        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs January 13, 2014

                  CARL J. WAGNER v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                      No. 2009-A-305    Steve R. Dozier, Judge




               No. M2014-01086-CCA-R3-PC - Filed February 20, 2015


A Davidson County jury convicted the Petitioner, Carl J. Wagner, of first degree felony
murder, second degree murder, and especially aggravated burglary. The trial court imposed
a life sentence. The Petitioner appealed, and this Court affirmed the judgment for the second
degree murder conviction and reversed the judgments for the first degree felony murder and
especially aggravated kidnaping convictions. State v. Carl J. Wagner, No. M2010-00992-
CCA-R3-CD, 2011 WL 2893098, at *1 (Tenn. Crim. App., at Nashville, July 20, 2011),
perm. app. granted (Tenn. Jan. 11, 2012). Our Supreme Court reinstated the judgments for
all three convictions. State v. Wagner, 382 S.W.3d 289, 291 (Tenn. 2012). The Petitioner
subsequently filed a petition for post-conviction relief, in which he alleged that he was
entitled to relief on multiple grounds, including that he had received the ineffective assistance
of counsel. The post-conviction court dismissed the petition after a hearing. After a
thorough review of the record and applicable law, we affirm the post-conviction court’s
judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL, P.J., and R OBERT L. H OLLOWAY, J R., J., joined.

Ryan C. Caldwell, Nashville, Tennessee, for the appellant, Carl J. Wagner.

Herbert H. Slatery, III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Victor S. Johnson, III, District Attorney General; Rachel M. Sobrero, Assistant District
Attorney General, for the appellee, State of Tennessee.



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                                       OPINION
                                        I. Facts
                                        A. Trial

      This case arises from the Petitioner shooting the victim in an apartment complex in
Nashville, Tennessee. Our Supreme Court summarized the facts of the case as follows:

              On August 27, 2008, [the Petitioner], shot nineteen-year-old Adriel
      Charles Powell in the laundry room of a Nashville apartment complex located
      at 1601 Herman Street. The State charged the [Petitioner] with premeditated
      first degree murder, first degree murder committed in the perpetration of, or
      attempt to perpetrate, robbery, and especially aggravated robbery. The
      prosecution’s theory at trial was that the shooting occurred during a drug deal
      as the [Petitioner] robbed the victim of a backpack containing narcotics.

             Officer William McKay of the Metropolitan Nashville Police
      Department (“Metro”) arrived at the scene of the shooting shortly after a 3:25
      p.m. report of “shots fired.” Four bystanders in an outdoor courtyard told
      Officer McKay of a “dead person in the laundry room.” Another bystander
      told Officer McKay of “a guy [inside the laundry room] with his brains out.”
      As he approached the laundry room, Officer McKay noticed a bullet hole in
      the shattered window next to the door. Because the door was closed and
      locked, Officer McKay did not enter the laundry room, but he saw the victim,
      whom he described as obviously dead, lying on the floor just inside the door.
      After securing the scene, Officer McKay called for homicide detectives and
      remained at the scene until other officers arrived.

              Metro Detective Michael Moss was on his way to the scene of the
      shooting when he was redirected to the emergency room of Vanderbilt
      Children’s Hospital to investigate a report of a person with gunshot wounds,
      later identified as the [Petitioner]. When he arrived, Detective Moss spoke
      briefly with Thalis Smith, who had driven the [Petitioner] to the hospital and
      assisted him into the emergency room. Detective Moss then interviewed the
      [Petitioner] who said that he had been standing in a grassy area of the
      apartment complex when he heard gunshots and fled. Realizing that he had
      been shot, the [Petitioner] ran to Mr. Smith, who helped him into a vehicle and
      drove him to the hospital. According to Detective Moss, the [Petitioner] said
      he knew Mr. Smith prior to the shooting and described Mr. Smith as “my boy,”
      but the [Petitioner] denied any involvement in or knowledge of the shooting.



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        Before he left the hospital, Detective Moss collected several items from
the [Petitioner’s] belongings, including money totaling $51.25, a holster, Nike
tennis shoes, clothing, a lighter, and a bag of “green plant material,” which
scientific testing later identified as marijuana.

       Detective Moss also arranged for Mr. Smith to return to the scene of the
shooting, where Metro Detective James Capps, the lead detective on the case,
interviewed him. According to Detective Capps, Mr. Smith was “very
anxious” during the interview and repeatedly denied any knowledge of the
shooting. Mr. Smith said he “didn’t want to be there” and just happened to be
standing on the street smoking a cigarette when the [Petitioner] ran up and
asked for help. Seeing the [Petitioner] had been shot, Mr. Smith drove him to
the hospital. Mr. Smith said nothing about knowing the [Petitioner] prior to
the shooting.

        As detectives conducted interviews, Metro Sergeant Danny Orr and
Metro Crime Scene Investigator Felicia Evans collected evidence and prepared
detailed diagrams documenting the location of the evidence found in the
laundry room, the outdoor courtyard, and the parking lot of the apartment
complex. Investigator Evans swabbed thirteen distinct “reddish-brown stains”
at the scene, which DNA analysis later confirmed were bloodstains. The first
bloodstain, found on a vehicle in the parking lot, the second and third
bloodstains, found on the ground near the vehicle, a fourth bloodstain, found
on top of the shattered window glass in front of the laundry room door, and a
fifth bloodstain, found on the interior of the laundry room door, all matched
the [Petitioner’s] DNA. A sixth bloodstain, found on the interior laundry room
door frame, a seventh bloodstain, found on the interior wall of the laundry
room, and an eighth bloodstain, found on the circular metal plate surrounding
the interior laundry room door knob, all matched the victim’s DNA.

      Five other bloodstains, numbered nine through thirteen at trial, were
found on the railing next to the walkway outside the laundry room. The
bloodstains numbered nine through twelve at trial matched the [Petitioner’s]
DNA and were drop-pattern stains. The bloodstain numbered thirteen at trial
matched the victim’s DNA and was described as a transfer pattern stain,
meaning the blood had been transferred from fabric onto the railing.

      Investigators also recovered a pair of Nike flip flops outside the laundry
room - finding one sandal on the courtyard walkway and the other in the
parking lot near the vehicle where the [Petitioner’s] blood had been found.

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       Additionally, investigators found three nine-millimeter cartridge casings
in the courtyard - two on the walkway and one in the bushes in front of the
laundry room. Investigators also recovered a nine-millimeter magazine with
six unspent Winchester cartridges next to the walkway in the courtyard. A
copper bullet jacket fragment was found outside as well, near the shattered
glass of the shot-out window.

       Inside the laundry room, next to the victim’s body, investigators found
two Federal .45 caliber cartridge casings. A baseball cap located near the
victim’s body was marked by a bullet hole, and beneath the cap investigators
found an intact .45 caliber bullet and a lead fragment, likely from a bullet but
lacking exterior identifying characteristics. Investigators also recovered bullet
fragments from the wooden laundry room door frame.

        Special Agent Steve Scott of the Tennessee Bureau of Investigation
(“TBI”) examined the ballistics evidence and testified that the two .45 caliber
cartridge casings and the intact bullet found beneath the cap were fired from
the same .45 caliber weapon. Agent Scott determined that the bullet, bullet
jacket, and bullet fragment recovered from the victim’s body also had been
fired from the same .45 caliber weapon.

       Agent Scott testified that the three nine-millimeter cartridge casings
were fired from the same nine-millimeter weapon. With respect to the
nine-millimeter magazine found outside the laundry room, Agent Scott opined
that it was designed for use with a Smith and Wesson nine-millimeter
semi-automatic pistol of the Sigma series. Agent Scott further opined that the
copper bullet jacket fragment and the bullet fragments recovered from the
laundry room door frame had rifling consistent with that type of Smith and
Wesson handgun.

        Despite the lack of exterior identifying characteristics, Agent Scott
testified that the fragment found beneath the cap was a copper-washed lead
fragment “that is almost exclusively seen in twenty-two caliber ammunition.”
According to Agent Scott, the bullet that passed through the window next to
the laundry room door had been fired toward the courtyard from a gun inside
the laundry room, while the bullet recovered from the laundry room door frame
had been fired toward the laundry room from a gun in the courtyard.

       At approximately 7:25 p.m. on the day of the shooting, Mr. Smith, the
victim, and the [Petitioner] were tested for gunshot residue. TBI Special

                                       4
Agent Laura Hodge testified that Mr. Smith tested negative; the victim tested
positive; and the [Petitioner] tested inconclusive. Agent Hodge explained that
gunshot residue consists of antimony, barium, and lead, and that an
inconclusive test result indicates the presence of one or more of those
elements, but in concentrations not consistent with gunshot residue. Because
gunshot residue is “very fragile evidence,” deposited “just on the surface of an
individual’s hands” and can be easily rubbed off or washed away, an
inconclusive result does not rule out the possibility that the person tested fired
a gun. According to Agent Hodge, the likelihood of finding gunshot residue
is greater if the testing occurs soon after the firing, and she also explained that
semi-automatic handguns discharge gunshot residue down range, away from
the shooter, leaving less residue than other handguns.

        The day after the shooting, August 28, 2008, Detective Capps
interviewed the [Petitioner] at Vanderbilt Hospital, where he remained for
treatment of his injuries. The jury heard an audio recording of the interview,
and the State also introduced a transcript of the interview as an exhibit. The
[Petitioner] initially denied any involvement in the shooting, telling Detective
Capps that he lived in Clarksville and had been at the Herman Street
apartments visiting a female friend, “Rita,” and was shot while standing in the
courtyard outside the laundry room. However, as the interview progressed, the
[Petitioner] changed his story. While he initially claimed that he used the
holster found among his belongings to store coins and other items, the
[Petitioner] eventually admitted that he had carried a .45 caliber
semi-automatic handgun in the holster on the day of the shooting. The
[Petitioner] said he purchased the weapon some years earlier at “Grandpa’s,”
a gun shop in Clarksville. The [Petitioner] admitted that he frequently smoked
marijuana, explaining that he had “picked up the habit like bad” while serving
in the military. The [Petitioner] claimed that he had bought expensive,
premium-quality marijuana in Clarksville and had brought it with him to
Nashville on the day of the shooting, but he had been reluctant to share it with
Mr. Smith, who came with him to Nashville, or Rita. When he learned from
Rita that he could buy drugs at the laundry room, he went there with
approximately forty dollars, intending to buy less-expensive marijuana to share
with his friends.

       The [Petitioner] said he met the victim and a second man outside the
laundry room. According to the [Petitioner], the victim was carrying “a bag
on his back,” and the [Petitioner] believed the bag contained drugs. After
opening the locked laundry room door with a key, the victim entered, followed

                                        5
by the [Petitioner], who was followed by the second man. The victim walked
into a separate room near the back of the laundry room with the backpack,
while the [Petitioner] and the second man remained near the door - the only
means of entering and exiting the laundry room. The [Petitioner] sat on a
“ledge” to the right of the door, while the second man stood nearby. They had
waited only a few minutes when, according to the [Petitioner], the second man
suddenly began shooting at him and then ran out the door into the courtyard.
The second man continued shooting, and the [Petitioner] fired back, shooting
through the window next to the door at least once.

        When the shooting began, the [Petitioner] saw the victim run from the
room at the rear of the laundry room toward the door. As the victim
approached the door, the [Petitioner] shot him, but the victim continued toward
the door, so the [Petitioner] shot the victim a second time. The victim then fell
to the floor in front of the door, and the [Petitioner] fled the scene, losing his
Nike flip flops as he ran.

       Although the [Petitioner] could not recall seeing the victim with a gun
and said the victim did not threaten him, the [Petitioner] said he shot the victim
because he feared the victim would shoot him. The [Petitioner] saw the
second man run away from the courtyard, but the [Petitioner] did not know
whether the second man had been shot. The [Petitioner] repeatedly said the
victim had a backpack. The [Petitioner] was not asked directly whether he
took the victim’s backpack. When asked whether he and the victim had a
physical altercation that would explain the victim’s torn shirt, the [Petitioner]
denied touching the victim and said he fled the scene immediately after
shooting the victim, stating on one occasion that he fled the scene before the
victim fell to the floor. The [Petitioner] also denied purchasing or stealing
marijuana from the victim and explained that the marijuana found among his
belongings had been purchased in Clarksville before he came to Nashville.
The [Petitioner] said that he was “just trying to get some weed,” but the second
man “was trying to kill [him].” Although the [Petitioner] remembered Rita,
Mr. Smith, and another man driving him to the hospital and also recalled the
two men physically carrying him into the emergency room, he could not
remember where he dropped the gun used in the shooting. He suggested that
Mr. Smith could possibly locate the gun, however.

       Detective Capps testified that investigators were unable to locate
anyone other than the [Petitioner] willing to admit to firsthand knowledge of
the shooting. Rita refused to cooperate in the investigation, and the police

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       were unable to locate Mr. Smith, despite searching for him in the vicinity of
       both Clarksville, Tennessee, and Oak Grove, Kentucky.

              Still photographs obtained from video surveillance at Vanderbilt
       Children’s Hospital confirmed the [Petitioner’s] statement that Mr. Smith and
       another man, whom investigators were never able to identify, physically
       carried the [Petitioner] into the emergency room.

              Investigators recovered neither the gun the [Petitioner] used in the
       shooting nor the victim’s backpack containing drugs. However, investigators
       confirmed the [Petitioner’s] statement that the [Petitioner] was the registered
       owner of a .45 caliber semi-automatic handgun that he had purchased from
       “Grandpa’s” gun shop in Clarksville.

               Dr. Bruce Levy, Chief Medical Examiner for the State of Tennessee and
       Medical Examiner for Davidson County, performed the victim’s autopsy on
       August 28, 2008. Dr. Levy ruled the victim’s death a homicide caused by at
       least two gunshots. Dr. Levy opined that a single bullet likely entered the left
       side of the victim’s neck, exited on the right side, re-entered the victim’s
       shoulder, and exited the top part of his right arm. Dr. Levy opined that these
       wounds did not penetrate the victim’s spinal cord or impact any significant
       blood vessels. However, Dr. Levy said the other bullet that entered the left
       side of the victim’s head would have produced “immediate unconsciousness
       rapidly progressing to death . . . within a m[a]tter of . . . a few minutes at
       most.”

              ....

              Based on the evidence, the jury convicted the [Petitioner] of first degree
       murder committed in the perpetration of, or attempt to perpetrate, robbery
       (“felony murder”). The jury also convicted the [Petitioner] of especially
       aggravated robbery and second degree murder - a lesser-included offense of
       the charge of premeditated first degree murder. The trial court merged the
       second degree murder conviction with the felony murder conviction and
       imposed a life sentence by operation of law for the felony murder conviction
       and a twenty-two year concurrent sentence for the especially aggravated
       robbery conviction.

Wagner, 382 S.W.3d at 291-96 (footnotes omitted). On direct appeal, “the Court of Criminal
Appeals held the evidence insufficient to support the [Petitioner’s] conviction of especially

                                              7
aggravated robbery. Because it found the proof of especially aggravated robbery insufficient,
the Court of Criminal Appeals stated that the evidence was ‘ipso facto’ insufficient to
support the [Petitioner’s] conviction of felony murder.” Id. at 296 (citations omitted). Our
Supreme Court concluded that the evidence was sufficient to support the Petitioner’s
convictions of especially aggravated robbery and felony murder and reinstated the judgments
of the trial court. Id. at 300.

                                B. Post-Conviction Hearing

       The Petitioner filed a petition, pro se, for post-conviction relief. Post-conviction
counsel was appointed and he filed an amended petition on the Petitioner’s behalf. The
amended petition alleged that the Petitioner received the ineffective assistance of counsel
because trial counsel (“Counsel”) failed to “mount a credible defense.” The Petitioner
further alleged that Counsel failed to communicate with him, failed to call necessary expert
witnesses, and failed to properly represent him during sentencing. The post-conviction court
held an evidentiary hearing, where the parties presented the following evidence:

       The Petitioner testified that he was serving a life sentence. He stated that he retained
Counsel before his jury trial and that he and Counsel met three or four times to discuss the
Petitioner’s case. The Petitioner agreed that the State offered him a plea bargain that Counsel
conveyed to him by mail. The Petitioner rejected the offer. Counsel explained to the
Petitioner before his trial that the defense’s theory would be self-defense. The Petitioner
agreed with this defense theory. The Petitioner stated that Counsel did not call any witnesses
for him at trial. The Petitioner testified that the State’s expert witnesses should have been
called by Counsel to testify. Counsel did not hire any ballistics experts or other investigators
to rebut the State’s case.

       The Petitioner stated that the State’s theory was that he had taken a backpack full of
the victim’s things, amounting to a robbery and thus making him guilty of felony murder.
The Petitioner stated that there was no proof presented at trial that he had stolen the
backpack. The Petitioner testified that the evidence used to convict him also could have been
used to “help [him] out” but that the evidence was not presented to the jury in a light
favorable to the Petitioner.

       The Petitioner agreed that he had two bullet wounds as a result of the crime. He
agreed that the victim also had two bullet wounds, one of which was a .45 caliber bullet. The
Petitioner agreed that he had a .45 caliber gun, but stated that the victim’s bullet wound “had
to” have come from a third person. The Petitioner could not remember if Counsel brought
this out in front of the jury.



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        The Petitioner testified that Counsel presented several alternative theories about how
the victim died during closing argument. The Petitioner stated that the “version of events”
to his recollection was as follows:

               Basically I was in the laundry room sitting on the ledge to the right side
       of – it’s a ledge to the – there is a door coming in this way. There is a right –
       ledge to the right side. I was sitting on the ledge.

               The individual at the door pulled his gun out and shot me. The tracks
       of – the bullets inside my body can prove that I was shot sitting at that [ledge].
       I got shot again on my left shoulder. I really can’t remember exactly where I
       was at when I got shot. But everything occurred inside this laundry.

       The Petitioner testified that, to his knowledge, the “trajectory of the bullet” that went
into him was “consistent with somebody standing at the door and shooting [him].” The
Petitioner did not recall if Counsel presented this in front of the jury. The Petitioner did not
know if the victim’s backpack was ever recovered, or if there was ever marijuana in the
backpack. He agreed that a sandwich bag of marijuana was found on his person at the
hospital, but he stated that no fingerprint analysis was done on the sandwich bag to prove his
claim that the marijuana was his.

        The Petitioner testified that Counsel did not adequately communicate with him or go
over the case in sufficient detail. The Petitioner stated that Counsel should have presented
the facts and used the State’s evidence in his favor. He stated that the victim’s DNA was not
found on him, and Counsel did not “drive home” to the jury the fact that he could not be
placed anywhere close to the victim because the victim’s blood was not found on him.

       The Petitioner testified that the victim’s girlfriend had seen the third individual, and
she was subpoenaed as a witness. The Petitioner could not recall if she showed up for trial
or whether “she actually took the stand.” He also reiterated that the gunshot residue test
revealed that the victim had fired a weapon but did not show the same for the Petitioner. He
did not know if that was something the jury heard or considered.

        On cross-examination, the Petitioner stated that the State’s evidence that should have
been used in his favor was the gunshot residue test and the crime scene photographs. The
Petitioner agreed that there were no other witnesses to the incident other than himself and the
third individual. He stated that he decided not to testify based on Counsel’s guidance.

      Counsel testified that he was a licensed attorney for twenty-five years and that ninety
percent of his practice was dedicated to criminal defense work. He estimated that he had

                                               9
participated in almost 100 jury trials at the time of the Petitioner’s trial, including trials for
first degree murder. Counsel agreed that he represented the Petitioner at his preliminary
hearing and that he visited the Petitioner in jail five or six times. They discussed Counsel’s
“assessment of the evidence,” as well as possible defenses and whether the Petitioner wanted
to testify. Counsel stated that the Petitioner’s statement given at the hospital “implicated”
him in the crime when, about halfway through the Petitioner’s statement, the Petitioner said
words to the effect that if he was being shot at he was going to shoot back.

        Counsel recalled that the Petitioner “early on” decided not to testify but could not
recall his reasons. Counsel said that the Petitioner was “pretty consistent” throughout their
discussions that he did not want to testify. Counsel stated that the defense theory he
presented throughout the trial was self-defense and that “someone pulled a gun on [the
Petitioner] during a drug deal and they started shooting at him. And [the Petitioner’s]
response was to shoot back in self-defense.” This was communicated to the jury through
Counsel’s cross-examination of witnesses to the extent that Counsel could elicit favorable
testimony from the witnesses. Counsel did not cross-examine the witnesses he felt would not
provide favorable testimony. Counsel stated, “every question I would have asked [the State’s
witness] would have been intended to be in [the Petitioner’s] favor.”

        On cross-examination, Counsel agreed that he did not hire an investigator for this
case. Counsel viewed the crime scene and spoke to all the witnesses listed by the State.
Counsel agreed that he did not hire any independent experts to testify to the ballistics or DNA
evidence. He stated that the evidence “could have gone [the Petitioner’s] way or it could
have gone the State’s way. It went the State’s way.” He stated that the Petitioner had given
a statement to police that he acted in self-defense, and “the witnesses for the State didn’t
really impeach that.”

       Counsel could not recall the facts or the Petitioner’s statements about the victim’s
backpack. He agreed that the backpack was a pivotal fact at trial because, “without the fact
of the backpack, there is no felony murder[.]” Counsel stated that in closing arguments he
argued that if the Petitioner took the backpack, it was at most a misdemeanor theft.

       Counsel reiterated that he did not tell the Petitioner whether or not to testify, but he
advised the Petitioner that he “didn’t think he would make a good witness” because “his story
that he gave the police wasn’t good” and there were “nuggets” in it that the State would
exploit, including the Petitioner’s statement at the hospital. Counsel filed a motion to
suppress the Petitioner’s statement made at the hospital. Counsel stated that he later
withdrew the motion because he could not provide an argument that the Petitioner was “in
custody” when he gave the statement at the hospital. He stated that the Petitioner seemed to
understand that, because the interview at the hospital was not a “custodial interrogation,” his

                                               10
statement would not be suppressed. Counsel agreed that without the Petitioner’s statement,
the State would not have been able to link him to the crimes.

        On redirect-examination, Counsel stated that he felt it was more effective to cross-
examine the State’s witnesses and experts than call them to testify on the Petitioner’s behalf,
because studies show that “juries for some reason[] believe the State’s experts a little more
than they do defense experts.” Counsel believed that he could introduce the self-defense
theory through the State’s witnesses which would be more effective in persuading the jury
that the Petitioner acted in self-defense.

      Based upon this testimony, the post-conviction court denied post-conviction relief.
The Petitioner appeals this judgment.

                                         II. Analysis

        On appeal, the Petitioner contends that the post-conviction court erred when it failed
to find that Counsel was ineffective. The Petitioner contends that Counsel’s “failure to call
expert witnesses to rebut the State’s investigators or to present an alternative theory amounts
to ineffective assistance of counsel” and prejudiced the outcome of the Petitioner’s trial. The
State responds that the Petitioner has failed to prove that Counsel’s trial strategy constituted
ineffective assistance of counsel. The State contends that Counsel developed the theory of
self-defense through cross-examination of the State’s witnesses and argued several
alternatives to the State’s theory during closing arguments. The State further contends that
the Petitioner has neither provided any proof of his alternative theory nor did he call any
witnesses to testify at post-conviction proceedings. Thus, the State contends that the
Petitioner has failed to meet his burden and was properly denied relief. We agree with the
State.

        In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional right.
T.C.A. § 40-30-103 (2006). The petitioner bears the burden of proving factual allegations
in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-
110(f) (2006). Upon our review, the trial judge’s findings of fact are given the effect and
weight of a jury verdict, and this Court is “bound by the trial judge’s findings of fact unless
we conclude that the evidence contained in the record preponderates against the judgment
entered in the cause.” Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). Thus,
this Court will not re-weigh or re-evaluate the evidence below; all questions concerning the
credibility of witnesses, the weight and value to be given their testimony and the factual
issues raised by the evidence are to be resolved by the trial court judge, not the appellate
courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572,

                                              11
578-79 (Tenn. 1997). A post-conviction court’s conclusions of law, however, are subject to
a purely de novo review by this Court, with no presumption of correctness. Fields v. State,
40 S.W.3d 450, 457 (Tenn. 2001).

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9, of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d
453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following
two-prong test directs a court’s evaluation of a claim for ineffectiveness:

               First, the [petitioner] 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 [petitioner] by the
       Sixth Amendment. Second, the [petitioner] must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
       result is reliable. Unless a [petitioner] makes both showings, it cannot be said
       that the conviction or death sentence resulted from a breakdown in the
       adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419
(Tenn. 1989).

       In reviewing a claim of ineffective assistance of counsel, this Court must determine
whether the advice given or services rendered by the attorney are within the range of
competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail
on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s
representation fell below an objective standard of reasonableness.” House v. State, 44
S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

       When evaluating an ineffective assistance of counsel claim, the reviewing court
should judge the attorney’s performance within the context of the case as a whole, taking into
account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753
S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the
questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at 690;
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be
highly deferential and “should indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.

       Finally, we note that a defendant in a criminal case is not entitled to perfect

                                               12
representation, only constitutionally adequate representation. Denton v. State, 945 S.W.2d
793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of ineffective
assistance of counsel, ‘we address not what is prudent or appropriate, but only what is
constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United
States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have
been ineffective merely because a different procedure or strategy might have produced a
different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). “The
fact that a particular strategy or tactic failed or hurt the defense does not, standing alone,
establish unreasonable representation. However, deference to matters of strategy and tactical
choices applies only if the choices are informed ones based upon adequate preparation.”
House, 44 S.W.3d at 515 (quoting Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

       If the petitioner shows that counsel’s representation fell below a reasonable standard,
then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90
S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662,
665 (Tenn. 1994).

        In this case, the post-conviction court found that Counsel’s testimony about his
strategy for trial – to cross-examine the State’s witnesses rather than call them to testify on
behalf of the Petitioner – was credible and sufficiently tailored to establish the theory of self-
defense. The post-conviction court also noted that the Petitioner had not presented any proof
that the verdict would have been different if the State’s witnesses had testified on his behalf.
The court therefore held that the Petitioner had not demonstrated any prejudice. The post-
conviction court further found that Counsel adequately prepared for the Petitioner’s trial and
discussed with the Petitioner his trial strategy, the evidence against him, including the State’s
expert’s reports, as well as sentencing and the Petitioner’s decision not to testify. The post-
conviction court held that the Petitioner had not proven any of his allegations that Counsel
was ineffective.

       We conclude that the evidence presented at the hearing supports the post-conviction
court’s finding that the Petitioner did not prove by clear and convincing evidence that
Counsel’s representation was deficient. Counsel’s strategy, to cross-examine the State’s
witnesses to develop his theory of self-defense, rather than to call the witnesses on behalf of
the Petitioner, was an informed decision based on Counsel’s experience in criminal defense
work that juries tended to believe the State’s experts, rather than those called to testify on
behalf of the defense. Counsel has discretion in conducting the defense and is entitled to use
his best judgment in matters of trial strategy or tactics. See McBee v. State, 655 S.W.2d 191,

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193 (Tenn. Crim. App. 1983). We further conclude that Counsel sufficiently prepared for
trial through multiple meetings with the Petitioner and their discussions about Counsel’s
strategy and the theory of self-defense which Counsel argued in front of the jury. The
Petitioner has failed to show that Counsel’s services fell outside the range of competence
normally required of attorneys in criminal trials. See Baxter, 523 S.W.2d at 936. Having
failed to show the first prong of the Strickland standard, the Petitioner has not met his burden
of showing that he is entitled to post-conviction relief based upon Counsel's performance.
Id.

       Furthermore, we conclude that the Petitioner did not prove that he was prejudiced by
Counsel’s representation of him. The Petitioner did not present any evidence at the post-
conviction hearing to demonstrate that had Counsel called the State’s witnesses to testify on
his behalf, the outcome of his trial would have been different. The Petitioner also failed to
present any evidence linking a third individual to this crime or any evidence that the
Petitioner’s alternative theory is credible. Without such evidence, the Petitioner has failed
to meet his burden of proof. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App.
1990) (holding that “[w]hen 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.”) Accordingly, we hold that the evidence did
not preponderate against the post-conviction court’s conclusion that Counsel was not
ineffective. The Petitioner is not entitled to relief.

                                       III. Conclusion

       After a thorough review of the record and relevant authorities, we conclude that the
post-conviction court properly denied relief. Accordingly, we affirm the judgment of the
post-conviction court.




                                                    _________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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