        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 7, 2011

                 JASON M. JUSTICE v. STATE OF TENNESSEE

              Direct Appeal from the Circuit Court for Madison County
                       No. C-10-102     Roger A. Page, Judge


                  No. W2010-02646-CCA-R3-PC - Filed June 5, 2012


Petitioner, Jason M. Justice, appeals from the trial court’s denial of his petition for post-
conviction relief. Petitioner was convicted following a jury trial of first degree murder and
sentenced by the trial court to life imprisonment. This Court affirmed Petitioner’s conviction
on direct appeal. State v. Jason M. Justice, No. W2008-01009-CCA-R3-CD, 2009 WL
1741398 (Tenn. Crim. App. at Jackson, June 15, 2009), perm. app. denied (Tenn., Nov. 23,
2009). An appellate summary of the facts underlying Petitioner’s conviction can be found
at this Court’s opinion cited herein. In this appeal as of right, Petitioner asserts: 1) that he
received the ineffective assistance of counsel at trial; 2) that he received the ineffective
assistance of counsel at the post-conviction proceedings; and 3) the post-conviction court
erred by denying Petitioner’s requests to have his post-conviction counsel relieved and the
post-conviction hearing continued. After a careful review of the record, we find no error and
affirm the judgment of the post-conviction court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which A LAN E. G LENN and
J EFFREY S. B IVINS, JJ., joined.

Patrick Dollar, Jackson, Tennessee, for the appellant, Jason M. Justice.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zenter, Assistant Attorney
General; James G. Woodall, District Attorney General; and James W. Thompson, Assistant
District Attorney General, for the appellee, the State of Tennessee.

                                          OPINION

       On April 5, 2010, Petitioner filed a pro se petition for post-conviction relief and a
“Brief in Support of Petition for Post-Conviction Relief,” alleging that his trial counsel was
ineffective. On April 20, 2010, the post-conviction court entered an order appointing counsel
to represent Petitioner in the post-conviction proceedings. Prior to the post-conviction
hearing, counsel was allowed to withdraw from representing Petitioner due to a conflict, and
new counsel was appointed. On November 8, 2010, an evidentiary hearing was conducted,
and the following evidence was presented.

         Petitioner testified that he was convicted of first-degree murder. The district public
defender and an assistant public defender represented him at trial. He testified that the
testimony of Aisha Kyles, the mother of his children, should have been impeached at trial and
that she was “made to testify [against him by the State] to save herself from trouble.” He
testified that his attorneys “didn’t investigate nothing [sic], the witnesses or nothing,” and
that his attorneys “didn’t call none [sic] of [his] witnesses.” Petitioner testified that he gave
the names of potential witnesses Kelly Ellison and Linda Ellison to his attorneys and that
those witnesses could have provided him an alibi. On cross-examination, Petitioner was
asked what alibi those witnesses would have provided, and Petitioner responded, “We ain’t
in trial now. I plead the Fifth on that.” Petitioner then testified that Kelly and Linda Ellison
would have testified that he was “over there [at their house] a lot.” Petitioner testified that
his attorneys failed to properly investigate his case and that if they had properly investigated,
they “would have learned, just that – that [Petitioner] wasn’t in no car, you know, period, you
know.” On cross-examination, Petitioner was asked what his attorneys would have
discovered, had they properly investigated, that would have made a difference in his case,
and Petitioner answered, “Everything, you know what I mean?”

       The assistant public defender testified that Petitioner requested that he contact Aisha
Kyles. The attorney testified that Ms. Kyles “had given several statements to the police that
changed over time.” He spoke to Ms. Kyles by telephone, and “[s]he wasn’t very
forthcoming.” On cross-examination, counsel testified that he met with Ms. Kyles “at trial”
and that “[s]he might have made a general statement, nothing specific[,]” about having been
pressured by the State. Counsel testified that Petitioner had indicated to him that the Ellisons
might be alibi witnesses. He spoke to Monica Ellison, Linda Ellison, Petitioner’s aunt, and
Kelly Ellison, Petitioner’s cousin. Counsel testified that they told him that Petitioner “could
have been over there that day,” but they could not state a specific time. He testified that he
made an appointment for them to meet with him at his office, but they showed up three hours
late. He met with them in the lobby, and “they didn’t have anything concrete, anything
enough to file an alibi notice, much less get through cross-examination.”

Analysis

       On appeal, Petitioner contends that the post-conviction court erred when it dismissed
his petition because counsel was ineffective. State v. Burns, 6 S.W.3d 453, 461 (Tenn.

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1999). 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.
Tenn. Code Ann. § 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. Tenn.
Code Ann. § 40–30–110(f) (2006). Upon review, 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 judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578–79 (Tenn. 1997). A post-conviction
court’s factual findings are subject to a de novo review by this Court; however, we must
accord these factual findings a presumption of correctness, which is overcome only when a
preponderance of the evidence is contrary to the post-conviction court’s factual findings.
Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). A post-conviction court’s conclusions of
law are subject to a purely de novo review by this Court, with no presumption of correctness.
Id. at 457. The Tennessee Supreme Court has held that the issue of ineffective assistance of
counsel is a mixed question of law and fact and, as such, is subject to de novo review. Burns,
6 S.W.3d at 461.

        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); Burns, 6 S.W.3d at 461;
Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). This right to representation includes the
right to “reasonably effective” assistance. Burns, 6 S.W.3d at 461. The following two-prong
test directs a court’s evaluation of a claim for effectiveness:

        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.

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

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standard of reasonableness.” House v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing
Strickland v. Washington, 466 U.S. 688, 104 S. Ct. 2052 (1984)). 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 petitioners are not
entitled to perfect 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, ‘[w]e address not what is prudent or appropriate, but
only what is constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794, 107 S. Ct.
3114 (1987) (quoting United States v. Cronic, 466 U.S. 648, 665, n. 38, 104 S. Ct. 2039
(1984)).

        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). To satisfy the requirement of prejudice, a petitioner must
show a reasonable probability that, but for counsel’s unreasonable error, the fact finder
would have had reasonable doubt regarding the petitioner’s guilt. Strickland, 466 U.S. at 695.
This reasonable probability must be “sufficient to undermine confidence in the outcome.”
Id. at 694; see also Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994).

       On appeal, Petitioner claims that he was denied the constitutionally guaranteed
effective assistance of counsel because his trial counsel failed to: 1) discredit the testimony
of State’s witness Aisha Kyles and sufficiently pursue the theory that her testimony was self-
serving; and 2) call Kelly and Linda Ellison as alibi witnesses.

        Regarding Ms. Kyles’ testimony, the record shows that, on cross-examination by the
district public defender, Ms. Kyles acknowledged that she was “not completely honest” in
her statements to investigators. On redirect, she testified that she was “scared” and she loved
Petitioner, and her reluctance to tell investigators “the whole story” was motivated by her
relationship with Petitioner and her desire not to hurt him at trial. On recross, the district



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public defender questioned Ms. Kyles about whether she was “testifying here to keep
[her]self out of trouble,” to which Ms. Kyles answered that she was.

        Petitioner did not offer any testimony by Ms. Kyles at the post-conviction hearing, nor
did he present any evidence of what alleged offers by the State she received in exchange for
her testimony. We conclude that Petitioner has failed to show that the evidence
preponderates against the post-conviction court’s finding that trial counsel’s performance in
investigating and attacking Ms. Kyles’ credibility was not deficient. Furthermore, Petitioner
has not established that he was prejudiced the alleged deficiency. Other witnesses who were
present at Ms. Kyles’ residence on the date of the shooting also testified that Petitioner had
borrowed a vehicle matching the description of the vehicle driven by the shooter, and that
when he returned to the residence, he seemed nervous and agitated, and he had a firearm.
Petitioner has failed to show either a deficient performance or prejudice. Petitioner is not
entitled to relief on this issue.

        Regarding trial counsel’s alleged deficiency for failing to call Kelly and Linda Ellison
as alibi witnesses, the State responds that Petitioner did not raise the issue in his post-
conviction petition or brief in support of his petition, and therefore, Petitioner has waived the
issue. A post-conviction petition must contain a clear and specific statement of all grounds
upon which relief is sought, including full disclosure of the factual basis of those grounds.
Powell v. State, 8 S.W.3d 631, 632 (Tenn. Crim. App. 1998) (citing Tenn. Code Ann. § 40-
30-206(d)). Petitioner’s claim regarding the Ellisons was only first addressed in his
testimony at the post-conviction hearing. Regardless of any waiver issue, we conclude that
the issue is without merit.

        Petitioner did not call the Ellisons to testify as witnesses at the post-conviction
hearing. When 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. Black v. State, 974 S.W.2d 752, 757 (Tenn. Crim. App.
1990). Petitioner’s trial counsel testified that he interviewed the Ellisons, and “[t]he best
they could say is that he was over there often, he might have been over there that day, but
could not give [him] any specific time frame.” Counsel determined that they did not provide
him with enough information to pursue an alibi defense. We will not second-guess trial
counsel’s strategic decisions in weighing the value of a witness’ testimony against the
damage to a defendant’s case in calling witnesses who may not be credible. Petitioner has
failed to establish that counsel’s performance was deficient or that he was prejudiced by any
alleged deficiency. Petitioner is not entitled to relief on this issue.

       Next, Petitioner contends that 1) he received the ineffective assistance of counsel at
the post-conviction hearing; and 2) the trial court erred by refusing to grant Petitioner’s

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request for a continuance at the hearing. The order denying post-conviction relief states that
attorney Colin Morris was first appointed to represent Petitioner on April 20, 2010, and a
hearing was set for July 14, 2010. Mr. Morris requested a continuance, and the hearing was
reset for September 7, 2010. Attorney Morris was subsequently allowed to withdraw due to
a conflict. The court appointed new counsel, attorney Joseph Howell, to represent Petitioner,
and the hearing was reset for November 8, 2010. The record does not contain an amended
petition filed on behalf of Petitioner by either Mr. Morris or Mr. Howell. At the November
8th hearing, Mr. Howell explained to the court that he “met with [Petitioner] at the
Department of Corrections [sic] [and] in the course of that meeting explained to him the
process and post-conviction act.” Mr. Howell stated that he then drafted an amended petition
and sent it to Petitioner. Petitioner then filed a pro se “Motion to Supplement the Post-
Conviction Petition.” At the hearing, Mr. Howell advised the court, “I have talked to
[Petitioner] this morning. I think he would like to either proceed pro se or have another
attorney to represent him.” Mr. Howell also requested a continuance in order to file an
amended petition, which the court denied, noting that the post-conviction case had been
pending since April 5, 2010, and “the Defendant’s caused the delay here, nobody else.”

       In his brief, Petitioner asserts that after Petitioner “refused to sign the required
affidavit, Mr. Howell made no further effort to convince [Petitioner] that he [Mr. Howell]
was attempting to represent [Petitioner]’s best interests.” Petitioner stated to the court at the
November 8th hearing, “I’ve been down here five days and Mr. Howell ain’t [sic] come down
to see me, not night or day.” The court responded that Petitioner “had plenty of time this
morning [while waiting for the hearing to begin] to discuss anything [Petitioner] wanted to.”
During Petitioner’s testimony at the hearing, Mr. Howell asked Petitioner,

        Q       Okay. All right, [Petitioner]. Have I failed to ask you any question
                here today?

        A       You really failed to even prepare a defense. That’s how I feel –

        Q       I understand that.

        A       – you know.

        Q       But we’re here on your petition. This is your opportunity to address
                the Court.

        A       How can I when you ain’t went [sic] over nothing with me, you
                know? I feel like you ineffective assistant [sic] counsel, too.



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       It is well-established that a petitioner does not have a constitutional right to be
represented by counsel in a post-conviction case. See House v. State, 911 S.W.2d 705, 712
(Tenn. 1995); Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993 (1987). In
Tennessee, however, the legislature has afforded a statutory right to counsel in
post-conviction cases. See Tenn. Code Ann. § 40–30–207(b)(1) (2010). The appointment
of counsel assists in ensuring that a petitioner asserts all available grounds for relief and fully
and fairly litigates these grounds in a single post-conviction proceeding.

       The Tennessee Supreme Court has summarized the obligations and responsibilities
of a post-conviction attorney as follows:

         Appointed or retained counsel shall be required to review the pro se
         petition, file an amended petition asserting other claims which petitioner
         arguably has or a written notice that no amended petition will be filed,
         interview relevant witnesses, including petitioner and prior counsel, and
         diligently investigate and present all reasonable claims.

Tenn. Sup. Ct. R. 28, § 6(C)(2). Counsel is also to file a certification indicating that he or
she has thoroughly investigated the possible constitutional violations, has discussed the
possible constitutional violations with the petitioner, and has raised all non-frivolous
constitutional grounds warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law. Tenn. Sup. Ct. R. 28, § 6(C)(3), app. C.

        We reiterate that “there is no constitutional right to effective assistance of counsel in
post-conviction proceedings.” House, 911 S.W.2d at 712. We nevertheless conclude, under
the standards set forth above, that Mr. Howell fulfilled his duties as appointed post-
conviction counsel. Mr. Howell met with Petitioner to discuss his claims. Although it was
never filed, Mr. Howell prepared and sent Petitioner an amended petition for post-conviction
relief, which Petitioner acknowledges in his brief that he “refused to sign.” While Petitioner
was represented by Mr. Howell, he filed a pro se “Motion to Supplement the Post-Conviction
Petition,” in which he makes additional factual allegations in support of his assertion that his
trial counsel was ineffective. Petitioner cannot blame appointed counsel for his own lack of
cooperation. Petitioner was represented by Mr. Howell at an evidentiary hearing. Petitioner
is not entitled to relief on this issue.

       Finally, we address Petitioner’s assertion that the trial court erred in refusing to relieve
Mr. Howell as counsel and grant a continuance. It is well settled that the grant or denial of
a continuance rests within the sound discretion of the trial judge. Harris v. State, 947 S.W.2d
156, 173 (Tenn. Crim. App. 1996) (citing State v. Morgan, 825 S.W.2d 113, 117 (Tenn.
Crim. App. 1991)). When a litigant challenges the denial of a continuance, a judgment will

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be reversed only if (1) the denial was an abuse of discretion, and (2) the litigant was
prejudiced, to be proved by a showing that there is a reasonable probability that, had the
continuance been granted, the results of the proceeding would have been different. Morgan,
825 S.W.2d at 117 (citing State v. Dykes, 803 S.W.2d 250, 257 (Tenn. Crim. App. 1990),
overruled on other grounds; Baxter v. State, 503 S.W.2d 226, 230 (Tenn. Crim. App. 1973)).

        Due process requires that a post-conviction petitioner have the opportunity to be heard
at a meaningful time and in a meaningful manner. Stokes v. State, 146 S.W.3d 56, 61 (Tenn.
2004). The hearing in this case had been previously reset by the post-conviction court at
Petitioner’s request. Petitioner refused cooperation with his second court-appointed counsel,
and sought to have Mr. Howell relieved at the commencement of the hearing. Although we
do not believe this to be such a case, we have held that the post-conviction remedy may be
denied to a petitioner who abuses the post-conviction process. See Cazes v. State, 980
S.W.2d 364, 365 (Tenn. 1998). Petitioner received the benefit of counsel, the opportunity
to amend his pro se petition with the assistance of counsel, and an evidentiary hearing. The
trial court did not abuse its discretion in denying a second continuance, and Petitioner was
not prejudiced by such denial. Petitioner is not entitled to relief on this issue.

                                      CONCLUSION

      After a careful review of the record, we conclude that the trial court did not err in
denying post-conviction relief.


                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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