         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                             Assigned on Briefs August 21, 2001

                 JEFFREY E. DUNLAP v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Knox County
                             No. 68159    Ray L. Jenkins, Judge


                                   No. E2001-00189-CCA-R3-PC
                                         October 16, 2001

The petitioner, Jeffrey E. Dunlap, appeals the trial court's denial of post-conviction relief. The single
issue presented for review is whether the petitioner was denied the effective assistance of counsel
at trial. The judgment is affirmed.

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

GARY R. WADE, P.J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN, JJ., joined.

Albert J. Newman, Jr., Knoxville, Tennessee, for the appellant, Jeffrey E. Dunlap.

Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Robert L. Jolley, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

        On May 16, 1993, Officer Kenneth Robertson was dispatched to the Mugford Pharmacy in
Knoxville. Upon his arrival, Officer Robertson observed the petitioner and one other man standing
inside the pharmacy holding boxes. A window was broken. The two men fled. Officer Robertson
pursued and eventually arrested the defendant. The other man got away. Some merchandise had
been placed in the boxes and some was found outside the building. Officer Robertson never lost
sight of the petitioner from the time he arrived at the pharmacy until the time the petitioner was
placed under arrest.

        Convicted of burglary, the petitioner was sentenced to 12 years as a career offender. This
court affirmed on direct appeal. State v. Jeffrey Eugene Dunlap, No. 03C01-9607-CR-00251 (Tenn.
Crim. App., at Knoxville, Aug. 21, 1997). Application for permission to appeal was denied April
13, 1998.
        On May 13, 1999, the petitioner placed the petition for post-conviction relief in the prison
mail system. The petition was marked for filing on May 18, 1999. The petitioner alleged at least
25 grounds for relief, including the claim that his trial counsel had been ineffective. After the
appointment of post-conviction counsel, the petitioner filed amendments, including the allegation
that his conviction was based in part upon the "untrue, false, and misleading testimony" of Ronnie
Ridenour, the victim of the crime, who, according to documents in the record, was subsequently
involved in a conspiracy to illegally distribute a controlled substance. The petitioner claimed that
Ridenour conducted a fencing operation at the pharmacy and that there was no robbery, only a
"voluntary and consensus exchange of drugs for money or goods."

         At the evidentiary hearing, the petitioner testified that his trial counsel met with him only four
or five times before the trial, for a total of no more than three hours all together. According to the
petitioner, the two talked approximately three more times by telephone. He complained that his trial
counsel never informed him that he would testify at his trial until he was actually called as a witness.
The petitioner claimed that his trial counsel failed to call at least five witnesses he had requested be
present. He also contended that his trial counsel failed to present any evidence on his behalf at the
sentencing hearing and argued that his trial counsel was ineffective for having failed to object to the
admission of a ring into evidence. The petitioner submitted that his trial counsel failed to properly
investigate the victim, who, the petitioner claimed, "was running illegal activities and . . . selling the
stuff (stolen goods he had acquired in return for drugs) through a flea market [o]n Alcoa Highway."

        Trial counsel testified that he had talked to his client many times in preparation for the trial.
He described the defense as "a drug deal gone bad." Trial counsel stated that only the victims, the
petitioner, and a co-defendant named McBee were at the pharmacy at the time of the offense. While
conceding that the petitioner provided several names of potential witnesses, trial counsel, who
claimed to have contacted each one of them by telephone or in person, concluded that "nothing that
they had to say served to benefit the defense." Trial counsel also testified that he was aware that each
of the Ridenours (husband and wife) who had testified at trial had extensive criminal records, which
"we brought . . . out at the trial." Trial counsel estimated that the amount of time he invested in the
defense of the case was 72.3 hours out of court and 25.1 hours in court. Trial counsel recalled that
Mr. McBee did not testify at the trial. Trial counsel further explained the theory of defense as
follows:

        Mr. McBee had purchased some bad cocaine from Mr. Ridenour, and . . . Mr. Dunlap
        and Mr. McBee went over to the Ridenours . . . [to] get it straightened out. And
        when they got there is when the problem occurred. There was all sorts of jewelry and
        claims of . . . a purchase by Mr. McBee of . . . cocaine from Mr. Ridenour which Mr.
        Ridenour denied, flatly.

        The trial court accredited the testimony of trial counsel and determined that the petitioner had
not clearly and convincingly proved his allegations of ineffective assistance of counsel. Rejecting
altogether the claims of the petitioner, the trial judge denied post-conviction relief.



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         In this appeal, the petitioner acknowledges that the proof presented at the evidentiary hearing
is almost in direct conflict. He asserts generally that the facts in the record establish ineffective
assistance of counsel. For the first time on appeal, the state argues that the petitioner failed to timely
file his petition for post-conviction relief, pointing out that our supreme court denied application for
permission to appeal on April 13, 1998, and that the petitioner placed the petition in the prison mail
system one year and 30 days later.

       This court will first address the procedural issue. In State v. Nix, 40 S.W.3d 459 (Tenn.
2001), our supreme court made the following observation:

        As the state points out, Tenn. Code Ann. § 40-30-202(a) declares that the one-year
        statutory period is an element of the right to file a post-conviction petition and that
        it is not an affirmative defense that must be asserted by the state. Therefore, it is
        incumbent upon the petitioner to include allegations of fact in the petition
        establishing either timely filing or tolling of the statutory period. See Tenn. Code
        Ann. § 40-30-204(e) ("the petitioner shall include allegations of fact supporting each
        claim for relief set forth in the petition . . ."). Failure to include sufficient factual
        allegations of either compliance with the statute or incompetence requiring tolling
        will result in a dismissal.

        Panels of our court have held that the statute of limitations begins to run on the date our
supreme court files its opinion. See, e.g., Monroe Brown v. State, No. 01C01-9112-CR-00367
(Tenn. Crim. App., at Nashville, Aug. 6, 1992). Neither the petitioner nor the state makes any
argument as to whether the issuance of the mandate, 30 days after the opinion, qualifies as "the final
action of the highest state appellate court to which an appeal is taken. . . ." The statute further
provides that "if no appeal is taken," the action should be filed "within one year of the date on which
the judgment becomes final. . . ." Because our court has determined that the final action of the
supreme court is on the date of filing of either their opinion or their denial of the application for
permission to appeal, those cases serve as precedent and would bar consideration of the substantive
issues. John Haws Burrell v. State, No. E1999-02762-CCA-R3-PC (Tenn. Crim. App., at Knoxville,
Jan. 8, 2001).

        Notwithstanding our determination that the statute of limitations precludes consideration of
the issue of effective assistance of counsel, it is our view that the petitioner would not have
succeeded on the merits of his claim.

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must first establish that the services rendered or the advice given were below "the range
of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). Second, he must show that the deficiencies "actually had an adverse effect on the
defense." Strickland v. Washington, 466 U.S. 668, 693 (1984). Should the petitioner fail to
establish either factor, he is not entitled to relief. Our supreme court described the standard of
review as follows:


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        Because a petitioner must establish both prongs of the test, a failure to prove either
        deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
        assistance claim. Indeed, a court need not address the components in any particular
        order or even address both if the defendant makes an insufficient showing of one
        component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). On claims of ineffective assistance of counsel,
the petitioner is not entitled to the benefit of hindsight, may not second-guess a reasonably based trial
strategy, and cannot criticize 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. 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).

        Under our statutory law, the petitioner bears the burden of proving his allegations by clear
and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On appeal, the findings of fact made
by the trial court are conclusive and will not be disturbed unless the evidence contained in the record
preponderates against them. Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The
burden is on the petitioner to show that the evidence preponderated against those findings. Clenny
v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).

       The record demonstrates that the trial court accredited the testimony of trial counsel,
concluding that his services were not deficient. The petitioner was unable to establish any prejudice,
whether or not his counsel's performance met professional guidelines. For example, he presented
no witnesses at the post-conviction proceeding that might have shown that the results of his trial
might have been different had they been able to give testimony.

        Accordingly, the judgment is affirmed.



                                                        ___________________________________
                                                        GARY R. WADE, PRESIDING JUDGE




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