        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs August 6, 2013

                   JOHNNY TATE v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 0708398    James M. Lammey, Jr., Judge


               No. W2012-01471-CCA-R3-PC - Filed November 8, 2013


The Petitioner, Johnny Tate, appeals the Shelby County Criminal Court’s denial of post-
conviction relief from his convictions for two counts of especially aggravated kidnapping,
two counts of aggravated robbery, and one count of aggravated burglary. On appeal, the
Petitioner argues that both trial counsel and appellate counsel provided ineffective assistance
of counsel by failing to challenge the especially aggravated kidnapping convictions on due
process and double jeopardy grounds. Upon review, we affirm the judgment of the post-
conviction court.

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

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

R. Todd Mosley, Memphis, Tennessee, for the Petitioner-Appellant, Johnny Tate.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Jessica A. Banti, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

       The Petitioner was indicted by a Shelby County grand jury for two counts of
especially aggravated kidnapping, two counts of aggravated robbery, and one count of
aggravated burglary. The Petitioner was convicted as charged, and the trial court sentenced
him to two sentences of life without parole, two twelve-year sentences, and one six-year
sentence for the respective convictions. The Petitioner was ordered to serve the two life
sentences consecutively to each other, with the remaining sentences to be served
concurrently. This court affirmed his convictions. State v. Johnny Tate, No. W2008-02503-
CCA-R3-CD, 2010 WL 1839302 (Tenn. Crim. App. May 7, 2010), perm. app. denied (Tenn.
Nov. 18, 2010).

      Trial. This court summarized the evidence presented at trial in its opinion:

              At approximately 7:45 p.m., the seventy-five-year-old victim, Larry
      Hassell, was in his front yard watering the lawn. He observed the [Petitioner]
      and a “well-dressed” black woman approach him. At first, Mr. Hassell was
      not alarmed, but he then observed that the [Petitioner] had a gun with a short
      barrel, resembling a .38, in his hand. The [Petitioner] proceeded to shove Mr.
      Hassell onto the concrete and told him to “get you M.F. into that carport,”
      while holding the gun to his head. The [Petitioner] then demanded $5000,
      saying that he was a “dope head.” The [Petitioner] then pulled Mr. Hassell up
      and shoved him back down to the ground “a couple of times.” The [Petitioner]
      then asked who else was in the home, and Mr. Hassell informed him that his
      wife was upstairs. The [Petitioner], followed by his accomplice who was later
      identified as Brenda Robinson, forced Mr. Hassell into the home at gunpoint.

              The group went into an upstairs television room, where Mrs. Hassell
      was sitting. The [Petitioner], upon entering, pointed the gun at her. He then
      demanded Mr. Hassell’s wallet and pointed the gun at his head. While the
      [Petitioner] left the room to retrieve the wallet, Robinson kept the gun pointed
      at Mr. Hassell’s head. Upon the [Petitioner]’s return, he demanded Mr.
      Hassell’s ATM number and removed two credit cards. When Mr. Hassell
      explained that he did not have an ATM number, the [Petitioner] prodded him
      with the gun and said, “Give me that number you M.F. or I’m going to blow
      your brains out.”

              The [Petitioner] found electrical tape, telephone cords, and ropes
      throughout the house, and he then forced the Hassells to lie on their stomachs
      on the floor and proceeded to “hog tie” them. The [Petitioner] then held the
      gun to Mr. Hassell’s head again and demanded to know where the safe was
      located. The [Petitioner] and Robinson then took turns ransacking the home,
      with the other remaining in the room with the gun pointed at the Hassells. The
      [Petitioner] repeatedly informed the Hassells that he would “blow their brains
      out” if they looked up. Both Mr. and Mrs. Hassell were in pain and were
      having a difficult time breathing.

             At approximately 9:30 p.m., the Hassells heard the door to their
      residence slam. Mrs. Hassell was then able to free herself from her bindings

                                            -2-
and then free her husband. Mr. Hassell grabbed his gun to pursue the
[Petitioner] and Robinson, but they had already fled the scene in the Hassell’s
two Cadillac sports utility vehicles. Mr. Hassell then went to his neighbor’s
home and contacted the police and OnStar. The police arrived approximately
five minutes later, and thirty minutes later the Hassells were informed that
their cars had both been found at a residence in West Memphis. The Hassells
also discovered that the [Petitioner] and Robinson had taken sets of dishes, a
1891 encased Whitney gun, china, silverware, televisions, a microwave,
clothes, suitcases, steak knives, flashlight batteries, a 1921 silver dollar, and
many other items. The estimated value of the items stolen was $100,000. Mr.
Hassell provided police with a general description of the assailants, but he was
later unable to provide a positive identification in a photo line-up.

        The two vehicles were tracked by OnStar to 805 Walnut Street, the
residence of the [Petitioner]’s mother. Upon arriving, investigators discovered
that the stolen items were still located in the cars or scattered in the front yard.
Additionally, inside one of the vehicles was a black purse which contained
identification for Mr. Hassell and Robinson. The [Petitioner]’s mother
consented to a search of the residence, but no items were found inside.
Investigators ran a background check on Robinson and discovered that the
[Petitioner] was her main associate.

        In the days following the robbery, Jonesboro, Arkansas police officers
arrested the [Petitioner] and Robinson on separate charges. The pair was
arrested in front of a local Kroger. When arrested, the authorities discovered
a 1921 silver dollar, later identified as belonging to the Hassells, in the
[Petitioner]’s pocket. Additionally, the weapon used in the robbery of the
Hassells was found lying on the ground between the [Petitioner] and the
vehicle from which he was taken during the arrest. Authorities discovered that
the [Petitioner] and Robinson had been staying at a local motel and obtained
a search warrant. In the room, police found a pawn ticket for four sets of gold
earrings, later identified as belonging to Mrs. Hassell. Police also learned that
the [Petitioner]’s brother was renting the room beside the one rented by the
[Petitioner] and Robinson. During their search, police noticed a Sears truck
pull into the parking lot, stop and look, and then exit. Police stopped the truck
and found that the [Petitioner]’s brother was driving. After being questioned,
he was released.

      Memphis police subsequently learned of the arrests of the [Petitioner]
and Robinson and proceeded to question them. After being read his rights, the

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       [Petitioner] gave a detailed statement to police admitting his involvement but
       stating that he had forced Robinson to participate. He indicated that he saw
       Mr. Hassell on the front lawn, approached him with a weapon, and proceeded
       to force him into the home where he and Robinson stole numerous items,
       loaded them into the Hassell’s vehicles, and then drove to a house belonging
       to the [Petitioner]’s mother. He further indicated that shortly after their arrival,
       he heard police approaching and left the area on foot, leaving behind the
       vehicles and the stolen items.

Johnny Tate, 2010 WL 1839302, at *1-2.

        On March 10, 2011, the Petitioner filed a timely pro se petition for post-conviction
relief. The Petitioner was subsequently appointed counsel, who filed three amended petitions
on the Petitioner’s behalf. The post-conviction hearing took place on July 6, 2012.

        Post-Conviction Hearing. Trial counsel testified that he had been licensed to
practice law since 1997. He stated that he was appointed to represent the Petitioner in
January of 2008. He recalled that the State offered the Petitioner a plea deal of twenty-five
or thirty years for the offense of especially aggravated kidnapping. Trial counsel said the
Petitioner was in his fifties and declined the plea offer because it was the equivalent of a life
sentence, and the matter proceeded to trial. Before trial, the State filed a notice that the
Petitioner was a repeat violent offender and would receive a sentence of life without parole
if convicted of especially aggravated kidnapping. A Shelby County jury ultimately convicted
the Petitioner of all charges on September 11, 2008.

       Trial counsel said he requested an investigator fairly early in the proceedings,
approximately in January of 2008. He also filed a motion to suppress the Petitioner’s
statement to law enforcement, which he believed was litigated in the summer of 2008. Trial
counsel met with the Petitioner on several occasions. He kept the Petitioner apprised of the
charges and the proposed trial strategy. He said that both victims were unable to identify the
Petitioner as the perpetrator, which was their only defense at trial. This defense strategy was
supported by the fact that the Petitioner’s brother physically resembled him and was
apprehended near him. As a precautionary measure, trial counsel also requested a mental
evaluation of the Petitioner fairly early in the proceedings. He called the Petitioner’s mother
as a defense witness to testify that the Petitioner’s brother was in the vicinity when he was
arrested. According to trial counsel, he and the Petitioner had a good relationship and got
along well.

       Trial counsel filed and argued the Petitioner’s motion for a new trial but did not
represent him on direct appeal. Trial counsel’s assistant throughout trial served as the sole

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appellate counsel. Trial counsel testified that he had considered the argument of whether the
Petitioner’s convictions for aggravated robbery and especially aggravated kidnapping
violated his due process rights under State v. Anthony, 817 S.W.2d 299 (Tenn. 1991),
overruled by State v. White, 362 S.W.3d 559 (Tenn. 2012), and its progeny. He consulted
with other attorneys who did more appellate work than he did. In particular, he spoke with
an attorney experienced in criminal appeals regarding the misidentification defense because
he did not think the defense would succeed in light of the Petitioner’s detailed statement to
law enforcement. Trial counsel discussed the case and facts with the attorney he had
consulted, and they tried to think of other defenses. Trial counsel stated that after consulting
other attorneys, he decided not to raise the Anthony due process issue because he considered
the issue to be without merit:

              I came to the conclusion that given the extended and protracted
       confinement of these elderly people, that the robbery and the kidnappings were
       very separate and extremely distinct. Given that these people were nearly 80
       years old and Mrs. Hassell was infirm, I could not think of any reason why
       they needed to be tied up in the manner that they did. . . .

               I couldn’t understand why, again, these old people were tied up when
       they could have easily just been put inside a room and really they weren’t
       going to try to flee or they weren’t capable of flight. So given that scenario,
       I believed that the crimes were separate and distinct.

Accordingly, trial counsel formed the opinion that the victims’ confinement was beyond what
was necessary to complete the robbery and the burglary. Trial counsel had also considered
the factors found in State v. Richardson, 251 S.W.3d 438 (Tenn. 2008), overruled by State
v. White, the controlling law at the time, and determined that the confinement of the victims
prevented them from summoning help, lessened the Petitioner’s risk of detention, and created
a danger to the victims and increased their risk of harm.

        On cross-examination, trial counsel stated that he probably raised sufficiency of the
evidence and the failure to suppress the Petitioner’s statement as issues in the motion for a
new trial. He said he always raised sufficiency of the evidence even though it may have been
frivolous in the Petitioner’s case. Trial counsel testified that he was familiar with State v.
Richardson, but that he was unfamiliar with footnote 6 of the case, which notes that the
parties to that case did not raise the issue of double jeopardy analysis in the context of dual
convictions for kidnapping and an accompanying felony. Trial counsel said he was familiar
with double jeopardy principles but had not considered the issue in the Petitioner’s case
because he thought the crimes were separate and distinct. Finally, trial counsel agreed that



                                              -5-
State v. White had “changed everything,” but he thought the facts in White were
distinguishable from the Petitioner’s case.

       Appellate counsel did not testify at the post-conviction hearing. The parties and the
post-conviction court agreed that appellate counsel was limited by the issues raised in trial
counsel’s motion for a new trial.

       The Petitioner testified that he filed a pro se petition claiming ineffective assistance
of counsel. He said he had asked trial counsel to raise the Anthony due process issue
regarding his dual convictions but that trial counsel did not think any relief on the issue was
possible. The Petitioner stated that he had also discussed raising the issue on appeal with
appellate counsel, but she was unresponsive to his request. He said he was familiar with
double jeopardy and would have wanted that issue raised on appeal as well.

        On cross-examination, the Petitioner said he asked trial counsel and appellate counsel
to raise the Anthony issue and that he did not consent to the waiver of the issue on appeal.

      At the conclusion of the proof, the post-conviction court made oral findings of fact
and conclusions of law. On the same day, July 6, 2012, the court entered a written order
denying post-conviction relief. The Petitioner filed a timely notice of appeal.

                                         ANALYSIS

       The Petitioner argues that both trial and appellate counsel were ineffective by failing
“to challenge especially aggravated kidnapping convictions for due process and double
jeopardy violations.” In response, the State argues that the post-conviction court properly
found that trial and appellate counsel were not ineffective for failing to raise claims that they
determined lacked merit. We agree that the Petitioner is not entitled to relief.

      Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.
§ 40-30-103 (2010). The Tennessee Supreme Court has held:

              A post-conviction court’s findings of fact are conclusive on appeal
       unless the evidence preponderates otherwise. When reviewing factual issues,
       the appellate court will not re-weigh or re-evaluate the evidence; moreover,
       factual questions involving the credibility of witnesses or the weight of their
       testimony are matters for the trial court to resolve. The appellate court’s
       review of a legal issue, or of a mixed question of law or fact such as a claim



                                               -6-
       of ineffective assistance of counsel, is de novo with no presumption of
       correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

       Vaughn further repeated well-settled principles applicable to claims of ineffective
assistance of counsel:

              The right of a person accused of a crime to representation by counsel
       is guaranteed by both the Sixth Amendment to the United States Constitution
       and article I, section 9, of the Tennessee Constitution. Both the United States
       Supreme Court and this Court have recognized that this right to representation
       encompasses the right to reasonably effective assistance, that is, within the
       range of competence demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).

       In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984);
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to prove either deficiency
or prejudice provides a sufficient basis to deny relief on the ineffective assistance claim.
Indeed, a court need not address the components in any particular order or even address both
if the defendant makes an insufficient showing of one component.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

       A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of
reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.
at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the
petitioner establishes “‘a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Id. at 370 (quoting
Strickland, 466 U.S. at 694).

                                              -7-
       We note that “[i]n evaluating an attorney’s performance, a reviewing court must be
highly deferential and should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” State v. Burns, 6 S.W.3d 453,
462 (Tenn. 1999) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular set of
detailed rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions regarding how
best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89. However, this
“‘deference to matters of strategy and tactical choices applies only if the choices are informed
ones based upon adequate preparation.’” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001)
(quoting Goad, 938 S.W.2d at 369).

       First, the Petitioner argues that trial counsel and appellate counsel provided ineffective
assistance by failing to challenge his convictions for especially aggravated kidnapping on due
process grounds. He contends that because the appellate opinion in his case was issued
around the same time as the Court of Criminal Appeals’ opinion in State v. Jason Lee White,
No. M2009-00941-CCA-R3-CD, 2010 WL 1930951 (Tenn. Crim. App. May 12, 2010),
rev’d, 362 S.W.3d 559 (Tenn. 2012), trial and appellate counsel precluded his case from
being reviewed by the Tennessee Supreme Court when they failed to raise the Anthony due
process issue. The Petitioner asserts that but for counsels’ prejudicial error, he would have
received a different outcome.

        The post-conviction court specifically held that the Petitioner was not entitled to relief
for trial counsel’s failure to raise a due process claim:

               Well after I heard the testimony of [trial counsel] and after having heard
       the [Petitioner], I find that . . . I believe [trial counsel] over the [Petitioner].
       He doesn’t seem credible to me that he actually asked him to research the
       Anthony issue. . . . But be that as it may, [trial counsel] did consider the
       Anthony issue. Whether it was the [Petitioner] that asked him or whether or
       not it was on his [own] accord, he spoke to [an experienced appellate attorney]
       and came to the conclusion that the Anthony issue was without merit.

               . . . [Trial counsel] testified that he was faced with a situation where the
       person had confessed to a home invasion robbery/kidnapping. And that his
       only defense was basically the fact that [the Petitioner] wasn’t identified by
       either person, and he tried to have the statement of admission suppressed. He
       was unsuccessful in doing so.

               . . . [Trial counsel] did not find the Anthony issue to be of any merit
       after discussing it with another attorney. So I don’t believe that his errors were

                                               -8-
        so serious. In fact, I don’t see where he made any errors. . . . But even so, if
        you want to assume that there was error, I don’t believe that there would be a
        reasonable probability that the outcome would or even could have been
        different. . . . So I don’t believe that counsel’s performance prejudiced the
        [Petitioner], thereby denying him a fair trial. And I do not believe his
        performance fell below an objective standard of reasonableness.

       We conclude that the record fully supports the post-conviction court’s holding
regarding trial counsel’s failure to raise a due process challenge. The court accredited trial
counsel’s testimony and concluded that his performance was neither deficient nor prejudicial.
Trial counsel testified that he was aware of the due process issue and had consulted with
more experienced appellate attorneys. He subsequently concluded that, under State v.
Richardson, the controlling law at the time, the due process challenge was not a viable claim
given the facts of the Petitioner’s case.1 We agree with the post-conviction court that trial
counsel’s failure to raise a due process challenge at trial and in the motion for a new trial was
reasonable and, therefore, did not constitute ineffective assistance of counsel.

        Second, the Petitioner contends that both trial and appellate counsel were ineffective
in failing to argue that the convictions for especially aggravated kidnapping violated double
jeopardy. He claims that under the four-factor test established in State v. Denton, 938
S.W.2d 373, (Tenn. 1996), abrogated by State v. Watkins, 362 S.W.3d 530 (Tenn. 2012), the
controlling law at the time, his aggravated kidnapping offenses should have merged with his
aggravated robbery convictions. According to the Petitioner, trial and appellate counsel erred
in omitting the double jeopardy issue, and the error prejudiced the outcome of his trial and
direct appeal. Although not specified in the Petitioner’s brief, post-conviction counsel relied
on footnote 6 of State v. Richardson at the evidentiary hearing to argue that trial and
appellate counsel should have addressed the double jeopardy issue in the context of the
Petitioner’s multiple convictions arising from one transaction.2

        1
          We note that State v. White, the Tennessee Supreme Court’s recent ruling requiring a specific jury
instruction in certain kidnapping cases, is inapplicable to the instant case. The supreme court expressly
stated that the decision “does not articulate a new rule of constitutional law or require retroactive
application.” Id. at 578. See, e.g., T.C.A. §§ 40-30-102(b)(1), -106(g)(1) (establishing as a potential ground
for post-conviction relief the existence of a new constitutional right requiring retroactive application). See
also State v. Cecil, ___ S.W.3d ___, No. M2011-01210-SC-R11-CD, 2013 WL 4046608, at *8 (Tenn. Aug.
12, 2013) (holding that the specific jury instruction in State v. White is applicable to pending actions on
direct appeal at the time the opinion was filed, but not to collateral attacks).
        2
            Footnote 6 of State v. Richardson states the following:

                  At the time of Anthony, this Court relied on the Blockburger double jeopardy test,
                                                                                                 (continued...)

                                                     -9-
        The post-conviction court held that the Petitioner was not entitled to relief for failure
of the trial counsel to raise a double jeopardy claim. The court noted, “I think it asks too
much of Defense Counsel to be clairvoyant about things that happen in the future based on
dicta in a footnote. . . . That’s really setting a high standard.” We note that under Anthony
and its progeny, which was the prevailing law from 1991 to 2012, the Tennessee Supreme
Court considered double jeopardy analysis inadequate in the question of whether a
kidnapping conviction could stand with a separate felony. The court in Anthony considered
the double jeopardy question to be non-dispositive and irrelevant and chose to rely, instead,
on the constitutional guarantee of due process. Anthony, 817 S.W.2d at 303-306, overruled
by State v. White. Accordingly, it was reasonable under the prevailing professional norms
for trial counsel to omit consideration of the double jeopardy claim. See Goad, 938 S.W.2d
at 369. Moreover, trial counsel testified that he was familiar with double jeopardy principles
but had not considered the issue because he believed the crimes charged in the Petitioner’s
case to be separate and distinct. We conclude that it is appropriate to defer to trial counsel’s
professional judgment in this instance. See Burns, 6 S.W.3d at 462. Accordingly, we agree
with the post-conviction court’s holding that trial counsel’s failure to raise a double jeopardy
claim was neither deficient nor prejudicial. The Petitioner is not entitled to relief on this
issue.

       We note that appellate counsel was not called as a witness at the post-conviction
hearing. The post-conviction court, counsel for the State, and post-conviction counsel agreed
that appellate counsel was limited on appeal by the issues raised in trial counsel’s motion for

        2
            (...continued)
        which required courts to examine the offenses to determine “whether each [statutory]
        provision requires proof of a fact which the other does not.” Blockburger v. United States,
        284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); see Anthony, 817 S.W.2d at 303. We
        held in Anthony that the Blockburger double jeopardy test was not adequate to resolve the
        issue of whether a separate kidnapping conviction may be imposed because “[t]he essential
        elements of kidnapping and robbery are obviously separate and distinct, and simultaneous
        convictions on these two charges would not necessarily violate the rule in Blockburger.”
        Id.

                Five years later, in State v. Denton, 938 S.W.2d 373, 381 (Tenn.1996), this Court
        expanded the inquiry under double jeopardy principles to include a Blockburger analysis of
        the statutory elements, a comparison of the purpose of the respective statutes, and a
        fact-specific inquiry to determine the evidence available to prove each offense and whether
        there were multiple victims or discrete acts. The parties have failed to question either in this
        Court or in the Court of Criminal Appeals whether the Denton double jeopardy analysis
        would be an adequate substitute for the current Dixon due process inquiry. We leave that
        question for another day.

Richardson, 251 S.W.3d at 443, n.6, overruled by State v. White.

                                                     -10-
a new trial. The post-conviction court specifically held that appellate counsel did not provide
ineffective assistance of counsel. We conclude that even if appellate counsel committed
unprofessional errors, the Petitioner has failed to meet his burden in proving that the
deficiencies prejudiced the defense. See Vaughn, 202 S.W.3d at 116; see also Goad, 938
S.W.2d at 370 (concluding that a court need not address both the deficiency and prejudice
components if the Petitioner fails to establish one of the two components). The Petitioner
establishes prejudice by demonstrating a reasonable probability that the outcome would have
been different. Goad, 938 S.W.2d at 370. Here, the proof at trial and on appeal showed that
the Petitioner searched the elderly victims’ home for items with which to restrain them. He
used electrical tape, telephone cords, and ropes to “hog tie” the victims. They remained on
their stomachs in this position for about an hour while the Petitioner and his partner took
turns watching over them and ransacking the home. After the Petitioner and his partner left,
the victims were able to free themselves from their bindings. Under the previously
applicable due process analysis, the proof is overwhelming that the victims’ confinement
exceeded that necessary to commit the accompanying felonies. Under a sufficiency of the
evidence analysis, this court on direct appeal affirmed the Petitioner’s convictions and
concluded that “the proof more than sufficiently established all the elements of the requisite
crimes.” Johnny Tate, 2010 WL 1839302, at *4. Accordingly, there is serious doubt that
raising due process or double jeopardy claims at trial or on appeal would have changed the
outcome for the Petitioner. See Hicks, 983 S.W.2d at 245. We disagree with the Petitioner
that the Tennessee Supreme Court would have reviewed his case if his trial and appellate
counsel had challenged his aggravated kidnapping convictions on due process and double
jeopardy grounds. Accordingly, he has not met his burden of proof and he is not entitled to
relief.

       We conclude that the record fully supports the post-conviction court’s holding that
“the Petitioner has failed to prove ineffective assistance of counsel. More specifically, he
has failed to carry his burden of proof as to either deficient performance or prejudice.”
The Petitioner is not entitled to post-conviction relief.

                                     CONCLUSION

       Upon review, we conclude that the Petitioner has failed to prove by clear and
convincing evidence that he received ineffective assistance of counsel. The judgment of
the post-conviction court is affirmed.

                                           ___________________________________
                                           CAMILLE R. McMULLEN, JUDGE




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