        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs July 13, 2010

                 OSCAR C. WELLS v. STATE OF TENNESSEE

       Direct Appeal from the Criminal Court of Tennessee for Shelby County
                    No. 01-03299    James M. Lammey, Judge


                W2009-02231-CCA-R3-PC - Filed September 15, 2010


         The petitioner, Oscar C. Wells, was convicted of first degree murder and especially
aggravated robbery, a Class A felony. The petitioner filed a petition for post-conviction
relief, claiming ineffective assistance of counsel. Following an evidentiary hearing, the post-
conviction court denied relief. The petitioner now appeals, and, following careful review,
we affirm the decision of the post-conviction court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL and C AMILLE R. M CM ULLEN, JJ., joined.

Brett B. Stein, Memphis, Tennessee, for the appellant, Oscar C. Wells.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Lora Fowler, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        On September 14, 2000, the petitioner and an accomplice followed Iginio Rodriguez
into a wooded area between two apartment complexes, where they robbed and killed him.
On October 8, 2000, the petitioner was arrested without a warrant. Approximately nine hours
later, he gave a confession to police. The petitioner was convicted in Shelby County
Criminal Court of first degree murder and especially aggravated robbery. He was sentenced
to life imprisonment for first degree murder and to a consecutive ten-year term for
aggravated robbery. The petitioner appealed, challenging his arrest without a warrant and
the trial court’s failure to suppress his confession. This court affirmed the convictions and
sentences.
        The petitioner, proceeding pro se, filed a petition for post-conviction relief, which was
summarily dismissed as untimely. On appeal, this court found that “[t]he record before us
raises [a] factual issue of whether the appellant timely filed a petition for post-conviction
relief on February 4, 2005.” Oscar C. Wells v. State, No. 2005-01337-CCA-R3-PC, 2006
WL 1044085 at *2 (Tenn. Crim. App. at Jackson, April 19, 2006) (unpublished). This court
vacated and remanded the case to the trial court for an evidentiary hearing on the timeliness
issue and on the merits, if necessary. See id.

        On remand, the post-conviction court found that the petition was timely filed and held
a hearing on June 30, 2009, to address the merits of the petitioner’s ineffective assistance of
counsel claim. The petitioner, now represented by a court-appointed attorney, argued that
trial counsel was deficient in failing to raise a challenge to his confession based on State v.
Huddleston, 924 S.W.2d 666, 672 (Tenn. 1996) (suppressing defendant’s confession under
the Fourth Amendment when the confession was given after an unreasonable period of time
had passed between the defendant’s arrest and a probable cause determination). The
petitioner took the stand, as did his trial counsel. The petitioner testified that he felt his trial
counsel should have represented him better and that his trial counsel could have done a better
job of getting his confession suppressed if he had raised more than one issue in his motion
to suppress. The petitioner’s trial counsel, in turn, testified that he had challenged the
petitioner’s confession and tried to have it suppressed on the grounds of Miranda v. Arizona,
384 U.S. 436, 457 (1966) (holding that when a suspect invokes his right to counsel or remain
silent, police must cease questioning until counsel is present or an ensuing confession will
be deemed involuntary). The petitioner’s trial counsel explained that, while he had urged the
trial court that the petitioner’s confession was given involuntarily, he did not specifically
reference Huddleston. After reviewing all the evidence, the post-conviction court found that
petitioner had failed to show that trial counsel committed any errors and held that the trial
counsel’s performance did not fall below any objective standard of reasonableness.

       The petitioner now appeals, claiming that he was denied effective assistance of
counsel because his trial counsel failed to raise the issue that his confession should have been
suppressed under Huddleston. After careful consideration, we reject these arguments and
affirm the judgment below.

                                             Analysis

       The brief filed by the petitioner’s court-appointed counsel is remarkable for its
brevity; it consists in its entirety of two sentences, neither of which discusses the Huddleston
case (which, as the caption reveals, is the basis of the petitioner’s ineffective assistance
claim) or the application of that case to the facts at hand. The failure of the petitioner’s post-

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conviction counsel to provide even the most minimal discussion of the law or its application
to the case at bar more than amply invites the State’s argument that the petitioner has waived
the claim by failing to present proper argument. See Tenn. R. Crim. App. 10(b); State v.
Darrell Franklin, No. W2007-02772-CCA-R3-CD, 2009 Tenn. Crim. App. LEXIS 4, *41
(Tenn. Crim. App. at Jackson, Jan. 5, 2009) (holding defendant’s “cumulative error” due
process argument waived where the defendant failed to offer any argument in support of his
contention).

        The irony of affirming the petitioner’s convictions against an ineffective assistance
of counsel claim based solely on the failings of his post-conviction counsel is not lost on us.
However, and so in an effort to afford the petitioner process that is not just due, but fair, we
have scoured the record and reviewed the cases in order to see if we can discern any merit
to his claim. We cannot. After reviewing the record, it seems clear that even if the
petitioner’s counsel had challenged his confession under Huddleston, that challenge was not
likely to succeed, and, consequently, the petitioner cannot make the showing of prejudice that
is necessary to prevail on an ineffective assistance of counsel claim.

        In order to obtain relief for ineffective assistance of counsel, a petitioner must prove
by clear and convincing evidence that his counsel’s performance was deficient and that this
deficient performance prejudiced his defense. See, e.g., T.C.A. § 40-30-110(f) (2010);
Strickland v. Washington, 466 U.S. 668, 687 (1984). To show prejudice from his counsel’s
errors, a petitioner must show that a reasonable probability exists that, absent the alleged
errors, a different result would have been obtained. See Owens v. State, 13 S.W.3d 742, 750
(Tenn. Crim. App. 1999). In this case, however, it appears likely that even if the petitioner’s
trial counsel had expressly challenged his confession under the Fourth Amendment standards
established in Huddleston, the motion to suppress would have failed.

       In Huddleston, 924 S.W.2d at 671-72, the Tennessee Supreme Court applied the
Fourth Amendment exclusionary rule to suppress a confession obtained by police after
exposing the defendant to a prolonged restraint of liberty following his arrest without a
warrant. In order to determine whether the defendant’s extended restraint violated the Fourth
Amendment, the court applied the standard for examining such extended restraints
established by the United States Supreme Court in County of Riverside v. McLaughlin, 500
U.S. 44, 56 (1991). In that case, the Supreme Court explained that “judicial determinations
of probable cause within 48 hours of arrest will, as a general matter, comply with the [Fourth
Amendment’s] promptness requirement.” Id. However, if no judicial determination occurs
within 48 hours, “the burden shifts to the government to demonstrate the existence of a bona
fide emergency or other extraordinary circumstance.” Id. at 57. Applying this standard to
the defendant in Huddleston, who had been held for more than seventy-two hours without
a judicial determination of probable cause, the Tennessee Supreme Court easily determined

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that the burden shifted to the government, which offered no evidence of any extraordinary
circumstance justifying the prolonged delay.

        However, it appears that, in the case before us, approximately only nine hours passed
between the petitioner’s arrest without a warrant and his confession and subsequent
processing. Consequently, even if the petitioner’s trial counsel had raised the Huddleston
issue in his motion to suppress, the trial judge would have been compelled to find that the
probable cause determination passed the prima facie Huddleston test for complying with the
Fourth Amendment’s promptness requirement. In order to prevail, the petitioner would have
been required to show that the government delayed the probable cause hearing for
unreasonable purposes, such as out of ill will or to gather additional evidence. McLaughlin,
500 U.S. 56-57. In the record, there is no evidence of any such unreasonable purpose.
Consequently, we are forced to conclude that the trial court would most likely have denied
the petitioner’s putative McLaughlin claim.

        When, for Strickland purposes, the petitioner’s alleged deficient conduct is that his
counsel failed to raise a claim that would mostly likely have been denied in any event, it is
clear that the petitioner has failed to demonstrate prejudice to his defense. Therefore, the
post-conviction court did not err in denying the petitioner’s request for relief.

                                          Conclusion

       Based on the foregoing and the record as a whole, we affirm the judgment from the
post-conviction court.




                                                   _________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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