        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs January 10, 2012

               BRENDA HOLLIMAN v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                     No. 02-00684-85    John Fowlkes, Jr., Judge




                No. W2011-00201-CCA-R3-PC - Filed August 9, 2012


Petitioner, Brenda Holliman, was convicted by a Shelby County jury of first degree murder
and conspiracy to commit first degree murder. She received concurrent sentences of life
without parole and fifteen years. The victim was Petitioner’s husband. Her convictions and
sentences were affirmed on appeal. State v. Brenda Holliman, No. W2003-01736-CCA-R3-
CD, 2005 WL 819735 (Tenn. Crim. App. Apr. 8, 2005) perm. app. denied (Tenn. Oct. 24,
2005). She timely filed a petition for post-conviction relief, which was amended. Following
an evidentiary hearing the petition was dismissed. Petitioner has timely appealed. After a
thorough review of the record and the parties’ briefs, we affirm the judgment of the post-
conviction court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and A LAN E. G LENN, JJ., joined.

Paul Kellison Guibao, Memphis, Tennessee, for the appellant, Brenda Holliman.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Theresa McCusker, Assistant
District Attorney General; for the appellee, the State of Tennessee.

                                        OPINION

       Petitioner, her cousin James Rodney Mills, and a “jail acquaintance” of Mills, Kermit
Keith Faglier, conspired to murder Petitioner’s husband. Petitioner was the beneficiary of
a $150,000.00 life insurance policy on her husband’s life, and she agreed to pay a total of
$50,000.00 to Mills and Faglier to commit the murder. Mills and Faglier went to the victim’s
place of employment at a time that the victim was alone. Mills entered the building and
Faglier remained outside as a “lookout.” Mills shot the victim once in the neck and once in
the back of the head, using a handgun he had obtained from Petitioner. A detailed summary
of the evidence establishing the crimes can be read in this Court’s opinion in the direct
appeal. Id., slip op at pp. 2-9.

       The sole issue raised on appeal by Petitioner is that the post-conviction court erred by
ruling that she failed to prove she had received ineffective assistance of counsel. In order
to prove ineffective assistance of counsel, a petitioner bears the burden of proving by clear
and convincing evidence both (1) deficient performance by counsel and (2) prejudice to the
defense caused by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052 (1984); State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). To demonstrate
prejudice, a petitioner must show “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. The petitioner bears the burden of establishing both of these components
by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Burns, 6 S.W.3d at 461.
The petitioner’s failure to prove either deficiency or prejudice is a sufficient basis upon
which to deny relief on an ineffective assistance of counsel claim. Burns, 6 S.W.3d at 461;
Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

        To sustain a petition for post-conviction relief, a petitioner must prove his or her
factual allegations by clear and convincing evidence at an evidentiary hearing. See Tenn.
Code Ann. § 40-30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon review,
this Court will not reweigh 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 post-conviction judge, not the
appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State, 960 S.W.2d 572, 578-79
(Tenn. 1997). The post-conviction judge’s findings of fact on a petition for post-conviction
relief are afforded the weight of a jury verdict and are conclusive on appeal unless the
evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley, 960
S.W.2d at 578.

       Two attorneys were appointed to represent Petitioner at trial, but only one testified at
the post-conviction hearing. They will be referred to collectively as “trial counsel.” The
specific instances of deficient performance by trial counsel, which are asserted in Petitioner’s
appellate brief are: (1) trial counsel were not prepared to go to trial as shown by “last minute
attempts to continue the trial;” (2) trial counsel failed to properly investigate the case,
specifically by failing to “properly manage and use appointed expert” Dr. Marsha Little-
Hendren; (3) trial counsel failed to include in the motion for continuance of the trial that Dr.
Little-Hendren was hampered in her ability to meet with Petitioner due to an “illness” of Dr.

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Little-Hendren; and (4) trial counsel waited too long to obtain the expert services of a
psychiatrist, Dr. Keith Caruso. We have thoroughly and carefully reviewed Petitioner’s brief
to ascertain what specific prejudice she asserts was caused to her case by the representation
provided by trial counsel which she claims is deficient performance by counsel. The only
assertions in her brief which are even close to being examples of prejudice are her statement
that Dr. Little-Hendren testified at the post-conviction hearing “that she could have utilized
the additional time to get more diagnostic information from previous treatment,” and the
following broad statement, “[t]herefore, [t]rial [c]ounsel’s failures may very well have been
outcome determinative.”

       It is not our duty or responsibility to comb the appellate record in search of possible
deficient performance of trial counsel or of prejudice that may have been caused by any
alleged deficient performance. However, we are not faulting Petitioner’s post-conviction
counsel in this case. Our careful review of the record shows absolutely no prejudice to
Petitioner’s case even if trial counsel’s performance had been deficient.

         The only witnesses who testified at the post-conviction hearing were Petitioner, lead
trial counsel, and Dr. Little-Hendren. Their testimony as it relates to the specific assertions
made by Petitioner in this appeal is as follows. Petitioner testified that trial counsel never
spoke to her mother, who could have corroborated Petitioner’s testimony at trial that co-
defendant Mills had previously attacked Petitioner and that was a reason that Petitioner was
coerced by Mills. Petitioner’s mother did not testify at the post-conviction hearing and no
explanation was given for why she did not testify. Petitioner testified she only got to meet
with Dr. Little-Hendren twice, and never got to talk to Dr. Caruso. Petitioner acknowledged
that the defense to the charges which she told trial counsel about was the actual defense used
at trial. However, she testified on direct examination that trial counsel failed to make the
connection that Petitioner’s post traumatic stress syndrome caused her to be more easily
placed under duress by Mills. On cross-examination Petitioner testified,

        Q.      When you’re saying that [battered wife syndrome] you mean the
                abuse that you suffered from your husband, correct?

        A.      Correct.

        Q.      [Trial counsel] talked about that at trial, and then you testified as to
                the duress you were under because of the threats from your co-
                defendants, right?

        A.      Right.

        Q.      You testified in front of the jury to that?


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         A.     Correct.

         Q.     So that was brought forth at your trial?

         A.     Right.

         Q.     Correct?

         A.     Correct.

         Q.     So what else could [trial counsel] have done?

         A.     I don’t know. I don’t - - I don’t - - I don’t know. I don’t know the
                criminal aspects of everything or the - - what an attorney does. I
                don’t know. I could only tell them what I knew.

         Q.     And you told [trial counsel] that, correct?

         A.     Correct.

         Q.     And [trial counsel] brought that forth at trial?

         A.     It was - - I stated it when I was on the witness stand.

       Lead trial counsel testified that he and co-counsel were prepared for trial. He
acknowledged that the defense theory at trial was that Petitioner was so vulnerable that the
co-defendants were able to convince Petitioner to participate in the crime and she “went
along” with the co-defendants because she was so scared of them. He testified that Dr.
Little-Hendren became involved in the case less than three months prior to trial. Lead
counsel reiterated that they had sufficient time to prepare for trial and were prepared for trial.

        Dr. Little-Hendren testified that she saw Petitioner for several hours during two visits
prior to trial. She stated that it was never an issue that she needed more time before trial in
order to complete her evaluation of Petitioner. While Dr. Little-Hendren admitted that it
would have been helpful if she could have received more diagnostic information from prior
treatment(s) of Petitioner, she did not state how such information would have been helpful.
More importantly for purposes of the post-conviction proceedings, Dr. Little-Hendren
admitted that she could not remember whether Petitioner had even been previously treated
by a professional. Dr. Little-Hendren did not testify at the post-conviction hearing about any
illness she had which hampered her ability to work with Petitioner prior to the trial. There
was nothing in Dr. Little-Hendren’s testimony to support Petitioner’s assertion on appeal that
trial counsel failed to “properly manage and use” her skills as an expert witness. Regarding

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Petitioner’s complaint that trial counsel was deficient by waiting too long to obtain the
services of Dr. Keith Caruso, there was no prejudice even if trial counsel rendered deficient
performance. As this Court noted in the opinion of Petitioner’s direct appeal,

               After the conclusion of the trial, [Petitioner’s] counsel entered into
        the record as a stipulation a letter from Dr. Caruso in which he determined
        that there was “no evidence to support a ‘Battered Woman’s Syndrome
        defense.” In that same letter, Dr. Caruso stated that his “testimony . . .
        would not serve . . . [Petitioner’s] interest and likely would work directly
        against them.”

Holliman, 2005 WL 819735, at *10.

       Regarding the specific allegations of ineffective assistance of counsel raised by
Petitioner on appeal, the post-conviction court made the following findings in its order
dismissing the petition for post-conviction relief:

               i)      Failure to adequately investigate or prepare for Petitioner’s
                       trial.

               Petitioner asserts that trial counsel did not adequately investigate or
        prepare for trial.[ ] Petitioner asserts that it is “absolutely impossible to
        conduct an adequate investigation [in] a capital case for trial in less than six
        months.”[ ] However, Petitioner does not give any support for this
        assertion. When Petitioner was asked about what else Counsel could have
        done with more time, she was unable to give any details. Also, in
        Petitioner’s original Petition for Post-Conviction Relief, she stated that both
        of her trial attorneys met with her repeatedly to discuss her defense.[ ]
        Further, the record shows that Trial Counsel presented to the jury evidence
        supporting Petitioner’s claim of physical and mental abuse as support for
        her diminished capacity defense.

                Petitioner has failed to show by clear and convincing evidence that
        Trial Counsel did not adequately investigate the case. Similarly, Petitioner
        has failed to show that Trial Counsel was not prepared to proceed to trial.
        As such, this claim is without merit and is denied.

        ***

               iii)    Failure to properly manage or use experts or expert
                       testimony


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       Petitioner asserts that Counsel failed to properly use and manage
experts and expert testimony.[ ] Specifically, she alleges that Counsel was
not ready to go forward as evidenced by Counsel’s Motion for a
Continuance.[ ] However, Trial Counsel was ready to proceed to trial, and
only made the motion for continuance “out of an abundance of
precaution.”[ ] Dr. Marsha Little-Hendren, the clinical psychologist
appointed to Petitioner’s case, stated that she had completed her diagnosis
and was prepared for trial. When asked if she needed more time to prepare,
Dr. Little-Hendren responded: “I don’t remember him ever asking me if I
needed more time. . . . . It seemed like it never was an issue. I was hired.
I did my evaluation. I got the information back to him. The case just kind
of took on a life of its own and I was told to prepare for trial.”[ ]

       Petitioner’s defense was fully presented to the jury. Besides
Petitioner’s testimony, other evidence was presented to support Petitioner’s
allegations that she suffered physical abuse at the hands of the victim. Also,
Dr. Little-Hendren testified during the trial about Petitioner’s history of
traumatic events and the abuse inflicted upon her prior to her husband’s
murder.

       Petitioner has failed to show that Counsel was deficient in their use
of experts and expert testimony at trial. Therefore this claim must fail.

***

       iv)    Failed defense theory - attempted involvement of Dr. Keith
              Caruso

         Petitioner asserts that Counsel failed to develop a proper defense
theory.[ ] However, Trial Counsel testified that the defense theory was that
years of abuse and trauma had left Petitioner an easy target for persons like
her co-defendants who saw a way to make money by pressuring her into
killing her husband and splitting the insurance money.[ ] Moreover,
Petitioner has failed to show that Dr. Caruso’s testimony, had it been given
at trial, would reasonably have affected the outcome of the trial.

       The Court of Criminal Appeals has already addressed this issue on
appeal. In its opinion, the Court cited a post trial letter from Dr. Caruso
which stated that “there was no evidence to support a ‘Battered Woman’s
Syndrome’ defense”, and his “testimony . . . . would not serve . . . . [the
appellant’s] interests and likely would work directly against them.” State


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        v. Holliman, No. W2003-01736-CCA-R3-CD, 2005 Tenn. Crim. App.
        LEXIS 331, at *[10] (Tenn. Crim. App. 2005).

               In light of the fact that this claim has been previously handled by the
        Court of Criminal Appeals, it is without merit and is denied.

(footnotes omitted).

        Petitioner did not directly present to the post-conviction court the fourth ground for
relief asserted by Petitioner, that trial counsel did not include in the continuance motion that
Dr. Little-Hendren was hampered in her ability to meet with Petitioner due to an illness.
Therefore, the post-conviction court did not address this specific argument. It is waived on
appeal. See State v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim. App. 1996). Even if not
waived, the record absolutely does not support Petitioner’s argument. As noted above, the
post-conviction court obviously accredited the testimony of Dr. Little-Hendren, and she
testified that she was prepared for her testimony at trial.

       We agree with the post-conviction court’s findings of fact, conclusions of law, and
determination that the petition for post-conviction relief should be dismissed. Petitioner is
not entitled to relief in this appeal.

                                       CONCLUSION

       The judgment of the post-conviction court is affirmed.


                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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