                                                                                          05/09/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs May 2, 2017

                 WAYNE SELLERS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                   No. 13-00442       J. Robert Carter, Jr., Judge
                      ___________________________________

                           No. W2016-01776-CCA-R3-PC
                       ___________________________________


Wayne Sellers (“the Petitioner”) appeals the denial of post-conviction relief from his
2013 Shelby County Criminal Court conviction for aggravated rape, for which he
received a sentence of twenty-three years’ incarceration. In this appeal, the Petitioner
contends that he was denied the effective assistance of counsel based on trial counsel’s
failure to explain the defense strategy to the Petitioner and object to the victim’s in-court
identification of the Petitioner. Discerning no error, we affirm the denial of post-
conviction relief.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and J. ROSS DYER, JJ., joined.

Andrew S. Deshazo, Memphis, Tennessee, for the appellant, Wayne Sellers.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Carrie Shelton Bush,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                          Factual and Procedural Background

                                           Trial

       On direct appeal, this court summarized the proof at trial as follows:
[The Petitioner] was indicted for the aggravated rape of S.M., a 64-year-old
woman. The victim was living in Memphis in December of 2011. The
morning of the incident, S.M. set out on foot from her apartment in East
Camilla Towers with her “red cart” and her “bags” to pay her bill at a
storage facility. She was notified that her account was in arrears and she
needed to pay $267 or the facility would sell her belongings. S.M. used the
red cart like a walker to help her mobility. She intended to purchase a
money order at the Kroger on Frayser Boulevard before returning to the
storage facility. On the way to the bus stop, she got a chicken sandwich, a
diet soda, and two orders of french fries at Checkers. S.M. then tried to
figure out how to “catch a trolley or how to catch the bus.” She saw a
police officer directing traffic for a “relay race” and asked how to get to the
Kroger. She ended up going the “wrong way.”

As she walked, she met a man who introduced himself as “Tyrone Jenkins.”
He started to follow her and asked her where she was going. He offered to
“show” her how to get to the bus. S.M. explained, “[l]ike a stupid fool I
followed him like a dummy because I didn’t want to go. I was scared and I
was frightened so I pushed myself to go so I could get that money order
sent out before it got too late.” S.M. followed “Tyrone” under a bridge and
into a field. At that point, she was “scared” and wanted to “take off” but
her foot and left hip “froze.”

At that point, “Tyrone” took her cart and “threw it against the weeds.”
S.M. explained that he “drug [her] clothes off . . . and then put his arm
around [her] neck . . . and then he threw [her] down on the ground” on her
back. “Tyrone” pulled her clothes and shoes off and got on top of her.
S.M. tried to push him away but was unsuccessful. “Tyrone” told her to
“relax” and not to say anything while he forced his penis into her vagina.
This lasted “for a long time” before “Tyrone” climaxed. S.M. stated that it
“hurt.” When the incident was over, “Tyrone” left and S.M. screamed.
“Tyrone” then came back, and helped S.M. put her shoes back on her feet
before running away. As he ran away, he told S.M. where to catch the bus.
S.M. managed to walk to a nearby tobacco plant and asked someone to call
an ambulance.

Officer Wayne Ackerman of the Memphis Police Department arrived on
the scene to find the S.M., whom he described as a “very emotional”
woman “in her seventies or eighties maybe, . . . short, soiled clothing,
didn’t smell very nice, dirty.” S.M. reported that she was forced to walk
into the woods before she was raped. Officer Ackerman accompanied S.M.
                                     -2-
to the hospital while he sent another officer out to locate the scene of the
rape.

While at the hospital, Officer Ackerman sat with S.M. for “probably two,
three hours.” During that time, no doctors examined S.M. Lieutenant
Stephen Oliver came to the hospital to assist in the investigation; Officer
Ackerman talked with him briefly. Shortly thereafter, a nurse gave Officer
Ackerman the victim’s chart and told him that S.M. was ready to be
discharged. The officers planned to take S.M. from the hospital to the Rape
Crisis Center for a rape kit exam. S.M. asked if she could use the restroom.
When she stood up, Officer Ackerman noticed a “large puddle of blood that
had pooled while she was laying down.” The “bed was full of blood,” and
Officer Ackerman and Lieutenant Oliver “helped [S.M.] have a seat back
on the bed and called for nurses and doctors.” S.M. was finally examined
and received “minor surgery” to place eight stitches in her vaginal area.

While at the hospital, S.M. spoke with Lieutenant Stephen Oliver. She was
able to give a physical description and first name of her attacker, “Tyrone.”

Once S.M. was released from the hospital, the officers transported her to
the Rape Crisis Center of Memphis. Tammy Keough from the Rape Crisis
Center of Memphis testified for the State as an expert in sexual assault
nurse examination. She examined S.M. on December 3, 2011. S.M.
complained of pain around her neck as a result of the incident. As part of
the examination Ms. Keough took photographs of S.M.’s neck with a
forensic light to check for bruising under the skin. S.M. had bruises
consistent with someone applying pressure to her neck and collarbone area.
The bruises were not visible to the naked eye but could be seen with the
forensic light and were visible in the photographs taken with a special filter.
The victim also had scratches on the back of her arms and legs but reported
that she did not receive them from the incident and refused to allow Ms.
Keough to photograph these injuries. The victim denied having consensual
sex in the previous four days. The victim was not able to “tolerate” an
examination of the vagina with a speculum. Ms. Keough described the
visual examination of the victim’s vagina as follows:

       [T]here was dried blood over the entire area and then these
       were basically stitches, sutures or stitches, that I was able to
       see . . . . [L]eading from the outside of her vagina towards
       the anus was where the stitches were between her vagina and
       the anus . . . .
                                     -3-
The first stitch was at the beginning of the fossa navicularis, a boat-shaped
depression between the vagina/hymen and the frenulum, and extended
through the posterior fourchette, the muscular area between the vagina and
the anal area. Ms. Keough was not able to ascertain how many, if any,
stitches were on the inside of the vagina because “there was a lot of blood
and [the examination] was very painful [to the victim].” Ms. Keough took
photographs of the victim’s vagina as part of the examination. Two
photographs were admitted into evidence. One photograph depicted the
victim’s vagina prior to examination. The second photograph depicted the
victim’s vagina with the labia opened. Ms. Keough opined that the victim’s
injuries were “consistent with a blunt penetrating injury.” During the
examination, Ms. Keough collected DNA samples from the victim’s cheek,
her vulva, and her vagina.

As a result of the information that S.M. supplied to officers on the day of
the incident, Wayne Tyrone Sellers, [the Petitioner], was identified as a
suspect. Lieutenant Oliver attempted to locate S.M. in order to present her
with a photographic lineup of potential suspects. He eventually located her
at the hospital, where she had been readmitted for five days as a result of
losing two pints of blood from her injuries.

When shown the photographic lineup two days after the incident, S.M. was
unable to identify [the Petitioner]. She explained that her “memory . . .
went kind of fast and [she] couldn’t remember too well.” She admitted that
she saw [the Petitioner] “face to face” but “just blocked [it] out of my
mind.” Several days later she recognized [the Petitioner] when “[the
Petitioner] came back into that building [where she lived]” and the victim
saw him. She immediately called the police. S.M. admitted that [the
Petitioner] was the only person in the courtroom, beside the attorneys and
the police officers, when she identified him at trial.

[The Petitioner] was brought in for questioning. He was “cooperative” and
agreed to provide a DNA sample. He denied all of the allegations.

Tennessee Bureau of Investigation Special Agent Lawrence James testified
as an expert in the area of DNA analysis and serology. Having tested the
samples from the victim and [the Petitioner], Special Agent James opined
that “the profile indicated there was more than one person’s DNA present
in that profile and the profile that I got was consistent with the mixture
from [the victim] and [the Petitioner].” Special Agent James explained that
                                    -4-
       the probability that an unrelated individual would be included as a
       contributor to this DNA mixture was approximately one in 17.3 million
       based on the number of individuals from the African-American population.
       He explained that any time there was a “mixture” of DNA in a sample, the
       probability is increased but that, in his opinion, the DNA of [the Petitioner]
       was present in the sample.

       [The Petitioner] presented no proof. After deliberating, the jury found [the
       Petitioner] guilty of aggravated rape as charged in the indictment.

State v. Wayne Sellers, No. W2013-02771-CCA-R3-CD, 2014 WL 6491070, at *1-3
(Tenn. Crim. App. Nov. 20, 2014), perm. app. denied (Tenn. Apr. 14, 2015) (footnotes
omitted). This court affirmed the Petitioner’s judgment of conviction, and the Tennessee
Supreme Court denied further review. Id.

                                Post-Conviction Proceedings

       Thereafter, the Petitioner filed a timely pro se petition for post-conviction relief.
Following the appointment of counsel, the Petitioner filed an amended post-conviction
petition.

       At an evidentiary hearing, the Petitioner testified that he and trial counsel
discussed “[t]o a certain degree” what evidence the defense would present at trial. The
Petitioner testified that the defense was to be based on “what was strong in [his] case,”
including a lack of identification, errors in the police reports, and issues relating to the
DNA evidence. The Petitioner acknowledged that the jury heard that the victim could
not pick him out of a photographic lineup. However, he also acknowledged that there
was proof that he was a contributor of the DNA found on the victim’s vaginal swabs.

        The Petitioner recalled that he did not testify at trial and that trial counsel called no
witnesses on his behalf. The Petitioner explained that his decision not to testify was
influenced by trial counsel’s advice that it was not in the Petitioner’s “best interest” to
testify. However, the Petitioner stated that he now believed he should have testified and
“made some type of . . . plea of self-defense.” According to the Petitioner, if he had
taken the stand at trial he would have testified about his character and how he had no
record of violence.

        The Petitioner recalled that the State made two plea offers—the first offer was for
fifteen years and the second was for eight years—but stated that he rejected both offers
based on a “lack of . . . understanding[.]” The Petitioner stated that the victim never
identified him prior to trial, and her in-court identification was improper. The Petitioner
                                              -5-
explained that, when the victim made the identification at trial, he was seated by trial
counsel wearing a jumpsuit from the jail, and there were no other inmates in the
courtroom. The Petitioner testified that trial counsel failed to object to the identification
as being unconstitutionally suggestive.

       On cross-examination, the Petitioner acknowledged that he did not have an expert
that could dispute the DNA testimony at trial. The Petitioner acknowledged that he
stated in his original petition that there was a “possibility” that a family member may
have committed the rape. The following exchange then took place:

       [THE STATE]: Is there somebody who did this that you know of?

       [THE PETITIONER]: Technically, no.

       The Petitioner stated that he had an uncle “Thomas,” who knew the victim, and the
Petitioner recalled that he made trial counsel aware of this fact. The Petitioner
acknowledged, however, that he did not provide trial counsel with his uncle’s “direct
name.” Moreover, the Petitioner told trial counsel that it “wasn’t going to help [his]
case.” The Petitioner acknowledged that he did not provide trial counsel with any names
of potential alibi witnesses.

       The Petitioner agreed that trial counsel discussed the Petitioner’s prior
convictions, and he acknowledged that he had two prior convictions for simple assault
and four domestic violence convictions. However, he stated that, had he testified, he
could have explained that most of the records of his convictions contained mistakes.

        Trial counsel testified that he was employed with the Shelby County District
Public Defender’s Office and that he had worked in that office for twenty-one years. For
the last seventeen or eighteen years, trial counsel had been assigned to criminal court,
handling “primarily serious felonies.” Trial counsel testified that he represented the
Petitioner on two cases in which the Petitioner was charged with aggravated rape. When
he was first appointed to represent the Petitioner, trial counsel requested a mental
evaluation; however, the Petitioner was found competent to stand trial, and the doctors
did not make any other findings of note. Trial counsel stated that the Petitioner was
“very difficult to work with” because there were times when the Petitioner would not talk
to trial counsel. Trial counsel explained that the Petitioner “would say things like it’ll
work out or God will work it out and just wouldn’t talk to [trial counsel].” Trial counsel
recalled asking the Petitioner for names of witnesses that could support the Petitioner’s
version of the facts. The Petitioner mentioned his uncle, but he did not provide trial
counsel with anything specific “as far as names, addresses, [or] phone numbers” of
witnesses to call on the Petitioner’s behalf. Trial counsel testified that his difficulties
                                            -6-
with the Petitioner included the Petitioner’s “stories not being consistent and changing
and just not really wanting to understand or . . . to address what he was facing.”

       Trial counsel conveyed two plea offers to the Petitioner, which would have
resolved both of the Petitioner’s cases. He discussed the offers with the Petitioner and
the option of proceeding to trial. Trial counsel also discussed with the Petitioner the
DNA evidence and that the “victim’s story was going to be very sympathetic to the jury.”
Accordingly, trial counsel encouraged the Petitioner to accept the offers. The Petitioner
rejected both offers, however, because he was adamant that he would not be convicted of
one of the offenses.1 Trial counsel recalled that, when the instant case was set for trial
and before the jury was sworn, he put the Petitioner on the stand and questioned him
about the State’s plea offer. On both occasions, the Petitioner indicated that he would not
accept the State’s offer and that he wanted to go to trial.

       Trial counsel recalled that the victim could not identify the Petitioner in a photo
array but that she identified him in court. Trial counsel agreed that the Petitioner was the
only person in court dressed in a jail jumpsuit at the time of the identification. However,
trial counsel believed that the DNA was the “more damning” evidence, and he had
discussions with the Petitioner about that aspect of the case. Trial counsel stated that he
had reviewed the chain of custody for the DNA evidence and had found no issue with it.

       Trial counsel stated that he conducted a Momon hearing with the Petitioner, in
which the Petitioner indicated that he did not wish to testify. Trial counsel recalled that,
before the Petitioner made the decision, he discussed with the Petitioner the advantages
and disadvantages of the Petitioner’s testifying.

       On cross-examination, trial counsel explained his failure to object to the victim’s
in-court identification of the Petitioner, as follows:

       I did not object to that. We argued that -- I probably argued that in closing.
       But, again, his case was the DNA, it wasn’t the identification of the victim.
       She admitted that she didn’t identify him and couldn’t identify him. But,
       yes, obviously when you’re the only one sitting in court in your jail clothes,
       yes, I mean . . . it’s pretty obvious that you’re the only one that’s going to
       be picked out. I did, however, offer to give him some clothes and he didn’t
       want to wear clothes, he wanted to wear his jail clothes. I have a note
       actually of that in my file. Well if that would have helped or not I don’t
       know. But I did not object to her picking him up -- picking him out, no.

       1
           Trial counsel testified that the State ultimately dismissed one of the Petitioner’s aggravated rape
charges.
                                                     -7-
       Following the hearing, the post-conviction court denied relief in a written order.
The post-conviction court found that the Petitioner expressed “general dissatisfaction
with counsel’s performance based upon an unfavorable result. He offers no evidence of
any deficiencies in the preparation for or execution of the trial strategy.” The court found
that the Petitioner “offer[ed] no proof of anything that could have been done differently.
Specifically, his testimony about self-defense and cryptic references to an uncle do not
amount to any suggestion that his trial counsel’s performance was deficient in any way.”
This timely appeal follows.

                                          Analysis

                                    Standard of Review

        In order to prevail on a petition for post-conviction relief, a petitioner must prove
all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828,
830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and
fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). As such, we review a trial
court’s findings of fact under a de novo standard with a presumption that those findings
are correct unless otherwise proven by a preponderance of the evidence. Id. (citing Tenn.
R. App. P. 13(d); Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). The trial court’s
conclusions of law and application of the law to factual findings are reviewed de novo
with no presumption of correctness. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn.
2015).

       When reviewing the trial court’s findings of fact, this court does not reweigh the
evidence or “substitute [its] own inferences for those drawn by the trial court.” Fields, 40
S.W.3d at 456. Additionally, “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 [post-conviction court].” Id. (citing Henley, 960 S.W.2d at
579); see also Kendrick, 454 S.W.3d at 457.

                             Ineffective Assistance of Counsel

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee
                                            -8-
cases). Both factors must be proven in order for the court to grant post-conviction relief.
Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,
370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is
no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)
(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of
counsel’s performance “requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

        As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.

        Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, 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. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).

                          Failure to Explain the Defense Strategy

       On appeal, the Petitioner asserts that he was denied the effective assistance of
counsel because trial counsel did not inform the Petitioner that trial counsel would not
present any proof at trial. The Petitioner contends that had he known that trial counsel
would put on no proof, he would have “taken the stand to defend himself and offer some
context for the testimony that the jury heard during the State’s case[,]” which would have
materially affected the outcome of the case. He asserts that trial counsel’s failure to
communicate with him regarding the defense strategy “ultimately resulted in [the
Petitioner] making what he now deems an ill-advised decision not to testify.” The
Petitioner also contends that trial counsel’s failure to communicate with him about the
lack of defense proof caused him to refuse a favorable plea offer from the State. The
                                            -9-
Petitioner contends that, had he known that trial counsel would put on no evidence, he
would have taken the plea offer of eight years. The State responds that the Petitioner’s
claims are not supported by the facts and that the Petitioner knew that trial counsel did
not have any proof to present at trial. We agree with the State.

       At the post-conviction hearing, trial counsel testified that he discussed the case
with the Petitioner, including the DNA evidence and the sympathetic victim. Trial
counsel testified that he asked the Petitioner for names of witnesses that could support the
Petitioner’s version of the facts. Although the Petitioner mentioned his uncle, he did not
provide trial counsel with anything specific “as far as names, addresses, [or] phone
numbers” of witnesses to call on the Petitioner’s behalf. The Petitioner acknowledged
that he did not provide trial counsel with any names of potential alibi witnesses, and he
did not give trial counsel his uncle’s complete name. There is nothing in the record to
suggest that the Petitioner had any reason to believe that trial counsel had come up with
any evidence to present at trial.

        Moreover, a review of the trial transcript shows that the Petitioner acknowledged
that he knew trial counsel would not present any evidence if the Petitioner decided not to
testify. During the Petitioner’s Momon hearing, the following exchange took place:

       [TRIAL COUNSEL]: . . . [Y]ou do not wish to testify in your behalf. Is
       that correct?

       [THE PETITIONER]: Yes, sir. That’s it. That is correct.

       [TRIAL COUNSEL]: The good, the bad, the ugly of whatever may come
       you’re – you’re okay sitting here. We don’t have any other witnesses. Is
       that correct?

       [THE PETITIONER]: Yes, sir. Yes, sir.

       [TRIAL COUNSEL]: No alibi witnesses, nothing of that nature so this
       would effectively - we would rest as well today. Do you understand that?

       [THE PETITIONER]: Yes, sir.

       [TRIAL COUNSEL]: And that’s what you wish to do?

       [THE PETITIONER]: Yes, sir.



                                           - 10 -
       Because the record clearly shows that the Petitioner knew that trial counsel had no
proof to present, the Petitioner has failed to establish deficient performance.
Furthermore, the Petitioner has failed to establish that the result of the trial would have
been different had the Petitioner testified. We agree with the post-conviction court, the
Petitioner’s proposed trial testimony “about self-defense and cryptic references to an
uncle” are insufficient to establish prejudice under Strickland. There is also no proof that
the Petitioner would have accepted the State’s plea offer but for trial counsel’s alleged
deficiency. Trial counsel testified that the State’s plea offers were to resolve both of the
Petitioner’s aggravated rape charges. Despite trial counsel’s advice that the Petitioner
should accept the offers, the Petitioner rejected the offers because he was adamant that he
would not be convicted of one of the offenses.

        There is no factual basis to support the Petitioner’s claims that he did not know
that trial counsel would not put on proof at trial and that this supposed lack of knowledge
caused him to reject a favorable plea offer and forego his right to testify. The Petitioner
has failed to establish deficient performance on the part of trial counsel or any resulting
prejudice, and he is not entitled to relief on this claim.

         Failure to Object to the Victim’s In-Court Identification of the Petitioner

      The trial transcript reflects that the victim’s in-court identification of the Petitioner
occurred as follows:

       [THE STATE]: Did Sergeant Oliver show you a line-up? Did he show you
       pictures of people?

       [THE VICTIM]: Yeah.

       [THE STATE]: Could you pick anybody out in that photo?

       [THE VICTIM]: I couldn’t because my memory had went blank and I
       couldn’t hardly -- that was so weird and funny because I seen [sic] him
       plain face up you know and I looked at him. You know it just didn’t look
       like him. He was little bit lighter complected in the face.

       ....

       [THE STATE]: So you told -- you told Sergeant Oliver you couldn’t
       identify anybody. Right?

       [THE VICTIM]: Yeah. I couldn’t do it at first.
                                            - 11 -
      [THE STATE]: Do you recognize [Petitioner] today in the courtroom?

      [THE VICTIM]: Yeah.

      [THE STATE]: You do? Where’s he sitting?

      [THE VICTIM]: Right there.

      [THE STATE]: Would you describe for us what he’s wearing, please?

      [THE VICTIM]: A green --

      ….

      [THE VICTIM]: A green shirt, a green jumpsuit. He’s right there.

      [THE STATE]: Your Honor, I’d ask the record to reflect that --

      [THE STATE]: . . . [C]an you tell the color of the shirt he’s wearing?
      You’re saying green?

      [THE VICTIM]: I was -- well, maybe it’s because of my cataract. I can’t
      hardly see good.

      THE COURT: If you see the person that you’re describing, could you just
      point him out for us?

      [THE VICTIM]: Yeah.

      THE COURT: Well, would you do that?

      . . . (Witness Complied)

      THE COURT: I’ll let the record reflect she’s pointing at the [Petitioner].

       The Petitioner contends that he was denied the effective assistance of counsel
based on trial counsel’s failure to object to the victim’s in-court identification as
unconstitutionally suggestive. He asserts that the victim had been unable to identify the
Petitioner previously and that the jury “no doubt” relied upon the in-court identification
to convict the Petitioner. The State responds that the Petitioner has not established that
                                          - 12 -
the victim’s in-court identification was impermissibly suggestive. We agree with the
State.

        At the post-conviction hearing, trial counsel testified that he did not object to the
victim’s in-court identification because she admitted that she could not identify the
Petitioner when shown a photographic lineup containing the Petitioner’s photograph.
Moreover, trial counsel testified that the Petitioner was the only person in the courtroom
wearing a jail jumpsuit because the Petitioner refused to change into the clothing that trial
counsel brought for the Petitioner to wear; the Petitioner “wanted to wear his jail
clothes.” Thus, if the courtroom identification was suggestive, it was the Petitioner’s
own fault. But cf. Estelle v. Williams, 425 U.S. 501, 504-05, 512 (1976) (concluding that
the State’s requirement that the defendant wear an orange prison jumpsuit during his trial
violated the defendant’s due process rights). In any event, even if trial counsel had
objected and the objection been sustained, the “more damning” evidence was the
evidence of the Petitioner’s DNA that was found on the victim’s vaginal swabs, and the
Petitioner has offered no proof to suggest that the DNA identification was faulty. He has
failed to establish either deficient performance or prejudice, and he is not entitled to relief
based on this claim.

                                         Conclusion

       For the aforementioned reasons, the judgment of the post-conviction court is
affirmed.


                                               ____________________________________
                                               ROBERT L. HOLLOWAY, JR., JUDGE




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