         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs September 14, 2004

               MICHAEL S. HOLMES v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Chester County
                          No. 4302     Roy B. Morgan, Jr., Judge



                  No. W2003-02712-CCA-R3-PC - Filed November 15, 2004


The petitioner, Michael S. Holmes, was convicted in 1997 of aggravated robbery, aggravated assault,
aggravated kidnapping, felony escape, burglary of a vehicle, and theft of property over $1000. His
convictions were affirmed on direct appeal. Subsequently, he filed a petition for post-conviction
relief alleging ineffective assistance of counsel and improper jury instructions on lesser-included
offenses. After a review of the affidavits submitted by the petitioner, the post-conviction court
denied the petition, and this appeal followed. We affirm the order of the post-conviction court
denying the petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and NORMA
MCGEE OGLE, J., joined.

Mike Mosier, Jackson, Tennessee, for the appellant, Michael S. Holmes.

Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General;
James G. Woodall, District Attorney General; and Al Earls, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                            OPINION

                                             FACTS

      In the direct appeal, this court set out the facts of the petitioner’s escape from the Chester
County Jail, which had resulted in his convictions:

                      Defendant, Michael S. Holmes, was a federal prisoner housed
               at the Chester County jail pursuant to a contract with the United
               States Marshal Service. He was convicted on federal drug charges in
               February of 1995 and was awaiting sentencing on those charges. At
               approximately 12:15 a.m. on January 4, 1996, he and another
               prisoner, Sherman Sanders, executed an escape plan.

                      The jailer, Shane Hesselrode, was lured into the hallway near
               defendant's cell to assist a maximum security prisoner who allegedly
               needed medical attention. Hesselrode opened the door to the entry
               hall and observed defendant and Sanders exit their cells. Sanders
               placed a home-made knife, described as a "shank," at the jailer's back
               and ordered him to enter the cell and drop his keys.

                       Simultaneously, defendant went to the dispatcher's office
               where Barbara Paulman was on duty. He rushed at her and threw her
               out of her chair onto the concrete floor. She struggled with defendant
               as he dragged her along the floor to the jail cell while jabbing at her
               with a "shank." By the time they reached the cell, her blouse and bra
               were completely torn, and the zipper was ripped out of her pants. The
               dispatcher suffered bruising, a large knot on her head, and a serious
               shoulder injury as a result of defendant's actions.

                       After locking Hesselrode and Paulman in the jail cell,
               defendant and Sanders made their way out of the jail area and out of
               the building. It was later discovered they took Paulman's keys from
               her purse and absconded with her car.

                      Defendant was convicted of aggravated robbery of
               Hesselrode's jail keys, aggravated assault and aggravated kidnapping
               of Paulman, felony escape, and theft of Paulman's vehicle.

                       Prior to the trial on these state charges, defendant pled guilty
               in federal court to the offense of escape arising from these incidents.

State v. Holmes, 995 S.W.2d 135, 138 (Tenn. Crim. App. 1998).

        The petitioner filed a pro se petition for post-conviction relief on April 10, 2000, and counsel
was appointed on May 8, 2000. A hearing was scheduled for July 31, 2000; however, because the
petitioner was incarcerated in the United States Bureau of Prisons, which refused to release the
petitioner for a hearing because, according to the continuance order, he had “previously escaped from
the Chester County Jail,” the post-conviction court ordered a continuance. On October 17, 2003, a
hearing was conducted in which the sole proof was an affidavit filed by the petitioner, still in federal
custody, and one filed by his trial counsel. The court denied the petition, and the petitioner filed a
timely appeal to this court.

       We will review the claims of the petitioner. He asserted, inter alia, in his petition:


                                                  -2-
                3. Petitioner states that this conviction is unconstitutional because
                the jury never received any instructions from the court that informed
                the jury that they had the discretion to charge the [petitioner] with the
                lesser included charges, pursuant to Tenn. Rules of Court, Rule 31.
                Therefore, the jury was denied the option to consider all the elements
                of the crimes charged due to the fact that the court never instructed
                the jury on any matters of the law in this case, which is a fundamental
                reversible error that must be corrected. See attached supporting
                Memorandum of Law.

                3. [sic] Petitioner states that T.C.A. 40-35-201 clealy [sic] informed
                the court about instructing the jury of all possible penalties for the
                offenses charged and their lesser included degrees, in which the court
                fail [sic] to carry out.

                4.     The court failed to instruct and the representing court appointed
                first year law student failed to file for instruction on this primary
                procedure of law, therefore a [sic] evidentiar[y] hearing is
                necessitated because of the included constitutional violations. See
                attached supporting Memorandum.

        The affidavit filed by the petitioner contained fifteen numbered paragraphs of claims for
relief. At the hearing on the petition, the post-conviction court found that claims 1, 2, 3, 4, 5, 6, 12,
13, 14, and 15 had been previously determined on direct appeal. The remaining assertions in the
affidavit were as follows:

                7. I received ineffective assistance of counsel in that my appellate
                counsel failed to raise the issue of the trial court’s denial of my
                motion for mistrial, said motion entered due to the prosecutor asked
                [sic] me, in front of the jury, if I was on probation when the offenses
                for which I was being tried with occurred, said occurrence being
                highly prejudicial to me, and rendered the outcome of my trial
                fundamental [sic] unfair and unreliable. See Lockhart v. Fretwell,
        .       506 U.S. 364, 369; Nix v. Whiteside, 475 U.S. 157, 175

                8.     I received ineffective assistance of counsel due to my trial
                counsel’s and/or appellate counsel’s failure to raise any one, or all, or
                [sic] the issues I have presented in these post conviction relief motion
                proceedings or said counsel’s failure to competently and
                professionally raise any one, or all, or the issues I have presented in
                these post conviction relief motion proceedings.




                                                  -3-
               9.    I received ineffective assistance of counsel in that my trial
               counsel failed to seek jury instructions on lesser included offenses; in
               that my my [sic] trial counsel waived standard preparation of jury
               instructions; and due to my counsel failed to object when the trial
               court failed to give jury instructions on lesser included offenses. The
               prejudice in this being that due to such failures the jury was denied
               the knowledge that the jury could find me guilty of a lesser included
               offense is what [sic] I was guilty of, which would have significantly
               shortened my sentence. (citations omitted).

               10. I received ineffective assistance of counsel in violation of my
               U.S. Constitutional 6th Amend. rights and 14th Amend. rights.

               11. My U.S. Constitutional Amend. 14 rights were violated by the
               trial court, by the prosecution, and by my attorney.

       In its written findings of fact and conclusions of law, the post-conviction court dealt with
the remaining claims, determining that the petition should be denied:

               1.   The Court finds that the issues raised by the petitioner have
               been previously raised and determined by the Court of Criminal
               Appeals.

               2.    As to the issue of the failure to give the proper jury instructions
               the Court finds that the appropriate instructions were given and that
               the Court did give appropriate instructions as certain lesser included
               offenses on each charge in the indictment. The jury rejected all lesser
               included offenses and convicted the [petitioner] as charged in the
               indictment.

               3.    The remaining issues deal with the sufficiency of evidence or
               appropriateness of the underlying convictions were dealt with on
               direct appeal and cannot be the basis of post conviction relief.
               The petition is therefore denied.

                                            ANALYSIS

        In order to determine the competence of counsel, Tennessee courts have applied standards
developed in federal case law. See State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997)
(noting that the same standard for determining ineffective assistance of counsel that is applied in
federal cases also applies in Tennessee). The United States Supreme Court articulated the standard
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which is
widely accepted as the appropriate standard for all claims of a convicted petitioner that counsel's


                                                 -4-
assistance was defective. The standard is firmly grounded in the belief that counsel plays a role that
is "critical to the ability of the adversarial system to produce just results." Id. at 685, 104 S. Ct. at
2063. The Strickland standard is a two-prong test:

                First, the defendant must show that counsel's performance was
                deficient. This requires showing that counsel made errors so serious
                that counsel was not functioning as the "counsel" guaranteed the
                defendant by the Sixth Amendment. Second, the defendant must
                show that the deficient performance prejudiced the defense. This
                requires showing that counsel's errors were so serious as to deprive
                the defendant of a fair trial, a trial whose result is reliable.

Id. at 687, 104 S. Ct. at 2064. The Strickland Court further explained the meaning of "deficient
performance" in the first prong of the test in the following way:

                In any case presenting an ineffectiveness claim, the performance
                inquiry must be whether counsel's assistance was reasonable
                considering all the circumstances. . . . No particular set of detailed
                rules for counsel's conduct can satisfactorily take account of the
                variety of circumstances faced by defense counsel or the range of
                legitimate decisions regarding how best to represent a criminal
                defendant.

Id. at 688-89, 104 S. Ct. at 2065. The petitioner must establish "that counsel's representation fell
below an objective standard of reasonableness under prevailing professional norms." House v. State,
44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

        As for the prejudice prong of the test, the Strickland Court stated: "The defendant 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." 466 U.S. at 694, 104 S. Ct. at 2068; see also Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994) (concluding that petitioner failed to establish that "there is a
reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been
different").

        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." Strickland, 466
U.S. at 697, 104 S. Ct. at 2069; 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").

       By statute in Tennessee, the petitioner at a post-conviction relief hearing has the burden of
proving the allegations of fact by clear and convincing evidence. See Tenn. Code Ann. §


                                                  -5-
40-30-210(f) (1997). A petition based on ineffective assistance of counsel is a single ground for
relief; therefore, all factual allegations must be presented in one claim. See Tenn. Code Ann. §
40-30-206(d) (1997).

        Although represented by counsel, the petitioner filed a pro se brief with this court, as well
as several exhibits. However, because he continues to be represented by counsel, we will limit our
analysis to the brief and argument filed by counsel. See State v. Burkhart, 541 S.W.2d 365, 371
(Tenn. 1976) (holding that a defendant who is represented by counsel may not simultaneously
proceed pro se).

        The petitioner’s claims on appeal may be summarized as follows: (1) trial counsel was
“ineffective for failing to raise the issue of double jeopardy involving his conviction for various and
multiple offenses”;1 and (2) the trial court erred by failing to instruct the jury on lesser-included
offenses and trial counsel was ineffective for failing to seek jury instructions on lesser-included
offenses.

       As to the double jeopardy claim, the post-conviction court correctly concluded that this court
determined on direct appeal that the petitioner’s multiple convictions did not constitute double
jeopardy:

                         Defendant asserts that the aggravated robbery, aggravated
                   assault, aggravated kidnapping, escape and theft should be viewed as
                   a single criminal episode with a single criminal intent: the intent to
                   escape. As such, the defendant argues the multiple convictions
                   violate the principle of double jeopardy.

                        State v. Denton, 938 S.W.2d 373 (Tenn. 1996), outlines the
                   proper test for evaluating a double jeopardy claim. To determine
                   whether multiple convictions are permitted we must: (1) conduct a
                   Blockburger analysis of the statutory offenses; (2) analyze the
                   evidence used to prove the offenses; (3) consider whether there were
                   multiple victims or discrete acts; and (4) compare the purposes of the
                   respective statutes. Denton, 938 S.W.2d at 381.




         1
          Post-conviction counsel’s specific argument on appeal is that the petitioner’s “rights to due process” were
“affected” by trial counsel’s failure to raise and litigate “these” issues, presumably referring to the petitioner’s multiple
convictions. However, any argument based on State v. Anthony, 817 S.W .2d 299 (Tenn. 1991), for the claim that the
petitioner’s due process rights were violated because a person cannot be convicted of kidnapping and escape, as
“kidnapping merged with the offense of escape,” was resolved against the petitioner in State v. Dixon, 957 S.W .2d 532
(Tenn. 1997). See also State v. Billy J. Coffelt, No. M2002-01214-CCA-R3-CD, 2003 W L 22116628 (Tenn. Crim.
App. Sept. 11, 2003), perm. to appeal denied (Tenn. Feb. 2, 2004).



                                                            -6-
                     Under Blockburger v. United States, 284 U.S. 299, 52 S. Ct.
               180, 76 L. Ed. 306 (1932), one must determine whether each offense
               requires proof of an additional fact which the other does not. All five
               of the subject offenses require proof of additional facts not included
               in each of the other offenses.

                     The same evidence was not used to establish each offense.
               Hesselrode was the victim of the aggravated robbery and Paulman
               was the victim of the aggravated assault, aggravated kidnapping and
               theft. Distinct acts were committed in the course of each offense.

                     Finally, a comparison of the statutes' purposes shows that each
               offense protects a different interest. Theft is a property offense;
               escape, an offense against the administration of government.
               Aggravated robbery, aggravated assault, and aggravated kidnapping
               are all offenses against the person; however, they too have elements
               that distinguish them from one another. Further, they are in different
               parts of the criminal code which reflects a legislative intent that they
               be considered distinct offenses.

                      If this court were to accredit the defendant's argument, we
               would reach an untenable result. Effectively, Tennessee would be
               prohibited from prosecuting any criminal act, no matter how heinous,
               committed in the course of an inmate's escape other than the escape
               itself.

                    Defendant's multiple convictions do not violate double jeopardy
               under Denton. The multiple convictions are proper.

Holmes, 995 S.W.2d at 138-39. Accordingly, this matter has previously been resolved.

        The petitioner’s second claim is that the jury was not instructed as to any lesser-included
offenses. The record on appeal includes the portion of the transcript of the petitioner’s trial setting
out the jury instructions. On the aggravated assault charges, the court instructed the jury as to the
lesser offense of assault; on the aggravated robbery, the court instructed as to robbery, as well; and
on aggravated kidnapping, the court instructed as to the lesser offenses of kidnapping and false
imprisonment. The petitioner fails to acknowledge in either his post-conviction petition or affidavit
that the jury was instructed as to any lesser offenses. However, his claim is clearly wrong, as the
post-conviction court found, that the jury was not charged as to lesser-included offenses. Further,
even if all lesser offenses were not charged, the petitioner has failed to prove that he was prejudiced
as a result, because of the fact that he was convicted of the offenses charged in the indictment. Thus,
the record supports the post-conviction court’s determination that this claim is without merit. See
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.


                                                 -7-
          Additionally, we note that as to the lesser-included offenses, any allegation of error on the
part of the trial court has been waived for failure to raise it on direct appeal. “A ground for relief is
waived if the petitioner personally or through an attorney failed to present it for determination in any
proceeding before a court of competent jurisdiction in which the ground could have been presented
. . . .” Tenn. Code Ann. § 40-30-206(g) (1997). We have previously held that “[a]lmost any ground
for relief, except ineffective assistance of counsel, could be raised during trial, and failure to do so
will be deemed a waiver.” Blair v. State, 969 S.W.2d 423, 425 (Tenn. Crim. App. 1997). The
petitioner failed to explain in his petition or in the affidavit at the post-conviction hearing why this
issue was not raised at trial or on direct appeal. This is an elementary part of any petition for post-
conviction relief. See Tenn. Code Ann. § 40-30-204(e) (1997).

                                           CONCLUSION

       Following our review of the record, we affirm the order denying the petition for post-
conviction relief.

                                                        _____________________________________
                                                        ALAN E. GLENN, JUDGE




                                                  -8-
