                                                                                       08/23/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                                 June 5, 2019 Session

                BRIAN LEE WEBB v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Benton County
                   No. 15-CR-39      Charles C. McGinley, Judge
                      ___________________________________

                          No. W2018-01664-CCA-R3-PC
                      ___________________________________


Petitioner, Brian Lee Webb, appeals from the denial of his petition for post-conviction
relief. Because Petitioner failed to establish that he received ineffective assistance of
counsel, we affirm the judgment of the post-conviction court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, J., and JOHN EVERETT WILLIAMS, P.J., joined.

Jack Aaron Leonard, Camden, Tennessee, for the appellant, Brian Lee Webb.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Matthew F. Stowe, District Attorney General; and Michelle Deloach,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                       Procedural History and Factual Summary

       Petitioner was indicted with rape of a child and aggravated sexual battery in
Benton County. Petitioner proceeded to trial, during which the following facts were
adduced. See State v. Brian Lee Webb, No. W2015-01809-CCA-R3-CD, 2016 WL
4060650, at *1 (Tenn. Crim. App. July 27, 2016), perm. app. denied (Tenn. Nov. 22,
2016).

      Petitioner went to his girlfriend’s house where the victim was also staying. Id.
While at the house, he was in a room with the six-year-old victim whom he told to get on
a bed. Id. After she got on the bed, Petitioner pulled out his penis and put it in the
victim’s mouth. Id. The victim told Petitioner to stop, but he continued the behavior for
around a minute. Id. After he stopped, Petitioner proceeded to put his hands down the
victim’s pants and touched her “private spots.” Id.

       The jury convicted Petitioner of both charges, and he received an effective 40
years’ imprisonment. Id. Petitioner filed a timely post-conviction petition, asserting
ineffective assistance of counsel. Petitioner claimed that his trial counsel failed to request
a pre-trial psychiatric evaluation, failed to use prior testimony to call into question the
credibility of a witness, failed to challenge jurors, and failed to give professional advice
in regard to plea agreements. The post-conviction court determined Petitioner presented
a colorable claim. Counsel was appointed.

                               Post-Conviction Proceedings

       At the post-conviction hearing, trial counsel testified that he did not file a Notice
of Intent to use the Insanity Defense or the Diminished Capacity Defense because
Petitioner was examined at Pathways Behavioral Health Services and found to be
“competent.” Trial counsel acknowledged that he received a letter from Pathways
recommending that Petitioner “should seek psychiatric services to include individual
counseling and be assessed to see if medication management is appropriate.”

       Trial counsel believed Petitioner to be “competent” based on their interactions.
Trial counsel was aware Petitioner was illiterate and had a learning disability. Trial
counsel explained that he met with Petitioner more frequently than his normal clients
because Petitioner was “mentally slow” and trial counsel wanted to make sure Petitioner
“understood what was going on.” Further, he was aware Petitioner was receiving “SSI”
checks for some form of mental disability.

         Trial counsel was aware that Petitioner had a traumatic brain injury. Trial counsel
did not look into the medical records surrounding this incident or speak with Petitioner’s
doctor because he “didn’t see any sense in it” after Pathways deemed Petitioner
competent. Trial counsel called Petitioner’s sister as a witness to testify about the injury
at trial.

       Petitioner’s mother testified at the post-conviction hearing as to the mental state of
her son. She noted that he had “mild mental retardation” as well as a host of other issues
and that his mental condition worsened after the car accident in 2010. She was only
aware of trial counsel meeting with Petitioner on one occasion when he was out on bond.

      Petitioner reiterated his mental condition in his testimony and further stated that he
was in a special housing unit in prison for inmates with mental illness. He also said that
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trial counsel only met with him twice before trial and that the meetings only lasted about
ten minutes.

       Following the hearing, the post-conviction court denied the petition by written
order. The court determined that Petitioner was ably represented by trial counsel who
engaged in appropriate discovery, explored all potential defenses, and did nothing to
suggest a deviation from constitutionally effective representation. The post-conviction
court concluded that Petitioner had not been deprived of any constitutional rights that
would support post-conviction relief. Petitioner filed a timely notice of appeal.

                                         Analysis

        Post-conviction relief is available for any conviction or sentence that 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. In order to
prevail on a claim for post-conviction relief, a petitioner must prove his factual
allegations by clear and convincing evidence. T.C.A. § 40-30-110(f); Momon v. State, 18
S.W.3d 152, 156 (Tenn. 1999). “Evidence is clear and convincing when there is no
serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998). On appeal, a
post-conviction court’s findings of fact are conclusive unless the evidence preponderates
otherwise. Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). Accordingly, questions
concerning witness credibility, the weight and value to be given to testimony, and the
factual issues raised by the evidence are to be resolved by the post-conviction court, and
an appellate court may not substitute its own inferences for those drawn by the post-
conviction court. State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001). However,
the post-conviction court’s conclusions of law and application of the law to the facts are
reviewed under a purely de novo standard, with no presumption of correctness. Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001).

       On appeal, Petitioner argues that trial counsel failed to properly ascertain his
mental condition and failed to follow the guidelines set forth by the United States
Supreme Court in Ake v. Oklahoma, 470 U.S. 68, 83 (1985), for defendants with
competency issues. Specifically, Petitioner argues that trial counsel was deficient for
failing to request an expert to review Pathways’ evaluation. The State maintains that
Petitioner has not established ineffective assistance of counsel and that trial counsel’s
actions were reasonable.

       When a petitioner raises an ineffective assistance of counsel claim, this Court is
obligated to review that claim according to certain well-settled principles. Both the Sixth
Amendment to the Constitution of the United States and Article I, section 9 of the
Tennessee Constitution guarantee the right of an accused to the effective assistance of
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counsel. See Davidson v. State, 453 S.W.3d 386, 392-93 (Tenn. 2014). In order to
sustain a claim of ineffective assistance of counsel, a petitioner must prove both that
counsel’s performance was deficient and that the deficiency prejudiced the defense. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). Because a petitioner must establish
both elements in order to prevail on a claim of ineffective assistance of counsel, “failure
to prove either deficient performance or resulting prejudice provides a sufficient basis to
deny relief on the claim.” Henley v. State, 960 S.W.2d 572, 580 (Tenn. 1997). “Indeed,
a court need not address the components in any particular order or even address both if
the [petitioner] makes an insufficient showing of one component.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

       The test for deficient performance is whether counsel’s acts or omissions fell
below an objective standard of reasonableness under prevailing professional norms.
Strickland, 466 U.S. at 688; Henley, 960 S.W.2d at 579. This Court must evaluate the
questionable conduct from the attorney’s perspective at the time, Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982), and “should indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance,” State v.
Burns, 6 S.W.3d 453, 462 (Tenn. 1999); see also Strickland, 466 U.S. at 690 (“[C]ounsel
is strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.”). This Court will not use
hindsight to second-guess a reasonable trial strategy, even if a different procedure or
strategy might have produced a different result. See Adkins v. State, 911 S.W.2d 334,
347 (Tenn. Crim. App. 1994); Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim.
App. 1980). However, this deference to the tactical decisions of trial counsel is
dependent upon a showing that the decisions were made after adequate preparation.
Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

       In order to determine prejudice, the question is “whether counsel’s deficient
performance renders the result of the trial unreliable or the proceeding fundamentally
unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). A petitioner must show that
there is a reasonable probability “sufficient to undermine confidence in the outcome”
that, “but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Burns, 6 S.W.3d at 463 (quoting Strickland, 466 U.S. at 694). “An error
by counsel, even if professionally unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error had no effect on the judgment.” Id.
(quoting Strickland, 466 U.S. at 691).

       The post-conviction trial court issued findings of fact and conclusions of law that
Petitioner was “ably represented by counsel who engaged in appropriate discovery,
explored all potential avenues of defense and did not do anything that in any way would
remotely suggest a deviation from constitutionally effective representation.” The record
does not preponderate against the findings of the post-conviction court.
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        Here, trial counsel relied on Pathways’ conclusion that Petitioner was competent
to stand trial and able to appreciate the wrongfulness of his actions. Further, trial counsel
testified that his personal interactions with Petitioner led him to believe Petitioner was
competent for trial. Petitioner’s reliance on Ake is unfounded. The Supreme Court held
that the State is required to provide the defense with “access to competent psychiatrist
who will conduct an examination and assist in evaluation, preparation, and presentation
of the defense.” Ake, 470 U.S. at 83. However, these instructions are only to be followed
if counsel can prove to the judge that “sanity at the time of the offense is to be a
significant factor at trial.” Ake, 470 U.S. at 83. In this case, trial counsel reasonably
believed Petitioner was competent at the time of the offense. Trial counsel believed
Petitioner’s mental health would not be a significant factor at trial, and trial counsel was
not required to show the judge otherwise.

        Moreover, Petitioner cannot establish deficiency on this claim because he did not
present an expert witness at the post-conviction hearing like the one he claims trial
counsel should have requested. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App.
1990). Further, because Petitioner did not present an expert witness, he failed to establish
the prejudice requirement as well. Id. Petitioner did not present any proof, other than his
own testimony, to establish that further expert evaluation would have assisted his case at
trial. Thus, Petitioner cannot establish prejudice. Petitioner’s claim that trial counsel was
deficient for not seeking additional mental health assistance does not entitle him to post-
conviction relief.

        In sum, Petitioner failed to establish either deficient performance or prejudice with
regard to the allegation of ineffective assistance of counsel. Petitioner also failed to
establish that his trial counsel failed to comply with Ake. All other allegations are treated
as waived because Petitioner failed to raise them in his brief on appeal. See Tenn. Crim.
App. Rule 10(b). Therefore, the post-conviction court properly denied post-conviction
relief.

                                        Conclusion

       For the aforementioned reasons, the judgment of the post-conviction court is
affirmed.


                                          ____________________________________
                                          TIMOTHY L. EASTER, JUDGE




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