             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                           June 24, 2008 Session

             MICHAEL DERRICK HUSKINS v. STATE OF TENNESSEE

                           Appeal from the Criminal Court for Polk County
                                  No. 07-023   Carroll Ross, Judge



                      No. E2007-02627-CCA-R3-PC - Filed September 3, 2008


The petitioner, Michael Derrick Huskins, appeals from the denial of his petition for post-conviction
relief wherein he challenged his 2006 Polk County Criminal Court conviction of felony murder. In
this appeal, the petitioner contends that his guilty plea was involuntary and was the result of the
ineffective assistance of his trial counsel. Discerning no error, we affirm the judgment of the post-
conviction court.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which DAVID H. WELLES and
ROBERT W. WEDEMEYER , JJ., joined.

Kenneth Miller, Cleveland, Tennessee, for the appellant, Michael Derrick Huskins.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General;
and Brian Chapuran, District Attorney General pro tem, for the appellee, State of Tennessee.

                                                    OPINION

               On January 26, 2006, the defendant entered pleas of guilty to felony murder and
aggravated burglary in relation to the death of the victim, Alicia Gale Burger.1 The State provided
the following factual summary during the entry of the guilty pleas:

                  On the date alleged in the indictment, this defendant was observed
                  going into the home of the victim by two county employees. They
                  were familiar with him and knew who he was. They observed him
                  enter the residence shortly before the victim in this case arrived at that
                  residence. The victim arrived and the same county employees
                  observed . . . the victim going into the residence, and then they went


         1
           Despite entering guilty pleas to both felony murder and aggravated burglary, the petitioner challenges only
the validity of his conviction for felony murder.
                back to their work. They were working on a roadway above the
                house where this occurred. These same two workers then observed
                this defendant leave that residence sometime later. Law enforcement
                was called when . . . the body of the victim was discovered by her
                father. Investigation subsequently centered on this defendant, and
                upon taking him into custody, and upon doing an inventory of him
                and doing testing on his articles of clothing, the blood of the victim
                was found on his underwear. Additionally, there is a previous history
                between this family and the defendant. He was married to the sister
                of the victim. The defendant was taken into custody and certain
                statements were elicited from him that while not admitting to crimes,
                certainly made admissions that were damaging to any other defense
                that he might have.

At the post-conviction hearing, lead trial counsel recalled that the victim had been strangled, stabbed
three times, beaten, shot five times, and her throat had been cut. He also remembered that “the
deceased’s car door was left open and a small child was left in there.”

                On January 18, 2007, the petitioner filed a petition for post-conviction relief alleging
that his felony murder guilty plea was not knowingly, voluntarily, and intelligently entered and that
he was denied the effective assistance of counsel. After the appointment of counsel and the filing
of an amended petition, the post-conviction court held an evidentiary hearing on September 14,
2007.

                In the hearing, the petitioner testified that he had been charged with both premeditated
and felony murder in relation to the victim’s death and that the State had filed a notice seeking the
death penalty. The petitioner claimed that lead trial counsel met with him only “three or four times”
and that co-counsel met with him “one more time than [lead counsel].” He asserted that neither lead
counsel nor co-counsel would discuss defense strategy, and instead they focused their efforts at
getting him to plead guilty to the charges. The petitioner also claimed that he informed his trial
counsel of various infirmities with his pretrial statement to the police but that counsel insisted that
the information was “irrelevant.” He claimed that his counsel told him “there was no way [he] could
be found innocent, that [he] was going to death row[,] and that [he] would never get to see his family
again if [he] didn’t sign those papers.”

                The petitioner insisted that he did not want to plead guilty and conceded to do so only
after his counsel informed him that if he “got found guilty and got sent to death row, [he would]
never be able to see [his] family again, which is a lie.” The petitioner also contended that co-counsel
told him “that a post-conviction relief was better than an appeal.” He also testified that co-counsel
“brought a psychiatrist to talk [him] into pleading guilty.” He claimed that although his trial counsel
arranged for a mental health evaluation, “they told [him] not to answer any of their questions about
[his] case or anything like that. And then whenever [the] evaluation came back, it said that [he]
wasn’t being truthful.”



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               The petitioner also contended that even though he knew that the plea agreement
provided for a sentence of life without parole, he believed that he would be eligible for parole after
serving 32 years’ incarceration. He claimed that his trial counsel told him that “a life sentence is 32
years.”

                  During cross-examination, the petitioner acknowledged telling the trial judge that he
had not been threatened to enter his guilty plea but stated that he was “tricked into pleading guilty.”
The petitioner stated that the only reason he agreed to plead guilty was his desire to maintain
visitation with his family. He denied that co-counsel had told him that he would be able to have “no
contact” visitation with his family should he be sentenced to death. Although he specifically recalled
telling the trial court that the visitation issue prompted his guilty plea, the petitioner exhibited only
a spotty recollection of the remainder of the hearing, claiming that he could not recall telling the
court that he was satisfied by the performance of his attorneys. The petitioner conceded that all the
plea documents provided for a sentence of life without parole.

                The petitioner’s mother, Theresa Abercrombie, testified that she spoke with the
petitioner’s counsel on several occasions and claimed that “[f]rom the very beginning, they were
wanting [her] to get [the petitioner] to go with a guilty plea.” Ms. Abercrombie stated that counsel
lied to her about statements provided by mitigation witnesses and that they refused to investigate the
petitioner’s drug addiction as a mitigating factor. She testified that trial counsel informed her that
the petitioner’s mental state at the time of the murder “didn’t matter.” She claimed that trial counsel
“always just like, assumed like he was guilty and that [pleading guilty] was the best way to go.”

                Lead counsel testified that prior to being appointed to represent the petitioner, he had
handled 43 homicide cases. He stated that he was appointed to represent the petitioner in the general
sessions court and that he asked that the preliminary hearing be postponed until a mental health
evaluation could be completed. The evaluation “indicated that [the petitioner] was competent to
stand trial” and that a defense of insanity could not be supported. After learning that the State would
likely seek the death penalty, lead counsel contacted co-counsel to assist him in the handling of the
case and specifically with the gathering of mitigation evidence. Lead counsel stated that although
he had some concerns about the petitioner’s mental health, he never believed that the petitioner was
incapable of understanding the proceedings. He stated that the petitioner “knew exactly what was
going on, because he would get irritated at me when I would sit down and go over the case with
him.” Lead counsel also stated that he met with the petitioner at least “a dozen times . . . in the jail
here in Polk County and the other jail where he was.” With regard to the petitioner’s entering his
guilty plea, lead counsel testified that he was “confident [the petitioner] knew exactly what he was
doing.”

                Lead counsel testified that in addition to seeking the services of co-counsel, he
utilized the services of an investigator, who interviewed fact witnesses. Lead counsel stated that he
apprized the petitioner of the status of his investigation on numerous occasions. Lead counsel
recalled that the petitioner admitted murdering the victim, explaining to them that he had “lost
control” and demonstrating how he had shot the victim. He also recalled that the petitioner claimed
he had asked for and been denied an attorney during his interrogation. Based upon this claim, lead
counsel prepared a motion to suppress the statement but did not file it due to the petitioner’s decision

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to plead guilty, which “put a halt to doing much else.” Lead counsel denied that Ms. Abercrombie
told him she felt threatened by officers who asked to search her house. He stated that he
remembered her say “that she gave them a consent to search because she didn’t have anything to
hide.”

                 Regarding the petitioner’s demeanor at the guilty plea submission hearing, lead
counsel stated, “I guess you had to work with [the petitioner] for three years to realize how he would
try to manipulate things that really weren’t necessarily important, but in his mind were.” Lead trial
counsel stated that he believed that it was in the petitioner’s best interest to enter the guilty plea. He
testified that he “felt like that the government had a very good felony murder case, and . . . think
there were some enhancing factors, particularly the way the body was . . . dealt with in killing her,
all the different stab wounds and shot wounds, that there was certainly enough there that had a jury
wanted to give him the death penalty, they could have.” Lead counsel stated that none of the
petitioner’s statements during the plea submission hearing gave him pause because he had no “doubt
that [the petitioner] understood and was giving up his rights.” Lead counsel testified that, even at
the time of the plea submission hearing, he anticipated that the petitioner would file a petition for
post-conviction relief.

                 Co-counsel, who testified that she had been practicing law for more than 19 years,
recalled that lead counsel contacted her prior to the State’s filing the death notice because he
anticipated that one would be filed and he wanted her to begin preparing mitigation evidence. She
stated that they “were looking at potential items regarding mitigation and [the petitioner’s] mental
health.” She testified that they hired Doctor Robert Brown, a neuropsychologist, to assist them in
their effort to address the potential mental health issues. During the investigation, she obtained the
petitioner’s mental health records and Doctor Brown administered further tests to the defendant. Co-
counsel testified that after a mental evaluation and thorough review of the petitioner’s mental health
records with Doctor Brown, counsel concluded that the petitioner was competent and fully
understood the proceedings.

                 Regarding the petitioner’s decision to plead guilty, co-counsel recalled that she
approached the petitioner in October 2005 with the State’s offer and asked whether “he would be
amenable to it.” She testified that she “read each one of [the plea documents] to him and asked him
if he understood, made sure he didn’t have any questions at that time.” Co-counsel stated that the
petitioner was “agreeable to a plea” and signed the plea documents in October. A delay occurred
when the State requested more time to discuss the agreement with the victim’s family. After the
victim’s family expressed satisfaction with the agreement, a date was set for the plea submission
hearing. Co-counsel denied that Doctor Brown accompanied her during the October visit, saying,
“He just went with us one time, and that was at my request, to meet with [the petitioner], and that
actually was on January the 18th, 2006, in Blount County at the Blount County jail.” Co-counsel
testified that she asked Doctor Brown to accompany her in January because “he had a good rapport
with [the petitioner]” and because the petitioner “had tended to manipulate some of the situations
with us [and she] wanted to make sure that there was absolutely no question that he understood what
was going on.” During the January visit, she again covered the plea documents “line by line” with
the petitioner. She stated that Doctor Brown also attended the plea submission hearing for the same
reasons. She stated she had no concern that the petitioner did not understand the consequences of

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his guilty plea, explaining, “He knew and he could ask us questions about things, and he could verse
those questions. He did come across as manipulative in situations when we would meet with him.”
Co-counsel testified that she was unaware of any potential literacy issue because the petitioner
“could comprehend and read” discovery materials and later discuss them with counsel.

                Co-counsel recalled that in addition to the mental health issues, she and lead counsel
discussed the fact issues with the petitioner and interviewed a number of potential fact and
mitigation witnesses. As a result of these interviews, co-counsel felt that it was “quite possible” the
petitioner would be convicted and sentenced to death for the victim’s murder. She stated that the
petitioner’s history of “extensive drug use,” his prior violent outbursts, and the violent nature of the
crime led her to this opinion. She recalled that one particular potential mitigation witness
remembered the petitioner’s saying that he “wanted to kill someone, that he was going to kill.” She
stated that she “just really had a hard time finding people to say good things” about the petitioner.

                 Co-counsel recalled that she discussed visitation with the petitioner because he
“wanted to make sure that he continued to get to see his family.” She stated that she contrasted the
visitation rules for death row inmates with those in the general population but nevertheless assured
the petitioner that “he would be able to have visits at both . . . they would just be different.” She
insisted that she never told the petitioner that he would be unable to see his family if he received a
sentence of death. She stated that on the day of the entry of the plea, she discussed the proceeding
with the petitioner and his mother for at least half an hour prior to the hearing. She recalled that
during that time, the issue of visitation “never came up . . . . That was . . . why [she] was kind of
shocked when we got out in front of the Judge that he even mentioned it, because he hadn’t brought
that up.” Co-counsel also testified that she informed the petitioner “on more than one occasion” that
a sentence of life without parole “meant he would absolutely be in there the rest of his life.” At no
point did the petitioner ever indicate to her that he thought he would be released after serving any
number of years.

                During cross-examination, co-counsel stated that lead counsel did not accompany her
during the October visit with the petitioner because “a conflict” had arisen between the two men.
She explained that lead counsel had decided to focus his attention on trial preparation while she
attempted to “salvage the plea.” She stated that she thought the strategy was appropriate given the
petitioner’s tendency to “try[] to manipulate situations.” She testified that she reviewed the plea
documents with the petitioner in January because of the time delay and because she wanted to
explain that the victim’s family had consented to the plea and that the theft charge would be
dismissed. She stated that she did not feel it was necessary to explain the visitation protocol to the
petitioner during the plea submission hearing because she had already done so and believed that “this
was just one of [the petitioner’s] ways of manipulating the plea.”

                 At the conclusion of the hearing, the post-conviction court, in a written order detailing
its factual findings and legal conclusions, held that the petitioner “has not presented any evidence
that would sustain his Petition of Post Conviction Relief, and the same is hereby dismissed.” The
court found that the petitioner “knew what his rights were and what charges he was pleading to.”
The post-conviction court determined that although the petitioner had, in fact, expressed concern
about being able to visit his family, his concerns had been alleviated during the course of the plea

                                                   -5-
submission hearing. The court concluded that the petitioner chose the “less severe of two bad
choices” but there was simply “no proof that the Petitioner’s plea was anything other than
‘voluntarily and knowingly’ made.” The post-conviction court accredited the testimony of trial
counsel that they had thoroughly investigated the case, including any potential mental health
defenses, “and, once those evaluations showed that no insanity defense could be supported, they
engaged in plea negotiations in an effort to obtain the best possible deal for their client.” The post-
conviction court found that the “[p]roof against the [petitioner] was not only overwhelming but also
of such a nature, because of the excessively brutal nature of the killing, that certain enhancement
factors could easily have been found by the jury to support the death penalty.” The court concluded
that the petitioner “offered no evidence at his hearing that would support his contention” that his
guilty plea was the product of the ineffective assistance of counsel.

                 In this appeal, the petitioner challenges the post-conviction court’s ruling, contending
that his guilty plea was not knowingly and voluntarily entered because he was denied the effective
assistance of counsel. The State contends that the petitioner has failed to establish his claims by
clear and convincing evidence.

                The post-conviction petitioner bears the burden of proving his or her 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).

                                       I. Voluntariness of Plea

               The petitioner first argues that his guilty plea was not voluntarily entered because he
did not understand that he would be allowed to visit with his family even if he received a death
sentence and that a sentence of life without parole did not provide for parole at any time.

                Due process demands that a guilty plea be entered voluntarily, knowingly, and
understandingly. See Boykin v. Alabama, 395 U.S. 238, 242-44, 89 S. Ct. 1709, 1711 (1969).
“[T]he core requirement of Boykin is ‘that no guilty plea be accepted without an affirmative showing
that it was intelligent and voluntary.’” Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993)
(quoting Fontaine v. United States, 526 F.2d 514, 516 (6th Cir. 1975)). The plea must represent a
“voluntary and intelligent choice among the alternative courses of action open to the defendant.”
North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164 (1970). A plea is involuntary if the
accused is incompetent or “if it is the product of ‘ignorance, incomprehension, coercion, terror,
inducements, [or] subtle or blatant threats.’” Blankenship, 858 S.W.2d at 904 (quoting Boykin, 395
U.S. at 242-43, 89 S. Ct. at 1712).

                The Boykin requirement that guilty pleas be knowing and voluntary may stand
independently of the claim that an unknowing or involuntary guilty plea is the result of ineffective
assistance of counsel. Boykin, 395 U.S. at 241, 89 S. Ct. at 1711. The constitution requires that, to

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satisfy due process, the trial court must inform the guilty-pleading defendant of his rights to avoid
self- incrimination, to confront witnesses, and to be tried by a jury. However, “a guilty plea is not
rendered constitutionally infirm because a criminal defendant is not informed about ‘the details of
his parole eligibility, including the possibility of being ineligible for parole.’” Alan Dale Bailey v.
State, No. M2001-01018-CCA-R3-PC (Tenn. Crim. App., Nashville, Feb. 8, 2002), perm. app.
granted (May 28, 2002), voluntary dismissal granted (July 11, 2002) (quoting Rickey Sams v. State,
No. 03C01-9511-CC-00368, slip op. at 5 (Tenn. Crim. App., Knoxville, Nov. 14, 1996)). In this
case, the petitioner’s claims regarding visitation privileges and parole eligibility status are not
constitution-based claims and, as a result, would not be cognizable in a post-conviction proceeding.
See T.C.A. § 40-30-103 (2006) (“Relief under this part shall be granted when the conviction or
sentence is void or voidable because of the abridgment of any right guaranteed by the Constitution
of Tennessee or the Constitution of the United States.”).

                                II. Ineffective Assistance of Counsel

               The petitioner also contends that his guilty plea was not voluntary because it was the
product of ineffective assistance of counsel. Specifically, he contends that his counsel failed to
adequately investigate the case, failed to advise him of available defenses, and misinformed him
regarding the visitation privileges on death row and the unavailability of parole in a sentence of life
without parole.

                When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, he must first establish that the services rendered or the advice given were below “the
range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975). Second, he must show that the deficiencies “actually had an adverse effect on the
defense.” Strickland v. Washington, 466 U.S. 668, 693 (1984). The error must be so serious as to
render an unreliable result. Id. at 687. It is not necessary, however, that absent the deficiency, the
trial would have resulted in an acquittal. Id. at 695. Should the petitioner fail to establish either
factor, he is not entitled to relief. Our supreme court described the standard of review as follows:

                               Because a petitioner must establish both prongs of the
               test, 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).

               On claims of ineffective assistance of counsel, the petitioner is not entitled to the
benefit of hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize 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


                                                 -7-
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).

               Claims of ineffective assistance of counsel are regarded as 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 v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see also State v.
England, 19 S.W.3d 762, 766 (Tenn. 2000).

                 In our assessment, the petitioner has failed to establish that his trial counsel performed
deficiently. Although the petitioner testified that his trial counsel misinformed him regarding
visitation privileges and his eligibility for parole, both lead counsel and co-counsel denied providing
incorrect information and the post-conviction court accredited this testimony. The post-conviction
court also accredited the testimony of trial counsel that they thoroughly investigated the facts and
circumstances of the case and the availability of mitigation proof. The post-conviction court shared
the opinion of trial counsel that a conviction and sentence of death were very real possibilities in the
petitioner’s case. In addition, the record supports the finding of the trial court that the petitioner
“knew what his rights were and what charges he was pleading to.” The plea documents, signed
twice by the petitioner, detail the charges, potential sentences, and rights available to the petitioner
as well as the details of the plea agreement, including the sentence of life without parole. At the plea
submission hearing, the trial court clearly outlined those rights the petitioner was giving up by
entering his plea and the sentence that would be imposed as a result of the plea.

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

                                                         ___________________________________
                                                         JAMES CURWOOD WITT, JR., JUDGE




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