            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE             FILED
                            JANUARY 1999 SESSION
                                                         March 24, 1999

                                                       Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

ARZOLIA CHARLES GOINES,             )    C.C.A. NO. 03C01-9710-CR-00456
                                    )
      Defendant/Appellant           )    KNOX COUNTY
                                    )
v.                                  )    HON. RAY L. JENKINS, JUDGE
                                    )
STATE OF TENNESSEE,                 )    (Post-conviction relief)
                                    )
      Appellee                      )




FOR THE APPELLANT:                       FOR THE APPELLEE:

Mark E. Stephens                         John Knox Walkup
District Public Defender                 Attorney General & Reporter

Aubrey L. Davis                          Todd R. Kelley
Assistant Public Defender                Assistant Attorney General
1209 Euclid Avenue                       425 Fifth Avenue North
Knoxville, TN 37921                      2d Floor, Cordell Hull Building
                                         Nashville, TN 37243-0493




OPINION FILED


AFFIRMED
JOHN K. BYERS
SENIOR JUDGE
                                       OPINION

         This is an appeal from the dismissal of the petitioner’s petition for post-

conviction relief after an evidentiary hearing. The plaintiff was attacking his

conviction for various offenses and a finding that he was a habitual offender, for

which he was sentenced to serve a life sentence.1

         The petitioner contends the record does not support the ruling of the trial

judge.

         We affirm the judgment.

         The petitioner contends that his convicting trial attorney was incompetent

because he failed to interview 25 alibi witnesses whom the petitioner provided

names of, and that counsel was incompetent for failure to spend adequate time on

the defense of the case.

         While we do not find counsel to be incompetent as alleged by the petitioner, a

review of the record, including the convicting record, which was properly introduced,

convinces us there is nothing to show any alleged misdeeds by counsel would

entitle the petitioner to relief.

         The petitioner has the burden of proving the allegations in the petition.

Clenny v. State, 576 S.W.2d 12 (Tenn. Crim. App. 1978). Further, the plaintiff “must

show that there is a reasonable probability that, but for counsel’s unprofessional

error the result of the proceeding would have been different.” Strickland v.

Washington, 466 U.S. 668 (1984). The petitioner failed to show any misdeeds by

counsel or any prejudice by reason of the alleged misdeeds by counsel.

         The petitioner’s counsel at the convicting trial had subpoenas issued for all of

the witnesses whose names were given to him by the petitioner. Only one of them,

the petitioner’s parole officer, appeared. None of those whom the plaintiff said

would give him an alibi defense appeared at the convicting trial.


         1
        The plaintiff was convicted in 1988. After unsuccessful appeals, he filed a
post-conviction petition in 1990. For various reasons, the case languished until now.

                                             -2-
         On the claim of inadequate time in preparation for trial, the petitioner and

defense counsel differ. Counsel testified he spent 23 hours in preparation for trial.

The petitioner claimed much less time on trial preparation.

         In our view, the most convincing aspect of this case was the failure of the

petitioner to carry the burden or the “but for” rule of Strickland.

         The convicting testimony at trial showed the victim of the crime identified the

petitioner as the perpetrator of these crimes. In addition to this, a letter fell from the

petitioner’s car at the crime scene. This letter was addressed to the petitioner. All in

all, as the trial judge in this post-conviction hearing found, the proof of guilt was

overwhelming.

         Beyond this, the petitioner offered none of the alleged alibi witnesses at the

post-conviction hearing to support his claim of a lost alibi defense. The absence of

this and the petitioner’s claim that another person, who died before trial and who

was a Caucasian, committed the crime was not particularly convincing because the

victim described the perpetrator of the crime as a black person. The petitioner is

black.

         Based upon this record, we do not find the evidence preponderates against

the judgment of the trial court. It appearing that the defendant is indigent, costs of

the appeal are taxed to the State.




                                            John K. Byers, Senior Judge


CONCUR:




James Curwood W itt, Jr., Judge




Norma McGee Ogle, Judge




                                            -3-
