        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs July 13, 2010

                  PERDIDO COOK v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                      No. P-26846    John P. Colton, Jr., Judge


              No. W2009-02038-CCA-R3-PC - Filed December 15, 2010


The petitioner, Perdido Cook, appeals the denial of his petition for post-conviction relief.
After being convicted of especially aggravated robbery, aggravated robbery, and attempted
aggravated robbery, he was sentenced to an effective twenty-five-year sentence. On appeal,
he contends that trial counsel was ineffective for failing to properly investigate and prepare
for his case. After careful review, we affirm the denial of post-conviction relief.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL and C AMILLE R. M CM ULLEN, JJ., joined.

Jason R. Poyner, Memphis, Tennessee, for the appellant, Perdido Cook.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
William L. Gibbons, District Attorney General; and David Zak, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

       The underlying convictions arose after the petitioner and a co-defendant, both armed
with guns, forcibly entered an apartment in Memphis. They took money and jewelry from
the occupants of the apartment before shooting and paralyzing one of the victims. This court
summarized the facts on direct appeal. See State v. Perdido Cook, No. W2001-00381-CCA-
R3-CD, 2002 Tenn. Crim. App. LEXIS 26, at **2-7 (Tenn. Crim. App. Jan. 9, 2002).

       Trial counsel testified during the post-conviction hearing that she did not have a good
recollection of the petitioner’s case due to the amount of time that had passed. She recalled
that the petitioner contended at trial that he was not present during the crimes. Counsel
cross-examined the witnesses for the State and introduced the statement of the co-defendant,
who claimed the petitioner was not present and that another man was his accomplice.
Counsel testified that she filed several motions on behalf of the petitioner and investigated
the co-defendant. She did not recall issuing a subpoena for Quinton Perkins, the man
identified by the co-defendant as his accomplice, but she did not have her complete file to
review.

       The petitioner testified that counsel should have subpoenaed three witnesses who
would have provided exculpatory evidence. He said that he confessed to the crimes because
the police told him they would lock his mother up. The petitioner said that he expected all
the witnesses he discussed with counsel to be present at trial. He also testified that he
thought the State’s main witness lied during his testimony.

        The court clerk testified that two subpoenas filed by trial counsel were found in the
petitioner’s file. One subpoena was for the co-defendant, and another was for a member of
the Memphis Police Department. The witness testified that she did not look at the subpoenas
issued by the State and that it was possible the petitioner’s potential witnesses were included
in the State’s subpoenas.

                                           Analysis

       On appeal, the petitioner argues that trial counsel was ineffective because she failed
to properly investigate his case in preparation for trial. Specifically, the petitioner contends
that he was convicted due to counsel’s inability to present witnesses that had given
statements favorable to the petitioner.

       In this post-conviction proceeding, the petitioner bears the burden of proving factual
allegations by clear and convincing evidence. T.C.A. § 40-30-210(f). The factual findings
entered by the post-conviction court are conclusive unless the petitioner establishes that the
evidence preponderates against those findings. Fields v. State, 40 S.W.3d 450, 457 (Tenn.
2001).

       For a petitioner to successfully overturn a conviction based on ineffective assistance
of counsel, the petitioner must first establish that the services rendered or the advice given
was below “the range of competence demanded of attorneys in criminal cases.” Baxter v.
Rose, 523 S.W.2d 930, 936 (Tenn. 1975). Second, the petitioner must show that the
deficiencies “actually had an adverse effect on the defense.” Strickland v. Washington, 466
U.S. 668, 693 (1984).

       “When a petitioner contends that trial counsel failed to discover, interview, or present

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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); see
also Scott v. State, 936 S.W.2d 271, 273 (Tenn. Crim. App. 1996). As a general rule, this is
the only way the petitioner can establish that (1) a material witness existed who could have
been discovered but for counsel’s negligent investigation of the case; (2) a known witness
was not interviewed; (3) the failure to discover or interview the witness caused him
prejudice; or (4) the failure to present a known witness resulted in the denial of critical
evidence which caused the petitioner prejudice. Black, 794 S.W.2d at 757. Neither the trial
court nor this court can speculate on what a witness’s testimony might have been if
introduced by counsel. Id.

        The petitioner is not entitled to the benefit of hindsight; the petitioner may not
second-guess a reasonably based trial strategy; and the petitioner may not criticize a sound,
but unsuccessful, tactical decision made after adequate preparation for the case. Adkins v.
State, 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994); Cooper v. State, 847 S.W.2d 521, 528
(Tenn. Crim. App. 1992).

       The petitioner argues that counsel was ineffective for failing to call three witnesses
who had information that would exonerate him. However, because the petitioner did not call
these witnesses to testify at the post-conviction hearing, he cannot show prejudice and fails
to meet his burden of proof. See Black, 794 S.W.2d at 758.

       The petitioner also points out other instances of what he considers ineffective
assistance, including counsel’s inability to recall a motion hearing in which she participated
or to recall the basis of some witnesses’ testimony. However, the record does not
preponderate against the finding of the post-conviction court that counsel was not ineffective.

                                         Conclusion

       Based on the foregoing and the record as a whole, we affirm the judgment from the
post-conviction court




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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