                                                                                          08/10/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs May 2, 2018

                 ALLEN BOOKER v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                  No. 14-04084       J. Robert Carter, Jr., Judge
                     ___________________________________

                           No. W2017-01662-CCA-R3-PC
                       ___________________________________


The Petitioner, Allen Booker, appeals the denial of his petition for post-conviction relief,
arguing that he failed to receive due process at his trial or in the post-conviction
evidentiary hearing and the post-conviction court erred in finding that he received
effective assistance of trial 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 Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which TIMOTHY L. EASTER and
J. ROSS DYER, JJ., joined.

Terrell L. Tooten, Cordova, Tennessee, for the appellant, Allen Booker.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Scott Smith, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                         FACTS

       The Petitioner was convicted by a Shelby County Criminal Court jury of
aggravated robbery and was sentenced by the trial court as a Range I offender to ten years
in the Department of Correction. His conviction was affirmed by this court on direct
appeal, and the Petitioner did not seek permission from our supreme court to appeal.
State v. Allen Booker, No. W2015-02020-CCA-R3-CD, 2016 WL 4973271, at *1 (Tenn.
Crim. App. Sept. 15, 2016), no perm. app. filed.
       Our direct appeal opinion provides a succinct overview of the case:

              This case arises out of the February 14, 2014 robbery of Keenan
       Hall, the victim, at gunpoint, while he sat in his car outside his home after
       returning from visiting his girlfriend. The [Petitioner] was developed as a
       suspect when his fingerprint was discovered on the handle of the victim’s
       car door and the victim had indicated that the perpetrator had touched the
       door handle. The [Petitioner] was arrested and gave an incriminating
       statement to the police. He was indicted for one count of aggravated
       robbery.


Id.


       At trial, the victim testified “that the robber was over six feet tall and light-
complected, and he identified the [Petitioner] as the robber[.]” Id. at *3. The victim
acknowledged that he had been unable to identify the Petitioner at the preliminary
hearing or from a photographic array he was shown after the robbery. Id. He further
acknowledged that “he could not say with certainty that the [Petitioner] was the man who
robbed him.” Id.

       The State introduced the victim’s home surveillance videotape of the robbery,
which showed that the perpetrator touched the driver’s door handle. Id. Through the
testimony of various witnesses, the State presented evidence that a latent print lifted from
the door handle touched by the perpetrator matched the fingerprint of the Petitioner. Id.
The State additionally presented the Petitioner’s statement, in which the Petitioner
attempted to minimize his actions but admitted that he had robbed the victim while armed
with a BB gun. Id. at *2. The Petitioner also told the officers that he had a .357 revolver,
a BB gun, and some bullets at his home. Id. at *3.

        The Petitioner’s father testified on the Petitioner’s behalf that the Petitioner had
“mental problems,” was easily influenced, and could not “read, write, or comprehend
things.” Id. at *4. The Petitioner’s aunt testified that the Petitioner lived with her and
that the police found no guns or ammunition when they searched her residence following
the Petitioner’s arrest. Id. The Petitioner testified that he denied to the police that he
committed the robbery and told them that he did not want to provide a statement because
he could not read or write. Id. He identified his initials and signature on the advice of
rights form and the statement and acknowledged that a police detective read portions of
his statement aloud to him. Id. He claimed, however, that some of what was contained
in the statement read in court was not what was read to him. Id.
                                           -2-
        On February 7, 2017, the Petitioner filed a pro se petition for post-conviction relief
in which he raised a claim of ineffective assistance of counsel. Following the
appointment of post-conviction counsel, he filed an amended petition in which he alleged
that his trial counsel was ineffective for failing to cross-examine the victim regarding his
identification of the Petitioner, for failing to argue that the in-court identification was
unduly suggestive, for failing to investigate the Petitioner’s low-level reading history, and
for failing to provide discovery to the Petitioner so that the Petitioner could aid in his own
defense.

        At the evidentiary hearing, the Petitioner testified that trial counsel met with him
on “[a] few occasions” but for only “[t]wo to three minutes” each time. He said he told
trial counsel that he could not read or write and asked him to obtain his school records.
He believed that trial counsel could have done a better job at trial in highlighting the
inconsistencies in the detective’s testimony about his alleged statement by “follow[ing]
up with [the school] records” that documented his illiteracy.

      The Petitioner testified that trial counsel never provided him with a copy of
discovery and when he asked him about it, trial counsel responded that it would not do
him any good because he would be unable to read it. The Petitioner said he asked trial
counsel on “[s]everal occasions” for help reading the report. He stated he thought there
were several issues in discovery that trial counsel failed to address, including how the
victim allegedly knew him and why the victim was unable to identify him from the
photographic lineup and during the preliminary hearing.

        On cross-examination, the Petitioner acknowledged that he told the police
detective that he could not read or write and that the detective had someone read his
statement aloud to him. He said there was nothing he wanted to change in the statement
as “[f]ar as what [the reader] told [him] it said[.]”

       Trial counsel, who had been practicing law since 1991, testified that he met with
the Petitioner on several occasions in meetings that varied in length but were more than
the two or three minutes claimed by the Petitioner. He said he reviewed discovery with
the Petitioner, including the photographic lineup, and read the discovery materials to the
Petitioner when the Petitioner informed him he was unable to read. He asked the
Petitioner if he wanted a copy of discovery but the Petitioner refused, asking that trial
counsel instead mail it to the Petitioner’s aunt, which trial counsel did. Among other
things, trial counsel also filed a motion to suppress the Petitioner’s statement, which he
based on the Petitioner’s illiteracy, and had the Petitioner sign a release authorizing
counsel to obtain his medical and school records. Trial counsel could not recall the
specifics of his cross-examination of trial witnesses, but believed that he cross-examined
                                            -3-
the victim about his inability to identify the Petitioner from the photographic lineup or at
the preliminary hearing.

       On cross-examination, trial counsel recalled that he was able to get the victim to
acknowledge he was not completely certain in his identification of the Petitioner. He
agreed that the Petitioner’s fingerprint was found on the vehicle’s door handle and that
the home surveillance tape corroborated the victim’s account that the perpetrator touched
his driver’s door handle. Trial counsel acknowledged that he retained a literacy expert
who evaluated the Petitioner and testified on his behalf at the motion to suppress the
statement. As for the authenticity of the home videotape, he said that the victim’s father,
who had installed the home security camera, identified the videotape at trial.

       On redirect examination, trial counsel testified that he subpoenaed the Petitioner’s
Shelby County School records, which showed that the Petitioner was in the eleventh
grade but did not reflect that he was unable to read. Counsel explained that he did not
introduce the school records at trial because of his concern that “putting the school
records in front of the jury without any of the school records saying he cannot read would
possibly prejudice the jury against [the Petitioner] making them think he can, in fact, read
and he couldn’t read.” Trial counsel identified a “Shelby County Government
Authorization for Release of Information” form, on which he had written “Read to and
explained by [trial counsel,]” with the date of February 4, 2015, and which was signed by
the Petitioner.

       On recross examination, trial counsel identified a manila envelope dated October
22, 2014, and signed by the Petitioner, on which trial counsel had written, “I cannot read.
I wish for my discovery to stay with my attorney and I authorize my attorney to give my
discovery to Fannie Booker, [my] aunt.”

      The Petitioner, called as a rebuttal witness, testified that the signature on the
manila envelope was not his.

       On August 7, 2017, the post-conviction court entered an order denying the
petition, finding that the Petitioner failed to meet his burden of demonstrating that his
counsel was deficient in his performance or that any alleged deficiency prejudiced the
outcome of his case. Thereafter, the Petitioner filed a timely notice of appeal to this
court.




                                           -4-
                                       ANALYSIS


        The Petitioner argues on appeal that his trial counsel was ineffective for not
objecting to the trial court’s failure to instruct the jury on lesser-included offenses or
raising the issue in the direct appeal, for not exploring the Petitioner’s “problems
regarding his illiteracy” as “part of his defense before the jury,” and for not either
requesting a mistrial based on the victim’s inability to identify the Petitioner at trial or
moving to suppress the in-court identification. The Petitioner acknowledges that he
failed to raise the lesser-included offenses issue in his post-conviction petition but argues
that it constitutes plain error. The Petitioner further argues that he was denied his due
process rights at trial due to the trial court’s failure to instruct the jury on the proper
lesser-included offenses, and denied his due process rights at the post-conviction hearing
due to the post-conviction court’s failure to address each of his allegations of ineffective
assistance of counsel.

        The State responds by arguing that the Petitioner has not established that he was
denied the effective assistance of counsel, that the Petitioner has waived the issues he
failed to include in his post-conviction petition, and that the Petitioner cannot show any
violation of his due process rights because he could have raised the lesser-included
offenses issue in his direct appeal and the post-conviction court ruled on all the issues
that post-conviction counsel argued at the hearing. We agree with the State.

       The post-conviction petitioner bears the burden of proving his allegations by clear
and convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary
hearing is held in the post-conviction setting, the findings of fact made by the court are
conclusive on appeal unless the evidence preponderates against them. See Tidwell v.
State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review involves purely
factual issues, the appellate court should not reweigh or reevaluate the evidence. See
Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review of a trial court’s
application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de
novo, with a presumption of correctness given only to the post-conviction court’s
findings of fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6
S.W.3d 453, 461 (Tenn. 1999).

       To establish a claim of ineffective assistance of counsel, the petitioner has the
burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984); see State v.
                                            -5-
Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that same standard for
determining ineffective assistance of counsel that is applied in federal cases also applies
in Tennessee). The Strickland standard is a two-prong test:

       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.

466 U.S. at 687.

        The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
Moreover, the reviewing court must indulge a strong presumption that the conduct of
counsel falls within the range of reasonable professional assistance, see Strickland, 466
U.S. at 690, and may not second-guess the tactical and strategic choices made by trial
counsel unless those choices were uninformed because of inadequate preparation. See
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is
satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. The same
principles apply in determining the effectiveness of trial and appellate counsel. Campbell
v. State, 904 S.W.2d 594, 596 (Tenn. 1995).

       Courts need not approach the Strickland test in a specific order or even “address
both components of the inquiry if the defendant makes an insufficient showing on one.”
466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim”).

        The record fully supports the post-conviction court’s finding that the Petitioner
failed to meet his burden of demonstrating any deficiency in counsel’s performance or
resulting prejudice to his case. The Petitioner argues on appeal that trial counsel was
ineffective for not exploring the Petitioner’s “problems regarding his illiteracy” or calling
a literacy expert to testify at trial and for not moving to suppress the victim’s in-court
identification of the Petitioner or moving for a mistrial after the victim identified the
                                            -6-
Petitioner. Trial counsel’s testimony, however, which was implicitly accredited by the
post-conviction court, established that trial counsel obtained the Petitioner’s school and
medical records and made a strategic decision not to introduce the school records at trial
because they did not reflect the Petitioner’s inability to read. Counsel also agreed, and
the transcript reflects, that counsel succeeded in getting the victim to acknowledge that he
was not certain in his identification of the Petitioner. The transcript further reflects that
the Petitioner’s inability to read was brought out before the jury through the testimony of
the police detective who took his statement and through the testimony of the Petitioner’s
father. The Petitioner has not shown that trial counsel was deficient for not introducing
the school records or moving to suppress the in-court identification or that the Petitioner
was prejudiced as a result of counsel’s alleged deficiency.

       The Petitioner acknowledges that he did not raise his allegation that trial counsel
was ineffective for failing to object to the trial court’s “refus[al] to instruct the jurors on
the proper lesser included offenses in his post-conviction petition” or raise the issue on
direct appeal, but argues that we should review the issue as plain error. However, “the
plain error rule, which would otherwise permit an appellate court to address the issue sua
sponte, may not be applied in post-conviction proceedings to grounds that would
otherwise be deemed either waived or previously determined.” Grindstaff v. State, 297
S.W.3d 208, 219 (Tenn. 2009) (citing State v. West, 19 S.W.3d 753, 756-57 (Tenn. 2000)
(footnote and citation omitted). Because the Petitioner did not raise this issue before the
post-conviction court, it is waived. See Cauthern v. State, 145 S.W.3d 571, 596 (Tenn.
Crim. App. 2004). Because the issue was waived, this issue is therefore without merit.

       We also find meritless the Petitioner’s claim that the post-conviction court failed
to consider all of the claims he presented in his post-conviction petition, thereby
depriving him of his due process rights. In its order denying the petition, the post-
conviction court reviewed the testimony presented at the evidentiary hearing, including
the Petitioner’s various complaints, before concluding that the Petitioner failed to meet
his burden of showing that his counsel’s performance was deficient and that the deficient
performance prejudiced the outcome of the proceeding. The fact that the post-conviction
court did not address each allegation in detail in its written order does not mean that the
court did not consider the claims. Moreover, as the State points out, the court specifically
addressed the only two allegations argued by post-conviction counsel at the hearing,
which concerned counsel’s alleged failure to adequately investigate or introduce at trial
evidence regarding the Petitioner’s illiteracy or to follow through on the discovery
materials provided to the Petitioner’s family member. Accordingly, we affirm the
judgment of the post-conviction court denying the petition.




                                             -7-
                                    CONCLUSION



       Based on the foregoing authorities and reasoning, we affirm the judgment of the
post-conviction court.


                                            ____________________________________
                                            ALAN E. GLENN, JUDGE




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