        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                 October 25, 2011 Session

                BILLIE JOE WELCH v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Roane County
                          No. 13764 Jon K. Blackwood, Judge



                 No. E2010-01060-CCA-R3-PC-FILED-OCTOBER 5, 2012


The Petitioner, Billie Joe Welch, appeals as of right from the Roane County Criminal Court’s
denial of his petition for post-conviction relief. The Petitioner was convicted of second
degree murder, a Class A felony. He received a sentence of eighteen years as a Range I,
violent offender. The Petitioner challenges the denial of his petition for post-conviction relief
as well as the performance of trial and appellate counsel. Following our review, we affirm
the judgment of the post-conviction court.

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

J ERRY L. S MITH, J, delivered the opinion of the court, in which N ORMA M CG EE O GLE, J., and
D. K ELLY T HOMAS, J R., J., joined.

Robert L. Vogel, Knoxville, Tennessee, for the appellant, Billie Joe Welch.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; Russell Johnson, District Attorney General; and Frank Harvey, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                     Factual Background

       On direct appeal, the Petitioner challenged the sufficiency of the evidence; his
sentence; the jury instruction on second degree murder; the trial court’s response to a jury
question during deliberation; and the effectiveness of trial counsel. This court affirmed the
conviction and sentence and determined that the Petitioner received effective assistance of
counsel at trial. State v. Billie Joe Welch, No. E2005-02293-CCA-R3-CD, 2006 WL
2737830, at *1 (Tenn. Crim. App., at Knoxville, Sept. 26, 2006), perm. app. denied, (Tenn.
Feb. 26, 2007). Although the facts of the Petitioner’s case have already been discussed in
this court’s opinion affirming the Petitioner’s conviction on direct appeal, we will provide
the following factual summary to establish context for the Petitioner’s issues before this
court. See id.

        This case arose from the Petitioner’s involvement in the death of his wife, Shirley
Welch. Id. A sergeant with the Kingston Police Department was dispatched to the Roane
County Sheriff’s Office to assist with a “potential situation.” Once there, the sergeant
encountered the Petitioner, who appeared disoriented and upset before confessing that he
killed his own wife with a .9 millimeter automatic. The Petitioner was told not to say
anything else and was secured until he could be Mirandized. Upon arrival at the Petitioner’s
home, Mrs. Welch’s body was found in a small barn on the property. She had been shot
twice at what appeared to be close range. The Petitioner later gave a statement to police
during which he claimed that during a discussion about division of property in their pending
divorce, he and his wife started to “scuffle” over a gun. Id. at *2. He did not “remember”
exactly what happened but remembered the gun going off and a bullet hitting his wife near
the left eye. The Petitioner testified at trial, basically reiterating the story he recounted in his
statement to police. Id. at *5. The Petitioner added that he had actually intended to use the
gun to commit suicide, even pointing it at his head and pulling the trigger. The Petitioner
testified at trial that he never pointed the gun at the victim and never intended to kill her. At
trial, evidence was introduced that there was an order of protection taken out by the victim
against the Petitioner prior to the incident.

        The Petitioner was convicted of the lesser included offense of second degree murder.
On appeal, this court determined that the evidence was sufficient to support the conviction.
Id. at *6. This court also addressed the issues regarding ineffective assistance of counsel as
raised by the Petitioner. Specifically, this court found that trial counsel was not ineffective
in the following areas: (1) failing to call rebuttal witnesses Brittany Rena Rich, Gilbert
Howard, and Rachael Lee Barry; (2) failing to address the absence of testing for gunshot
residue on the Petitioner; (3) failing to connect the Petitioner with the murder weapon; (4)
failing to suppress the written statement; (5) failing to object to the introduction of the order
of protection; (6) failing to explore a defense based on state of mind or provocation; (7)
conceding during trial that the killing was unlawful; (8) failing to object to the lack of jury
admonition; (9) failing to object to the State’s improper comments with regard to guilt and
innocence; and (10) failing to object to a videotape edited by the State. Id. at *7-13. This
court also determined that the trial court properly charged the jury on second degree murder
and addressed what the Petitioner asserted was an improper ex parte communication by the
judge with the jury during deliberations. Id. at *14-16. Lastly, this court reviewed the
Petitioner’s sentence concluding that no reversible error existed in any of these areas. This
court affirmed the conviction. Id. at *17.

                                                -2-
         The Petitioner filed a timely petition for post-conviction relief, in which he alleged
that trial and appellate counsel1 were ineffective. The nearly seventy-page pro se petition for
post-conviction relief claimed that: (1) trial counsel failed to properly investigate the case;
(2) appellate counsel failed to challenge ineffectiveness of trial counsel on direct appeal with
regard to investigation; (3) trial counsel was ineffective during discussions of a potential plea
agreement; (4) trial counsel was ineffective because she conceded the unlawfulness of the
killing at trial, effectively preventing a conviction on a lesser included offense; (5) trial
counsel failed to object to erroneous jury instructions; appellate counsel was ineffective for
failing to raise the jury instruction issue in a motion for new trial or on appeal; (6) trial
counsel was ineffective on cross-examination of Petitioner; (7) appellate counsel was
ineffective for failing to raise ineffective assistance on a motion for new trial or direct appeal
with regard to cross-examination; (8) trial counsel was ineffective for failing to secure
evidence about gunpowder residue and fingerprints; (9) appellate counsel was ineffective for
failing to raise ineffective assistance in a motion for new trial or on appeal with regard to
gunpowder and fingerprints; (10) trial counsel was ineffective in failing to “move to preserve
and document the record in regards to the issue of the jury question” and the judge’s response
to that question; (11) appellate counsel was ineffective for failing to raise the jury question
issue on direct appeal and failing to raise ineffectiveness of trial counsel with respect to this
issue; (12) trial counsel was ineffective during jury selection; (13) appellate counsel was
ineffective for failing to raise ineffectiveness of trial counsel with regard to jury selection in
a motion for new trial or on appeal; (14) appellate counsel was ineffective for failing to raise
an issue with regard to suppression of exculpatory evidence on direct appeal; (15) appellate
counsel was ineffective for failing to raise a challenge to an enhanced sentence under
Apprendi v. New Jersey, 530 U.S. 456 (2000) on appeal; (16) appellate counsel was
ineffective for failing to ensure the accuracy and completeness of the record with regard to
the jury instruction issue; (17) appellate counsel was ineffective for “abandoning”
Petitioner’s issues with the exception of the jury issue on Rule 11 appeal; and (18) Petitioner
was denied due process by the State’s suppression of exculpatory gunshot residue tests and
the previous history of investigator Jon French. After counsel was appointed, an amended
petition was filed. The amended petition listed over one-hundred specific allegations of
ineffective assistance of counsel on the part of both trial and appellate counsel.

        A post-conviction hearing was held over several days. At the hearing, appellate
counsel testified that he was retained only to represent the Petitioner on the motion for new
trial and appeal. Appellate counsel is a criminal defense attorney and had been practicing
for twenty-one years at the time of the hearing. However, he was unaware until the morning


         1
          After trial, but prior to the filing of the motion for new trial and appeal, trial counsel was allowed to withdraw
and the Petitioner retained a new counsel. To distinguish between the two attorneys, they will be referred to as trial
counsel and appellate counsel. A third attorney represents Petitioner in the post-conviction proceedings.

                                                            -3-
of the hearing on the post-conviction petition that he would be testifying and apologized that
he could not remember all the minute details of the case.

       When questioned, Appellate counsel stated that it was his understanding the Petitioner
originally hired trial counsel’s law partner to represent him at trial. Shortly after the
Petitioner hired the attorney, she died unexpectedly. Trial counsel took over the case.
Appellate counsel asked trial counsel to testify at the hearing on the motion for new trial
because he was trying to show that she was ineffective at the trial level.

         Specifically, appellate counsel was under the impression that trial counsel did not have
adequate trial experience to represent the Petitioner. Appellate counsel wanted trial counsel
to testify at the hearing to question her about something that occurred during jury deliberation
at trial. As appellate counsel understood from speaking with the Petitioner, the jury could
not reach a decision and submitted a question to the judge during deliberation. After
discussing the matter with the parties, the trial judge went into the jury room alone and
instructed the jury to proceed with voluntary manslaughter if they could not reach a decision
on second degree murder. Appellate counsel thought that the instruction should have been
given in open court on the record. When questioned at the hearing, trial counsel testified that
she understood what the trial judge intended to tell the jury and was comfortable with the
procedure because the trial judge was actually standing in the door to the jury room when he
gave the additional instructions to the jury. Appellate counsel did not ask trial counsel why
she did not insist on having the instruction given to the jury on the record. Appellate counsel
explained that he was hesitant to ask too many questions of trial counsel at the hearing
because he knew her trial strategy was to attempt to get the jury to convict the Petitioner of
voluntary manslaughter. Appellate counsel did not agree with this strategy but was aware
of the standard for relief in a claim of ineffective assistance of counsel and the deference
placed on trial strategy.

        Appellate counsel did not interview trial co-counsel and did not call her to testify at
the hearing on the motion for new trial. However, appellate counsel sent the trial transcript
to an attorney, Ralph Harwell, in Knoxville. Mr. Harwell reviewed the trial transcript and
testified at the hearing on the motion for new trial. In Mr. Harwell’s opinion, the Petitioner
received ineffective assistance of counsel.

       The trial judge testified at the post-conviction hearing. He recalled the trial and
specifically, the jury deliberation process at the Petitioner’s trial. The jury sent out two notes
informing the trial judge that they were split on the second degree murder charge. The jury
wanted to know if they should continue to discuss second degree murder until they reached
a unanimous decision or if they should proceed to discuss voluntary manslaughter. The trial
judge testified that he asked the attorneys if they preferred the trial judge write a note or to

                                               -4-
reinstruct the jury. The attorneys agreed to allow the trial judge to reinstruct the jury. The
trial judge testified that he did not go into the jury room but stood in the doorway and gave
the jury instructions.

       Trial counsel testified at the hearing on the petition for post-conviction relief. In
December of 2002, the Petitioner contacted trial counsel’s law partner about representation
in his murder trial. Trial counsel and her partner went to see the Petitioner at the jail. The
law partner passed away about a month later. Trial counsel contacted the Petitioner to notify
him about the death. Trial counsel told the Petitioner that he could hire someone else. Trial
counsel also told the Petitioner that she had worked with her partner on several criminal cases
and had even handled several murder cases and several drug cases.2 The Petitioner decided
that he wished for the firm to continue representing him in his trial.

       Trial counsel had the assistance of another attorney at the firm for preparation of the
Petitioner’s case. Trial counsel explained that she wanted to employ a forensic psychologist
to explain the Petitioner’s state of mind at the time of the incident. Trial counsel recalled that
the Petitioner did not remember pulling the trigger. In her mind, this called the Petitioner’s
mens rea into question. The Petitioner did not agree with this strategy and refused to
cooperate by seeing a forensic psychologist. Trial counsel’s next idea with regard to strategy
was to argue that there was no premeditation. She told Petitioner that she hoped for a
conviction of voluntary manslaughter at trial.

       Trial counsel admitted that she did not seek the services of a firearms expert or file
a motion to suppress because she did not intend to dispute the Petitioner’s responsibility for
his wife’s death. Instead, her strategy was to show that it was not first degree murder.
Similarly, trial counsel did not attempt to keep the order of protection from being admitted
during trial because she was trying to show the love/hate relationship that existed between
the Petitioner and his wife. Trial counsel testified that her strategy was to show that the
crime was committed in the heat of passion.

        Trial counsel expressed frustration over the Petitioner’s lack of cooperation with the
trial strategy. Trial counsel was questioned at length during the hearing on the post-
conviction petition about information that was not in her file. Trial counsel explained that



         2
           At the hearing, trial counsel could only recall one specific case on which she had assisted her law partner. She
insisted that there were other cases but was not prepared to answer this question at the hearing. Trial counsel agreed to
provide a list of cases to the post-conviction court at a later time. Post-conviction counsel filed a motion for contempt
against trial counsel when she failed to provide the list of cases. A hearing was held on the motion. At the hearing, trial
counsel was able to name several cases that she claimed to have worked on with her partner. Trial counsel’s name did
not appear on the pleadings in these cases.

                                                           -5-
after trial, she gave her entire file and trial notebook to appellate counsel. She insisted that
any missing items were not returned to her after appellate counsel took over the case.

       Michael Barry, the Petitioner’s nephew, testified at the hearing. Prior to trial, he heard
Kyle, the Petitioner’s son, state that he had not seen anything on the day that his mother was
shot. Kyle testified at trial that he saw the Petitioner drag his mother out to a shed behind the
house and later heard loud sounds. Mr. Barry insisted that he gave this information to trial
counsel prior to trial.

       The Petitioner took the stand at the hearing on the petition for post-conviction relief.
He complained that both trial counsel and appellate counsel were ineffective. Specifically,
the Petitioner alleged that his inability to provide appellate counsel with additional money
made appellate counsel “just quit trying to do anything for [him].” The Petitioner
complained about the fact that appellate counsel did not raise issues regarding jury
instructions, fingerprint evidence, gunshot residue, sentencing, or jury bias in the motion for
new trial as he requested.

       As for trial counsel, the Petitioner testified that trial counsel claimed she was an expert
lawyer for murder cases and “stuff.” The Petitioner stated that he hired trial counsel’s law
partner and was upset when she died because he had already given her a large retainer fee.
The Petitioner stated he was unaware that he could get any of that money back from trial
counsel.

        The Petitioner recalled trial counsel’s request that he see a psychiatrist. The Petitioner
testified that he thought he would have had to pay $6,000 out of pocket because his health
insurance would not cover the appointment.

      The Petitioner recalled discussing the case with trial counsel but insisted that trial
counsel did not hold a “mock trial” or go over discovery materials with him prior to trial.

        In a written order, the post-conviction court denied the petition for post-conviction
relief. Very succinctly, the post-conviction court noted that the issue was:

       [W]hether a petitioner, who elects to raise the issue of ineffective assistance
       of counsel at the motion for new trial and on direct appeal, may file a Petition
       for Post Conviction alleging that appellate counsel was ineffective at the
       motion for new trial and appeal in his presentation of ineffective assistance of
       trial counsel.




                                               -6-
The post-conviction court determined that, in accordance with Tennessee Code Annotated
section 40-30-102, a petitioner may only file one petition for post-conviction relief unless one
of certain specified grounds exist to reopen the petition. The post-conviction court
determined that the issues presented by the Petitioner relating to trial counsel had been
previously determined as stated in Tennessee Code Annotated section 40-30-106(h). The
post-conviction court examined the Petitioner’s claim that appellate counsel was ineffective
for raising ineffectiveness at the motion for new trial and on appeal. The post-conviction
court noted that this court, despite an admonition against counsel regarding this practice,
addressed the Petitioner’s issues and found them to be without merit. As to the issue of
ineffective assistance with respect to appellate counsel’s failure to prove that trial counsel
was ineffective, the post-conviction court determined that the Petitioner had to “show that
appellate counsel was ineffective [on appeal] . . . [and] that trial counsel was ineffective at
trial.” After examining each allegation of ineffective assistance of counsel, the post-
conviction court determined that the Petitioner failed to meet his burden. The
post-conviction court’s findings on each issue will be discussed as they arise in this opinion.

                                       ANALYSIS
             I. Alleged Ineffective Assistance of Trial and Appellate Counsel

                                      A. Trial Counsel

        On appeal from the denial of post-conviction relief, the Petitioner claims that trial
counsel was ineffective for various reasons. The Petitioner admits, however, that appellate
counsel “foreclosed the finding of ineffective assistance of [trial counsel] by raising it on
[direct] appeal.” The State agrees.

       At the outset, we note well-established precedent that any issue that has been
previously determined against the Petitioner by another court in a prior proceeding cannot
be raised in a general post-conviction proceeding. Tenn. Code Ann. § 40-30-106(f). A
ground for relief is “previously determined” if it was addressed on the merits by a court of
competent jurisdiction after a full and fair hearing, at which a petitioner was afforded the
opportunity to call witnesses and present evidence. Tenn. Sup. Ct. R. 28, § 2(E); Tenn. Code
Ann. § 40-30-106(f); House v. State, 911 S.W.2d 705 (Tenn. 1995). It does not matter if the
petitioner actually presented evidence at the hearing; it is merely whether he was afforded
a forum in which to do so. Tenn. Code Ann. § 40-30-106(f). Further, any issue raised that
could have been presented for determination at the trial or appellate level is deemed waived
for purposes of post-conviction relief. Id. § 40-30-106(g). An issue raised in a post-
conviction appeal that is deemed waived may not be further reviewed under the plain error
doctrine. Tenn. R. Crim. P. 52(b); State v. West, 19 S.W.3d 753, 754 (Tenn. 2000).



                                              -7-
         In the case herein, the Petitioner admits that any issue with regard to the effectiveness
of trial counsel was “foreclosed” by appellate counsel when appellate counsel chose to raise
ineffective assistance of counsel issues on direct appeal. Indeed, many allegations of
ineffective assistance of counsel with respect to trial counsel were raised on direct appeal,
see Billie Joe Welch, 2006 WL 2737830, at *7-13. Any other complaint that trial counsel
was somehow ineffective are now waived. The Petitioner is not entitled to relief on this
issue.

                                     B. Appellate Counsel

       With respect to the ineffective assistance of appellate counsel, the Petitioner claims
that appellate counsel was ineffective for: (1) raising ineffective assistance of counsel on
direct appeal; (2) failing to raise ineffective assistance of counsel issues that should have
been included on direct appeal; and (3) inadequately questioning trial counsel at the new trial
hearing to demonstrate the fact that trial counsel was inept at trial. He insists that the post-
conviction court improperly determined that appellate counsel delivered effective assistance
of counsel.

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence. Tenn.
Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
On appeal, we are bound by the post-conviction court’s findings of fact unless we conclude
that the evidence in the record preponderates against those findings. Fields v. State, 40
S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed questions of law and fact, we
review the post-conviction court’s conclusions as to whether counsel’s performance was
deficient and whether that deficiency was prejudicial under a de novo standard with no
presumption of correctness. Id. at 457.

       Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland
v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72
(1993). In other words, a showing that counsel’s performance falls below a reasonable
standard is not enough; rather, the petitioner must also show that but for the substandard
performance, “the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. The Strickland standard has been applied to the right to counsel under article I,
section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.
1989). The reasonableness of counsel’s actions must be assessed on the facts of the
particular case, viewed as of the time of counsel’s conduct. Strickland, 466 U.S. at 689.



                                               -8-
        After hearing the evidence at the hearing on the petition for post-conviction relief, the
post-conviction court determined that in order to be successful, the Petitioner had to “not
only show that appellate counsel was ineffective but that trial counsel was ineffective at
trial.”

        The post-conviction court noted that appellate counsel only questioned trial counsel
at the hearing on the motion for new trial about a jury question and possible ex parte
communication with the jury regarding that question. Appellate counsel explained that he
was so convinced that the trial court inappropriately conversed with the jury that he failed
to develop other areas of trial counsel’s ineffectiveness during the hearing on the motion for
new trial. The testimony at the post-conviction hearing from both trial counsel and the trial
judge indicated, however, that the jury question issue was addressed by the parties at the trial
level. Further, this issue was raised on direct appeal. The post-conviction court determined
that the Petitioner did not develop any additional proof on this matter at the hearing on the
petition and failed to show that this issue affected the jury verdict. The evidence does not
preponderate against this finding. The post-conviction court accredited the testimony of trial
counsel and the trial judge with respect to the jury instruction issue. Further, this issue was
reviewed by this court on direct appeal and no error was found. Billie Joe Welch, 2006 WL
2737830, at *15-16. The Petitioner is not entitled to relief on this issue.

         The post-conviction court also accredited appellate counsel’s testimony during which
he claimed that he did not pursue any further questioning of trial counsel at the hearing on
the motion for new trial because he did not want her to testify that her actions were part of
a trial strategy. Further, appellate counsel testified that he had employed an expert witness
to write a report concluding that trial counsel’s actions were ineffective.3

        The post-conviction court then chose to “review the various issues [of ineffective
assistance of counsel] presented in [the] hearing to determine if there was any additional
evidence that appellate counsel failed to develop that would have satisfied the two prongs
of Strickland.” In other words, the post-conviction court reviewed some of the allegations




         3
           The post-conviction court noted that the report was not in the record but that this court had reviewed all of the
issues of ineffective assistance of counsel and resolved them against the Petitioner. Upon review, the report appears in
the technical record submitted to this court on appeal from denial of post-conviction relief.

                                                            -9-
of ineffective assistance of counsel4 that had already been previously determined by this court
on direct appeal.

        Specifically, the post-conviction court discussed two affidavits that could have been
utilized by trial counsel to impeach the testimony of the Petitioner’s son at trial. The
affidavits alleged that the son claimed he had not “seen or heard anything” on the day of his
mother’s death. Trial counsel explained that she did not call these witnesses as part of her
trial strategy. The post-conviction court heard the testimony of one of the affiants and
deemed it not credible. The post-conviction court also determined that even if trial counsel
had called these witnesses, it would not have changed the outcome of the trial. The evidence
does not preponderate against the determination of the post-conviction court. Further, this
issue was raised and discussed on direct appeal. Billie Joe Welch, 2006 WL 2737830, at *9.
The Petitioner is not entitled to relief.

       The Petitioner asserted that trial counsel’s failure to file a motion to suppress was
ineffective. Again, this issue was raised and discussed on direct appeal. Billie Joe Welch,
2006 WL 2737830, at *10. The Petitioner is not entitled to relief.

       The Petitioner argued that trial counsel was ineffective for failing to object to the
introduction of an order of protection filed against Petitioner. Trial counsel testified that this
was her strategy, employed to show that the relationship between the Petitioner and the
victim was volatile. This issue was raised and discussed on direct appeal. State v. Billie Joe
Welch, 2006 WL 2737830, at *11. The Petitioner is not entitled to relief.

        Next, the Petitioner contended that trial counsel was ineffective because trial counsel
conceded that the killing was unlawful without requiring the trial court to define unlawful
for the jury. This issue was raised and discussed on direct appeal. State v. Billie Joe Welch,
2006 WL 2737830, at *12. The Petitioner is not entitled to relief.

       The Petitioner claimed that trial counsel asked leading questions. At the hearing, the
Petitioner did not point to any particular area of questioning that demonstrated his claim. The
Petitioner also complained that trial counsel did not question the firearms examiner about
whether the gun could have been fired in a manner consistent with his claim that the whole


         4
           As an aside, the post-conviction court noted that there was some discrepancy throughout the proceedings about
the degree of trial counsel’s criminal trial experience prior to the Petitioner’s trial. The post-conviction court pointed
out that appellate counsel’s investigation of trial counsel’s experience revealed that she did not have much criminal trial
experience. Trial counsel, however, testified that she had experience in criminal trials prior to the Petitioner’s trial. The
post-conviction court determined that this information, however interesting, bore little weight on the determination of
ineffective assistance of counsel.



                                                           -10-
thing was an accident. The post-conviction court accredited trial counsel’s testimony with
regard to her theory attempting to show that the killing was done in the heat of passion. The
conclusion does not preponderate against the finding of the post-conviction court. The
Petitioner is not entitled to relief on this issue.

        The Petitioner claimed that he was not properly prepared for his testimony and denies
that he was prepared, like trial counsel testified, by utilizing a mock trial format. The post-
conviction court accredited the testimony of trial counsel. The evidence does not
preponderate against this conclusion. The Petitioner is not entitled to relief on this issue.

        The Petitioner complains that no challenge was made to the search of his vehicle. He
does not indicate on what ground an attack would have been made. The Petitioner is not
entitled to relief on this issue. He failed to present clear and convincing evidence to sustain
his burden.

        The Petitioner complains that trial counsel was ineffective because she solicited
testimony from a witness who claimed that the Petitioner was a mischievous youth when in
fact, the witness was testifying about the Petitioner’s brother. The post-conviction court
determined that the Petitioner failed to show how this testimony caused prejudice as trial
counsel was merely trying to humanize the Petitioner. The Petitioner is not entitled to relief
on this issue.

       The Petitioner has failed to show that appellate counsel was ineffective by failing to
raise certain allegations of ineffective assistance of counsel at the appellate level by failing
to provide clear and convincing evidence that (1) that counsel’s performance was deficient
and (2) that the deficiency was prejudicial. Strickland, 466 U.S. at 687.

                                     II. CONCLUSION

      Upon due consideration of the pleadings, the record, and the applicable law, this court
concludes that the post-conviction court’s denial of the petition for post-conviction relief was
appropriate. The judgment of the post-conviction court is affirmed.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




                                              -11-
