                                                                                                    01/17/2020
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   October 15, 2019 Session

               TIMOTHY ROY BOZZA v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Davidson County
                    No. 2010-C-2636 Cheryl A. Blackburn, Judge


                                No. M2018-01607-CCA-R3-PC


The petitioner, Timothy Roy Bozza, appeals the denial of his petition for post-conviction
relief, which petition challenged his conviction of first degree murder, alleging that he
was deprived of the effective assistance of counsel. Discerning no error, we affirm the
denial of post-conviction relief.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Wesley Clark, Nashville, Tennessee, for the appellant, Timothy Roy Bozza.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Glenn R. Funk, District Attorney General; and Janice Norman, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

               A Davidson County Criminal Court Grant Jury charged the petitioner and a
co-defendant, Coy J. Cotham, Jr.,1 with one count of first degree murder arising out of the
shooting death of the petitioner’s estranged wife. The petitioner and Mr. Cotham were
tried separately with Mr. Cotham’s trial occurring first. The petitioner testified at Mr.
Cotham’s trial, and Mr. Cotham was convicted as charged. See State v. Coy J. Cotham.
Jr., a.k.a. Cory J. Cotham, No. M2012-01150-CCA-R3-CD, slip op. at 1-2 (Tenn. Crim.


1
        In the indictment, Mr. Cotham was identified as “Coy J. Cotham Jr., a.k.a. Cory J. Cotham.” In
addition to the first degree murder charge, Mr. Cotham was also charged with one count of especially
aggravated robbery.
App., Nashville, July 31, 2014). This court, on direct appeal, summarized the evidence
from the petitioner’s October 2012 trial:

             [T]he [petitioner] and the victim had a history of
             disagreements about the final resolution of their divorce. The
             [petitioner] acknowledged being angry with the victim and
             not being able to move past it. On two occasions, he made
             statements to the victim that she perceived as threats, telling
             her to “be careful, it’s coming” and stating he could end the
             nonsense with a telephone call.

                     [T]he [petitioner] and Mr. Cotham discussed a
             crisscross murder scenario in which Mr. Cotham would kill
             the victim for the [petitioner] and the [petitioner] would kill a
             man for Mr. Cotham. According to the [petitioner’s]
             statements, he was not serious initially. He said that when he
             had a later conversation in which Mr. Cotham offered him
             $10,000 to kill the man, the [petitioner] declined but said that
             $10,000 sounded good and that he would give the money to
             Mr. Cotham. The [petitioner] admitted that he told Mr.
             Cotham one of the victim’s worksites, that he knew Mr.
             Cotham followed the victim on multiple occasions, that he
             knew Mr. Cotham was waiting for the right opportunity, that
             he waited to see what Mr. Cotham would do rather than
             objecting, and that he knew what was likely to happen on
             August 29. The cell phone records showed numerous calls
             between Mr. Cotham and the [petitioner] on the date of the
             homicide. The cell phone location data showed Mr. Cotham
             near the victim’s house around the time of the homicide and
             Mr. Cotham’s and the victim’s cell phones in the same
             locations after the crime. In addition, after the homicide, the
             [petitioner] was untruthful with the authorities and continued
             associating with Mr. Cotham in order to avoid arousing
             suspicion.

                    . . . [T]he [petitioner] and Mr. Cotham were planning
             to go to Barbados soon, and information from a computer . . .
             showed research on obtaining a passport and on countries
             without extradition treaties, including Barbados.        Mr.
             Cotham’s Facebook postings indicated that on August 19, he
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                was working to close a couple of business deals that would
                allow him to vacation in Barbados in September and October
                and that on August 29 at 11:15 p.m., less than twelve hours
                after the homicide, he had just closed a deal and was
                expecting a “sweet payday for the big man.” . . . .

                         ....

                       The [petitioner] also had a financial motive for the
                victim’s death. He was the beneficiary of her $550,000 life
                insurance policy and filed an insurance claim three days after
                her death. The victim would have been permitted to
                designate a different beneficiary when the divorce became
                final. The [petitioner] told the police the divorce would have
                been final about three weeks after the date of the victim’s
                death. The [petitioner] was having financial difficulties and
                had applied for a large loan. He planned to use the loan
                proceeds to finance business endeavors with Mr. Cotham
                involving purchasing and selling sports jerseys and starting an
                adult website.

State v. Timothy Roy Bozza, No. M2013-02537-CCA-R3-CD, slip op. at 16-17 (Tenn.
Crim. App., Nashville, Jan. 28, 2015). The jury convicted the petitioner as charged, and
the trial court imposed a life sentence. Id., slip op. at 1. This court affirmed the
petitioner’s conviction on direct appeal, id., and our supreme court denied permission to
appeal.

              The petitioner filed a timely pro se petition for post-conviction relief,2 and
the post-conviction court appointed counsel. The petitioner filed two amended petitions,
alleging the ineffective assistance of trial counsel. Among his claims against trial
counsel, the petitioner asserted that counsel failed to properly investigate the case, failed
to adequately communicate with him, and failed to object to certain hearsay testimony.

                At the May 23, 2018 evidentiary hearing, the petitioner testified that he
initially retained trial counsel, but after the petitioner’s arrest, the court appointed trial

2
         In its preliminary order, the post-conviction court noted that the court could not locate the
petitioner’s pro se petition but that the CJIS computer system reflected that the petitioner timely filed the
petition on April 20, 2016. The court accepted the computer entry as proof that the petitioner properly
filed his petition and appointed counsel.

                                                    -3-
counsel to continue representation. The petitioner stated that trial counsel advised and
encouraged him to speak with law enforcement officers when the petitioner was taken to
the police station, but counsel did not discuss with him the benefits or risks of doing so.
Trial counsel advised the petitioner “just to tell the truth” despite having not discussed the
specifics of the case with the petitioner. The petitioner stated that he met with law
enforcement officers and prosecutors several times with trial counsel present during those
meetings. The petitioner was not aware of any defense strategy and the result at trial
“[w]as that we had no defense.”

               The petitioner recalled that he asked trial counsel to investigate, among
other things, witnesses who had made statements and video surveillance footage from
“the place I was at, at the time of the event.” He could not identify any specific witness
he wished counsel to investigate. The petitioner contended that counsel did not
investigate the case at all. The petitioner acknowledged that trial counsel provided him
with discovery materials approximately six months after the petitioner’s arrest; however,
the petitioner denied that counsel reviewed those materials with him. The petitioner
recalled meeting with a private investigator on three occasions, and, although the
investigator brought an audio recording to the petitioner, the petitioner “didn’t even get to
listen to it.” The petitioner stated that he did not understand the evidence against him or
the trial process. The petitioner contended that trial counsel’s defense position was for
the petitioner to testify against Mr. Cotham and “hope for the best.”

              The petitioner described a meeting with trial counsel in which counsel was
acting “[n]ervous” and “always seem[ing] to be hyper as we spoke, constantly moving.”
In that meeting, counsel began talking about the case, but “[q]uickly thereafter, it
changed into more personal discussions of [trial counsel’s] finances, his wife, his
marriage.”

               The petitioner testified that trial counsel did not explain to him the State’s
position on the petitioner’s testifying and proffering statements against Mr. Cotham or
that those statements could also be used against the petitioner. As related to the
petitioner’s testimony at Mr. Cotham’s trial, the petitioner stated, “I thought that there
was going to be a series of questions that I’d been prepped on, and it was my
understanding that I would be taking the stand and those questions would be asked of me
and I would respond in the form that we had discussed.” According to the petitioner, trial
counsel did not meet with him to prepare for his testimony in Mr. Cotham’s trial other
than in a meeting that included the district attorney and several other people. The
petitioner maintained that counsel did not explain any of the risks of his cooperating with
the State, including that any discrepancy between his proffered statement and testimony


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could be used against him. The petitioner stated that he did not sign a proffer agreement
with the State.

               The petitioner said that, after he proffered statements to the State, he was
unable to contact trial counsel, stating that he “just absolutely could not get a response
from [trial counsel], whether it be in writing or it be a phone call from the counselor’s
office at the jail house or it be a response to family members calling.” The petitioner
reported that he “became the most concerned when I found out that [trial counsel] had
just picked up and left the office” where the petitioner had previously met with him and
had “moved somewhere else and we couldn’t locate him.” The petitioner stated that he
was unable to contact trial counsel for approximately 15 months and that counsel did not
meet with him during status hearings. After not hearing from counsel for 15 months, the
petitioner moved for counsel to withdraw from the case, but the court denied the motion.
The communication between counsel and the petitioner did not improve after the motion
hearing. In describing his relationship with trial counsel, the petitioner said, “[I]t really
wasn’t very much of a relationship. In fact, it was bad enough that we had spoken to
another attorney who . . . came before the judge and asked to be the replacement”
counsel.

               Prior to trial, the petitioner had a hearing on the admissibility of the
testimony of Judge Phillip Robinson who had previously represented the petitioner’s wife
in the divorce. The petitioner stated that the trial court judge “made clear that Mr.
Robinson’s testimony could have been highly construed as hearsay” and that six times
the court gave trial counsel “the opportunity to object to it and have it considered to be
hearsay,” but counsel never objected, and the court “finally said well, we’re going to
admit it then.”

              The petitioner was concerned about counsel’s performance at trial,
describing counsel’s demeanor as “someone who had too much caffeine.” The petitioner
asserted that some of counsel’s questions during trial “were quite incoherent” and that
counsel “seemed to be fixated on one thing, as it was a sunny afternoon and were people
out in their yard mowing their grass in the neighborhood, seemed to be one of his go-to
questions for everybody that he spoke to.” The petitioner was also concerned that
counsel’s “closing arguments were all over the place and seemed confusing.”
Additionally, a “couple of times, [counsel] offered to try and put some evidence into
exhibit and then ended up apologizing for his confusion to the Court and just -- I didn’t
feel good at all throughout it.”

               During cross-examination, the petitioner acknowledged that, when he gave
the first interview to police, trial counsel had not arrived, stating “[w]e were waiting on
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him to show up. He had been called a couple of times . . . .” The petitioner stated that
when he gave his first proffered statement, he had not received any explanation of his
rights or been told that he possibly could receive favorable consideration from the State
for his cooperation. The petitioner recalled that there was discussion of this being a death
penalty case, but he said that, at some point after his first proffered statement, the
prosecutor “told me that it wouldn’t be offered in my case.”

              The petitioner clarified that the police had obtained video surveillance
footage related to the petitioner’s whereabouts at the time of the victim’s murder but that
he had wanted trial counsel to obtain certain audio recordings. The petitioner
acknowledged that no witnesses that he wanted counsel to call at trial were present at the
evidentiary hearing.

               The petitioner stated that the 15-month period during which he could not
contact trial counsel was the “early part of 2011 throughout the summer of 2012, going
into Fall.” The petitioner acknowledged that during that period, he had actually spoken
with counsel “quite a few times when we were meeting” with prosecutors and that
counsel had visited him at the jail, but the petitioner contended that he “could not get the
kind of contact that we required.”

               The petitioner acknowledged that he gave three proffered statements and
was “[s]ometimes” allowed to meet with trial counsel prior to giving those statements.
The petitioner also had three meetings with prosecutors to prepare for the petitioner’s
testimony at Mr. Cotham’s trial, and trial counsel was present during those meetings.
The petitioner had an opportunity to speak with trial counsel at those meetings “[s]ome of
the time.” The petitioner recalled a meeting with trial counsel and the petitioner’s uncle
in which the petitioner asked counsel to make a plea offer to the State, but the petitioner
stated that he never received a plea offer from the State.

               Trial counsel testified that the petitioner retained him the day after the
homicide before the petitioner was indicted, and together they visited the crime scene and
collected pieces of correspondence between the victim and another man and an insurance
policy. Trial counsel pointed out that the State appointed two prosecutors to this case
before any indictment was issued, which counsel explained was unusual and signaled the
likelihood that the State would pursue the death penalty. Trial counsel stated that the
petitioner told him that he had had an “epiphany” and asked him to arrange a meeting
with the prosecutor “as soon as we could.” The petitioner only “[b]riefly” told counsel
what he wanted to discuss with the prosecutor. Counsel said that he explained to the
petitioner that he could be charged in this case and would potentially face the death
penalty. When asked whether he explained the risks of the petitioner’s talking to the
                                            -6-
prosecutor, trial counsel responded: “I mean [the petitioner’s] smart. I mean there’s no
question about that. You know. He has a good grasp of, you know, all the things. As far
as what’s going to happen and, you know, the process, you know, I explained that.”
Counsel also advised the petitioner to be truthful.

              Counsel was present with the petitioner during his meeting with the
prosecutor. During that meeting, counsel did not expect the petitioner to admit to his
involvement in the victim’s killing because “it wasn’t all out on the table.” During the
meeting and after the petitioner had made incriminating statements to the prosecutor, the
petitioner asked to meet with counsel privately, and the petitioner “told [counsel] a little
bit more about it, more that I believe came to him in the epiphany.” Trial counsel
arranged four or five other meetings between the petitioner and the prosecutor. Trial
counsel explained that his primary goal in these meetings was for the petitioner to avoid
the death penalty. Trial counsel explained that these meetings took place at the “murder
squad” rather than at the jail.

                Trial counsel recalled that when the petitioner testified at Mr. Cotham’s
trial, things “got to be a little bit adversarial,” and the petitioner’s testimony differed from
the recorded statements he made during his meetings with the prosecutor.

               At some point after Mr. Cotham’s trial, counsel met with the petitioner and
the petitioner’s uncle to discuss an offer from the State for the petitioner to plead guilty to
second degree murder with a 40-year sentence. Counsel included the petitioner’s uncle in
the discussion because the petitioner had been disinclined to accept the offer, and counsel
hoped that the petitioner’s uncle could help the petitioner understand the risks of going to
trial. Counsel reviewed all discovery materials and the transcript from Mr. Cotham’s trial
with the petitioner. Trial counsel explained that “there wasn’t the best opportunity” to
interview witnesses that the petitioner identified because the petitioner had already
testified at Mr. Cotham’s trial and “there wasn’t really any dispute as to some of what
happened.” Trial counsel also said that the petitioner failed to identify any witnesses
whose testimony would have benefited the defense.

              Trial counsel described his defense strategy as centering on disputing the
petitioner’s mental state and “whether or not what happened was the result of [the
petitioner’s] knowledge” and to argue that a reasonable person would not expect Mr.
Cotham to act on the petitioner’s statements about killing the victim. The petitioner did
not ask counsel to pursue any other defense strategy. At some point, the petitioner
became dissatisfied with counsel’s representation, with his primary complaint being that
counsel “should be visiting him more.” Counsel estimated that he met with the petitioner
“probably at least thirty or so times” leading up to the trial, and the times that counsel
                                              -7-
visited the petitioner at the jail were recorded in the jail visitation record, which was
exhibited to counsel’s testimony.

               Trial counsel recalled that, at the petitioner’s trial, the court held a jury-out
hearing to determine the admissibility of Judge Phillip Robinson’s testimony. Counsel
objected to the admission of that testimony during the hearing but did not otherwise make
objections to it during trial.

               During cross-examination, trial counsel acknowledged that he was not
certified as a capital case attorney, but he maintained that he was able to properly advise
the petitioner in this case despite the potential for the State to seek the death penalty.
Counsel testified that the petitioner was very intelligent, and counsel believed that the
petitioner was able to understand the nature of the charges and the evidence against him.
Counsel gave the petitioner a copy of the Tennessee Criminal Trial Handbook, and the
petitioner was able to read the handbook and ask counsel specific questions about his trial
preparation.

              Counsel testified that he did not ask the petitioner what he intended to say
to the prosecutor when the petitioner asked for counsel to arrange a meeting after his
“epiphany.” Counsel asserted that it was not important that he knew what the petitioner
intended to say rather, it was important only that he advised the petitioner “to tell the
truth no matter what.” Counsel acknowledged that the petitioner’s statements could be
used against him but stated that they could also be “used for him.” When asked whether
he advised the petitioner that his statements could be used against him, counsel
responded, “Well, like I said, I don’t specifically recall one way or the other. But, you
know, what he was going to say, you know, from the epiphany, I left shortly in that
conversation because he wanted to get a meeting.” Counsel stated that he “very possibly
could have talked to him about it,” but he could not specifically recall.

               Counsel recalled that the State made the plea offer sometime after Mr.
Cotham’s trial, and counsel relayed the offer to the petitioner and discussed with him the
risks of going to trial. Trial counsel stated that he gave the petitioner a copy of the
transcripts from Mr. Cotham’s trial, but he could not recall whether he reviewed the
transcripts with him. Counsel acknowledged that he moved the location of his office
during his representation of the petitioner, but he stated that the petitioner knew how to
contact him despite the move.

               Trial counsel maintained that his defense strategy was to argue that the
petitioner did not have the proper mental state to commit the charged offense and that the
petitioner’s statements to Mr. Cotham about killing the victim were made in jest and were
                                              -8-
based on the film “Throw Mama from the Train.” Counsel said that he did not seek a
mental evaluation of the petitioner because “it would be a waste of time. He’s not
deficient.” Counsel acknowledged that there were facts in evidence that were harmful to
the defense and many facts “were pretty much undisputed,” but he reiterated that he
sought to show that a reasonable person would not take the petitioner’s statements to Mr.
Cotham as intent to have the victim killed.

               Tom Thurman, the deputy district attorney for Davidson County who
investigated and prosecuted this case, testified that this case was considered a potential
death penalty case from the beginning and that the death penalty was not taken off the
table until after the petitioner gave statements to the prosecutors. Mr. Thurman testified
that he agreed to give the petitioner an opportunity to be heard after trial counsel
indicated that the petitioner wanted to talk. According to Mr. Thurman, the petitioner did
not admit his participation in the victim’s murder in the first interview other than
acknowledging that Mr. Cotham had called him after the victim’s death and told him it
was done. Mr. Thurman stated that trial counsel seemed “kind of shocked” at the
petitioner’s statement, and counsel spoke privately with the petitioner at that point. Mr.
Thurman stated that in each subsequent interview, the petitioner “would come up with a
little bit more information indicating his guilt.” Mr. Thurman stated that the State’s
intent with these meetings was “to turn [the petitioner] to testify against [Mr.] Cotham,
who we knew was the trigger man.” Mr. Thurman believed that trial counsel’s goal in
the meetings was to have the death penalty or life without parole taken off the table in
exchange for the petitioner’s cooperation. Mr. Thurman recounted several meetings that
he had with trial counsel to provide him with all of the State’s evidence against the
petitioner.

               In its written order denying post-conviction relief, the post-conviction court
found that trial counsel had moved to exclude Judge Robinson’s testimony, and the
matter was addressed pretrial. The court also found that the petitioner had received all
discovery materials. Because the petitioner failed to name any witness that trial counsel
failed to call, the court concluded that the petitioner could not show that trial counsel
performed deficiently on that matter. The court determined that the petitioner failed to
show that he was prejudiced by counsel’s actions in preparation for his testimony at Mr.
Cotham’s trial. Finally, the post-conviction court accredited Mr. Thurman’s testimony
that he had reviewed all of the State’s evidence with trial counsel, and the court
accredited trial counsel’s testimony that he had met with the petitioner more than 30
times.

              In this timely appeal, the petitioner argues that trial counsel performed
deficiently by failing to advise him not to talk to police, failing to investigate the case and
                                              -9-
communicate with the petitioner, and failing to object to Judge Robinson’s testimony on
hearsay grounds. The State contends that the petitioner waived our review of the first and
second issues by changing the theory of relief from his post-conviction petitions.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “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.” T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). 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).

                Before a petitioner will be granted post-conviction relief based upon a
claim of ineffective assistance of counsel, the record must affirmatively establish, via
facts clearly and convincingly established by the petitioner, that “the advice given, or the
services rendered by the attorney, are [not] within the range of competence demanded of
attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and
that counsel’s deficient performance “actually had an adverse effect on the defense,”
Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, the petitioner “must
show that there is 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 694. Should the
petitioner fail to establish either deficient performance or prejudice, he is not entitled to
relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
. . . that course should be followed.” Strickland, 466 U.S. at 697.

              When considering a claim of ineffective assistance of counsel, a reviewing
court “begins with the strong presumption that counsel provided adequate assistance and
used reasonable professional judgment to make all significant decisions,” Kendrick v.
State, 454 S.W.3d 450, 458 (Tenn. 2015) (citation omitted), and “[t]he petitioner bears
the burden of overcoming this presumption,” id. (citations omitted). We will not grant
the petitioner the benefit of hindsight, second-guess a reasonably based trial strategy, or
provide relief on the basis of 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.
                                            -10-
1994). Such deference to the tactical decisions of 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).

                As an initial matter, we address the State’s contention that the petitioner has
waived certain issues. Post-conviction relief is unavailable for a claim that has been
waived for failure “to present it for determination in any proceeding before a court of
competent jurisdiction in which the ground could have been presented.” T.C.A. § 40-30-
106(g). Instances of ineffective assistance of counsel, however, are deemed to constitute
a single rendering of ineffective assistance. Thompson v. State, 958 S.W.2d 156, 161
(Tenn. Crim. App. 1997) (“Ineffective assistance of counsel is generally ‘a single ground
for relief’ under the post-conviction statute.” (citing Cone v. State, 927 S.W.2d 579, 581-
82 (Tenn. Crim. App. 1995))). Contrary to the State’s assertion, the petitioner did indeed
raise the specific instances of deficient performance in his amended petitions that he
raises in this appeal. Because the petitioner raised a broad claim of ineffective assistance
of counsel in his amended petitions and, more importantly, specifically raised and
presented proof on these specific alleged deficiencies at the evidentiary hearing, these
issues are not waived.

               Turning to the merits of the petitioner’s claim, we conclude that he has
failed to prove by clear and convincing evidence sufficient facts to support his claim that
trial counsel’s representation was deficient. First, the petitioner asserts that trial counsel
should have advised him not to talk with law enforcement officers and prosecutors.
Although the petitioner complains about counsel’s inadequate advice to him prior to his
proffering statements to the State, the petitioner has failed to demonstrate any prejudice
in this matter. We cannot say that counsel performed deficiently by advising the
petitioner to cooperate with the State in light of the petitioner’s facing the possibility of
the death penalty. The petitioner presented no proof that he would not have cooperated
with the State had counsel advised him that his statements could be used against him,
and, consequently, he cannot prevail on this claim.

              Next, the petitioner contends that trial counsel failed to thoroughly
investigate the case or adequately communicate with him. Counsel’s accredited
testimony, however, establishes that he met with the petitioner at least 30 times leading
up to the petitioner’s trial. Mr. Thurman’s accredited testimony established that trial
counsel received all of the evidence against the petitioner, and the petitioner
acknowledged that he had received all of the discovery materials. The petitioner failed to
present any evidence or witnesses that counsel could have discovered with further
investigation. Consequently, the petitioner has failed to show that he was prejudiced by
counsel’s actions. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)
                                             -11-
(“When a petitioner contends that trial counsel failed to discover, interview, or present
witnesses in support of his defense, these witnesses should be presented by the petitioner
at the evidentiary hearing.”).

               Finally, the petitioner argues that trial counsel performed deficiently by
failing to object to Judge Robinson’s testimony as hearsay. The record supports the post-
conviction court’s finding that trial counsel did in fact move to exclude Judge Robinson’s
testimony on hearsay grounds and that the trial court held a jury-out hearing to determine
the admissibility of Judge Robinson’s testimony and found the statements admissible as
hearsay exceptions. Consequently, the petitioner has failed to show that counsel
performed deficiently on this matter.

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

                                                   _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




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