        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               September 10, 2009 Session

                  CARLOS HARDY v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Davidson County
                      No. 2002-D-1927 J. Randall Wyatt, Jr., Judge



                  No. M2008-02851-CCA-R3-PC - Filed January 22, 2010


A Davidson County jury convicted Petitioner, Carlos Hardy, of second degree murder, and
the trial court sentenced him to twenty-five years as a Range I, violent offender. State v.
Carlos Hardy, No M2004-02249-CCA-R3-CD, 2006 WL 359677, at *6 (Tenn. Crim. App.,
at Nashville, Feb. 10, 2006), perm. app. denied, (Tenn. Jul. 3, 2006). Petitioner was
unsuccessful in his appeal to this Court. Id. at *15. He filed a petition for post-conviction
relief raising a number of issues including an allegation that he was afforded the ineffective
assistance of counsel. After a hearing, the post-conviction court denied the petition. On
appeal, Petitioner argues that the post-conviction court erred in denying his petition with
regard to the issue of ineffective assistance of counsel. We have reviewed the record on
appeal and conclude that the post-conviction court did not err in denying the petition.
Therefore, we affirm the decision 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 and
J.C. M CL IN, JJ., joined.

Cynthia M. Fort, Nashville, Tennessee, for the appellant, Carlos Hardy.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Victor S. Johnson, District Attorney General; and Kathy Morante, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                           OPINION

                                     Factual Background

       In March 2004, Petitioner and his co-defendant, Atlanta Hardy, were convicted of
second degree murder by a Davidson County jury. Id. at *6. The trial court sentenced
Petitioner to twenty-five years as a Range I, violent offender for the murder. Id. Petitioner
unsuccessfully appealed both his conviction and his sentence to this Court. See id. at *15.
Petitioner filed a petition for post-conviction relief arguing that he was afforded ineffective
assistance of counsel. After holding an evidentiary hearing, the post-conviction court denied
the petition. Petitioner now appeals the denial of his petition and argues that the post-
conviction court erred when it determined that trial counsel’s representation was effective.
We have reviewed the record on appeal and conclude that Petitioner is unable to prove that
trial counsel’s representation of Petitioner was deficient or that any deficiency in
representation was prejudicial. Therefore, we affirm the denial of the petition for post-
conviction relief.

                              Petition for Post-conviction Relief

        On July 3, 2007, Petitioner filed a petition for post-conviction relief. In that petition,
he asserted that he was afforded ineffective assistance of counsel because: trial counsel failed
to object to a witness’s testimony regarding a polygraph test; trial counsel failed to properly
raise the issue of the polygraph test on appeal; two rebuttal witnesses, Evelyn Bell and
Aljanada Coats, were not called by trial counsel; trial counsel failed to investigate and/or
interview witness Maria Hardy; Petitioner was forced to file his own Rule 11 application to
appeal to the Tennessee Supreme Court; and the issue of his excessive sentence pursuant to
Blakely v. Washington, 542 U.S. 296 (2004), was not raised on appeal. On July 19, 2008,
Petitioner filed an amended petition adding an affidavit in which a witness from trial
retracted part of his testimony at trial.

         The post-conviction court held a hearing on the petition. Petitioner testified at the
evidentiary hearing. He made several allegations regarding trial counsel’s ineffectiveness
at trial. Petitioner stated that trial counsel should have called Ms. Evelyn Bell to testify at
trial. According to Petitioner, she would have contradicted the testimony of his co-
defendant’s mother, Ms. Marion Ford. Ms. Ford testified at the trial that Petitioner came to
her house and confessed to murdering the victim. Petitioner maintained at the hearing that
Ms. Bell was present and would have testified that she did not hear him confess. Petitioner
also stated that he believed trial counsel should have interviewed Charles Carter, a witness

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who testified at trial. Petitioner stated that he had no knowledge of trial counsel interviewing
Mr. Carter. He also faulted trial counsel for never visiting the scene of the crime or having
an expert generate reports regarding ballistics and measurements.

        Petitioner also testified as to his complaints regarding his appeal. After being denied
appellate relief by this Court, trial counsel attempted to withdraw. However, the Tennessee
Supreme Court denied trial counsel’s motion to withdraw because it was untimely. Petitioner
stated that he did have communications with his attorney about his Rule 11 application to the
supreme court but ultimately his draft of a Rule 11 application was filed with the supreme
court. It was unsuccessful. Finally, Petitioner testified that this Court’s opinion stated that
trial counsel did not object to a witness’s testimony regarding a polygraph test. However,
trial counsel stated in his brief that he did object to the introduction of the polygraph test.
Petitioner argues that this failure was ineffective.

       Mr. Carter also testified at the hearing on Petitioner’s behalf. He testified that after
looking at his testimony at trial and interviews with the detectives investigating the murder
he would change only one thing about his testimony. At trial Mr. Carter testified that he saw
Petitioner with a gun, but at the hearing he maintained that he did not see Petitioner with a
gun. He stated that he lied about seeing the gun because he was on federal probation at the
time and wanted to protect himself.

        Petitioner’s trial counsel also testified at the hearing. He stated that at the time he
represented Petitioner his practice consisted of nine-five percent criminal defense work. He
had handled thirty murder trials. With regard to Mr. Carter’s testimony at trial about the
polygraph test, trial counsel stated that Mr. Carter merely mentioned that a polygraph test
had been administered. Mr. Carter did not even testify as to the results of the test. Trial
counsel made a strategic decision to not bring it up to the trial court in order avoid calling
further attention to the statement. He raised it on appeal, but trial counsel did not feel that
it was the basis of a very strong argument. Trial counsel recommended to Petitioner that he
should not testify on his own behalf. However, Petitioner felt that he needed to rebut the
testimony that had been offered at trial, so he chose to testify at trial.

        Trial counsel recalled Petitioner mentioning a possible witness who could refute Ms.
Ford’s testimony. At the hearing, he believed it was Ms. Bell. He stated that he checked on
the witness’s criminal record and found that she had an extensive record of theft and
impersonation. Therefore, he determined that it would not be in his client’s best interest to
call her to testify. In addition, trial counsel stated that he had never heard of Ms. Coats. Trial
counsel did not speak with Mr. Carter because he refused to speak with trial counsel.




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       Trial counsel also testified concerning his motion to withdraw after representing
Petitioner in his appeal to this Court. Trial counsel stated that he filed a motion to withdraw
with the supreme court and sent a letter to that effect to Petitioner setting out the time frame
for submitting a Rule 11 application to appeal to the supreme court. However, the supreme
court denied the motion to withdraw because trial counsel had filed the motion too late. At
that point, because he was still the attorney of record, trial counsel filed a fully-briefed Rule
11 application. The supreme court denied it. According to trial counsel, the supreme court
also denied the Rule 11 application drafted by Petitioner because he was represented by
counsel.

       The post-conviction court denied Petitioner’s petition for post-conviction relief.
Petitioner filed a timely notice of appeal.

                                         ANALYSIS

                           Post-Conviction Standard of Review

       The post-conviction court’s findings of fact are conclusive on appeal unless the
evidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).
During our review of the issue raised, we will afford those findings of fact the weight of a
jury verdict, and this court is bound by the court’s findings unless the evidence in the record
preponderates against those findings. See Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim .App. 1997). This Court may not
reweigh or re-evaluate the evidence, nor substitute its inferences for those drawn by the post-
conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn. 2001). However, the
post-conviction court’s conclusions of law are reviewed under a purely de novo standard with
no presumption of correctness. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

                              Effective Assistance of Counsel

        When a petitioner seeks post-conviction relief on the basis of ineffective assistance
of counsel, the petitioner bears the burden of showing that (a) the services rendered by trial
counsel were deficient and (b) the deficient performance was prejudicial. See Powers v.
State, 942 S.W.2d 551, 558 (Tenn. Crim. App. 1996). In order to demonstrate deficient
performance, the petitioner must show that the services rendered or the advice given was
below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975). In order to demonstrate prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel’s deficient performance, the
result of the proceeding would have been different. See Strickland v. Washington, 466 U.S.
668, 694 (1984). “Because a petitioner must establish both prongs of the test to prevail on

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a claim of ineffective assistance of counsel, failure to prove either deficient performance or
resulting prejudice provides a sufficient basis to deny relief on the claim.” Henley, 960
S.W.2d at 580.

       As noted above, this Court will afford the post-conviction court’s factual findings a
presumption of correctness, rendering them conclusive on appeal unless the record
preponderates against the court’s findings. See id. at 578. However, our supreme court has
“determined that issues of deficient performance by counsel and possible prejudice to the
defense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]
is de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.

        Furthermore, on claims of ineffective assistance of counsel, the petitioner is not
entitled to the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim.
App. 1994). This Court may not second-guess a reasonably-based trial strategy, and we
cannot grant relief based on a sound, but unsuccessful, tactical decision made during the
course of the proceedings. See id. However, such deference to the tactical decisions of
counsel applies only if counsel makes those decisions after adequate preparation for the case.
See Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        On appeal, Petitioner argues that the post-conviction court erred in denying his
petition because he was afforded ineffective assistance of counsel. He specifically argues
that trial counsel failed to interview a witness, Ms. Bell, who was present when he allegedly
confessed; failed to properly investigate the facts in light of Mr. Carter’s testimony that he
lied at trial; failed to object to the entry of polygraph evidence at trial; and failed to timely
notify Petitioner of his intention to withdraw from representing Petitioner when the deadline
to file his Rule 11 application to the supreme court was approaching.

        With regard to Ms. Bell, trial counsel testified that he interviewed her and found that
she had an extensive criminal record. The post-conviction court found that trial counsel had
indeed investigated her and found that trial counsel was not deficient in not presenting her
as a witness. In addition, Petitioner did not present Ms. Bell at the evidentiary hearing.
Under State v. Black, 794 S.W.2d 753 (Tenn. Crim. App. 1990), when a petitioner argues that
trial counsel was ineffective by not presenting a witness at trial, the petitioner must present
that witness at the evidentiary hearing. 794 S.W.2d at 757-58. Therefore, we conclude that
the record does not preponderate against the findings of the post-conviction court.

       Petitioner next argues that trial counsel was ineffective because he failed to properly
investigate what Mr. Carter’s testimony would be at trial. To support this argument,
Petitioner points to Mr. Carter’s testimony at the evidentiary hearing that he lied at
Petitioner’s trial when he stated that he saw Petitioner holding a gun. The State argues that

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Petitioner has waived this issue because he did not present this argument as an ineffective
assistance of counsel argument. The post-conviction court analyzed this issue as a potential
due process violation as opposed to the basis for an ineffective assistance of counsel
argument. We have reviewed the record from the post-conviction court. Petitioner did not
present this issue as an ineffective assistance of counsel issue, but rather, filed an amendment
to his petition and stated the following: “Petitioner is attaching an affidavit from Charles
Carter wherein he retracts certain incriminating statements he made regarding the defendant.
Said statements were highly incriminating and most likely the cause of conviction.” A
petitioner may not assert one ground for relief in the post-conviction court and pursue a
different or new theory on appeal. State v. Adkisson, 899 S.W.2d 626, 634-35 (Tenn. Crim.
App. 1994). Therefore, this issue is waived. Id. at 635.

        Petitioner also argues that trial counsel was ineffective for failing to object to Mr.
Carter’s testimony at trial that a polygraph examination occurred while the police were
investigating the case. Mr. Carter did not mention any results of the polygraph examination.
At the evidentiary hearing, trial counsel testified that he did not object because he did not
want to call additional attention to the matter. He stated that he made a tactical decision in
not objecting. The post-conviction court found that trial counsel acted effectively by not
objecting. As stated above, this Court cannot grant relief based on a sound, but unsuccessful,
tactical decision made during the course of the proceedings. Adkins, 911 S.W.2d at 347.
Therefore, the findings of the post-conviction court do not preponderate against the findings
of the post-conviction court.

       In his final issue on appeal, Petitioner argues that trial counsel was ineffective because
he attempted to withdraw from representing Petitioner near the deadline of his Rule 11
application to our supreme court. Trial counsel filed an untimely motion to withdraw from
representation. The supreme court denied trial counsel’s motion. After the denial of the
motion, trial counsel reviewed Petitioner’s pro se Rule 11 application and also drafted a
separate Rule 11 application which was also filed with our supreme court. The post-
conviction court found that trial counsel’s untimely motion to withdraw was deficient.
However, Petitioner was unable to prove prejudice because trial counsel drafted a Rule 11
application, and it was filed with the court. The record does not preponderate against the
post-conviction court’s findings that Petitioner has been unable to meet the second prong
under Strickland.

       We conclude that Petitioner has been unable to prove under Strickland that trial
counsel was both deficient and that the deficiency prejudiced Petitioner. Therefore, we
affirm the decision of the post-conviction court.

                                       CONCLUSION

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       For the foregoing reasons, we affirm the post-conviction court’s denial of the petition
for post-conviction relief.


                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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