles followed Mr. Butler as he drove to Defendant’s house. Mr.
               Butler exited his vehicle and knocked on Defendant’s front door. Mr.
               Butler completed the purchase transaction, and he and Lieutenant
               Liles drove back to their meeting place. Lieutenant Liles searched
               Mr. Butler and his vehicle, and Mr. Butler gave Lieutenant Liles the
               cocaine he had purchased from Defendant.

                       Lieutenant Liles secured a search warrant for Defendant’s
               person and his residence based on the drug sale to Mr. Butler. He and
               other police officers arrived at Defendant’s house around 5:20 p.m.
               on July 11, 2003. Defendant was standing in the front yard when the
               officers arrived. A search of Defendant’s person revealed
               approximately $750.00 in Defendant’s back pocket. Lieutenant Liles
               confirmed that a portion of the cash ($150.00) was a part of the
               marked bills that had been given to Mr. Butler to purchase drugs from
               Defendant. Inside Defendant’s house, Lieutenant Liles found 1.5
               grams of cocaine, approximately $1,300.00 in the pocket of one of
               Defendant’s shirts, and three small baggies similar to those used to
               package drugs for sale.

                      On cross-examination, Lieutenant Liles said that Mr. Butler
               was sent to purchase an “8-ball” of cocaine from Defendant, an
               amount which generally weighs in excess of three grams, or
               approximately one-eighth of one ounce.

                       Patty Choatie, a forensic scientist with the Tennessee Bureau
               of Investigation’s crime laboratory, testified that the substance which
               Mr. Butler purchased from Defendant was crack cocaine and weighed
               1.6 grams. Ms. Choatie confirmed that the substance found in
               Defendant’s house was also crack cocaine and weighed 1.5 grams.

Stephens, No. M2004-00531-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 668, at **2-4.

          After this court affirmed the petitioner’s convictions and the supreme court denied his
application for permission to appeal, the petitioner’s post-conviction counsel filed a timely petition
for post-conviction relief, claiming that the petitioner received the ineffective assistance of counsel
at trial and on direct appeal. First, the petition claimed that trial counsel was ineffective because he
failed to allege the proper grounds to support the pretrial motion to suppress the evidence.


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Specifically, the petition claimed that counsel should have argued in the motion that a one-time drug
buy at the petitioner’s home did not establish probable cause to issue a search warrant. Second, the
petition claimed that trial counsel was ineffective because he did not argue on direct appeal that the
trial court, when ruling on the petitioner’s motion to suppress, failed to make a necessary finding of
fact in violation of Tennessee Rule of Criminal Procedure 12(e). Specifically, the petition claimed
that the trial court failed to determine whether the petitioner had been properly served with a copy
of the search warrant as required by Tennessee Rule of Criminal Procedure 41(c).

       At the evidentiary hearing, the petitioner’s trial attorney was the only witness to testify. He
said he represented the petitioner at trial and on direct appeal. Post-conviction counsel’s entire
questioning on direct examination continued as follows:

                       Q. Okay. You filed a motion to suppress at the trial court; is
               that correct?

                       A. Yes, sir.

                      Q. Did you include all the issues that you felt were --
               legitimate issues in that motion?

                       A. I did.

                       Q. Okay. And then you -- you presented evidence in support
               of those issues?

                       A. I did.

                      Q. Okay. You argued to the -- to the trial court what you felt
               were the -- were the appropriate issues as far as suppression goes?

                       A. Yes, sir.

                      Q. And then you raised on appeal what you felt were the
               appropriate issues as far as the suppression goes?

                       A. That’s correct.

                      Q. Did the defendant have any influence on what issues you
               chose, other than advising you of the facts of the case?

                       A. I probably listened to what Allen had to say. I probably
               listened to what Allen had to say.



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                        Q. Okay. But basically, you made the decision as an attorney
                --

                        A. That’s correct.

                        Q. -- what issues should be raised and what issues shouldn’t?

                        A. Yes, sir.

Post-conviction counsel did not question trial counsel further but introduced into evidence the direct
appeal briefs filed in this court by the petitioner and the State; the affidavit filed by Lieutenant Liles
to obtain the search warrant; the resulting search warrant issued for the petitioner’s home; the
petitioner’s pretrial motion to suppress filed in the trial court; and a transcript of the suppression
hearing, including the trial court’s oral ruling on the motion.

        On cross-examination, counsel testified that Lieutenant Liles “wired” the confidential
informant and had the informant buy some cocaine from the petitioner at the petitioner’s home. The
petitioner was not charged with a crime for selling drugs to the informant on that particular occasion.
However, based upon the drug buy, Lieutenant Liles alleged in an affidavit that the informant had
been inside the petitioner’s house and had seen drugs there, which counsel believed was “patently
misleading.” Counsel filed a motion to suppress the evidence found during the search of the
petitioner’s home. Counsel acknowledged that at the suppression hearing, he introduced proof that
the drug buy actually occurred at the petitioner’s front door and that the informant never went inside
the petitioner’s house. Counsel also argued at the suppression hearing that the petitioner did not
receive a copy of the search warrant until after he had been taken to jail. Counsel stated that “maybe
I should have expanded that argument a little more. But I was confined to what I thought I needed
to focus in on, and that was on what I perceived to be misrepresentation made by Lieutenant L[i]les
to the General Sessions judge.” Counsel acknowledged that the trial court overruled his motion to
suppress and that this court affirmed the trial court. Counsel acknowledged that he believed an
officer’s witnessing a drug buy at a home would establish probable cause to obtain a search warrant
for the home.

         In its written order denying post-conviction relief, the post-conviction court ruled that the two
issues raised in the petition had been previously determined, stating that “the trial court considered
all factors and evidence and concluded that the search warrant was properly issued, and the search
was properly conducted. The trial court also made findings of fact on the record as to the reasons
for denying the motion to suppress.” The post-conviction court noted that this court addressed the
trial court’s findings in its opinion of the petitioner’s direct appeal and that this court concluded the
trial court’s findings were sufficient. The post-conviction court also stated that even if the issues
were not previously determined, “the search warrant was properly issued and that the search was
valid.” The court concluded that the petitioner did not receive the ineffective assistance of counsel.

                                              II. Analysis


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         The petitioner first contends that the issues raised in his petition were not previously
determined because they were raised in the context of an ineffective assistance of counsel claim. He
contends that the single drug sale in this case was not enough to establish probable cause to obtain
the search warrant and that he was prejudiced by counsel’s failure to raise this argument at the
suppression hearing because it would have resulted in the trial court’s granting his motion to
suppress. He also contends that he received the ineffective assistance of counsel on direct appeal
because counsel failed to argue that the trial court did not make a factual determination as to whether
the petitioner properly received a copy of the search warrant. The State argues that the petitioner’s
claims are a “thinly veiled attempt” to relitigate the probable cause issue and, therefore, that the post-
conviction court properly concluded the issues had been previously determined. The State also
argues that, in any event, a single drug buy can establish probable cause. The State’s brief does not
address the petitioner’s contention that counsel should have raised on direct appeal the trial court’s
failure to make a factual determination regarding whether the petitioner properly received a copy of
the search warrant as required by Tennessee Rule of Criminal Procedure 41(c).

        To be successful in a claim for post-conviction relief, the petitioner must prove all factual
allegations contained in the post-conviction petition by clear and convincing evidence. See Tenn.
Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means evidence in which there is no
serious or substantial doubt about the correctness of the conclusions drawn from the evidence.’”
State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co.,
833 S.W.2d 896, 901 n.2 (Tenn. 1992)). Issues regarding the credibility of witnesses, the weight and
value to be accorded their testimony, and the factual questions raised by the evidence adduced at trial
are to be resolved by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d
572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings of fact the weight
of a jury verdict, with such findings being conclusive on appeal absent a showing that the evidence
in the record preponderates against those findings. Id. at 578.

        A claim of ineffective assistance of counsel is a mixed question of law and fact. See State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s findings of
fact de novo with a presumption that those findings are correct. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions of law purely
de novo. Id.

        “To establish ineffective assistance of counsel, the petitioner bears the burden of proving
both that counsel’s performance was deficient and that the deficiency prejudiced the defense.” Goad
v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984)). In evaluating whether the petitioner has met this burden, this court
must determine whether counsel’s performance was within the range of competence required of
attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).

        Initially, we note that this is the petitioner’s first post-conviction petition and that he did not
raise an ineffective assistance of counsel claim on direct appeal. Moreover, the specific issues
underlying the petitioner’s ineffective assistance of counsel claim were never raised on direct appeal.


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Therefore, we disagree with the post-conviction court’s conclusion that the petitioner’s claims have
been previously determined. See Tenn. Code Ann. § 40-30-106(h); Diallo J. Lauderdale v. State,
No. W2005-02135-CCA-R3-PC, 206 LEXIS 866, at *18 (Jackson, Nov. 7, 2006).

        That said, although a petitioner is not required to prove any claim in his petition for post-
conviction relief, he is required to prove his claims by clear and convincing evidence at an
evidentiary hearing. In this case, post-conviction counsel’s questioning of its sole witness was
inadequate. Post-conviction counsel asked trial counsel only scant leading questions about the
motion to suppress issue and completely failed to question trial counsel about the petitioner’s claim
that he did not properly receive a copy of the search warrant. Therefore, we could treat the
petitioner’s issues as waived.

        Nevertheless, we can conclude from the remainder of the post-conviction record that the
petitioner is not entitled to relief. As for the petitioner’s claim that a single drug buy is not sufficient
to establish probable cause for a search warrant, we disagree. Under both the Tennessee and United
States Constitutions, a search warrant may be issued only upon probable cause, which has been
defined as “a reasonable ground for suspicion, supported by circumstances indicative of an illegal
act.” State v. Henning, 975 S.W.2d 290, 294 (Tenn. 1998). The petitioner’s selling cocaine to an
informant while standing in the doorway of his home is an illegal act. Moreover, this court has
upheld findings of probable cause based upon a defendant’s one-time drug sale to an informant. As
this court described in State v. Linda Kay Batts, No. W2006-00419-CCA-R3-CD, 207 Tenn. Crim.
App. LEXIS 286, at **26-27 (Jackson, Apr. 4, 2007),


                         In both State v. Powell, 53 S.W.3d 258, 263 (Tenn. Crim.
                App. 2000), and the more recent case of State v. Wanda Booker, No.
                M2005-02788-CCA-R3-CD, 2006 WL 3498085, at *2 (Tenn. Crim.
                App., at Nashville, Nov. 21, 2006) (no Tenn. R. App. P. 11
                application filed), this Court addressed analogous situations. In
                Powell, as in the present case, probable cause was based on a single
                drug purchase which occurred within seventy-two hours of the
                issuance of the search warrant. Powell, at 263. The affiant facilitated
                the controlled buy of a small amount of methamphetamine and
                monitored the entire event using an wiretap worn by the informant.
                Id. In Booker, probable cause for a warrant was based on a single
                controlled buy of an unspecified quantity of crack cocaine. Booker,
                2006 WL 3498085, at *1. The buy occurred within ninety-six hours
                of the issuance of the warrant. In that case, the affiant also facilitated
                the buy and monitored the buy using a wiretap worn by the informant.
                Id. In both Powell and Booker, this Court concluded that independent
                police corroboration provided sufficient support to satisfy the
                two-pronged analysis for establishing probable cause for a search



                                                    -6-
                warrant with information provided by a criminal informant. Powell,
                at 263; Booker, 2006 WL 3498085, at *2.

A single drug sale is a crime and can establish probable cause for obtaining a search warrant.
Therefore, the petitioner was not prejudiced by trial counsel’s failure to raise this issue in the motion
to suppress.

         As for the petitioner’s claim that trial counsel was ineffective because he failed to raise on
direct appeal that the trial court should have made a determination as to whether the petitioner
properly received a copy of the search warrant as required by Tennessee Rule of Criminal Procedure
41(c), we again conclude that the petitioner is not entitled to relief. Trial counsel did not raise this
issue in the petitioner’s written motion to suppress. However, our review of the suppression hearing
transcript reveals that counsel questioned the witnesses about it. Lieutenant Liles testified that he
left a copy of the warrant with the petitioner and either “actually handed it to him or left it on his
table while he was sitting there.” The petitioner testified that he did not receive a copy of the warrant
until a jailer gave him a copy in jail. Upon conclusion of this testimony, the defense argued to the
trial court that the evidence should be suppressed because Lieutenant Liles incorrectly stated in his
affidavit to obtain the search warrant that the drug buy had taken place inside the petitioner’s home
and that the evidence also should be suppressed because Lieutenant Liles did not leave a copy of the
warrant with the petitioner at his home. In denying the motion, the trial court stated that it was
“satisfied that the search warrant is in accordance with the law” and that “it does not make any
difference whether or not the buy described in the warrant was made at the door of the house or
inside of the door.” Although the court did not expressly state that the petitioner had properly
received a copy of the warrant, the trial court obviously believed Lieutenant Liles’ testimony over
that of the petitioner and concluded that the officer gave the petitioner a copy of the warrant in
accordance with Tennessee Rule of Criminal Procedure 41(c). Moreover, the judge at the post-
conviction hearing, who also presided at trial, stated in his order denying post-conviction relief that
“the search warrant was properly issued and . . . the search was valid.” In our view, the post-
conviction court again concluded that the petitioner properly received a copy of the search warrant.
Therefore, the petitioner has failed to demonstrate that he was prejudiced by counsel’s failure to raise
this issue on direct appeal. The post-conviction court properly denied the petition for post-
conviction relief.

                                           III. Conclusion

        Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.


                                                        ___________________________________
                                                        NORMA McGEE OGLE, JUDGE




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