                                                                                          01/04/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs December 4, 2018

              JERALD JEFFERSON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                     No. 11-05625       Lee V. Coffee, Judge
                     ___________________________________

                           No. W2018-00440-CCA-R3-PC
                       ___________________________________

Jerald Jefferson, Petitioner, was convicted of aggravated rape and sentenced to twenty-
five years’ incarceration and his conviction was affirmed on direct appeal. His petition
for post-conviction relief was denied by the post-conviction court after a hearing. On
appeal, Petitioner claims that he was denied effective assistance of counsel because trial
counsel failed to file a motion pursuant to Tennessee Rule of Evidence 412 to allow
cross-examination of the victim about an alleged consensual sexual encounter between
the victim and Petitioner. After a thorough review of the facts and applicable law, we
affirm the judgment of the post-conviction court.


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


ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and ROBERT H. MONTGOMERY, JR., JJ., joined.

Genna M. Lutz, Memphis, Tennessee, for the appellant, Jerald Jefferson.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Alanda Dwyer,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                       OPINION

                         Factual and Procedural Background

      This court summarized the facts in Petitioner’s direct appeal opinion as follows:
       The victim in this matter reported to police officers in 2002 that she
had been raped. At the time, she was a sixteen-year-old high school
student. A DNA sample was taken from her, but the matter was dormant
until 2010, when a DNA sample taken from [Petitioner] was determined to
match the sample taken from the victim in 2002. He was indicted for
aggravated rape in 2011 and convicted of this offense.

....

       The State’s first witness was Memphis Police Officer Raymond
Anthony Owens, who testified that, on October 4, 2002, he received a call
from the dispatcher to go to a business address on Elvis Presley Boulevard.
When he arrived, an EMS technician was completing an examination of the
victim. Officer Owens described the victim as having “clothing [that] was
in disarray. Her hair was kind of messed up. She was upset, crying.” She
told him what had happened:

       She said she was in front of Trezevant High School.
       Somebody came up behind her, put something over her head,
       put her inside of a vehicle. She thinks there w[ere] about
       three attackers. And while they drove around, they sexually
       assaulted her. They held her down and sexually assaulted
       her.

Officer Owens then transferred the victim to the rape crisis center, where
she was examined and a DNA sample was taken.

        The victim’s mother next testified, saying that the victim was the
middle of three daughters. In 2002, the victim attended Trezevant High
School, where she was on the track team and played volleyball, as well as
the clarinet and the drum for the school band. She was a “good child” and
“as far as being a liar or giving . . . a lot of trouble, she didn’t do that.” On
October 4, 2002, the victim was to call from school when she was ready to
be picked up and brought home. Around 3:00 p.m. that day, the witness
received a telephone call from McClain Motors on Elvis Presley Boulevard,
telling her that the victim “was there and she had been hurt.” The victim
had called her stepfather, and he and her mother went to McClain Motors.
When they arrived, the victim was “hysterical.” Her mother further
described her condition:



                                      -2-
       I don’t think she had on a shirt. I know she didn’t have on
       shoes. Her hair was pulled—like it had been in a ponytail, so
       pulled—she was in bad shape. She was in bad shape.

              ....

       She wasn’t physically . . . beaten, no. Crying. Hysterical,
       really. It was . . . bad. If you seen [sic] your child like this,
       you would understand. It was bad.

       The victim testified that, at the time of trial, eleven years after the
rape, she was twenty-seven years old, working as a security officer, and
living with her parents. She had graduated both from high school and
Southwest Tennessee Community College. She said that, on October 4,
2002, she had been at school and was leaving to return home, as her mother
had instructed, when she heard a person she knew as “Antonio” call her
name. She described what happened next:


              So I walked over, and then the next thing you know,
       there was a bag being put on my head, and people were
       pulling me, and I was hearing yelling, and I was yelling, and I
       was drug [sic] into the car.

              We rolled around for a long time, you know. If your
       head is covered, it can only be a long time, you know. So we
       drove around and drove around and drove around. And I
       heard whispering. And we pulled over somewhere, and I can
       remember them snatching my clothes off. I can remember
       people holding me down. I can remember me screaming,
       “Stop it. No. What are you doing? Let me go.” I’m blind,
       so I can’t see without my glasses. I can remember them
       taking everything that I had.

             When they finally finished, they never said anything to
       me. And they let me out and . . . everything in me was gone.
       And I was scared. And I called my dad. And he told me to
       call Mom. And I called Mom. And then everybody came.




                                     -3-
        The victim said that there were three men in the car, including
Antonio. Otherwise, she was unable to describe them. She remembered
the men grabbing her arms and legs, holding a bag on her head, and “being
in the back seat on [her] back.” The car stopped, and she was raped. The
car door then opened, and she was pushed out. She walked to McClain
Motors, where she was helped and her mother and father were called, as
well as an ambulance. Her parents arrived, and she later went to the rape
crisis center, where she was examined.

      Kevin McClain testified that he was the owner of McClain Motors
and, when the victim walked in, she was not wearing shoes, looked “dazed
and confused,” and said that she had been raped. He telephoned the police
department but did not ask the victim what had happened.

      Judy Pinson testified that she was a nurse practitioner at the
Memphis Rape Crisis Center. She said the victim had been examined at the
Center in 2002, and a sub-acute abrasion about one centimeter in length
was found on her vulva. Pinson believed it to be a penetrating injury.
Pinson took DNA samples from the victim.


       Lieutenant Stephen Cody Wilkerson testified that he was employed
by the Memphis Police Department and was in charge of the Sex Crimes
Cold Case Unit. On January 3, 2011, he was assigned to work on the
victim’s case, and there had been a match made with the DNA from the
victim’s rape kit and a Tennessee Bureau of Investigation (“TBI”) profile of
DNA taken from [Petitioner]. [Petitioner] was contacted and voluntarily
came to police headquarters. He was not arrested but was advised of his
Miranda rights before being questioned. [Petitioner] consented to having
another DNA sample taken from him. [Petitioner] responded to questions
asked of him, and Lieutenant Wilkerson described [Petitioner]’s actions
when told of the DNA evidence:

      [U]p to that point, he was a little nervous, but he was engaged
      in conversation. He would look at me, he’d make eye contact
      with me, he would answer questions, . . . he asked a couple of
      questions.

            Once . . . I told him that we had recovered DNA
      evidence from the rape kit that was collected after [the

                                   -4-
       victim] was assaulted and taken to Rape Crisis, I told him that
       we recovered his DNA from inside her vagina.

              At that point, he just stopped talking. He just looked
       down at the floor, wouldn’t say a word, wouldn’t move. We
       sat there for a long time. We were in the interview room for
       about an hour and twenty minutes. Probably the last twenty
       minutes was just sitting there with him staring at the floor.

       Lieutenant Wilkerson continued that his reason in asking for a
second DNA sample from [Petitioner] was for a confirmatory test. Since
the results from the second test were not yet available, [Petitioner] was
allowed to leave following his being questioned.

        Deanna Lankford testified that she was employed as Associate
Laboratory Director for Cellmark Forensics, a private forensic DNA testing
laboratory. She said that she had testified as a DNA expert witness “[c]lose
to” fifty times in criminal, federal, and military courts, in “many different
states.” She said that she had received slides prepared with samples taken
from the victim’s sexual assault kit and that the presence of semen was
detected. As a result of the testing, a DNA profile was created and returned
to the TBI in 2005.

        Lawrence James testified that he was employed by the TBI as a
special agent and forensic scientist supervisor. He said that he had
provided expert testimony in courts regarding DNA approximately seventy-
five times. The DNA profile from Cellmark had been uploaded into
CODIS in 2006, and, in November 2010, he was told that the profile
matched that of [Petitioner]. This result was reported to Shelby County
authorities, and the TBI asked that, for confirmation purposes, a second
DNA sample be taken from [Petitioner]. Special Agent James then
received and tested this second sample and concluded that the DNA from
[Petitioner]’s second swab matched that found on the vaginal swab from
the victim’s rape kit. He said that among African-Americans, the race of
[Petitioner], he would expect to see this profile once in 40 quadrillion, 870
trillion. The State then rested its case.

      Following this testimony, [Petitioner] rested without presenting any
evidence.



                                    -5-
State v. Jerald Jefferson, No. W2014-00784-CCA-R3-CD, 2015 WL 3932448, at *1-5
(Tenn. Crim. App. June 25, 2015), perm. app. denied (Tenn. Oct. 15, 2015).1 This court
affirmed Petitioner’s conviction for aggravated rape, and the Tennessee Supreme Court
denied further review. Id.

                                 Petition for Post-Conviction Relief

       Petitioner filed a timely post-conviction petition, claiming that he received the
ineffective assistance of counsel and that there was newly discovered evidence.2
Following the appointment of counsel, an amended petition was filed, claiming that
Petitioner received ineffective assistance of counsel based on six deficiencies, only one of
which was raised in this appeal: whether trial counsel was ineffective in failing to file a
motion pursuant to Tennessee Rule of Evidence 412, which is sometimes referred to as
the rape shield law. Accordingly, we will limit our summary to the evidence presented at
the post-conviction hearing related to the sole issue raised on appeal.

                                       Post-Conviction Hearing

       At the beginning of the hearing, post-conviction counsel announced that he had
subpoenaed Antonio Starks as a witness. Mr. Starks, who was incarcerated on a life
sentence for first degree murder at the time of Petitioner’s trial and the post-conviction
hearing, asserted his Fifth Amendment right to remain silent to avoid possible self-
incrimination. Mr. Starks was identified by the victim in her statements to police and in
her testimony during Petitioner’s trial as one of the individuals who abducted and raped
her. The State announced that it made the decision not to prosecute Mr. Starks in the
rape case because he was “already serving a life sentence.” The post-conviction court
released Mr. Starks from the subpoena and ordered him to be returned to the custody of
the Tennessee Department of Correction.

       Petitioner testified that his family hired trial counsel. He claimed that he rarely
saw counsel and that he only met with him three times for about ten minutes each visit.
Petitioner claimed he met the victim “on a chat line” and that a week later they “ended up
hooking up.” He claimed the victim told him she was eighteen and had graduated from

        1
         We note that this case was designated “not for citation” by our supreme court. “An opinion so
designated shall not be . . . cited by any judge in any trial or appellate court decision . . . except when . . .
the opinion is relevant to a criminal, post-conviction or habeas corpus action involving the same
defendant.” Tenn. Sup. Ct. R. 4(E)(2).
        2
           The original petition was filed by Marie A. Williams as “next friend” for Petitioner. In Ms.
Williams’ affidavit, she affirmed she was Petitioner’s aunt and claimed that Petitioner had memory loss as
the result of a head injury he sustained from a car wreck in 2006.
                                                     -6-
Trezevant High School but that she was going back to the school “to help with some
after-school activities.” He picked up the victim after school to “hang out” and drove the
victim to Melvin Jefferson’s house on Gwynne Street. Although Petitioner could not
remember the exact date, he said he thought it occurred in the fall of 2002. He claimed
that he and the victim “ended up having sex[,]” and afterwards, he got a phone call from
some “buddies that [he] was in a dance group with,” so he left without telling the victim.
He never saw the victim again. Petitioner stated that Melvin Jefferson and his sister,
Monique Jefferson, were at the house on Gwynne Street when he and the victim had sex.
He claimed that he provided this information to trial counsel.

        Petitioner stated that, when he was first arrested, he did not know the identity of
his accuser. He said he “put two and two together” after reading in the discovery
package that the event happened on Gwynne Street after the victim was involved in
“after-school activities that she said that she went back to the school to help out with[.]”
He claimed he did not know the victim’s identity “for sure till [sic] it was time to come to
trial and [he] s[aw] her face.” He said that he had never seen Mr. Starks before the post-
conviction hearing. He also claimed that the 2006 accident did not affect his memory of
the events in 2002.

       On cross-examination, Petitioner admitted that he had twenty to twenty-five court
dates before his trial and that he talked to trial counsel on some of those dates. He
admitted to having experience in court proceedings based on thirteen prior felony
convictions. He stated that he had attended college for a year and a half.

       On examination by the court, Petitioner stated that, when he was initially
questioned by the police, he stated that he “knew a bunch of” girls with the victim’s first
name but that he did not know if he knew the victim. He claimed he initially denied
having sexual intercourse with the victim because he was not sure of her identity. He
agreed that, when initially confronted with the DNA evidence, he did not say anything to
the police about a consensual sexual encounter.

       Trial counsel testified that he had been practicing law for twenty-six years and had
handled “hundreds” of jury trials. He said this case was difficult because Petitioner had
suffered a bad car accident in 2006 and that, in 2011, Petitioner “did not have a clear
memory of any of the events that took place” in 2002. He stated that Petitioner talked
about the accident “in great detail, and he was using that, basically, to say, ‘I don’t
remember.’” Trial counsel had multiple mental evaluations of Petitioner, but each
evaluation found him competent to stand trial. He said the State’s first offer was fifteen
years and that the second offer was for twelve years. He claimed that he did not have a
“basis, other than these speculations, for filing a 412 motion,” explaining:

                                           -7-
                [W]hen [Petitioner] actually saw the victim, and he heard from the
        victim, that’s about when he told me that he did remember her, and that he
        had had sex with her, and the biggest problem now was that, since she had
        been sixteen at the time, if he admitted that he had actually had sexual
        relations with her, consensual or otherwise, he was walking himself straight
        into a statutory rape situation. That’s what happened.

               And, by this point in time, since we’re already in the trial when we
        learn this, we are foreclosed in going down the [] Rule 412[,] route, because
        you’re supposed to file that ten days prior to trial, in order to avail yourself
        of what the statute says, and how you conduct an investigation of a victim
        and get into her prior sexual history.

                So, the problem we had was that [Petitioner] was now firmly caught
        on the horns of a dilemma. And, of course, I think, to make a point about
        what he said earlier about testifying or not testifying in his defense, if I
        remember correctly, the conversation that we had at the close of the state’s
        case-in-chief, and his decision whether or not to get up on the stand, I did
        point out to him the problem that he was going to face if he got up on the
        stand and made a statement such as he was planning on doing, and
        admitting that he was guilty of statutory rape in the middle of an aggravated
        rape trial.

        ....

               That’s when he came up with the idea that he had been in a
        consensual sexual relationship with the young lady--that they had met
        online. He mentioned that in trial. It wasn’t before trial, I know that.

               Because, obviously, if he had mentioned that before trial, it would
        have made perfect sense to go ahead and file a 412 and attack the
        credibility of the witness/victim. But we didn’t get to that point because,
        either he didn’t remember, or -- and, genuinely, maybe he did not recognize
        her until she came into the courtroom.3

        3
           We take judicial notice of the record in Petitioner’s direct appeal which contains the trial
transcript. The first sentence of the transcript was a question by the court: “Yes, sir, [trial counsel]. You
had indicated that [Petitioner]’s defense in this case will be one of consent?” Trial counsel responded
“Correct.” This dialogue occurred before voir dire of the jury, which was contained in the first two
volumes of the transcript. The record does not contain a transcript of any hearing that occurred before the
court’s question concerning consent. The technical record contains a copy of the “State’s Motion in
Limine to Exclude Reference to Victim’s Sexual Behavior Pursuant to Tennessee Rule of Evidence 412”
                                                   -8-
       Trial counsel agreed “that there were three people involved in this offense” and
that one of them was Mr. Starks. Trial counsel also agreed that he knew from discovery
that the rape kit results showed that there was sperm from more than one individual. He
stated that Petitioner never mentioned Melvin and Monique Jefferson before trial.
Counsel agreed that a consensual act “was not consistent with what the victim reported
and what the people that found her after this incident reported.”

        On cross-examination, trial counsel admitted that he learned through discovery
that the victim reported that she had been “summoned to the vehicle by an acquaintance
that she knew, Antonio Starks[.]” He also agreed that the victim testified at trial “that she
was approached from behind, and a cloth bag was put over her head, and that she was
dragged into a car[.]” He agreed that he tried to cross-examine the victim’s mother about
whether the victim “had planned to meet up with Antonio Starks,” but the State’s
objection to that line of questioning was sustained. He again reaffirmed that he did not
file a Rule 412 motion before trial because Petitioner stated that he did not know the
victim. Post-conviction counsel then attempted to question trial counsel as to his reason
for not filing a Rule 412 motion since trial counsel knew that the victim had identified
Mr. Starks. The State objected on the grounds of relevancy and the post-conviction court
stated that his trial notes showed that “we had a jury-out hearing. We looked into all of
this. There was never a question as to whether or not the victim in this case knew
Antonio Starks.” The court then allowed post-conviction counsel to proceed with this
line of questioning, but the cross-examination turned to questions about the DNA results.

        At the conclusion of the hearing, the post-conviction court made an oral ruling.
The court found that there was a “stark difference” in Petitioner at the post-conviction
hearing and Petitioner at the trial, stating that at the trial Petitioner could not remember
“what could have happened, what did happen, what didn’t happen.” The post-conviction
court described Petitioner at trial as being “basically in a comatose state[,] very lethargic,
very incommunicable[,]” stating that when the court tried “to have conversations with
[Petitioner], it was like talking to a zombie.” The court noted that Petitioner “was very
articulate, very well-spoken, [and a] very smart person” at the post-conviction hearing.
The court found that “for the time this case has been pending in this court, [Petitioner]
has been playing games with his trial lawyer. He’s been playing games with this Court.”
The court found Petitioner to be “a very dishonest person” and found that he “lied to the
Court today, or he lied during his Momon hearing.” The court accredited the testimony


filed on the first day of trial. Volume three of the transcript begins with a statement of the court reporter
noting that “[t]he following proceedings were held out of the presence of the jury[.]” The jury-out
proceeding occurred before the jury was sworn, the proceeding was not further described, and no
transcript was filed in the record. In the opening statement, trial counsel said that “the person who
attacked [the victim], if indeed she was attacked, was someone other than [Petitioner].
                                                   -9-
of trial counsel and discredited “everything that came out of [Petitioner’s] mouth[.]” In
characterizing the evidence at trial, the court noted that the victim

       [w]ent over to the car, was grabbed by these folks. Had a bag placed over
       her head[,] was driven from Trezevant High School to somewhere in south
       Memphis[,] was raped repeatedly by at least two different people, probably
       three people, and that’s the mixture, the DNA profile mixture, that was
       found in this rape kit that was conducted on this sixteen-year-old child.
       Raped repeatedly by two or three people.

        The court noted that the DNA expert testified at trial that the statistical chance that
another individual’s DNA would match the DNA sample taken from the victim that was
identified as Petitioner’s was “one out of one hundred and twenty-seven quadrillion.” The
court also noted that even though [trial counsel] “did not file a 412 motion, we did
conduct an impromptu [Rule] 412 hearing outside of the presence of the jury, so that
[trial counsel] could make that record.” Concerning the failure to file a Rule 412 motion
based on the information known to trial counsel concerning Mr. Starks, the court stated:

       Antonio Starks, for the record, is a smokescreen. Antonio Starks may have
       very well, and probably did, engage in unlawful sexual intercourse with this
       young lady. Antonio Starks is serving a life sentence for murder right now.
       The State of Tennessee made a decision not to charge Antonio Starks,
       because he’s serving a life sentence[.]

        The post-conviction court concluded that “[t]here [wa]s no basis for [trial counsel]
to have filed a frivolous [Rule 412] motion” and denied the petition for post-conviction
relief.

                         Written Order Denying Petition

       On February 5, 2018, the post-conviction court entered a twenty-seven page
written order, addressing each of the claims made in the petition and the amended
petition and denying relief. The court found that trial counsel had practiced for twenty-
five years and had handled hundreds of jury trials. The court noted that trial counsel
believed there was no basis for a Rule 412 Motion until Petitioner mentioned alleged
consensual sex with the victim for the first time at trial and that allegations of consensual
sex would have been inconsistent with the facts known to trial counsel.

       The post-conviction court accredited trial counsel’s testimony that Petitioner never
informed him that Melvin and Monique Jefferson were possible witnesses to a consensual
sexual encounter. The court noted that Petitioner failed to call Melvin and Monique
                                            - 10 -
Jefferson as witnesses at the post-conviction hearing and that it could not “speculate on
what benefit the witnesses might have offered” to Petitioner’s case or “how any
additional witnesses could have made a difference in the outcome of this trial.”

       The post-conviction court found that trial counsel “had no basis to argue and
present an untimely and unfounded Rule 412 motion regarding alleged consensual sexual
intercourse with the child victim in this case.” The court noted Petitioner “had always
insisted that he had never met the victim and had never engaged in sexual intercourse
with the victim—until the midst of the trial.” The court noted that, when Petitioner first
claimed that he had a consensual sexual encounter with the victim, he “was afforded a
hearing outside the presence of the jury to develop this issue” and that trial counsel
“withdrew the unfounded inquiry when the victim testified that she had never met []
Petitioner and could not identify or recognize [] Petitioner in court.” Concerning the
claim that trial counsel was ineffective for failing to file a Rule 412 motion, the court
found that “Petitioner has wholly failed to present any proof to substantiate this farcical
allegation. This issue is without merit.” The court repeated its oral credibility findings,
stating that “Petitioner’s testimony at the evidentiary post-conviction hearing [was] not
credible” and accrediting the testimony of trial counsel.

       Petitioner now timely appeals from the denial of post-conviction relief.

                                   Standard of Review

       A petitioner seeking post-conviction relief has the burden to prove all factual
allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). The
post-conviction court’s “findings of fact . . . are afforded the weight of a jury verdict and
are conclusive on appeal unless the evidence in the record preponderates against those
findings.” Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999), on reh’g (Tenn. Mar. 30,
2000); see also Jaco v. State, 120 S.W.3d 828, 830 (Tenn. 2003). The credibility of the
witnesses and the weight and value to be given their testimony are to be resolved by the
post-conviction court. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001); see also Pylant
v. State, 263 S.W.3d 854, 869-70 (Tenn. 2008). Appellate “review of legal issues or
mixed questions of law and fact, such as a claim of ineffective assistance of counsel,
however, is de novo with no presumption of correctness.” Id. at 867-68.

                                          Analysis

         The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const.
art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel,
a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the
                                            - 11 -
deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same
standard for ineffective assistance of counsel applies in both federal and Tennessee
cases). Both factors must be proven in order for the court to grant post-conviction relief.
Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363,
370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is
no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007)
(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of
counsel’s performance “requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S.
at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial
strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful,
tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

        As to the first prong of the Strickland analysis, “counsel’s performance is effective
if the advice given or the services rendered are within the range of competence demanded
of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that
counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions
were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see
also Baxter, 523 S.W.2d at 936.

        Even if counsel’s performance is deficient, the deficiency must have resulted in
prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong
of the Strickland analysis, the petitioner “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
omitted).

        Petitioner contends that trial counsel’s performance was deficient based on his
failure to timely file a Rule 412 motion. In his contradictory post-conviction testimony,
Petitioner claimed that he discovered the victim’s identity through discovery and that he
informed trial counsel that he had a consensual sexual encounter with the victim. He also
claimed that he did not know the identity of the victim for certain until he saw her at trial.
He claimed that he provided to trial counsel the names of witnesses who were at the
home where the alleged consensual sexual encounter occurred, and therefore, trial
counsel should have filed a Rule 412 motion. As the post-conviction court noted in its
written order, Petitioner failed to call those witnesses during the post-conviction hearing,
                                            - 12 -
and without their testimony at the post-conviction hearing, the court “cannot speculate on
what benefit the witnesses might have offered” to Petitioner’s trial or to his post-
conviction claim concerning the failure to file a Rule 412 motion. See Black v. State, 794
S.W.2d 752, 757 (Tenn. Crim. App. 1990).

       Trial counsel testified that Petitioner “came up with the idea that he had been in a
consensual sexual relationship” with the victim when he saw the victim at trial. He
claimed that Petitioner never told him about a consensual sexual encounter before trial
and that, “if [Petitioner] had mentioned that before trial, it would have made perfect sense
to go ahead and file a [Rule] 412 [motion].”

        Concerning the failure to file a Rule 412 motion, the post-conviction court wrote
in its order that the post-conviction court found that trial counsel “had no basis to argue
and present an untimely and unfounded Rule 412 motion regarding alleged consensual
sexual intercourse with the child victim in this case.” The court noted that Petitioner
“had always insisted that he had never met the victim and had never engaged in sexual
intercourse with the victim—until the midst of the trial.”

       During cross-examination of the victim at trial, counsel attempted to question the
victim about her sexual activity. Following an objection by the State, trial counsel
indicated during a jury-out hearing that the victim stated on direct examination that she
was sexually active. The State responded that the victim actually testified that “the
detective didn’t believe her and thought she was not a virgin.” The trial court sustained
the State’s objection to that line of questioning.

        We agree with the post-conviction court’s finding that the proof at trial was
overwhelming. DNA evidence taken shortly after the victim was found at McClain
Motors linked Petitioner and at least one other individual to a sexual encounter with the
victim. The victim’s statements to police and her testimony at trial that she was raped,
was corroborated by the testimony of witnesses who saw the victim shortly after the rape
and by the medical proof. The post-conviction court assessed the testimony of Petitioner
and determined that he was not credible. The court found trial counsel credible.
Petitioner has failed to show that counsel performed deficiently by failing to file a Rule
412 motion. Even if counsel’s performance was somehow deficient, Petitioner has failed
to show that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at
687.




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                               Conclusion

The judgment of the post-conviction court is affirmed.



                                  _________________________________
                                  ROBERT L. HOLLOWAY, JR., JUDGE




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