        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs November 10, 2011

        SHUNDELL LYNN DICKERSON v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                     No. 2004-A-538    Cheryl Blackburn, Judge




                   No. M2011-00644-CCA-R3-PC - Filed July 3, 2012


Petitioner, Shundell Lynn Dickerson, was charged with first degree premeditated murder.
Following a jury trial, Petitioner was convicted of the lesser-included offense of facilitation
to commit first degree murder. Petitioner was sentenced as a Range III persistent offender
to 60 years incarceration. This Court affirmed Petitioner’s conviction and sentence on direct
appeal. State v. Shundell L. Dickerson, No. M2006-02021-CCA-R3-CD, 2008 WL 2780591
(Tenn. Crim. App. at Nashville, filed July 18, 2008), perm. app. denied (Tenn., Jan. 20,
2009). Petitioner filed a timely pro se petition for post-conviction relief and was appointed
counsel to represent him. Petitioner alleged several instances of ineffective assistance of
counsel at trial. Following an evidentiary hearing, the trial court entered an order denying
relief. Petitioner now appeals. Following a careful review of the record, 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 R OBERT W. W EDEMEYER, JJ., joined.

James O. Martin, Nashville, Tennessee, (on appeal) and Kristen VanderKooi, Nashville,
Tennessee, (at trial) for the appellant, Shundell Lynn Dickerson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Bret Gunn, Assistant
District Attorney General, for the appellee, the State of Tennessee.
                                          OPINION

Facts

        This Court summarized the facts underlying Petitioner’s conviction in its opinion on
direct appeal as follows:

        This case involved the fatal shooting of Eric Johnson, the victim, in a
        parking lot outside a “Fashion Force” store in Davidson County where he
        had shopped with two companions, Stormy Woods and Rhonda Thompson,
        on October 19, 2003. Fearing that the shooter would return, the victim’s
        companions drove away and left the victim lying on the pavement. They
        drove to the home of a friend and called the police to report the shooting.

        At trial, the State presented three witnesses who testified that the defendant
        told them he killed the victim. Terrence Gregory testified that, while they
        were incarcerated together, the defendant admitted killing the victim.
        Katrina Frierson, the mother of defendant’s two children, testified that the
        defendant told her that he shot the victim. Tamara Elliott, the wife of an
        associate of the defendant, also testified that the defendant told her he
        “knocked off” the victim. Additionally, the State presented evidence that
        a spent shell casing found at the murder scene was fired from the same gun
        as a spent shell casing found at the home of Ms. Frierson after the defendant
        shot her television during an argument.

State v. Shundell L. Dickerson, No. M2006-02021-CCA-R3-CD, 2008 WL 2780591, at *1
(Tenn. Crim. App. at Nashville, filed July 18, 2008), perm. app. denied (Tenn., Jan. 20,
2009) (footnote omitted).

Post-conviction hearing

        Petitioner testified at the post-conviction hearing that he was indicted for first degree
murder and possession of a handgun. Petitioner was convicted of facilitation of first degree
murder. Petitioner testified that his trial counsel was ineffective for the reasons set forth in
his petition for post-conviction relief. Specifically, counsel failed to: 1) impeach State’s
witness Katrina Frierson with prior inconsistent statements she made to police; 2)
appropriately question Detective Coleman; 3) challenge the sufficiency of the convicting
evidence on direct appeal; and 4) make appropriate argument as to sentencing. Petitioner
testified that he believed counsel’s deficient performance prejudiced him at trial and on
appeal. Notably, Petitioner did not testify as to how he was prejudiced, other than adopting

                                               -2-
his counsel’s definition of “prejudiced” as that “it changed the result of the trial.” This was
only a rather vague assertion of prejudice, and provided no specific example of prejudice as
a result of counsel’s alleged deficient representation.

        Laura Getz, one of Petitioner’s two trial attorneys, explained that Katrina Frierson was
the mother of Petitioner’s children and that a “couple of days” after the shooting death of
Eric Johnson, for which Petitioner was charged, there was another shooting incident
involving Petitioner at Ms. Frierson’s home where Petitioner shot the television. Ms. Getz
reviewed portions of Ms. Frierson’s trial testimony where Ms. Frierson had testified that after
the shooting, Petitioner left the residence for a short time to go to the backyard but returned
before the police arrived. Ms. Frierson also testified at trial that she told Detective Coleman
that she did not know anything about the homicide. Ms. Getz testified that in an interview
with Detective Coleman, Ms. Frierson stated that Petitioner did not leave the apartment and
return before police arrived “because he was too high to move.” Ms. Getz testified that she
did not impeach Ms. Frierson during cross-examination with the prior inconsistent statement.
Ms. Frierson also testified that she had told Detective Coleman that “Montez,” Petitioner, and
“Smoke,” were present when the shooting at her residence occurred but that Smoke left
before the incident. Ms. Getz explained that Smoke was Ms. Frierson’s boyfriend at that
time and that he had been charged with aggravated robbery involving a gun. However, Ms.
Frierson testified at trial that the only people present were Petitioner, Ms. Frierson, and their
children. Ms. Getz testified that she did not impeach Ms. Frierson with her prior inconsistent
statement about who was present at the time of the incident.

        Regarding the significance of the incident at Ms. Frierson’s home, Ms. Getz testified
that “the information regarding this evidence was the reason why he was convicted . . .
[b]ecause it’s the only thing that linked him to the homicide.” She later qualified her
statement by saying that it was the only physical evidence connecting Petitioner to the
murder. Ms. Getz testified that it was not a strategic decision not to impeach Ms. Frierson,
but that Ms. Getz “just missed it.” She testified that police recovered a shell casing from the
shooting at Ms. Frierson’s residence that matched ballistics evidence from a shell casing
recovered at the murder scene. Ms. Getz testified that there were three witnesses who
testified at trial that Petitioner had confessed to shooting the victim, and she did not recall
any evidence at trial that Petitioner had knowledge that another individual intended to kill
the victim.

        Dawn Deaner was Petitioner’s other trial counsel. Ms. Deaner explained that an
anonymous letter was sent to the police shortly after the victim’s murder. In the letter,
Clarence Elliott was blamed for the murder. She testified that she called Detective Coleman
as a witness for the defense and attempted to introduce the letter as an exhibit. The trial court
denied her request to introduce the letter. Ms. Deaner testified that the defense argued at trial

                                               -3-
that the letter was not hearsay because it was offered not for the truth of the matter asserted,
but instead was offered to establish that the police department had received information
which was not investigated properly. The trial court allowed Ms. Deaner to question
Detective Coleman about having received the letter, but the trial court excluded the contents
of the letter. The trial court’s ruling regarding the letter was challenged on direct appeal, and
Ms. Deaner recalled that this Court held that the issue was waived because she did not
question Detective Coleman about the investigation of the assertions in the letter.

        Ms. Deaner testified that it was not a strategic decision not to question the detective
about his investigation into the letter. She believed she “asked the questions that [she] was
allowed [by the trial court] to ask” based on the trial court’s ruling regarding the letter.
Through her examination of Detective Coleman at trial, she established that he received the
letter, personally addressed to him; that it concerned the death of the victim, Eric Johnson,
and he was unable to identify the author of the letter; that it was the front of a Christmas card
with a piece of paper enclosed in the envelope; that Detective Coleman fingerprinted those
items, but he was unable to match the prints to anyone; that the letter was stored as evidence;
and that Detective Coleman never showed the letter to the victim’s family. Ms. Deaner
testified that she did not question Detective Coleman specifically about his investigation into
the assertions in the letter. Ms. Deaner testified, “if there were questions I could have asked
that I did not ask, then I – that was an error on my part and an oversight on my part.” Ms.
Deaner made an offer of proof regarding the letter at the hearing on Petitioner’s motion for
new trial. Neither the letter, nor a copy of it, was made an exhibit at the post-conviction
hearing, primarily because the post-conviction court strongly indicated such was not needed
because the letter was “probably already in the record.”

        On cross-examination, Ms. Deaner testified that after receiving a copy of the letter in
discovery, she investigated the allegations contained in the letter and found no evidence to
support those allegations. Ms. Deaner showed the letter to Petitioner’s family and confirmed
some of the information contained in the letter. Ms. Deaner also testified that she did not
recall objecting to a jury instruction on the lesser-included offense of facilitation. She also
acknowledged that there was evidence at trial to suggest that there may have been more than
one person involved in the commission of the offense.

       Jeffrey DeVasher, an Assistant District Public Defender, testified that he represented
Petitioner on his direct appeal. Mr. DeVasher did not raise as an issue on appeal that the
evidence was insufficient to support Petitioner’s conviction. He testified that he believed the
evidence was sufficient to support the greater, indicted offense of first degree murder, and
thus a challenge to the sufficiency of the evidence to support a conviction of the lesser
included offense would be without merit.



                                               -4-
       Detective Hugh Coleman was called as a witness, however, the post-conviction court
limited his testimony. Detective Coleman’s interview with Katrina Frierson was admitted
as an exhibit to the post-conviction hearing. The following occurred when Petitioner’s
counsel called Detective Coleman as a witness:

               [THE COURT:]          Next witness?

               [PETITIONER’S COUNSEL]:              Detective Coleman.

               [ASSISTANT DISTRICT ATTORNEY]:                    Judge, can I just ask
        that we limit the questioning to things that are not already in one of the
        records in this case because Detective Coleman has been questioned several
        times about this letter.

               THE COURT:             Okay. Not only at pretrial hearing but at an
        offer of proof. So if it’s not new, I don’t want to hear it.

               Raise your right hand to be sworn.

                           DETECTIVE HUGH COLEMAN

        was called as a witness, and having been first duly sworn, was examined
        and testified as follows:

               THE COURT:           You can always include his prior testimony in
        the record. I actually remember it.

               [PETITIONER’S COUNSEL]:            Well, Your Honor, that might
        greatly limit what I’m going to question Detective Coleman about.

               THE COURT:            It ought to. We don’t need to hear it again.

               [PETITIONER’S COUNSEL]:              And, Your Honor, I will just put
        on the record that the testimony concerning his letter – or the letter he
        received, which has been the basis of testimony today already – I would like
        to admit the letter – well, can I admit the letter as an exhibit to this
        proceeding?

             THE COURT:            Well, it’s probably already in the record.
        Somewhere or another it is in that record.

                                             -5-
       [PETITIONER’S COUNSEL]:           Well, it is. It was an attachment
to – and maybe a reference to where it’s attached would be sufficient. It
was an attachment to [Petitioner]’s motion in limine concerning the letter.

       THE COURT:              All right. The State and – I’m sure we
introduced it at the first hearing we had on it as well as to the offer of proof.

       [PETITIONER’S COUNSEL]:          And then really as to the letter
Detective Coleman – I’ll just reference it for the record, Detective
Coleman’s testimony at the motion for new trial will really cover –

       THE COURT:             Well, I had forgotten about that.

       [PETITIONER’S COUNSEL]:           – the questions that I’m going to
ask him about the letter. So we will move on to –

       THE COURT:           Okay. So you want to – obviously we want to
get around to incorporating the record. You want to make sure that the
testimony at the motion for new trial is also included.

       [PETITIONER’S COUNSEL]:               Yes.

       THE COURT:             Because we did do that, right, again?

DIRECT EXAMINATION BY [PETITIONER’S COUNSEL]:

       Q.    Mr. Coleman, did you first interview Katrina Frierson about
Eric Johnson’s murder on 11-12-03?

       A.      Yes, I did.

       Q.      I have a transcript of that interview somewhere.

      [PETITIONER’S COUNSEL]:                I think I used it on another
witness. Give me just a second.

       [ASSISTANT DISTRICT ATTORNEY]:                    Judge, I’m just
going to ask if we can introduce that whole transcript as an exhibit. And I
don’t see the need for asking Detective Coleman about what’s in the



                                       -6-
transcript. He’s already been questioned by one witness [sic], and I’m
going to ask that it be made in its entirety an exhibit.

       THE COURT:            Okay. Why don’t we just do that?

      [PETITIONER’S COUNSEL]:            If you’ll give me a second, Your
Honor, I’ll review what questions I was going to ask him.

       THE COURT:            Okay.

        [PETITIONER’S COUNSEL]:           And then I can respond. I think
that’s sufficient. I have a copy we can make an exhibit.

        THE COURT:        Okay. So far this is going to be our first exhibit,
right? So Exhibit 1 is going to be the transcript of the interview of
Detective Coleman of Katrina Frierson in ‘03, which would be long prior
to this offense, correct?

       [PETITIONER’S COUNSEL]:             Correct.

      (Whereupon, the previously mentioned document was marked as
Exhibit Number 1.)

      [PETITIONER’S COUNSEL]:            I think everything I have used that
I would have normally made an exhibit is part of the record. So I’m just
looking through this file. If Your Honor might give me a minute to look
through what I have at my desk as well.

       THE COURT:            Okay.

       [PETITIONER’S COUNSEL]:         So after the Court’s ruling I’m not
going to question Detective Coleman. So I pass the witness.

       THE COURT:            Oh, okay. Do you have any quesitons.

       [ASSISTANT DISTRICT ATTORNEY]:                     No.

       [PETITIONER’S COUNSEL]:             He took my steam away.




                                     -7-
               THE COURT:             Okay. So you can be excused again. Thank you
        for coming.

                THE WITNESS:          Yes, ma’am.

        [Emphasis added.]

Analysis

        To be successful in a claim for post-conviction relief, the petitioner must prove all
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). “‘Clear and convincing evidence
means evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim.
App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 2 (Tenn. 1992)).
Issues regarding the credibility of witnesses, the weight and value to be accorded their
testimony, and the factual questions raised by the evidence adduced at trial are to be resolved
by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579
(Tenn. 1997). Therefore, we afford the post-conviction court’s findings of fact the weight
of a jury verdict, with such findings being conclusive on appeal absent a showing that the
evidence in the record preponderates against those findings. Id. at 578.

        A claim of ineffective assistance of counsel is a mixed question of law and fact. See
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s
findings of fact de novo with a presumption that those findings are correct. See Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001). However, we will review the post-conviction
court’s conclusions of law purely de novo. Id.

       “To establish ineffective assistance of counsel, the petitioner bears the burden of
proving both that counsel’s performance was deficient and that the deficiency prejudiced the
defense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984)). In evaluating whether the
petitioner has met this burden, this Court must determine whether counsel’s performance was
within the range of competence required of attorneys in criminal cases. See Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn.1975).

       On appeal, Petitioner asserts that trial counsel was ineffective for the following
reasons: 1) trial counsel failed to appropriately impeach Katrina Frierson with her prior
inconsistent statements made to police; 2) trial counsel failed to appropriately question
Detective Coleman about the anonymous letter incriminating someone else in the victim’s

                                              -8-
murder; and 3) appellate counsel failed to raise the issue of sufficiency of the evidence on
appeal.

Impeaching Katrina Frierson

        The inconsistent statements that Petitioner asserts trial counsel should have used to
impeach Katrina Frierson at trial are that: she told Detective Coleman that her then-boyfriend
Smoke had been at her house on the day of the shooting, but she testified at trial that only
she, her children, and Petitioner were at her house at the time of the shooting; and Ms.
Frierson testified at trial that after firing a gun at her television, Petitioner ran into the
backyard and returned before police arrived, but she had previously told Detective Coleman
that Petitioner had not gone outside “because he was too high to move.” Petitioner asserts
that counsel’s failure to effectively cross-examine Ms. Frierson was detrimental to his case
because Petitioner claims “the only physical evidence” linking him to the crime for which
he was convicted was the ballistics match between the shell casing recovered after the
shooting incident at Ms. Frierson’s home and the shell casing found at the crime scene where
the victim was killed. The State responds that counsel’s failure to impeach Ms. Frierson was
not deficient because the statements were not inconsistent, and the alleged deficiency was
not prejudicial because there was other inculpatory witness testimony.

       In its order denying relief, the post-conviction court found:

        As to the first alleged inconsistent statement, the Court has reviewed both
        Ms. Frierson’s trial testimony and her police interview and finds there was
        no inconsistency as to her statements. As the State pointed out during the
        cross-examination of Ms. Getz, the State’s question to Ms. Frierson at trial
        was who was present in her home at the time of the shooting, . . . , whereas
        during her interview with Detective Coleman she told him who had been at
        her house on the day of the shooting.

        ....

        As to the second alleged inconsistent statement, the Court finds it may be
        possible that Ms. Frierson made an inconsistent statement, but even if she
        had, Petitioner has not demonstrated he was prejudiced by counsel’s alleged
        deficiency of not bringing the possible contradiction out at trial. At trial,
        Ms. Frierson testified that Petitioner went to the backyard after the shooting
        and returned before the police arrived. . . . The statement Petitioner alleges
        is inconsistent is Ms. Frierson’s response to Detective Coleman’s question
        as to where Petitioner was when the police arrived. Detective Coleman

                                             -9-
        inquired if Petitioner ran out of the house when the police arrived or
        whether he was apprehended in the house. Ms. Frierson’s response was:
        “Naw [sic] they caught him in the house . . . Because he was so high he
        couldn’t go nowhere or move.” . . . . If Ms. Frierson’s testimony had been
        explored, it could be these statements were, in fact, not inconsistent as it is
        possible Petitioner went in the backyard briefly after the shooting (as clearly
        he was able to move when he shot the television), but then when he returned
        he stayed in the house because he was too intoxicated to consider[ ] leaving.
        Nonetheless, even if Ms. Frierson’s statements were found to be
        inconsistent, Petitioner has not demonstrated that he suffered prejudice due
        to the fact his trial counsel did not question Ms. Frierson at trial about her
        prior statement to Detective Coleman. As noted during the evidentiary
        hearing, the evidence against Petitioner included a ballistics match as well
        as two other individuals in addition to Ms. Frierson testifying that Petitioner
        had confessed to the shooting.

       This Court has previously noted that “cross-examination is a strategic and tactical
decision of trial counsel, which is not to be measured by hindsight.” State v. Kerley, 820
S.W.2d 753, 756 (Tenn. Crim. App. 1991). Moreover, “[a]llegations of ineffective assistance
of counsel relating to matters of trial strategy or tactics do not provide a basis for
post-conviction relief.” Taylor v. State, 814 S.W.2d 374, 378 (Tenn. Crim. App. 1991).

        Petitioner’s trial counsel acknowledged at the post-conviction hearing that the failure
to cross-examine Ms. Frierson about her alleged inconsistent statements was an oversight
rather than a tactical trial decision. Nevertheless, we conclude that Petitioner has not
established that the evidence preponderates against the post-conviction court’s finding that
the statements were not inconsistent and that Petitioner was not prejudiced by counsel’s
failure to impeach Ms. Frierson. Three witnesses, including Ms. Frierson, testified at trial
that Petitioner had confessed to them that he killed the victim. See State v. Shundell L.
Dickerson, 2008 WL 2780591, at *1. In addition to those witnesses’ testimony, there was
the ballistics match between the two shell casings. Petitioner contends that Ms. Frierson’s
statement to Detective Coleman about Smoke was especially significant because Smoke was
implicated in several aggravated robberies, and questioning Ms. Frierson would have
presented evidence that someone other than Petitioner, “known for carrying guns,” was at
Frierson’s home on the day Petitioner shot her television and the police recovered a shell
casing. However, the record does not support Petitioner’s contention. In her interview with
Detective Coleman, Ms. Frierson denied that Smoke had a gun or fired a gun while in her
home. She told Detective Coleman that no one other than Petitioner fired a gun in her house
and that the shell casing found in her house came from Petitioner’s gun. We agree with the
State that the evidence does not undermine or rebut the ballistics evidence, and therefore,

                                             -10-
Petitioner was not prejudiced by counsel’s failure to cross-examine Ms. Frierson further
about Smoke’s presence at her home that day. Defendant is not entitled to relief on this
issue.

Cross-examination of Detective Coleman

       Petitioner next contends that trial counsel’s failure to question Detective Coleman
about the anonymous letter was deficient and prejudiced his defense.

       The post-conviction court found that counsel’s performance was not deficient because
the court had ruled in a pretrial hearing regarding the letter that the content of the letter was
inadmissible hearsay and that counsel limited her questioning according to the ruling. The
post-conviction court also found that counsel’s failure to inquire further about the letter did
not prejudice Petitioner because Petitioner’s counsel had the opportunity to investigate the
allegations of the letter and, in doing so, found no admissible exculpatory evidence.

       In the direct appeal, Petitioner argued that the trial court erred in excluding the
contents of the letter because it was not offered for the truth of the matter asserted (that
someone else killed the victim), but rather to show that detectives failed to adequately
investigate the case. This Court held that Petitioner waived the issue because he “failed to
take steps to nullify the error when he did not ask pertinent questions regarding the
investigation into the contents of the letter.” State v. Shundell L. Dickerson, 2008 WL
2780591, at *2. Petitioner’s trial counsel testified at the post-conviction hearing that she
questioned Detective Coleman at trial about the letter to the extent the trial court’s ruling
allowed, and if she failed to question further, that was “error on [her] part.”

        In the direct appeal, this Court concluded that Petitioner “ha[d] not shown that the
letter was critical to his defense. The letter showed no failure by the police but merely
suggested other leads they might follow in their investigation.” Id.

        Based on the record before us, it appears the trial court made a pretrial ruling
concerning the admissibility of the letter and its specific contents, but gave trial counsel some
latitude to question Detective Coleman about circumstances surrounding receipt of the letter
and what was done or not done as a result of receiving the letter. Trial counsel limited her
cross-examination of Detective Coleman based upon her understanding of the trial court’s
ruling. Petitioner’s appellate counsel raised the issue on direct appeal, and a panel of this
Court held that the issue was waived because trial counsel failed to pursue a line of
questioning of Detective Coleman regarding his investigation into “the allegations included
in the letter.” The post-conviction court is the same judge who presided over the trial. The
post-conviction court made very clear at the post-conviction hearing that “the allegations

                                              -11-
included in the letter” were not going to be made known to the jury. Specifically, the post-
conviction court stated,

                THE COURT:            But the general is correct. It wasn’t coming in
        for the truth, so they couldn’t be considered for the truth in that. So it’s not
        crucial evidence. And don’t misunderstand a single thing if you don’t get
        it this way. The contents of that letter w[ere] not coming in front of the
        jury. I’m as firm about that today as I was when it happened for the very
        reason I said – for several reasons. One, it’s hearsay. But the other part of
        it is we don’t know who wrote that letter. It could have been Mr. Dickerson
        himself to send the police to get them off on a rabbit track. So why should
        somebody be allowed to gain from that when you don’t know who wrote the
        letter? Now, the other part of it is, as Ms. Deaner said in her testimony,
        they couldn’t – they didn’t – couldn’t bring – if they had found something
        that would have corroborated that Eric Johnson [sic] did it, they could have
        tried to bring those live witnesses in front of the Court. They were never
        prevented from doing that. But they couldn’t find anything.

       We note that post-conviction counsel indicated the intent to question Detective
Coleman at the post-conviction hearing about the anonymous letter and submit the letter as
an exhibit. We have set forth elsewhere in this opinion the proceedings concerning Detective
Coleman being called as a witness. Even giving the post-conviction court the benefit of the
doubt, it appears from the transcript in this case that the post-conviction court erroneously
limited Petitioner’s counsel in her ability to put on proof in Petitioner’s post-conviction case.
The burden of proof imposed upon petitioners in post-conviction cases is well established.
See Tenn. Code Ann. § 40-30-110(f) (a petitioner must prove allegations of fact by clear and
convincing evidence); see also Dellinger v. State, 279 S.W.3d 282 (Tenn. 2009).

        A post-conviction court should never limit a petitioner’s counsel’s ability to submit
proof by restricting the presentation of evidence for any reasons other than those contained
in statute, case law, or rules. In other words, the opinion that “if it’s not new, I don’t want
to hear it,” is not a proper basis to limit counsel’s presentation of proof in a post-conviction
case. Also, simply because some testimony by a witness in a post-conviction hearing may
be a repeat of prior testimony during the trial or proceedings related to the trial that is not a
basis to limit examination at the post-conviction hearing. We note this specific exchange just
after Detective Coleman was called as a witness by Petitioner at the post-conviction hearing:

                DETECTIVE HUGH COLEMAN




                                              -12-
        was called as a witness, and having been first duly sworn, was examined
        and testified as follows:

               THE COURT:           You can always include his prior testimony in
        the record. I actually remember it.

               [PETITIONER’S COUNSEL]:            Well, Your Honor, that might
        greatly limit what I’m going to question Detective Coleman about.

                THE COURT:            It ought to. We don’t need to hear it again.

       Notwithstanding the fact that the post-conviction court apparently erroneously cut off
Petitioner’s presentation of proof, Petitioner’s counsel failed to request the ability to make
an offer of proof. Whenever a post-conviction counsel is confronted by a post-conviction
court’s insistence upon limiting the proof, counsel should always request the ability to make
an offer of proof to preserve the issue for appeal. Since counsel did not do this, we have no
option other than to conclude Petitioner is not entitled to relief on this issue.

Failure by counsel to raise sufficiency of the evidence on direct appeal

       Petitioner asserts that his appellate counsel rendered ineffective assistance of counsel
because appellate counsel failed to challenge on appeal the sufficiency of the evidence to
sustain his conviction of the lesser included offense of facilitation of premeditated first
degree murder. The facilitation statute is titled as “Criminal responsibility for facilitation of
felony.” Tenn. Code Ann. § 39-11-403. The elements of this offense are:

        A person is criminally responsible for the facilitation of a felony, if,
        knowing that another intends to commit a specific felony, but without the
        intent required for criminal responsibility under § 39-11-402(2), the person
        knowingly furnishes substantial assistance in the commission of the felony.

Id.

        We glean that Petitioner’s argument is that at trial there was absolutely no evidence,
direct or circumstantial, that Petitioner knew another person was going to commit the specific
felony of premeditated first degree murder, and there was absolutely no evidence, direct or
circumstantial, that Petitioner knowingly furnished “substantial assistance” to anyone in
committing the offense of premeditated first degree murder of the victim.




                                              -13-
        There are two significant events that must be addressed in this case. First, the entire
record of the first trial, which was contained in the appellate record on the direct appeal, was
apparently destroyed at its archival location during the massive flood in downtown Nashville
the first few days of May, 2010. Second, the Tennessee Supreme Court filed its opinion in
State v. Parker, 350 s.W.3d 883 (Tenn. 2011).

       At the post-conviction hearing, Petitioner’s appellate counsel acknowledged that he
did not challenge the sufficiency of the evidence to sustain the conviction for facilitation of
premeditated first degree murder. Appellate counsel testified, “I think also given the proof
that connected [Petitioner] to the murder weapon and the proof that there was more than one
person in the car from where the shots were fired, that that arguably could have supported
a verdict for facilitation.”

        Appellate counsel made this remark during cross-examination by the State. Just prior
thereto, appellate counsel acknowledged that Tennessee’s appellate courts have routinely
reviewed the sufficiency of the evidence when a defendant is convicted of an offense which
is not a charged offense, but is a lesser-included offense. However, he added, “I don’t recall
any cases where the appellate courts have reversed a conviction based on insufficient
evidence while simultaneously holding that there was sufficient evidence to support a greater
charge.”

        We agree with the State that appellate counsel relied upon case law, including our
supreme court’s opinion in State v. Mellons, 557 S.W.2d 497 (Tenn. 1977), overruled by
State v. Parker, 350 S.W.3d 883 (Tenn. 2011), in declining to challenge the sufficiency of
the convicting evidence. The same principles apply in determining the effectiveness of both
trial and appellate counsel. See Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995). A
petitioner who alleges ineffective assistance of appellate counsel must prove both that 1)
appellate counsel was objectively unreasonable in failing to raise a particular issue on appeal,
and 2) absent counsel’s deficient performance, there was a reasonable probability that the
petitioner’s appeal would have been successful before the state’s highest court. See Smith
v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 145 L. Ed. 2d756 (2000).

        Because the sufficiency of the evidence issue was not raised on appeal, this Court’s
opinion in the direct appeal contains only a brief summary of the facts necessary to address
the issues that were raised, as is observed in our quotation from that opinion herein. Since
the entire appellate record of the direct appeal is missing because it was apparently destroyed
by the disastrous flood in Nashville in May, 2010, we are unable to examine that record to
review the sufficiency of the evidence to support the conviction of facilitation of
premeditated first degree murder. In addition, Petitioner did not make an appropriate attempt
to make as an exhibit at the post-conviction hearing a copy of any portion of the record in the

                                              -14-
direct appeal. While post-conviction counsel initially attempted to make an exhibit copies
from some portion of the direct appeal record, counsel failed to object to the post-conviction
court’s erroneous ruling which made the entire original appellate record, which was not even
present at the post-conviction hearing, an exhibit to the post-conviction hearing. The
following transpired at the post-conviction hearing after all testimony had concluded and
prior to closing arguments:

                [POST-CONVICTION COUNSEL]:               . . . . If you would give me
        just a minute before we wrap things up to make sure that I – that everything
        else I would have normally made an exhibit is part of the record. And the
        petitioner rests.

                 THE COURT:           Okay. I guess, General, you need to make the
        trial transcript –

               [ASSISTANT DISTRICT ATTORNEY]:                       Right. The original
        record, I would ask that that be made an exhibit.

              THE COURT:           The original trial record would be Exhibit 2,
        which remains in the custody of the [Court of Criminal Appeals].

               [ASSISTANT DISTRICT ATTORNEY]:                   W h ic h I ’ m s u r e
        includes the motion for new trial and other things we’ve referenced.

                THE COURT:            Yes.

       After the post-conviction petition had been filed, the State filed a motion in this Court
to obtain access to the entire record of the direct appeal of Petitioner’s conviction. This
Court granted the motion on July 16, 2009. The appellate court clerk’s records reflect that
the record was sent to the trial court clerk on July 16, 2009, and was returned to the appellate
court clerk’s office on August 28, 2009. This Court’s order specifically provided in part as
follows:

                This matter is before the Court upon the State’s motion to withdraw
        the record in the above-captioned case. According to the State, the record
        is needed in the trial court for a pending post-conviction proceeding. The
        State’s motion is hereby granted. The Clerk shall transfer the record in this
        case to the Davidson County Criminal Court Clerk’s Office. The record
        shall remain under the supervision of the trial court clerk, during which time
        counsel may review and/or copy relevant portions of the original record.

                                              -15-
        This Court contemplates that when an attorney accesses the original record,
        it is for the purpose of determining which portions of the record will be
        needed in the pending proceeding. The trial court clerk shall not permit any
        portion of the archived record to leave its office, except to be taken into
        court. Furthermore, no portion of the original record shall be attached to a
        pleading or introduced as an exhibit. The attorneys may copy the entire
        record, or those portions deemed necessary, and may request certified
        copies to be introduced as exhibits to the post-conviction hearing.

        However, if the original record, or any portion thereof, such as the transcript
        of evidence, is voluminous or an inconvenience to copy, the judge may
        enter a written order describing the record, or part thereof, referenced
        during the hearing. The written order shall then be introduced as the
        exhibit, and this Court will take judicial notice of the original record
        incorporated by reference in the post-conviction hearing by the trial court’s
        written order.

       Thus, the method used by the post-conviction court to make an exhibit of the direct
appeal record was not consistent with this court’s order, and the trial court did so without
objection by Petitioner. In any event, our supreme court’s decision in Parker supports
Petitioner’s assertion that his appellate counsel should have challenged the sufficiency of the
evidence to support his conviction. In other words, appellate counsel should not have relied
upon Mellons for the proposition that as long as there was sufficient evidence to sustain the
conviction of the charged offense of premeditated first degree murder, then Petitioner’s
challenge to the sufficiency of the evidence for the conviction of any lesser-included offense
would be automatically without merit.

        In Parker, the Tennessee Supreme Court stated that, “[t]he issue before us is whether,
in spite of insufficient evidence to support the offense of second degree murder [a lesser-
included offense], the conviction should nevertheless be affirmed because there was
sufficient evidence to support the greater offense of felony murder.” Parker, 350 S.W.3d at
905.

       In Mellons, the supreme court stated,

        On appeal, a conviction of a lesser degree of the crime charged, or of a
        lesser included offense, will be upheld, even if there is no evidence in the
        record to establish the technical elements of that crime, if the evidence
        demands a conviction of a higher degree of homicide than that found by the
        verdict, and there is either no evidence in support of acquittal of the greater

                                             -16-
        crime, or if there is, the verdict of the jury clearly indicates that the evidence
        in support of acquittal was disbelieved, on the theory that the defendant was
        not prejudiced by the charge and the resulting verdict.

Mellons, 557 S.W.2d at 499.

      In State v. Bolin, 922 S.W.2d 870 (Tenn. 1996), overruled by State v. Parker, 350
S.W.3d 883 (Tenn. 2011), the supreme court cited Mellons and stated,

        [i]t is well-settled that when a jury is instructed as to a lesser-included
        offense of that charged in the indictment, a conviction of the lesser-included
        offense may stand, even if the technical requirements of that offense are not
        present, if the evidence supports the greater offense. [Citations omitted.]
        Because we conclude that the evidence supports a finding of aggravated
        rape, the jury’s verdict of aggravated sexual battery may stand.

Bolin, 922 S.W.2d at 875.

       However, in Parker, our supreme court ruled that Mellons and Bolin did not actually
stand for the proposition quoted above from these two supreme court opinions. The court
in Parker held,

        As in Mellons, however, this Court did not actually hold in Bolin that a
        defendant may stand convicted of a lesser-included offense where there is
        no proof as to an element necessary to support the lesser-included offense,
        even if the proof would support the greater offense. Rather, where a trial
        court properly instructs the jury on lesser-included offenses, and the jury
        thereupon convicts the defendant of a lesser-included offense, the defendant
        will not later be heard to complain. See Bolin, 922 S.W.2d at 875
        (affirming a conviction of aggravated sexual battery charged as a lesser-
        included offense of aggravated rape where the proof allowed the jury to
        believe testimony establishing sexual contact and to reject testimony
        establishing sexual penetration).

Parker, 350 S.W.3d at 909-10.

        To remove any doubt concerning the applicability of Mellons and Bolin for the
proposition relied upon by Petitioner’s appellate counsel, the court in Parker expressly stated,
“[t]o sustain a conviction of a lesser-included offense, the proof must be sufficient to support



                                              -17-
each and every element of the conviction offense. To the extent that Mellons and its progeny
hold to the contrary, they are overruled.” Id. at 909.

        We are unable to analyze the issue presented by Petitioner because he fell short of
ensuring that a copy of the direct appeal record was made an exhibit to the post-conviction
proceedings, and the original record has been destroyed. We cannot speculate as to whether
there was sufficient evidence to support the facilitation conviction when we are unable to
review a transcript of the trial proceedings. It is not Petitioner’s fault that the original record
is missing and was presumably destroyed in a flood. However, had Petitioner properly
sought to present copies of any necessary portions of the direct appeal record to be made an
exhibit in the post-conviction proceedings, then the loss of the original record would not
affect these proceedings. If Petitioner obtains information that another copy of the direct
appeal record can be made a supplement to the record on appeal of the post-conviction
proceedings, Petitioner can timely file a petition to rehear in this Court, pursuant to Rule 39
of the Tennessee Rules of Appellate Procedure. Petitioner is not entitled to relief on this
issue.

                                        CONCLUSION

       The judgment of the post-conviction court is affirmed.


                                                      _________________________________
                                                      THOMAS T. WOODALL, JUDGE




                                               -18-
