                                                                                                    11/26/2019
         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                   August 20, 2019 Session

                    DONALD PEDEN v. STATE OF TENNESSEE

                    Appeal from Criminal Court for Davidson County
                      No. 2013-A-134 Mark J. Fishburn, Judge


                                No. M2018-01670-CCA-R3-PC


The petitioner, Donald Peden, appeals the denial of his petition for post-conviction relief,
which petition challenged his convictions of attempted first degree murder and theft of
property valued at $500 or less, alleging that he was deprived of the effective assistance
of counsel. Because the petitioner’s post-conviction counsel also represented the
petitioner on direct appeal, we remand to the post-conviction court to determine whether
the petitioner knowingly and voluntarily agrees to waive post-conviction counsel’s
conflict of interest.

    Tenn. R. App. P. 3; Judgment of the Criminal Court Vacated and Remanded

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS, P.J., and ROBERT H. MONTGOMERY, JR., J., joined.

Manuel B. Russ,1 Nashville, Tennessee, for the appellant, Donald Peden.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Brian Ewald, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

              A Davidson County Criminal Court jury convicted the petitioner of one
count each of attempted first degree murder and theft of property valued at $500 or less,
and the trial court imposed an effective sentence of 60 years’ incarceration. State v.
Donald Peden, No. M2015-01252-CCA-R3-CD, slip op. at 1 (Tenn. Crim. App.,

1
        Post-conviction counsel was appointed to represent the petitioner in this post-conviction
proceeding. He also represented the petitioner on direct appeal by an agreed order for substitution of
appointed counsel.
Nashville, Sept. 19, 2016). The evidence at trial showed that on the morning of
September 20, 2012, the victim’s 12-year-old daughter found the victim unconscious and
bleeding on the bathroom floor. Id., slip op. at 4. A paramedic responded to the scene
and “found the victim lying face-down with an apparent head wound . . . [and] a
laceration across her entire neck.” Id. A responding police officer saw “‘blood on the
couch, on the rug, . . . a plastic mat . . . that was full of feces and blood[,] . . . [and] blood
on the wall, blood on the ground, and blood on the door.’” Id., slip op. at 6. Officers
recovered a sledgehammer and a knife from the residence, both of which were
determined to have traces of the victim’s blood. Id., slip op. at 8. Later that same day,
the petitioner, who was the victim’s live-in boyfriend, was arrested for driving under the
influence in Giles County and was wearing socks, a shirt, and shoes that were stained
with the victim’s blood. Id., slip op. at 2, 4, 8. The victim’s blood was also found in
fabric swatches taken from the white Mercury Sable that the petitioner had been driving.
Id.

               In finding the evidence sufficient to support the petitioner’s convictions,
this court stated:

               In this case, a knife and a small sledgehammer, both with
               bloodstains matching the victim’s DNA profile, were
               discovered in the living room next to the victim’s diary. The
               last entry of the diary . . . was dated September 19, 2012, and
               reflected that the victim suspected [the petitioner] of using
               drugs and intended to end her relationship with [him] and ask
               him to move out. The victim testified that the diary
               “shouldn’t have been [on the sofa],” and that she always kept
               the diary either in her nightstand or under her pillow. Under
               these circumstances, a jury could reasonably conclude that
               [the petitioner] arrived home after the victim and her
               daughters were asleep, got into a confrontation with the
               victim, and attempted to kill her using both the knife and the
               sledgehammer. Believing he had accomplished his task, he
               left in the victim’s white Mercury Sable before getting into an
               accident, at which point he was arrested wearing a shirt,
               socks, and shoes that were all stained with the victim’s blood.

Id., slip op. at 13 (third alteration in original).




                                                -2-
               In his amended petition for post-conviction relief,2 the petitioner alleged the
ineffective assistance of trial counsel. In his second amended petition for post-conviction
relief, the petitioner alleged, among other things, that his trial counsel performed
deficiently by failing to move to suppress or adequately argue for the suppression of
certain evidence, failing to challenge the validity of a search warrant, and failing to seek
additional testing of certain DNA evidence.

               At the evidentiary hearing, the petitioner testified that, at the time of the
offense, he shared a residence with the victim and her children. The petitioner stated that
a 9-1-1 call was placed at 6:30 a.m. on the morning that the victim was found bleeding.
Police responded to the residence between 7:00 and 7:30 a.m., and the warrant for the
search of the residence was signed by a general sessions judge at 9:45 a.m. that day.
Crime scene logs showed that several police officers entered the scene at 7:26, 7:47, and
8:05 a.m. The petitioner contended that the officers found the knife, sledgehammer,
journal, and a cellular telephone in the residence before obtaining a search warrant and
that trial counsel failed to moved to suppress those items. The petitioner asserted that he
could have achieved a more favorable outcome at trial had those items been excluded.

               The petitioner testified that, during his interview with police officers at the
Giles County Jail, officers noticed blood on the petitioner’s socks and told the petitioner
that they would get the socks from him one way or another. The petitioner then gave the
officers his socks believing that they would have otherwise taken them from him. The
petitioner acknowledged that the blood on his socks was determined to be the victim’s
blood. During that same interview, officers collected blood evidence from the
petitioner’s thumb. The petitioner acknowledged that trial counsel had sought to
suppress the socks and the blood from his thumb on Fifth and Sixth Amendment grounds,
but the petitioner asserted that trial counsel should have also raised a Fourth Amendment
violation in the collection of those items.

              The petitioner noted that blood evidence was recovered from the inside of
his vehicle but stated that the DNA tests were inconclusive as to the contributor of the
blood. The petitioner acknowledged that trial counsel sought suppression of the evidence
recovered from the vehicle on Fifth and Sixth Amendment grounds, but the petitioner
again asserted that trial counsel should have raised a Fourth Amendment violation.

             The petitioner acknowledged that the police obtained a search warrant from
Giles County for the petitioner’s clothing that he was wearing at the time of his arrest and
for a sample of the petitioner’s DNA. The petitioner stated that Detective Michael
2
       The petitioner’s original petition for post-conviction relief is not contained in the record.

                                                    -3-
Bennett’s affidavit of probable cause in the Giles County search warrant stated that the
victim had identified the petitioner as the perpetrator; the petitioner contended, however,
that the victim had identified Bubba Braden as the perpetrator, and, although officers
tried to get the victim to say that the petitioner and Bubba Braden were the same person,
the victim never identified the petitioner as Bubba Braden. The petitioner’s clothing that
was collected pursuant to the Giles County warrant was found to contain the victim’s
blood, and the petitioner asserted that he would have benefitted from the exclusion of
those articles of clothing at trial.

               The petitioner stated that the DNA testing of at least one piece of evidence
excluded the petitioner. The petitioner asked trial counsel to seek additional testing of
that item to identify the DNA contributor, but trial counsel “just kept saying that I wasn’t
excluded, it was inconclusive” and that additional testing was unnecessary.

              During cross-examination, the petitioner explained that the crime scene
included areas outside of the residence including the porch and sidewalk leading to the
front door. The petitioner acknowledged that Officer Charles Linville’s supplemental
report indicated that prior to obtaining the search warrant, Officer Linville only walked
through the residence and made observations. The petitioner stated that Detective Adam
Weeks was also present at the crime scene before the search warrant issued, but the
petitioner acknowledged that he had no evidence that Detective Weeks searched or
collected any evidence prior to obtaining the warrant.

              The petitioner acknowledged that he gave his socks to a detective, but he
asserted that he was intoxicated at the time and that he did not have an independent
memory of the encounter. The petitioner recalled that trial counsel filed “another petition
or motion” related to the October 1, 2014 suppression hearing, but the petitioner did not
know what issues trial counsel raised in that filing.

              The petitioner further acknowledged that trial counsel had “addressed the
legality of the Metro [Nashville] Police towing the vehicle from Giles County to
Nashville” and that he had a hearing on the issue, but the petitioner maintained that trial
counsel nonetheless failed to sufficiently argue that the police lacked probable cause to
tow the vehicle.

             The petitioner reiterated that, when interviewed by police at the hospital,
the victim had identified Bubba Braden as the person who attacked her. The petitioner
acknowledged, however, that the victim then said that Bubba Braden and the petitioner
were the same person. He also acknowledged that when an officer showed the victim a
photograph of the petitioner, the victim identified the petitioner as the person who
                                            -4-
attacked her. Despite the victim’s statements to police and despite the petitioner’s
acknowledging that the victim identified him and Bubba Braden as “[t]wo and the same,”
the petitioner maintained that the victim never identified him as the perpetrator and that
the warrant for the petitioner’s clothing and a DNA sample was based on an untrue
statement of probable cause. The warrant was executed on the petitioner while he was in
custody at the Giles County jail. The petitioner acknowledged that he lived with the
victim at the time of the attack and that he and the victim had been having difficulties in
their relationship.

             Regarding DNA testing, the petitioner explained that he wanted trial
counsel to “[r]un it through CODIS” to search for a match to a Bubba Braden or to
develop another suspect.

              During redirect examination, the petitioner contended that several police
officers searched the residence before the search warrant issued. The petitioner also
stated that had additional DNA testing revealed Bubba Braden or another person as the
contributor of the DNA, such information would have bolstered his defense at trial.

                Upon questioning by the court, the petitioner acknowledged that additional
testing of the DNA found on the sledgehammer could have further implicated him, but he
stated that trial counsel never discussed the possibility of additional testing with him.

               Trial counsel testified that he was appointed to represent the petitioner in
January of 2014 before the November 2014 trial. The petitioner was previously
represented by the public defender’s office. Trial counsel recalled meeting with the
petitioner at the jail several times, reviewing discovery materials, and listening to the
victim’s audio-recorded interview with police. Trial counsel described his defense
strategy as raising the victim’s identifying Bubba Braden as the perpetrator and the police
officers’ focusing solely on the petitioner and failing to investigate Bubba Braden.

              Trial counsel stated that he moved to suppress certain evidence on Fifth and
Sixth Amendment grounds, and he later filed an amended suppression motion to include
a Fourth Amendment argument. Counsel acknowledged that he did not seek to suppress
the evidence found in the search of the residence, stating, “[I]f I would have looked over
it and thought that it had merit, I would have” filed such a motion. Trial counsel relied
on the police reports and statements from the officers in making his determination to not
move to suppress the results of the search of the residence. He agreed that the police
reports established that the police walked through the residence first, then obtained a
search warrant before conducting a thorough search. Trial counsel noted that whether the
police conducted an illegal search of the residence depended on several factors.
                                            -5-
               Trial counsel stated that the results of one DNA test excluded the defendant
and that he cross-examined the witness about that test. Based on the witness’ testimony
that the DNA sample had not been run through CODIS to search for another DNA match,
trial counsel argued that the police developed tunnel vision of the petitioner as the
perpetrator and that they failed to conduct a sufficient investigation. Counsel said that his
decision to not seek additional testing was strategic, stating, “I don’t think it was going to
come back to Bubba Braden and, you know, I don’t know who it was going to come back
to, but that’s kind of like one of those things where, you know, you might not necessarily
want to get that answer.” Trial counsel further explained that if the DNA sample had
come back to a TBI lab employee, he would no longer be able to “argue that it could be
Bubba Braden’s” DNA.

              Trial counsel testified that he moved to suppress the petitioner’s socks and
other clothing based on Fifth and Sixth Amendment violations, but he acknowledged that
he did not challenge Detective Bennett’s statements of probable cause in the search
warrant “because I think they were [made] in the honest belief.”

              During cross-examination, trial counsel acknowledged that he did not move
to suppress the collection of the petitioner’s DNA or clothing that had been placed into
property at the Giles County jail, which was collected pursuant to a search warrant. Trial
counsel stated that the victim identified the petitioner in her interview with police
although “it was almost like [the officers] were forcing her to say Bubba Braden is [the
petitioner].” Trial counsel said that filing a Franks motion to challenge Detective
Bennett’s statement of probable cause in the warrant “never crossed [his] mind.”
Regarding the collection of the petitioner’s socks and the collection of the blood from the
petitioner’s thumb, trial counsel stated that his “bigger argument” for suppression
centered on a violation of the petitioner’s right to counsel.

              Trial counsel stated that it was apparent that police officers entered the
residence and “looked around” prior to obtaining a search warrant. Counsel said that he
did not consider moving to suppress the evidence from the search of the residence,
saying, “[S]hould I have filed it, yeah, I don’t know, maybe. I don’t know what the
outcome would have been.” Counsel acknowledged that he did not research the doctrine
of inevitable discovery or consider whether the search warrant for the residence was
overbroad. Trial counsel conceded that excluding the evidence recovered from the
residence would have been beneficial to the petitioner’s defense.

              Regarding the search and seizure of the petitioner’s vehicle, trial counsel
recalled that he argued that the vehicle was illegally towed because the search warrant
                                             -6-
was obtained from Davidson County when the vehicle was located in Giles County.
Counsel also argued that “if the [petitioner’s] statement was illegally obtained,” then “the
search warrant for the car” based on that statement was invalid.

              Trial counsel acknowledged that, had additional testing of the DNA come
back to a specific person who lacked an alibi, “obviously that’s going to be incredibly
beneficial” to the petitioner’s case, but counsel reiterated that the risk of the DNA coming
back to a TBI lab technician or another person with an alibi would weaken his defense.
Trial counsel acknowledged that despite the results of additional DNA testing, he still
would have been able to argue that the victim had identified Bubba Braden as the
perpetrator of the attack.

               The petitioner’s father, Donald Peden, Sr., testified to issues not relevant to
this appeal.

               As relevant to this appeal, in its written order denying post-conviction
relief, the post-conviction court found that trial counsel did not attempt to suppress
evidence seized from the residence but that there was no evidence that officers had
collected the evidence prior to obtaining the search warrant. Furthermore, the court
found that the officers did not rely on anything found during the walkthrough of the
residence in securing a search warrant. The post-conviction court found that trial counsel
sought to suppress the petitioner’s socks and the swabs taken from the petitioner’s fingers
after he requested counsel, but the court concluded that the merits of the motion to
suppress were determined on direct appeal. As to the evidence collected from the
petitioner’s vehicle, the post-conviction court found that trial counsel had moved to
suppress that evidence on the ground that the vehicle was unlawfully seized. The post-
conviction court found that trial counsel did not lodge a Franks objection to the warrant
obtained to collect the petitioner’s clothing and DNA sample; however, the court
concluded that, because the petitioner failed to present the warrant at the post-conviction
hearing, the court could not determine whether the warrant was defective. Finally, the
post-conviction court found that trial counsel’s decision to not seek additional testing of
the DNA found on the sledgehammer was strategic “in an effort to preserve all possible
defenses in the case.” Furthermore, the court concluded that the petitioner failed to show
that further testing would have provided favorable results.

               In this timely appeal, the petitioner argues that trial counsel performed
deficiently by failing to seek suppression of evidence found during the warrantless search
of the residence, failing to seek suppression of evidence taken from the petitioner during
his interrogation at the Giles County jail on Fourth Amendment grounds, failing to seek
suppression of the search and seizure of the petitioner’s vehicle on Fourth Amendment
                                             -7-
grounds, failing to challenge the Giles County search warrant for the petitioner’s clothing
and DNA samples, and failing to seek additional testing of certain DNA evidence.

              We view the petitioner’s claim with a few well-settled principles in mind.
Post-conviction relief is available only “when the conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A post-
conviction petitioner bears the burden of proving his or her factual allegations by clear
and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to
the post-conviction court’s findings of fact the weight of a jury verdict, and these findings
are conclusive on appeal unless the evidence preponderates against them. Henley v.
State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn.
Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no
deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453
(Tenn. 2001).

               We note that a post-conviction petitioner has no constitutional right to
counsel, see Frazier v. State, 303 S.W.3d 674, 680 (Tenn. 2010); however, the post-
conviction petitioner is afforded a statutory right to counsel, see T.C.A. § 40-30-
107(b)(1); Frazier, 303 S.W.3d at 680. Although “performance of post-conviction
counsel is not governed by the standard set forth in Strickland,” Frazier, 303 S.W.3d at
682, a post-conviction petitioner has “the right to be represented by conflict-free
counsel,” id. (quoting Kevin Burns v. State, No. W2000-02871-CCA-R9-PD, slip op. at 5
(Tenn. Crim. App., Jackson, Aug. 9, 2001)). The role of post-conviction counsel is “not
to protect [petitioners] from the prosecutorial forces of the State, but to shape their
complaints into the proper legal form and to present those complaints to the court.”
Frazier, 303 S.W.3d at 682 (quoting People v. Owens, 564 N.E.2d 1184, 1190 (Ill.
1990)). Though post-conviction counsel’s role differs from that of trial counsel, “[i]f
post-conviction counsel is appointed to mold the defendant’s allegations into legally
cognizable shapes, that counsel must be as conflict-free as trial counsel.” Frazier, 303
S.W.3d at 681 (quoting People v. Hardin, 840 N.E.2d 1205, 1212 (Ill. 2005)). Post-
conviction counsel “with an actual conflict of interest is subject to disqualification.”
McCullough v. State, 144 S.W.3d 382, 386 (Tenn. Crim. App. 2003) (citing State v. Tate,
925 S.W.2d 548, 553 (Tenn. Crim. App. 1995)).

              A conflict of interest exists when “an attorney is placed in a position of
divided loyalties.” McCullough, 144 S.W.3d at 385 (citing State v. Culbreath, 30 S.W.3d
309, 312 (Tenn. 2000)). Such divided loyalties arise when an attorney who represented a
petitioner on direct appeal also serves as that petitioner’s post-conviction counsel.
Frazier, 303 S.W.3d at 682-83; McCullough, 144 S.W.3d at 385 (stating that when post-
                                             -8-
conviction counsel had previously served as the petitioner’s counsel on direct appeal “it
is reasonable to anticipate that [counsel’s] financial, business and/or personal interests
may affect his professional judgment insofar as advising the [petitioner] about any
possible ineffectiveness on his part with respect to the direct appeal”); see also Tenn.
Sup. Ct. R. 8, RPC 1.7(2) (“A concurrent conflict of interest exists if . . . there is a
significant risk that the representation of one or more clients will be materially limited by
. . . a personal interest of the lawyer.”). As our supreme court has stated, “[C]ounsel
representing a post-conviction petitioner can hardly be expected to objectively evaluate
his or her performance on the direct appeal of a conviction and sentence.” Frazier, 303
S.W.3d at 683 (citing Velarde v. United States, 972 F.2d 826, 827 (7th Cir. 1992)).

               In addition to an attorney’s “obligation to avoid ethical violations in their
practice of law,” “courts have an independent duty to ensure that all proceedings are
conducted within the ethical standards of the profession and are ‘fair to all who
observe.’” Frazier, 303 S.W.3d at 683 (quoting Wheat v. United States, 486 U.S. 153,
160 (1988); and citing Cuyler v. Sullivan, 446 U.S. 335, 346-47 (1980)). “When,
therefore, the [post-conviction] court is aware or should be aware of a conflict of interest,
there must be an inquiry as to its nature and appropriate measures taken.” Frazier, 303
S.W.3d at 683 (citing Sullivan, 446 U.S. at 346-47). The post-conviction court has an
affirmative “duty to either disqualify counsel with an actual conflict of interest or, as an
alternative to disqualification, assure that a post-conviction petitioner has knowingly and
voluntarily waived the conflict.” Frazier, 303 S.W.3d at 679-80. Our supreme court has
provided the following guidelines a post-conviction court should follow to ensure that a
petitioner’s waiver of the conflict of interest is knowing and voluntary:

              [The p]etitioner should (1) be brought into open court, (2) be
              given a full explanation on the record how this matter would
              affect him; (3) be advised of his right to appointment of other
              counsel; (4) be questioned under oath by the parties and the
              post-conviction court to determine his understanding of this
              matter and waiver; and (5) state under oath whether he desires
              to waive any appearance of impropriety.

Frazier, 303 S.W.3d at 684 (quoting Burns, slip op. at 8). If the petitioner makes “a
knowing and voluntary waiver of the conflict of interest that is satisfactory to the [post-
conviction] court,” then “[c]ounsel may continue representation.” Frazier, 303 S.W.3d at
684-85. Absent the petitioner’s valid waiver of the conflict, however, the post-conviction
court must disqualify post-conviction counsel and appoint conflict-free counsel. Id.



                                             -9-
              Because post-conviction counsel here was also the petitioner’s counsel on
the direct appeal of the underlying convictions, the post-conviction court should have
either disqualified counsel and appointed a conflict-free attorney or conducted a hearing
to advise the petitioner of the conflict and to give the petitioner an opportunity to waive
the conflict. From the record, it does not appear that such a proceeding occurred.

               Furthermore, several matters in this case raise specific concerns regarding
post-conviction counsel’s conflict of interest. The petitioner’s original pro se post-
conviction petition is omitted from the record, which precludes our determining whether
the petitioner initially intended to raise a claim of ineffective assistance of appellate
counsel. Additionally, post-conviction counsel moved to withdraw from representation
on April 6, 2018, stating that the petitioner was “unsatisfied with [c]ounsel’s performance
and drafting of the [amended] petition” and that the petitioner “would be better served
with new counsel that he finds more trustworthy.” The motion to withdraw was stricken
less than two weeks later, but the record does not indicate a reason. Finally, the
petitioner has asserted an ineffective assistance of counsel claim related to trial counsel’s
failure to raise Fourth Amendment issues in moving to suppress certain evidence. The
record reveals that the trial court ruled on certain Fourth Amendment claims in its denial
of the petitioner’s suppression motion but that the petitioner raised only one Fourth
Amendment claim on direct appeal. In its brief, the State raises the petitioner’s failure to
assert a Fourth Amendment claim as to the socks and thumb swab on direct appeal,
noting that if error attended the matter, it was an error of appellate counsel and not trial
counsel. Therefore, if the post-conviction court seeks to obtain from the petitioner a
waiver of counsel’s conflict of interest, it should be certain to ascertain whether the
petitioner understands that he could have potential claims against appellate counsel but
that his current post-conviction counsel cannot “be expected to objectively evaluate his . .
. own performance on the direct appeal.” See Frazier, 303 S.W.3d at 683.

               Accordingly, we vacate the post-conviction court’s judgment and remand to
that court for a determination of whether the petitioner knowingly and voluntarily agrees
to waive the conflict of interest. If the petitioner does not agree to waive the conflict of
interest, the post-conviction “court should appoint counsel, permit any amendments to the
petition, and consider all potential grounds for relief.” Frazier, 303 S.W.3d at 685.

              This opinion and judgment ends this appeal. See Born Again Church &
Christian Outreach Ministries, Inc. v. Myler Church Bldg. Sys. of the Midsouth, Inc., 266
S.W.3d 421, 425-26 (Tenn. Ct. App. 2007) (“Once the mandate reinvests the trial court’s
jurisdiction over a case, the case stands in the same posture it did before the appeal
except insofar as the trial court’s judgment has been changed or modified by the appellate


                                            -10-
court.”) (quoting Clark Matthew Earls v. Shirley Ann Earls, No. M1999-00035-COA-R3-
CV, slip op. at 4 (Tenn. Ct. App., Nashville, May 14, 2001))).


                                               _________________________________
                                              JAMES CURWOOD WITT, JR., JUDGE




                                       -11-
