        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs January 29, 2013

           PHILLIP DOUGLAS SEALS v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Anderson County
                    No. B0C00570     Donald R. Elledge, Judge


               No. E2012-00702-CCA-R3-PC-FILED-MARCH 21, 2013


The petitioner, Phillip Douglas Seals, appeals the post-conviction court’s denial of his
petition for post-conviction relief from his two first degree murder convictions. On appeal,
he argues that: (1) he received the ineffective assistance of counsel and (2) the post-
conviction court erred in denying his request for transcripts of the opening and closing
statements so he could determine whether the original prosecutor engaged in prosecutorial
misconduct. After review, we affirm the denial of post-conviction relief.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J EFFREY S. B IVINS and
R OGER A. P AGE, JJ., joined.

Leslie Richard Hunt, Clinton, Tennessee, for the appellant, Phillip Douglas Seals.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Senior Counsel;
David S. Clark, District Attorney General; and Sandra N. C. Donaghy, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                         FACTS

       The petitioner was convicted of two counts of premeditated first degree murder and
two counts of felony murder, arising out of the shooting of the petitioner’s estranged wife
and her male friend. State v. Phillip Douglas Seals, No. E2007-02332-CCA-R3-CD, 2009
WL 55914, at *1 (Tenn. Crim. App. Jan. 9, 2009), perm. app. denied (Tenn. May 26, 2009).
The trial court merged the felony murder convictions into the premeditated first degree
murder convictions and sentenced the petitioner to concurrent life sentences. His
convictions were affirmed on direct appeal, and the Tennessee Supreme Court denied his
application for permission to appeal. Id.

      The underlying facts of the case were recited by this court on direct appeal as follows:

              [The petitioner] was married to one of the victims, Misty Dawn Seals.
      When they married in 1997, they lived in a home on Heiskell Road in
      Heiskell, Tennessee. Sometime in 2000, [the petitioner] and Mrs. Seals took
      custody of two foster children, Dustyn and Ashley. At the time the children
      moved in, Dustyn was nine years of age and Ashley was around twelve years
      of age. [The petitioner] and his wife adopted the children approximately one
      year later. They all lived together in the house on Heiskell Road until January
      of 2005, when Mrs. Seals and the children moved into the Willow Run
      Apartments in Clinton, Tennessee.

              On February 24, 2005, Mrs. Seals and her friend, Mark Newton, were
      found shot to death inside the Willow Run apartment. [The petitioner] was
      arrested and later indicted by the Anderson County Grand Jury for two counts
      of first degree murder and two counts of felony murder.

             At trial, the following evidence was presented. Clinton Police Officer
      Sean Cusic was dispatched to Willow Run Apartments on February 24, 2005,
      to investigate a possible domestic situation. When Officer Cusic arrived at the
      apartment at around 10:40 a.m., no one answered the door. Detective Vaughn
      Becker soon arrived on the scene, and both officers entered the residence.

             Detective Becker entered the apartment and noticed that there was a
      chain lock on the front door that was connected to the molding on the side of
      the door. The part of the door holding the chain lock had been broken off and
      was lying in the floor inside the apartment. As he made his way through the
      apartment, he also noticed that the bedroom door had been kicked in and the
      door frame had become separated from the drywall. When Detective Becker
      entered the bedroom at the end of the hallway, he discovered the bodies of
      Mrs. Seals and Mr. Newton. Neither person was wearing clothing. Mrs. Seals
      was lying on her back and Mr. Newton was lying on his left side. Detective
      Becker was able to see that each of the victims had several bullet holes in their
      body. Underneath a chair in the bedroom, Detective Becker located a loaded
      forty-caliber semi-automatic pistol. The officers also found other firearms,
      including a nine-millimeter pistol, a twenty-two rifle, and a twenty-two pistol.


                                             -2-
       The officers determined that there was not a suspect in the vicinity and
called emergency medical personnel. When medical personnel arrived on the
scene, they confirmed that the victims were dead.

        Dr. Cleland Blake performed the autopsies on the victims. Mrs. Seals
had multiple forty-five caliber gunshot wounds, one to the center of her chest,
one to her abdomen, and one to her left arm. The chest wound disrupted the
left ventricle of the heart, killing her within a few minutes. Mr. Newton had
five gunshot wounds. One of the gunshot wounds was a deadly wound on the
right front of the chest that perforated the aorta. There were also four entry
wounds in Mr. Newton’s back.

        Don Carman, a forensic scientist with the Tennessee Bureau of
Investigation Crime Lab examined the nine cartridges that were recovered
from the crime scene and was able to determine that they were all fired from
the same weapon. The weapon that was used in the crimes was not recovered,
but Mr. Carman stated that a forty-five caliber semi-automatic pistol would
fire the shells that he examined.

       According to James Burns, the manager of Charlie’s Super Pawn Shop,
[the petitioner] purchased a Charles Daly forty-five caliber handgun on
December 4, 2002. [The petitioner]’s children testified that there were several
guns in their house and that the entire family often went to the shooting range
together.

       On the morning of the incident, between 9:00 a.m. and 10:00 a.m.,
Patricia Kreis arose for the day. Mrs. Kreis lived directly across the apartment
complex from Mrs. Seals in apartment 284 at Willow Run Apartments. Mrs.
Kreis peered out of her blinds, as she did every morning when she woke up.
When she looked outside, Mrs. Kreis saw [the petitioner] standing at the door
of Mrs. Seals apartment. [The petitioner] looked to the left and right, then
opened the door and went inside. Mrs. Kreis did not see [the petitioner] use
a key to enter the apartment.

        [The petitioner]’s brother, Luther Steven Seals (“Steven”), was
attending paramedic training on February 24, 2005. At some point that day,
Steven received a call from [the petitioner]. [The petitioner] wanted to know
if Steven had gotten the message that he left earlier that day. Steven listened
to the voice message in which he heard [the petitioner] state that he had “shot
them.” Steven immediately called [the petitioner] back and asked him what

                                      -3-
he had done. [The petitioner] informed his brother that he had forced his way
into Mrs. Seals apartment and had caught “them” in bed having sex. [The
petitioner] threatened Steven, telling him that if Steven contacted the police,
[the petitioner] would shoot himself. [The petitioner] asked Steven to pick up
his children. [The petitioner] told Steven that he was going to go to Kentucky
to create an alibi.

       According to Ashley and Dustyn Seals, there were no marital problems
between their parents until her mother started spending time with Mr. Newton.
Around Christmas of 2004, Dustyn and his sister met Mr. Newton. According
to Dustyn, he and his sister had already surmised that their mother was seeing
another man.

       Ashley remembered that on January 26, 2005, she was awaked between
2:00 a.m. and 3:00 a.m. by the sound [of her] mother crying. Ashley heard
[the petitioner] claim that he had a suicide note. Ashley thought that the
argument was about Mrs. Seals’s refusal to give [the petitioner] the password
to her second cell phone. Ashley called 911. When the police came, Mrs.
Seals, the children, and the pets left the family home. This incident
precipitated the separation of [the petitioner] and Mrs. Seals. After the
incident, Mrs. Seals and the children spent several days in a hotel before
moving into the Willow Run Apartments.

        Officer Ken Campbell responded to the call about a possible domestic
situation on January 26. When he arrived, Mrs. Seals was very upset. She
claimed that she was having marital problems and that [the petitioner] pulled
a gun on her during an argument. [The petitioner] informed the officer that
he found out that day that his wife had rented an apartment and was seeing
someone else. [The petitioner] was not taken into custody at that time because
[the petitioner] denied possessing a weapon, denied threatening Mrs. Seals,
and there were no physical signs to support her statement.

        Robert Byrd, the director of Emergency Services for Anderson County,
was [the petitioner]’s employer beginning in 1999. According to Mr. Byrd,
[the petitioner] came into the office in January of 2005, and was upset about
the altercation that had occurred between him and Mrs. Seals. [The petitioner]
told Mr. Byrd that all of Mrs. Seals’s accusations were lies. [The petitioner]
admitted that an argument had taken place but claimed that there was no gun
involved. Several weeks later, however, [the petitioner] approached Mr. Byrd
and told him that he had lied about the altercation with Mrs. Seals. During

                                      -4-
this conversation, [the petitioner] admitted that he had a gun and that he had
threatened his wife. Mr. Byrd ordered that [the petitioner] attend counseling.

       After the couple separated, Ashley and Dustyn continued to visit
occasionally with their father. When Dustyn stayed with [the petitioner], he
knew that Mr. Newton stayed with Mrs. Seals at the apartment. Dustyn
remembered his mother asking him not to tell [the petitioner] about Mr.
Newton. Ashley remembered that [the petitioner] took her out to dinner
around Valentine’s Day and that she and Dustyn went to North Carolina with
[the petitioner] for a few days. [The petitioner] spent at least one night at the
Willow Run apartment after the couple separated, around February 13, 2005.
Ashley thought that was the same day that her mother took [the petitioner] to
the hospital. About two weeks prior to his mother’s death, Dustyn
accompanied [the petitioner] to a hunting expo. [The petitioner] was looking
for scopes and silencers for an HK weapon. [The petitioner] purchased a
scope at the expo. Neither Ashley nor Dustyn remembered problems between
[the petitioner] and their mother before Mr. Newton became a part of their
mother’s life.

        On February 6, 2005, Elsie Fine was at Saint Mary’s Hospital in
Knoxville, Tennessee. Her daughter was a patient at the hospital. Ms. Fine
saw Mrs. Seals in the parking lot talking with [the petitioner]. Ms. Fine
recognized Mrs. Seals as one of the nurses who had worked with her disabled
daughter. Ms. Fine approached Mrs. Seals to speak with her when she heard
[the petitioner] tell Mrs. Seals, “I'm going to kill you if it’s the last thing I ever
do.” Ms. Fine did not stop to talk to Mrs. Seals, instead proceeding to her
truck. When Ms. Fine returned to the hospital, the couple was gone. Ms. Fine
later saw Mrs. Seals with tears on her face.

       Sherry Morrell worked with Mrs. Seals as a nurse at NHC in Oak
Ridge. On February 15, 2005, Ms. Morrell saw Mrs. Seals remove several
guns from her car and give them to [the petitioner]’s brother.

        Prior to her death, Mrs. Seals hired attorney Robert Olive to represent
her in a divorce action against [the petitioner]. He sent a letter and summons
to [the petitioner] on February 23, 2005, the day prior to the victims’ death,
to notify [the petitioner] that Mrs. Seals wanted a divorce.

     Dustyn spent the night with [the petitioner] on February 23, 2005.
Around 4:00 a.m., [the petitioner] woke Dustyn up and informed him that he

                                         -5-
was leaving for work. [The petitioner] worked as a paramedic for Anderson
County and also as a flight paramedic for an air ambulance company called
LifeNet Medical Services that was based in London, Kentucky. [The
petitioner] was originally scheduled to work for LifeNet on February 24,
2005, but he had requested to be off that day during his last shift on either
February 19 or 20, 2005. Dustyn found out about his mother’s death around
noon on February 24, 2005.

        On the morning of February 24, 2005, Mrs. Seals drove Ashley to
school. They left through the front door of the apartment. According to
Ashley, there was no damage to the front door or her mother’s bedroom door
at that time.

        Chuck Peters was working in the Clinton, Tennessee, 911
Communications Center when a call came in on February 24, 2005, to report
a domestic altercation at 262 Willow Run Apartments. The caller reported
that an ambulance was needed. Gary Davis, an employee of Anderson County
Emergency Medical Service, had worked with [the petitioner] since 1999. He
stated that the voice on the 911 recording sounded like [the petitioner]’s voice.

       After [the petitioner] was arrested, Officer Becker obtained a search
warrant for the Heiskell Road residence. There officers located two firearms,
neither of which was a forty-five caliber weapon. Officer Becker did locate
a receipt for the purchase of forty-five caliber ammunition from Wal-Mart in
Jacksboro, Tennessee, dated January 28, 2005. Officer Becker also collected
nine forty-five caliber shell casings from a field near [the petitioner]’s
residence that had been used as a shooting range. According to Donald
Carman from the TBI Crime Laboratory, the cartridge cases that came from
the crime scene and the cartridge cases recovered from the firing range near
[the petitioner]’s home appeared to have been fired from the same forty-five
caliber pistol. The rifling on the bullets was consistent with the barrel
characteristics of pistols made by Charles Daly, Eagle Arms, and Star firearms
manufacturers. None of the shell casings found at [the petitioner]’s residence
were exactly like those found on the firing range.

        The State introduced proof at trial to show that prior to the victims’
deaths, [the petitioner] had hired Pinnacle Investigations to conduct
surveillance on his wife and a suspected boyfriend. Pinnacle Investigations
conducted surveillance on Mrs. Seals between February 4 and 21, 2005, for
a total of approximately eleven hours. [The petitioner] was given a verbal

                                       -6-
report of the findings of the surveillance.

       [The petitioner] offered proof at trial in his own behalf. Dr. William
Bernet, a psychiatrist at Vanderbilt School of Medicine conducted a pretrial
forensic psychiatric evaluation of [the petitioner] in June of 2006. Dr.
Bernet’s primary diagnosis of [the petitioner] was adjustment disorder with
depressed mood or, in other words, a mild form of depression. Dr. Bernet
opined that [the petitioner] had stressors in his life at the time of the victims’
deaths. Specifically, Dr. Bernet stated that [the petitioner]’s job was stressful
and that [the petitioner] was having serious relationship problems with his
wife. Dr. Bernet also arranged for psychological and neurological testing
through Dr. James Walker.

       According to Dr. Bernet, [the petitioner] was moderately impaired in
functioning in relationships at home and with his wife. At the time of the
offense, [the petitioner] probably had difficulties with judgment and
rationalization. [The petitioner]’s ability to cope with stress was impaired by
his depression and anxiety. [The petitioner] was also experiencing a high
level of paranoia, but Dr. Bernet did not render a medical diagnosis in regard
to the paranoia experienced by [the petitioner]. Dr. Bernet felt that [the
petitioner]’s ability to premeditate a “crime like this” would have been
impaired “to some extent,” probably rising to the level of “significant”
impairment of judgment and [the petitioner]’s ability to “think things
through.”

        The State called Dr. Mark Castelini, the chief psychologist at
Ridgeview Psychiatric Center, to rebutt Dr. Bernet’s testimony. Dr. Castelini
testified that [the petitioner] was competent to stand trial and that the
diagnosis of adjustment disorder with depressed mood usually resolved itself
within six months of the stressor causing the mental illness.

       [The petitioner] took the stand at trial. [The petitioner] described his
marriage as good until October or November of 2004, when he discovered
Mrs. Seals was at another man’s apartment. Mrs. Seals had told [the
petitioner] that she was going to stay at a hotel to get away for a little while.

        [The petitioner] testified that the January 26, 2005 incident was
initiated after he discovered that Mrs. Seals was in possession of a cell phone
that she told [the petitioner] she no longer had. [The petitioner] claimed that
there was no physical altercation at that time. After this incident, Mrs. Seals

                                       -7-
        got the apartment.

               [The petitioner] denied being at Saint Mary’s Hospital on February 6,
        2005. [The petitioner] testified that he was working for the Campbell County
        Emergency Medical Service that day. On February 13, 2005, [the petitioner]
        took Mrs. Seals out for ice cream. [The petitioner] took Mrs. Seals out to
        dinner on Valentine’s Day.1 [The petitioner] stated that he was not feeling
        well, and Mrs. Seals insisted on taking him to the Emergency Room at
        Methodist Medical Center in Oak Ridge, where he received a prescription for
        Ativan.

               He admitted that he went to Mrs. Seals’s apartment on February 24,
        2005, between 9:30 and 10:00 a.m. to pick her up. The two were supposed
        to go to Kentucky together so that [the petitioner] could turn in his uniform
        to LifeNet. [The petitioner] had recently resigned from his full-time position
        to take a part-time position so that he could be closer to his family. At that
        time, [the petitioner] was aware that Mrs. Seals was planning to file for
        divorce.

                [The petitioner] opened the door to the apartment with the key he had
        been given by Mrs. Seals. [The petitioner] stated that he did not see . . . Mrs.
        Seals, so he walked toward her bedroom. He heard voices mumbling in the
        bedroom. [The petitioner] kicked in the bedroom door and saw Mrs. Seals
        and another man naked in bed. [The petitioner] stated that he picked up a
        forty-five caliber pistol that was on the bench at the foot of the bed and started
        shooting in the direction of the moving man. He thought that the man was
        going for a weapon even though he did not see one in the area. [The
        petitioner] stated that one of the bullets struck the man and that [the petitioner]
        continued to fire the weapon at the man until he fell to the floor. Mrs. Seals
        was on the left side of [the petitioner] and started to walk toward him with her
        arms up. [The petitioner] fired the pistol at Mrs. Seals, striking her. [The
        petitioner] then left the apartment, drove to a gas station, and called 911.

              [The petitioner] then drove through Lake City, Tennessee, to Norris
        Dam and threw the pistol into the water. He considered jumping into the lake.
        [The petitioner] then got back into his car and drove home. [The petitioner]

        1
         During rebuttal proof, the State called Ashley to the stand who testified that [the petitioner] took
her to Chili’s restaurant and to get her nails done on Valentine’s Day.


                                                    -8-
        then called his brother to tell him what he had done.

Id. at *1-6.

      On June 3, 2010, the petitioner filed a pro se petition for post-conviction relief, in
which he alleged various allegations of ineffective assistance of counsel as well as
prosecutorial misconduct. The post-conviction court conducted an evidentiary hearing on
January 23, 2012.

        At the hearing, the petitioner testified2 that trial counsel was not diligent in producing
the petitioner’s bank records at trial. He claimed that the records would have shown that he
was not in Tennessee on February 6, 2005, the date one of the State’s key witnesses testified
that “she heard [him] make an accusation.” He said that he was actually at a service station
in North Carolina at the time the witness said she saw the petitioner and the victim together.
He stated that he first had access to the bank records after his appeal and that he and counsel
did not discuss the bank records before trial because counsel never asked about his bank
records. He admitted that he could not “recollect actually mentioning bank records [to
counsel] because [he] had so much on [his] mind at the time.” However, the issue was
raised in his motion for new trial because he brought it up when they were preparing for the
motion. He suggested that counsel subpoena his bank records. On cross-examination, the
petitioner acknowledged that he did not mention bank records to counsel prior to trial.

       The petitioner testified that he received copies of his indictment for first degree
murder but did not receive a copy of an indictment for burglary or aggravated burglary. He
was never advised that he was charged with burglary or aggravated burglary. The petitioner
said that counsel was ineffective because he did not file a motion to suppress “illegally
seized items on a search warrant and an illegal search warrant itself[.]” He said that the
search warrant was illegal because items were added to it after it was filled out, but counsel
did not address it with the court.

         The petitioner testified that counsel was ineffective because he did not investigate or
talk to the residents of the apartment complex, nor did he request the field notes from Officer
Cusic or Detective Becker “when they did their initial investigations to initial identification
of who they saw.” He knew that counsel did not investigate this because no one ever talked
to him about it. The petitioner said that he did not see the State’s witness list and was not


        2
          We attempt to limit our recitation of the testimony at the evidentiary hearing to that relevant to the
issues on appeal.



                                                      -9-
aware of whom the State was calling to testify until the trial began. He did not know if any
of the State’s witnesses were interviewed by someone from the public defender’s office. He
admitted that he saw the witnesses’ statements but was not told who was going to testify at
trial.

       The petitioner testified that counsel was ineffective because he did not fully
investigate Elsie Fine’s identification of him. He elaborated that a proper investigation
would have shown that he was not even in the state so Fine “could not have identif[ied]
[him] and heard [him] make an accusation that she claimed[.]” However, the petitioner
admitted on cross-examination that counsel cross-examined Fine about the interaction she
allegedly saw between the petitioner and his wife.

        The petitioner testified that the prosecutor called him a liar several times during trial,
and counsel did not object or raise it as an issue in the motion for new trial or on appeal. He
recalled that the prosecutor made statements that “the defendant is a liar” and “this defendant
lies caught up in lie after lie after lie don’t believe him unless you have some corroboration.”
He said that counsel’s failure to object was ineffective assistance of counsel, and the
prosecutor’s statements amounted to prosecutorial misconduct.

        Counsel, an attorney practicing criminal law since 1977 and the district public
defender for the 7th Judicial District, testified that his office was appointed to represent the
petitioner when the petitioner’s retained counsel was relieved of his representation. The
petitioner was arraigned on April 22, 2005, and was served with a copy of the indictment
at the arraignment. The assistant public defender assigned to the petitioner’s case “had a
dozen interviews and meetings with him” during the period she handled his case of
arraignment until May 2006. When counsel took over the case, he and the petitioner “met
very frequently” as well as met with their investigator “every week or ten days.”

       Counsel testified that the threat Fine “was supposed to have heard[] was one of the
tougher issues” and that was “why [their] first witness[] was one of [the petitioner]’s
employers from Kentucky named Mr. Bond, who testified the day he was supposed to be
threatening his wife in the hospital parking lot he was in fact on the clock working up in
Kentucky.” He said that he learned about the petitioner’s bank records between the trial and
motion for new trial hearing. However, “the court of criminal appeals pohpohed how vital
[Fine] was as a witness anyway since at trial she couldn’t identify [the petitioner] or [his
wife] from photographs.” Counsel said that he rigorously cross-examined Fine without
being “particularly mean to her,” and he did not know of what greater proof he could have
presented considering they “had a live witness [saying] that he could not have been in the
hospital parking lot that day.”


                                              -10-
       Counsel testified that the theory of defense at trial, upon the petitioner’s insistence,
was that the shooting was in self-defense. Counsel said that it was a tactical decision to not
challenge the search warrant because what the officers “found in the search warrant was
more helpful than harmful to us.” Counsel stated that he did not request the officers’ field
notes because the officers did not testify about anything that would cause the notes to be
helpful. Counsel said that he and the petitioner went over “every witness [they] knew about
and what they would be expected to say.” However, he would not have known for certain
which witnesses the State was going to call and in what order they would testify.

        Counsel testified that he did not object to the prosecutor’s calling the petitioner a liar
in her closing argument because he felt that “by calling him a liar, she [wa]s sounding more
desperate and trying to highlight his testimony more than what the facts showed,” and he
thought the jury might pick up on that. He felt that if he objected and the court ruled right
away, it would make the jury feel like “wow it must be important he is objecting to it.”
Asked on cross-examination why he did not feel that he needed to object to the prosecutor’s
saying that the petitioner was a liar, counsel reiterated that “our strategy was that there was
no factual refutation of what [the petitioner] testified to and it would have distracted the jury
from analyzing the facts[.]”

         Counsel testified that the petitioner did not tell him about the bank records until after
the trial. Asked on cross-examination when he first thought to investigate the petitioner’s
bank records, counsel responded, “When [the petitioner] remembered and it was after the
trial[.]” Questioned about whether he should have asked the petitioner about his debit card
use as part of his normal course of investigation, counsel said that “it wouldn’t have come
up about the debit card unless [the petitioner] would have brought it up because we had [the
petitioner’s employer] saying he [was working] in Kentucky on the day he was supposed[ly]
. . . threatening his wife in the hospital parking lot.”

       Following the conclusion of the hearing, the post-conviction court denied the petition
for post-conviction relief, finding that the petitioner failed to prove his claims by clear and
convincing evidence. The court determined that counsel did not render deficient
performance and that no errors prejudiced the defense.

                                          ANALYSIS

       The petitioner argues that he received the ineffective assistance of counsel. He also
argues that the trial court erred in dismissing his request for a copy of the transcripts of the
opening and closing arguments so he could determine whether the original prosecutor
engaged in prosecutorial misconduct.



                                              -11-
       Post-conviction relief is available to a petitioner who establishes that his or her
conviction or sentence is void or voidable because of an abridgement of a constitutional
right. Tenn. Code Ann. § 40-30-103. The post-conviction petitioner bears the burden of
proving his allegations by clear and convincing evidence. Id. § 40-30-110(f). When an
evidentiary hearing is held in the post-conviction setting, the findings of fact made by the
post-conviction court “are entitled to substantial deference on appeal unless the evidence
preponderates against those findings.” Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001); see
also Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996). Where appellate review is of
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 post-conviction
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, 40 S.W.3d at 458; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

                            I. Ineffective Assistance of Counsel

        The petitioner argues that trial counsel was ineffective for failing to: (1) procure bank
records that would have shown he was out of the state during a time he was alleged to have
threatened his wife at her place of employment; (2) raise “any and all issues related to felony
murder” at the motion for new trial; and (3) timely object to the State’s characterizations in
its closing argument of him as a liar.

        The right to effective assistance of counsel is safeguarded by the Constitutions of both
the United States and the State of Tennessee. See U.S. Const. Amend. VI; Tenn. Const. art.
I, § 9. Ordinarily, to establish that he was denied the effective 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 (1984); see State v. 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.

                                               -12-
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)). 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 benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686.

       The prejudice prong of the Strickland 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.

       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”).

        With regard to the bank records, the post-conviction court noted that the petitioner did
not tell counsel about them and that, regardless, the bank records “make[] no difference”
because Fine was equivocal on the date she supposedly saw the petitioner and Mrs. Seals
arguing. Moreover, the petitioner raised the bank records as newly discovered evidence in
his motion for new trial, as well as the trial court’s refusal to grant a new trial on such basis
in his direct appeal, and this court determined that the petitioner failed to show that the
information would have changed the result of the trial. Phillip Douglas Seals, 2009 WL
55914, at *13-14. This court observed that the petitioner “testified at trial that he shot the
victims multiple times and there is ample other evidence of premeditation other that the
testimony of Ms. Fine . . . . [G]iven the overwhelming proof of [the petitioner]’s guilt, this
information would not have changed the result of the trial.” Id. at *14. The petitioner has
failed to show that counsel was deficient in failing to procure the bank records for trial, as
the petitioner never informed counsel about them, nor has the petitioner shown a reasonable
probability that the result of the trial would have been different had the bank records been
presented.

                                              -13-
        With regard to the petitioner’s contention that counsel was ineffective for failing to
raise issues related to felony murder in the motion for new trial, we note that the petitioner
acknowledges that counsel raised this issue in the direct appeal but asserts that counsel did
“not adequately address[]” the issue in the motion for new trial. He argues that the State’s
theory at trial was that he was engaged in aggravated burglary, but “the proof strongly
suggested that [he] did have access to the apartment in which the killings occurred[.]” We
note that on direct appeal this court addressed the petitioner’s contention that he did not kill
the victims during the perpetration of a felony and determined, after reviewing the proof, that
“the jury was amply justified in finding [the petitioner] guilty of felony murder.” Phillip
Douglas Seals, 2009 WL 55914, at *10. Accordingly, we conclude that the petitioner has
failed to prove that any alleged deficiency in counsel’s performance caused him prejudice.

        With regard to counsel not objecting to the State’s characterizations of the petitioner
as a liar, counsel’s testimony, which was accredited by the post-conviction court, was that
he felt that the State sounded desperate by calling the petitioner a liar and thought that the
jury would pick up on that the State was trying to highlight the petitioner’s testimony in
order to distract it from analyzing the facts. Counsel thought that an objection would give
the jury the impression that the State’s comments were important and something to which
it should pay close attention. We cannot conclude that this tactical strategy by counsel
amounted to deficient performance. In addition, we note that the petitioner failed to provide
any legal authority for his contention that the State’s “comments related to the believability
of the [petitioner] and that he was a liar[]” were objectionable and has therefore waived the
issue. See Tenn. Ct. Crim. App. R. 10(b).

                                II. Request for Transcripts

        The petitioner also argues that the post-conviction court erred in denying his request
for transcripts of the opening and closing arguments so he could determine whether the
original prosecutor engaged in prosecutorial misconduct. However, we note that the
petitioner’s motion and argument on the motion only concerned the opening statement. In
fact, his post-conviction counsel told the court during arguments on the motion: “Obviously
we do have the closing statements . . . [and] we wanted to review the opening statements to
see if there were any more derogatory remarks made by [the prosecutor][.]”

        In any event, the court heard arguments concerning the petitioner’s request at the start
of the evidentiary hearing. Post-conviction defense counsel argued that the State referred to
the petitioner as a liar during the trial and in the closing argument, but the record showed
“that nowhere through the proceeding [the petitioner] lied about anything.” He explained
that “based on that we wanted to review the opening statements to see if there were any more
derogatory remarks made by [the State] through voir dire and opening in reference to [the

                                              -14-
petitioner.]” The State responded that the petitioner “essentially conceded that his motion
has no merit insomuch that . . . they wanted to review the transcript to see if there was any
prosecutorial misconduct.” The State pointed out that the petitioner was present throughout
the opening statement and that, if “any such statements were made, he should have alluded
to them in the motion[.]” The State asserted that “a search for a possibility” was not a
sufficient reason to grant the motion.

       In ruling on the motion, the post-conviction court found as follows:

               The motion for cassette tape of opening statements filed on or about
       January 4th, 2012 and another one was filed on January 11th, 2012, today is
       January 23rd. At best it was filed 19 days or 12 days prior to this hearing. The
       jury was instructed, I’ve reviewed the files, I’ve reviewed even jury
       instructions. The jury was instructed that any statement made by counsel is not
       proof. If the jury finds, or words to this effect, if the jury finds that any
       statement made by counsel is not supported by evidence, they are to disregard
       those statements. And again, or words to that effect, were given to the jury.
       [Post-conviction defense counsel]’s opening motion actually did concede that
       they wanted to see if there was any misconduct. We’re here today on a post-
       conviction relief alleging not only prosecutorial misconduct but also defense
       counsel standard of performance being less than, being so deficient as to cause
       prejudice against the [petitioner], and simply a search for something else is not
       a valid basis for the motion. Even if it were, this jury had the opportunity to
       listen to and did listen to all of the evidence in this case and make a decision
       as to whether or not the opening statements which were used to tell the jury
       what they believed was going to be heard. The jury could have then made a
       decision as to whether those attorneys succeeded in presenting proof that was
       consistent with their opening statements or not, and I find that the motion is
       not well taken, and I deny the motion.

       The record supports the post-conviction court’s well-reasoned conclusion that the
petitioner’s motion was without merit, and the petitioner has not shown that he was
prejudiced by the denial of his request. It appears as though the motion was a delay tactic
to go on a “fishing expedition.” The petitioner is not entitled to relief on this issue.




                                             -15-
                              CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the denial of the petition.




                                            _________________________________
                                            ALAN E. GLENN, JUDGE




                                     -16-
