        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs June 18, 2013

                 JEREMY KEETON v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Wayne County
                       No. 15161     Stella L. Hargrove, Judge


                No. M2013-00644-CCA-R3-PC Filed October 17, 2013


The Petitioner, Jeremy Keeton, appeals as of right from the Wayne County Circuit Court’s
denial of his petition for post-conviction relief. The Petitioner contends that he received
ineffective assistance of counsel because his trial counsel failed to secure the appearance of
several witnesses at his trial. Discerning no error, we affirm the judgment of the post-
conviction court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which N ORMA M CG EE O GLE
and A LAN E. G LENN, JJ., joined.

Stacie Odeneal, Lawrenceburg, Tennessee, for the appellant, Jeremy Keeton.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; T. Michel Bottoms, District Attorney General; and Joel Douglas Dicus, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       The Petitioner was convicted of voluntary manslaughter and sentenced to fifteen years
as a Range III, persistent offender. This court affirmed the Petitioner’s conviction and
sentence on direct appeal. State v. Jeremy Keeton, No. M2009-01811-CCA-R3-CD, 2011
WL 795545 (Tenn. Crim. App. Mar. 8, 2011). The evidence at trial established that in July
2006, the Petitioner got into an altercation with two men in Alabama, Larry Clemmons and
Dan Hill, who the Petitioner believed had stolen a motorcycle and three-wheeler from him.
The Petitioner went to Alabama and “shot up” the camper Mr. Hill was staying in and Mr.
Clemmons’s car. The Petitioner then fled back to his home in Tennessee and called Mr.
Clemmons, who threatened to come to the Petitioner’s house “and play.” Later that night,
when the Petitioner heard a motorcycle approaching his house, he went out onto his front
porch with a shotgun and shot the rider, fearing that it was Mr. Clemmons or Mr. Hill. The
victim, the Petitioner’s friend John Wesley Brewer, died a short time later. Id. at *1-9. The
Petitioner filed a timely petition for post-conviction relief alleging that his trial counsel failed
to secure the appearance of several witnesses at his trial.

        At the post-conviction hearing, the Petitioner testified that he wanted Mr. Hill, Mr.
Clemmons, Bill Atkinson, Ray Balentine, and Chuck Killen to testify at his trial. He believed
their testimony would have established the ongoing conflict between himself and Mr.
Clemmons and Mr. Hill, as well as establishing that Mr. Hill was physically similar to the
victim. Trial counsel testified that he had subpoenaed all of the witnesses the Petitioner
wanted to have testify at trial, except for Mr. Hill because no one was able to locate him to
serve the subpoena. Trial counsel testified that Mr. Clemmons, Mr. Atkinson, Mr. Balentine,
and Mr. Killen were there for the first day of trial. In fact, Mr. Clemmons testified on the
first day of trial, but the four men did not return for the second day of trial and refused to
return despite the trial court’s threats to hold them in contempt of court. Trial counsel
testified that he did not believe that the witnesses would have added anything to the
Petitioner’s defense or that their testimony would have resulted in a better outcome for the
Petitioner. None of the men testified at the post-conviction hearing. After the hearing, the
post-conviction court issued a written order dismissing the petition.

        On appeal, the Petitioner contends that the post-conviction court erred in dismissing
his petition. The Petitioner argues that trial counsel failed to properly subpoena the
witnesses, all from Alabama, which left the trial court with no means to enforce the
subpoenas. With respect to Mr. Hill, the Petitioner argues that trial counsel did not have the
subpoena for him issued early enough to ensure service before the trial. The State responds
that the Petitioner failed to establish that trial counsel was ineffective because the witnesses
did not testify at the post-conviction hearing.

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence. Tenn.
Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
On appeal, we are bound by the post-conviction court’s findings of fact unless we conclude
that the evidence in the record preponderates against those findings. Fields v. State, 40
S.W.3d 450, 456 (Tenn. 2001). Additionally, “questions concerning the credibility of the
witnesses, the weight and value to be given their testimony, and the factual issues raised by
the evidence are to be resolved” by the post-conviction court. Id. Because they relate to
mixed questions of law and fact, we review the post-conviction court’s conclusions as to
whether counsel’s performance was deficient and whether that deficiency was prejudicial
under a de novo standard with no presumption of correctness. Id. at 457.

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       Under the Sixth Amendment to the United States Constitution, when a claim of
ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that
counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland
v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72
(1993). In other words, a showing that counsel’s performance falls below a reasonable
standard is not enough; rather, the petitioner must also show that but for the substandard
performance, “the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. The Strickland standard has been applied to the right to counsel under article I,
section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn.
1989).

        This court has long held that “[w]hen a petitioner contends that trial counsel failed to
discover, interview, or present witnesses in support of his defense, these witnesses should
be presented by the petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752,
757 (Tenn. Crim. App. 1990). This is the only way the petitioner can establish that failure
“to call the witness to the stand resulted in the denial of critical evidence which inured to the
prejudice of the petitioner.” Id. Live testimony from the witness is usually necessary for the
post-conviction court to evaluate whether the testimony is admissible, material, and credible.
Pylant, 263 S.W.3d 854, 869-70 (Tenn. 2008). We cannot speculate as to what a witness
may have said if presented or how the witness may have responded to a rigorous cross-
examination. Black, 794 S.W.2d at 757. The Petitioner failed to present Mr. Hill, Mr.
Clemmons, Mr. Atkinson, Mr. Balentine, and Mr. Killen at the post-conviction hearing;
therefore, the Petitioner has failed to establish by clear and convincing evidence that trial
counsel was ineffective in failing to secure their testimony. Accordingly, we affirm the
judgment of the post-conviction court.

       Upon consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.




                                                     _________________________________
                                                     D. KELLY THOMAS, JR., JUDGE




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