        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs November 13, 2013

                 MAURICE SHAW v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Tipton County
                     No. 6551     Joseph H. Walker, III, Judge


               No. W2013-00173-CCA-R3-PC - Filed January 22, 2014


The petitioner, Maurice Shaw, appeals the denial of his petition for post-conviction relief,
arguing that he received ineffective assistance of trial counsel. Following our review, we
affirm the denial of the petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which R OBERT W. W EDEMEYER
and R OGER A. P AGE, JJ., joined.

Gary F. Antrican, District Public Defender; and David S. Stockton, Assistant Public
Defender, for the appellant, Maurice Shaw.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; D.
Michael Dunavant, District Attorney General; and Jason R. Poyner, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                         FACTS

       In 2010, the petitioner was convicted in the Tipton County Circuit Court of the
delivery of .5 grams or more of cocaine, a Class B felony, and was sentenced as a Range II
offender to fifteen years in the Department of Correction. His conviction was affirmed by
this court, and our supreme court denied his application for permission to appeal. State v.
Maurice Shaw, Sr., No. W2010-02529-CCA-R3-CD, 2012 WL 939009, at *1 (Tenn. Crim.
App. Mar. 16, 2012), perm. app. denied (Tenn. June 19, 2012). Our direct appeal opinion
reveals that the petitioner’s conviction stemmed from a controlled drug purchase of crack
cocaine from the petitioner that was made by a confidential informant who was working for
the 25th Judicial District Drug Task Force. Id. The transaction was videotaped via a camera
hidden in a button on the informant’s shirt, and the audio/video recording was introduced as
an exhibit at the petitioner’s trial. Id. The telephone call between the two men in which the
informant arranged the drug transaction was also recorded, and it, too, was introduced as an
exhibit at trial. Id. at *2.

        On July 9, 2012, the petitioner filed a pro se petition for post-conviction relief in
which he raised a number of claims. At the evidentiary hearing, however, post-conviction
counsel narrowed the list to the single claim that the petitioner’s trial counsel provided
ineffective assistance by his failure to properly investigate and prepare the case. The
petitioner began his post-conviction testimony by complaining about trial counsel’s failure
to review with him the discovery in the case. As he continued his testimony, it became clear
that his real complaint was that the prosecution had created a “trial by ambush” by
introducing into evidence photographs made from the videotape of the drug transaction. The
petitioner claimed that the prosecutor did not have the photographs made until the evening
before trial and did not provide them to his trial counsel before introducing them as exhibits.

       The petitioner additionally complained that trial counsel failed to investigate the
background of the confidential informant. According to the petitioner, had trial counsel
investigated the witness’s background, he would have learned that he was homeless, which
was “a knock on the door to commit a crime” and a motivation for him to lie about the
petitioner’s role in the alleged drug transaction. The petitioner also believed that trial
counsel should have attacked the informant’s credibility by calling as a witness a police
officer who had arrested the informant on a felony charge. He conceded that the prosecutor
informed the jury that the informant had a felony conviction but said that trial counsel never
argued that fact to the jury. The petitioner also complained about the informant’s “irrelevant
statement” at trial about having received a head injury while serving in Afghanistan. The
petitioner acknowledged that trial counsel had no way of knowing that the informant would
make that statement but said that counsel should have investigated the informant’s
background to find out whether the information was true or whether the informant was on
any medication at the time of trial.

        The petitioner further testified that he believed trial counsel was deficient for not
questioning the informant about what kind of vehicle he drove to the alleged drug
transaction. He was unable, however, to explain how that information would have altered
the outcome of his case. At the end of his testimony, the petitioner recited a long list of
additional complaints about the conduct of his trial and trial counsel’s performance. Among
other things, he complained about counsel’s failure to object to the introduction of the drugs,
to cross-examine witnesses on different subjects, to object to various portions of the
prosecutor’s closing argument, and to suppress the indictment and all the evidence against

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him.

       On December 7, 2012, the post-conviction court entered an order denying the petition,
finding that the petitioner had failed to meet his burden of demonstrating that he was denied
the effective assistance of counsel. Thereafter, the petitioner filed a timely appeal to this
court.

                                         ANALYSIS

        On appeal, the petitioner contends that trial counsel “was deficient by allowing the
jurors to determine which witnesses were telling the truth” and that this court should “find
that cumulatively somehow, [trial counsel] was ineffective.” The State responds by arguing
that the petitioner has waived appellate review by his failure to make appropriate references
to the record, include citations to relevant authority, or support his claims with any argument.
The State additionally argues that the petitioner is not entitled to any relief on the merits of
his claims because the record supports the post-conviction court’s finding that the petitioner
received effective assistance of counsel. We agree with the State.

        The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2012). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v. State,
922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely factual issues,
the appellate court should not reweigh or reevaluate the evidence. See Henley v. State, 960
S.W.2d 572, 578 (Tenn. 1997). However, review of a post-convictions court’s application
of the law to the facts of the case is de novo, with no presumption of correctness. See Ruff
v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel,
which presents mixed questions of fact and law, is reviewed de novo, with a presumption of
correctness given only to the post-conviction court’s findings of fact. See Fields v. State, 40
S.W.3d 450, 458 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland v. Washington, 466 U.S. 668, 688 (1984); Baxter v. Rose, 523 S.W.2d 930,
936 (Tenn. 1975)). The reviewing court must indulge a strong presumption that the conduct
of counsel falls within the range of reasonable professional assistance, see Strickland, 466
U.S. at 690, and may not second-guess the tactical and strategic choices made by trial counsel
unless those choices were uninformed because of inadequate preparation. See Hellard v.
State, 629 S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing

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a reasonable probability, i.e., a “probability sufficient to undermine confidence in the
outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694.

       Courts need not approach the Strickland test in a specific order or even “address both
components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S.
at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or
prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

        In its order denying the petition, the post-conviction court found, among other things:
that counsel was not deficient for allowing the jury to determine which witnesses were telling
the truth because “that is the function of the jury”; that the petitioner failed to show any basis
for the suppression of the indictment, witnesses, or evidence; and that the petitioner was
unable to show that he suffered any prejudice as the result of any failure on the part of
counsel to investigate the confidential informant’s background.

       The record fully supports the findings and conclusions of the post-conviction court.
As noted by the post-conviction court, credibility determinations are within the province of
the jury, and the petitioner can in no way show that his counsel provided ineffective
representation by “allowing” the jurors to fulfill that function. The petitioner also failed to
show that counsel was deficient in his preparation of the case or in the manner in which he
conducted the trial, or that the petitioner suffered any prejudice as the result of any alleged
deficiency in representation.

                                       CONCLUSION

       Based on our review, we conclude that the petitioner has failed to show either a
deficiency in counsel’s performance or resulting prejudice to his case. Accordingly, we
affirm the denial of the petition for post-conviction relief.


                                                     _________________________________
                                                     ALAN E. GLENN, JUDGE




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