            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT JACKSON

                            NOVEMBER 1996 SESSION



WILLIE CLAYBROOK,               *          C.C.A. # 02C01-9511-CC-00346
             Appellant,         *

VS.
                                *
                                *
                                *
                                           GIBSON COUNTY
                                                                FILED
                                           Hon. Dick Jerman, Jr., Judge
STATE OF TENNESSEE,             *
            Appellee.           *          (Post-Conviction Relief)
                                *
                                *
                                                                March 26, 2008



                                                               Cecil Crowson, Jr.
For Appellant:                             For Appellee:
                                                                 Appellate Court Clerk

Tom W. Crider                              Charles W. Burson
District Public Defender                   Attorney General & Reporter

Periann S. Houghton                        M. Allison Thompson
Assistant Public Defender                  Counsel for the State
107 South Court Square                     450 James Robertson Parkway
Trenton, TN 38282                          Nashville, TN 37243-0493

                                           Robert Radford
                                           District Attorney General Pro Tem
                                           P.O. Box 686
                                           Huntingdon, TN 38344


OPINION FILED:




AFFIRMED




GARY R. WADE, Judge
                                       OPINION

              The petitioner, Willie Claybrook, appeals the trial court's denial of post-

conviction relief. In this appeal of right, two issues are presented for our review: (1)

whether the petitioner was denied effective assistance of counsel; and (2) whether

the trial court's order denying relief met the minimum statutory requirements.



              We affirm the judgment of the trial court.



              The petitioner was convicted of second degree murder. This court

affirmed the conviction on direct appeal. State v. Willie Claybrook, No. 3 (Tenn.

Crim. App., at Jackson, Feb. 5, 1991). Thereafter, on June 7, 1993, the petitioner

filed a pro se petition for post-conviction relief. The trial court appointed counsel for

the petitioner and conducted an evidentiary hearing. At the conclusion of the

proceedings, the trial court ruled that the petitioner received the effective assistance

of counsel.



                                            I

              The petitioner claims that his counsel was ineffective by failing to allow

him to testify at his trial and by failing to call James King as a defense witness.



              There is well-established case law governing this issue. In order to be

granted relief on the grounds of ineffective assistance of counsel, the petitioner must

establish that the advice given or the services rendered were not within the range of

competence demanded of attorneys in criminal cases and that, but for his counsel's

deficient performance, the result of his trial would have been different. Strickland v.

Washington, 466 U.S. 668, 693 (1984); Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975).


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              The burden, of course, is on the post-conviction petitioner to show that

the evidence preponderates against the findings made at the conclusion of the

hearing by the trial judge. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App.

1978). Otherwise, findings of fact made by the trial court are binding on this court.

Graves v. State, 512 S.W.2d 603, 604 (Tenn. Crim. App. 1973).



              In Strickland, the United States Supreme Court established the

following standards:

              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. Unless a defendant
              makes both showings, it cannot be said that the
              conviction or ... sentence resulted from a breakdown in
              the adversary process that renders the result unreliable.

Strickland, 466 U.S. at 687.



              The petitioner admitted during his testimony at the evidentiary hearing

that he met with his counsel "frequently." He acknowledged that each of his two

attorneys discussed the nature of the charges he faced and his right to remain

silent. The petitioner charged, however, that his counsel ignored his requests to

testify on his own behalf. One of his attorneys testified at the evidentiary hearing;

he recalled that he had explained to the petitioner that it would be in his best interest

not to testify for three reasons: the petitioner had already given authorities his

version of the events and that statement was entered into evidence; the petitioner,

who had testified in two pretrial suppression hearings, did not make an effective

witness; and the petitioner had a prior homicide conviction that, if the petitioner



                                           3
testified, might be admitted into evidence. He claimed that at the conclusion of the

state's case-in-chief, the petitioner agreed with his counsel's recommendations.



              Obviously, the trial court accredited the testimony of the trial counsel

over that of the petitioner. Moreover, the petitioner has not shown that the evidence

preponderates against the trial court's finding that trial counsel's performance was at

or above the level guaranteed by the Sixth Amendment. Thus, we find no merit to

his claim that his trial attorneys were ineffective by denying him his right to testify.



              The petitioner also claims that counsel was deficient by not calling

James King to testify for the defense. Upon questioning, however, the petitioner

could not specify what information King had to offer. Again, the petitioner has failed

to meet his burden of proof. Certainly, no prejudice has been shown by his

counsel's failure to call this witness.



              Next, the petitioner contends that the trial court erred by not including

specific findings of fact and conclusions of law in the order denying post-conviction

relief:

              Upon the final disposition of every petition, the court shall
              enter a final order ... and shall state the findings of fact
              and conclusions of law with regard to each such ground.

Tenn. Code Ann. § 40-30-118(b). While brief, the trial court's order does not require

a reversal or remand of this case for further findings. See State v. Swanson, 680

S.W.2d 487,489 (Tenn. Crim. App. 1984). During the evidentiary hearing, counsel

for the petitioner acknowledged that there are only two grounds for post-conviction

relief. The transcript of the hearing establishes that the trial court clearly recalled

the trial and the performance of the petitioner's counsel. In the order denying relief,

the trial court affirmatively found that the petitioner "received effective counseling


                                             4
throughout his trial and proceedings relating thereto." We are satisfied that the

contents of the order were adequate.



             Accordingly, the judgment of the trial court is affirmed.




                                  Gary R. Wade, Judge

CONCUR:




David G. Hayes, Judge




William M. Barker, Judge




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