        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs at Knoxville October 15, 2013

                  MARIO A. REED v. STATE OF TENNESSEE

               Appeal from the Criminal Court for Montgomery County
                      No. 40800325   John H. Gasaway, Judge


                 No. M2012-02326-CCA-R3-PC- Filed January 7, 2014


       The petitioner, Mario A. Reed, appeals from the denial of post-conviction relief by
the Criminal Court of Montgomery County. He was convicted of aggravated burglary, two
counts of aggravated rape, and theft under $500, and received an effective sentence of forty
years in the Tennessee Department of Correction. In this appeal, he claims that he received
ineffective assistance of trial and appellate counsel. Upon our 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 D. K ELLY T HOMAS,
J R. and J EFFREY S. B IVINS, JJ., joined.

B. Nathan Hunt, for the Defendant-Appellant, Mario A. Reed.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Assistant Attorney
General; John W. Carney, District Attorney General; and John Finklea, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

        The petitioner, seventeen years old at the time of the offenses, was transferred from
juvenile court to circuit court to be tried as an adult for the underlying offenses. The proof
adduced at trial showed that on December 13, 2007, the victim arrived at her apartment and
soon discovered that an unknown man, later determined to be the petitioner, was inside. The
petitioner, wearing blue pants with an orange stripe, put an automatic pistol to the victim’s
face, demanded money, and threatened to shoot the victim if she screamed. Before leaving
the apartment, the petitioner raped the victim and forced her to perform fellatio. The facts,
in pertinent part, taken from this court’s opinion from the direct appeal, provide as follows:
[The petitioner] told the victim to disrobe, which she did. He then told her to
get on her bed, and she complied. At this point, she noticed the man, who was
still brandishing the gun, was wearing gloves.

The man then came toward the bed, lowered his pants slightly, and vaginally
penetrated the victim. During this, the man pointed the gun at different places
on the victim, either her face or up against her head. The man became angry
at his inability to reach climax and, as a result, forced the victim to perform on
him oral sex while he held the gun against her head. He told the victim that if
he felt her teeth he would shoot her. The victim cooperated and told the man
she would comply with his orders and asked him not to shoot her. The man
again became angry, and he placed the victim on the bed with one of her legs
over his shoulders and again vaginally penetrated her. He asked the victim if
she “like [d] it,” and, when she responded negatively, he hit her in the head
with his gun and then stuck the gun in her mouth, telling her she “better start
liking it.” The man was still unable to reach climax and had the victim
perform oral sex on him again.

....

The victim remained in the closet only briefly, and, when she exited, she
noticed her front door was open and assumed the man was gone. She grabbed
a robe that was lying on her table and left, running to other apartments trying
to find someone at home. The victim ran to another building, and after
knocking on the doors of several apartments, she finally found someone in an
apartment.

The victim’s assailant took several items from her home: a debit card; money;
an iPod; two Sony cybershot cameras; an i-Pod docking station; a Fugi camera
still in the box; a video i-Pod, also still in the box; a computer; and a cell
phone. The victim intended to give the boxed items as Christmas gifts.

When police responded to the victim’s call about her attack, they found dirty
footprints on the floor and one dirty footprint on the bed. The victim’s
bedroom window screen had been cut and the screen was folded down.
Detectives assumed this was the attacker’s point of entry. Outside the
apartment, police officers saw footprints containing a “tread” pattern in the
mud outside the window and found a lock blade pocketknife lying open on the
ground near the window. The footprints outside the victim’s apartment went



                                       -2-
       across the rear of the apartment toward a wooded area behind her apartment
       complex.

       Officers developed [the petitioner] as a suspect in this burglary and rape.
       When they attempted to apprehend him at the scene of another burglary, he
       ran. Officers chased and caught [the petitioner]. [The petitioner] admitted that
       he had gone into the victim’s apartment through her window and that he had
       taken items from her home, but he denied having sex with her. When officers
       searched [the petitioner’s] room, they found a firearm matching the victim’s
       description of the firearm used by her attacker, the victim’s i-Pod and i-Pod
       case, the victim’s i-Pod docking station, muddy sneakers, a cybershot camera,
       and blue sweat pants with an orange stripe. The victim later identified the
       cybershot camera, her i-Pod, and her i-Pod docking station in a picture of items
       police confiscated during their search of [the petitioner’s] room. The tread of
       the muddy sneakers appeared to match the footprints found near the victim’s
       apartment. Police also found in [the petitioner’s] room a Glock pistol designed
       to fire a .40 Smith and Wesson cartridge.

       The victim underwent an examination shortly after this attack, where samples
       were taken in an attempt to obtain a DNA profile of her attacker. During this
       examination, nurses found a one millimeter laceration surrounded by redness
       and swelling on the left side of the victim’s head. Further, there were seven
       injuries to the victim’s genital area: (1) a friction injury similar to rug burn; (2)
       an entry injury; (3) irritation near the urinary output; (4) tenderness and
       swelling; (5) two linear lacerations, indicating tearing; (6) a nickel-sized
       abrasion; (7) an abrasion to the clitoral hood. These injuries were not
       consistent with consensual sexual intercourse. The samples taken during the
       victim’s examination revealed the presence of [the petitioner’s] DNA on the
       samples taken from inside the victim’s vagina.


State v. Mario A. Reed, No. M2009-00887-CCA-R3-CD, 2010 WL 3432663 at * 3-4 (Tenn.
Crim. App. Aug 31, 2010), perm. app. denied (Tenn. Jan. 13, 2011). The issues raised on
direct appeal and rejected by this court included: (1) whether the juvenile court erred when
it transferred his case to the circuit court for him to be tried as an adult; (2) whether the trial
court erred when it instructed the jury on aggravated rape; and (3) whether the trial court
erred when it sentenced him. On September 2, 2011, the petitioner filed a pro se petition for
post-conviction relief and was subsequently appointed counsel. On April 25, 2012, an
amended petition for post conviction relief was filed, alleging, inter alia, eighty grounds of
ineffective assistance of counsel.

                                                -3-
        The petitioner and trial counsel were the only witnesses to testify at the July 31, 2012
post-conviction hearing. The petitioner acknowledged that he filed a pro se petition seeking
post-conviction relief. In his testimony, the petitioner alleged that the trial court erred in
transferring the case from Juvenile Court, in failing to properly instruct the jury concerning
aggravated rape, and in imposing an excessive sentencing. He believed that the trial court
erred in transferring his case from Juvenile Court because “they didn’t give [him] a chance
to say [his] part . . . . They just did it and didn’t give [him] a chance to see the evidence or
nothing like that.” He further stated that the trial court erred by instructing the jury
concerning aggravated rape because “there’s three requisite mental states . . . if they could
find me guilty of all three, which they did not find me guilty of all three.” Because of his
youth, the petitioner was aggrieved that his effective forty year sentence did not give him an
opportunity to be rehabilitated and stated the sentence was, in effect, “telling [him] to die in
the penitentiary.”

       Post-conviction counsel then referred to the petitioner’s pro se petition for post
conviction relief, which contained over thirty separate grounds for relief, and said “I am
going to go through those main grounds with you.” The Petitioner said that he was not
advised about certain evidence presented against him at trial. Although he was “shocked”
to see some of the evidence presented at trial, during the post conviction hearing, he was
unable to recall any specific facts or evidence that he had not seen. The petitioner also
alleged that counsel was not prepared for trial. He believed that counsel could have done
more to help him and complained that he met with counsel twice prior to trial. He recalled
that he met with counsel only “ten or twelve minutes” the day before trial to discuss a plea
agreement. He did not want to accept a plea agreement or proceed with the trial at that point
because he had not discussed the case with his family.

        The petitioner also claimed that counsel failed to adequately investigate his case. He
said that there was “fake evidence” presented during his trial. Specifically, the petitioner said
that “they had three different pairs of shoes with supposedly one print, and I was wondering
how they used three different pairs for one crime.” He also complained that counsel failed
to impanel a fair and impartial jury. In support of this claim, the petitioner said that he
believed the jury contained “probably one” African-American juror. The petitioner also
testified that his conviction was based on a coerced confession. With respect to this claim,
the petitioner alleged that the police used his parents against him to convince him to confess.
He conceded however that he did not provide a confession to the offense and “really just told
[police] where some property was.”

       The petitioner also alleged that his offenses were based on an unconstitutional search
and seizure of his parents’ home. He believed that his parents were coerced into allowing
the police to search their home based on police threats to “mess up [their] whole house.” The

                                               -4-
petitioner continued and simply restated his claims, as outlined in his petition, which
included the following allegations: that he was unlawfully arrested, that his Fifth Amendment
rights were violated, that the State failed to disclose favorable evidence, that his convictions
violated double jeopardy, that trial counsel failed to file a motion to suppress, that the instant
offenses were barred by the statute of limitations; that he was erroneously sentenced as a
career offender, prosecutorial misconduct, and that the trial court committed various
unspecified errors. Finally, when asked if he thought the outcome of his trial would have
been different had he received effective assistance of counsel, the petitioner stated, “I believe
I wouldn’t have got as much time as I got . . . yeah, it would have been way different.”

       On cross-examination, the petitioner conceded that many of the issues upon which he
sought relief were raised on direct appeal and rejected by this court. He acknowledged
receiving a package of discovery but said that he was unable to review it with counsel. He
received two letters from counsel and a notepad to communicate with counsel during his trial.
He complained that the victim described the pants worn by her assailant as “dark [pants] with
a white stripe” rather than the blue pants with an orange stripe found in his room. He said
counsel failed to present “favorable evidence,” which he described as cell phone records that
verified a phone conversation he had with a friend during the time of the offense.

       On redirect examination, the petitioner said he received ineffective assistance of
appellate counsel. He explained that he “tried to input certain things” on appeal but was
never able to meet with appellate counsel.

        Counsel, a criminal defense attorney for nearly ten years, testified that he obtained
discovery, determined whether motions needed to be filed, and reviewed the juvenile transfer
hearing in this case. Although the instant case involved a minor defendant, counsel did not
alter how he represented the petitioner. The petitioner was also charged with a “multitude
of burglaries” and counsel prepared “ten variations of possible plea agreements.” Ultimately,
he was unable to obtain a global settlement because the victim “wanted her day in court.”
Following the convictions in this case, the petitioner pleaded guilty to the remaining offenses.

       Counsel said that he met with the petitioner more than twice and discussed the case
in greater detail than described by the petitioner. Counsel was certain that he provided
discovery to the petitioner. Counsel testified that he was prepared for trial and did not recall
any specifics of the investigation prior to trial. In regard to the petitioner’s challenge to the
racial make-up of the jury pool in Montgomery County, counsel said there was nothing
unusual about the jury selection process and described it as “standard.” Counsel did not
specifically recall any basis upon which to file a motion to suppress any evidence in the case.
To the extent that the petitioner alleged that counsel failed to investigate any mitigating
evidence, counsel reviewed, at length, the petitioner’s medical and juvenile records prior to

                                               -5-
sentencing. Counsel also explained that he provided his clients with a notepad during trial
so that he could focus on witness testimony. Although he considered any questions offered
by his clients, including the petitioner, he rarely asked those questions and did not recall
whether the petitioner offered any questions at trial. Counsel said that the petitioner never
told him about any cell phone records that may have exonerated him. Counsel also recalled
that the petitioner was sentenced as a Range I, standard offender.

       On cross-examination, counsel said that “there were no surprises” at trial. He
characterized the State’s case against the petitioner as “extremely strong.”

       In denying relief, the post conviction court filed a detailed written order on September
24, 2012. It is from this order that the petitioner now appeals.1

                                             ANALYSIS

        The petitioner contends that he received the ineffective assistance of counsel at trial
based on counsel’s (1) failure to adequately prepare for trial, (2) failure to meet with the
petitioner prior to trial, (3) failure to object to certain evidence introduced at trial, and (4)
failure to impanel a fair and impartial jury. He also contends that his “constitutional rights
were violated based on his non-ineffective assistance claims.” In response, the State
contends that the post-conviction court properly denied the petition for post-conviction relief
because the petitioner failed to prove that his trial counsel provided ineffective assistance of
counsel and failed to prove a violation of any cognizable constitutional right. We agree with
the State.

      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 (2006). 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


        1
           The State urges this court to dismiss this appeal as untimely because the record does not contain
a notice of appeal. While the record from the Montgomery County Clerk does not contain the notice of
appeal, the appellate court clerk record does. Accordingly, the petitioner has filed a timely notice of appeal
and this case is properly before this court.

                                                     -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 [petitioner] 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-
        I. Ineffective Assistance of Counsel. The petitioner contends that counsel failed to
adequately prepare for trial because counsel met with him only twice prior to trial. The
petitioner also contends that counsel failed to discuss with him or file a motion to suppress
the gun and the pants recovered from his bedroom. As we understand his argument, the
petitioner claims that introduction of this evidence was improper and that counsel should
have objected to it at trial. The petitioner also contends that he was deprived of a fair and
impartial jury because there was “probably one” African-American juror in the Montgomery
County jury pool. At the post-conviction hearing, the petitioner testified as to the same
allegations. Counsel said that he met with the petitioner more than twice, reviewed and
investigated the possibility of a suppression motion, and found no basis to support such a
motion. Although counsel did not dispute the petitioner’s recollection of the jury make-up,
counsel testified that there was nothing unusual about the jury selection process and
described it as “standard.” In its order denying relief, the post conviction court meticulously
outlined the testimony adduced at the evidentiary hearing, accredited the testimony of
counsel, and determined the petitioner to be not credible. As stated above, all questions
concerning the credibility of the witnesses, the weight and value to be given their testimony,
and the factual issues raised by the evidence are to be resolved by the trial judge, not the
appellate courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996). Other than the petitioner’s generalized complaints or
statements of displeasure with the outcome of his case, none of these issues were developed
to any material degree at the post-conviction hearing. The record amply supports the
credibility determination of the post-conviction court. Accordingly, the petitioner has failed
to demonstrate deficient performance of counsel or prejudice arising therefrom. He is not
entitled to relief.

       II. Alleged Violation of Constitutional Rights. In his brief to this court, the extent
of the petitioner’s argument on this issue is as follows:

              The Petitioner would assert that his constitutional rights were
              violated and that he is entitled to relief based on his non-
              ineffective assistance claims. These claims include arguments
              regarding a coerced confession, an unconstitutional search or
              seizure, an unlawful arrest, a violation of Petitioner’s Fifth
              Amendment rights, a Brady violation, a double jeopardy
              violation, illegally obtained evidence, prosecution of this case
              beyond the limitations period, and prosecutorial misconduct.

       In response to this issue, the State argues that the above issues should be considered
waived due to the petitioner’s failure to refer to the record, cite authority, or provide
supporting argument. We agree with the State.

                                              -8-
        On appeal, a petitioner is required to support issues with appropriate reference to the
record, supporting argument, and citation to authority. See Tenn. Ct. Crim. App. R. 10(b)
(“Issues which are not supported by argument, citation to authorities, or appropriate
references to the record will be treated as waived in this court.”); see also State v. Hammons,
737 S.W.2d 549, 552 (Tenn. Crim. App.1987) (finding argument waived when the appellant
failed to cite authority in support of his “abbreviated argument”). The petitioner’s brief, in
two sentences, does nothing more than list a number of allegations and summarily conclude
that his constitutional rights were violated. See State v. Keller, 813 S.W.2d 146, 150 (Tenn.
Crim. App.1991) (“Bald assertions unaccompanied by legal argument or citations to
authorities are waived”). Although the petitioner directs this court to his statement of facts
and avers that the reasons supporting the above issues are set forth with more particularity
therein, such a practice does not satisfy Rule 10(b). Moreover, even if we attempted to
overlook his non-compliance, reference to the petitioner’s statement of facts does not
facilitate appellate review of the above issues. Accordingly, we conclude that the above
issues have been waived due to the petitioner’s failure to provide sufficient reference to the
record, argument, and authority.

                                          CONCLUSION

       The judgment of the post-conviction court is affirmed.




                                                    _________________________________

                                                    CAMILLE R. McMULLEN, JUDGE




                                              -9-
