        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 8, 2016

           MICHAEL TYRONE GANT v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Bedford County
                    No. 17954     Forest A. Durard, Jr., Judge


                 No. M2015-01566-CCA-R3-PC – Filed June 1, 2016


The Petitioner, Michael Tyrone Gant, appeals the denial of his petition for post-
conviction relief. He argues that he received ineffective assistance of counsel based on
trial counsel‟s failure to present evidence on his behalf that would have established both
his innocence and the victim‟s bias. Upon review, we affirm the judgment of the post-
conviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and D. KELLY THOMAS, JR., J., joined.

Brian C. Belden, Shelbyville, Tennessee, for the Petitioner, Michael Tyrone Gant.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Robert James Carter, District Attorney General; and Michael D. Randles, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

       On October 22, 2012, a Bedford County jury convicted the Petitioner of
aggravated robbery, aggravated burglary, possession of a weapon by a convicted felon,
and possession of a firearm during the commission of a dangerous felony, and the trial
court imposed an effective sentence of forty-eight years‟ incarceration. See State v.
Michael Tyrone Gant, No. M2012-02727-CCA-R3-CD, 2013 WL 5873278, at *1 (Tenn.
Crim. App. Oct. 30, 2013), perm. app. denied (Tenn. Mar. 5, 2014). This court affirmed
the Petitioner‟s convictions and sentences on direct appeal, and the Tennessee Supreme
Court denied his application for permission to appeal. See id. On October 14, 2014, the
Petitioner filed a timely pro se petition for post-conviction relief. Following the
appointment of counsel, an amended petition was filed.
        The facts underlying the Petitioner‟s convictions were summarized by this court
on direct appeal. See id. at *1-6. In short, on June 22, 2010, the Petitioner accompanied
Daneile Jeffery to buy pain pills from the victim after Jeffery picked him up at a gas
station. At the time, the Petitioner and Jeffery had known one another for a few months
because the Petitioner‟s son and Jeffery‟s daughter had a child together. When they
arrived at the victim‟s address, the Petitioner stayed inside the car while Jeffery went
inside the victim‟s home. Jeffery came back outside to get her money from the car and
just after she reentered the home, the Petitioner forced his way into the victim‟s house,
brandished a handgun, and informed the victim that he was robbing her.

        The victim said she had never seen the Petitioner before that day and described
him as a six-foot tall African-American male who was wearing a white t-shirt. The
Petitioner held his gun to the victim‟s head before taking her cell phone, seventy Percocet
pills, and between $180 and $200 in cash. During the robbery, the victim recalled Jeffery
asking the Petitioner, “Clint, why are you doing this[?]” Jeffery denied calling the
Petitioner “Clint” the day of the robbery and could not recall what name, if any, she had
used when speaking to the Petitioner inside the victim‟s home. Although the victim said
that she had sold pain pills to Jeffery three times in the past, Jeffery stated that she had
bought pills from the victim on fifteen prior occasions. Jeffery identified the Petitioner as
the “gunman” to police, and the victim identified the Petitioner as the perpetrator from a
photographic lineup. The Petitioner, during his interview with police, said he had never
been to Bedford County, where the victim resided, and knew nothing about a robbery.
He claimed he “dealt in cocaine” and not in pain pills.

       At trial, Jeffery acknowledged that she had pending charges for theft and
aggravated robbery for her role in the instant offenses and had prior convictions for
obtaining a controlled substance by fraud, theft of property valued over $10,000, theft of
property valued under $500, and introduction of contraband into a penal facility. She
claimed that although she was guilty of buying prescription drugs, she was not guilty of
robbing the victim. Jeffery admitted that she was addicted to pain pills, particularly
Lortab, Oxycodone, and Percocet, and that she would go to the Petitioner‟s house and
smoke crack cocaine with him.

        The parties stipulated that the Petitioner was a convicted felon on June 22, 2010.
The Petitioner admitted that he had been convicted of escape, attempt to commit a felony,
burglary in the second degree, and receiving stolen property. He said he and Jeffery had
been involved in an “intimate relationship” and that she had asked him for money for
pills in the past. The Petitioner testified that he had never seen the victim prior to his
court case and that he had never been to the victim‟s home. He claimed that he had been
working on a neighbor‟s porch at the time of the alleged robbery, although he failed to
mention this alibi to police during his interview.
                                             -2-
       Post-Conviction Hearing. The Petitioner testified that he discovered during trial
or prior to trial that the victim had overheard Daniele Jeffery1 calling the perpetrator by
the name of “Clint” during the offenses. He claimed that trial counsel never investigated
the existence of “Clint,” even though he had told counsel that Jeffery had dated someone
by that name. He admitted that he had never met “Clint,” did not know “Clint‟s” last
name or address, and was unaware if “Clint” had a criminal record. The Petitioner said
he only knew that “Clint” was a man that Jeffery had dated and that Jeffery‟s daughter
had told him that “Clint” was African-American. The Petitioner maintained that if trial
counsel had located “Clint,” it would have changed the outcome at trial because it would
have cleared him of all the charges in this case. He admitted that even if trial counsel had
tried to talk to Jeffery about “Clint,” he could not have spoken to her without the
permission of her attorney because Jeffery was charged as a codefendant in his case.

       The Petitioner stated that he gave trial counsel a list of possible alibi witnesses,
which included Jeffery‟s daughter; his brother, Tony Gant; Tonica2 and Rodney Phillips,
the two individuals for whom he worked on their porch; and Rodney Phillips‟s brother,
whose name he believed was Jeremy Phillips. Despite this, he claimed the only people
trial counsel developed as alibi witnesses were Tonica and Rodney Phillips. He
acknowledged that Tonica Phillips testified as an alibi witness at trial and that her
husband, who was present at trial, did not testify because of his failing health. The
Petitioner conceded that Tonica Phillips could not testify that he worked on her porch the
day the offenses occurred, only that he had been working on her property around the time
of the offenses. However, he asserted that if trial counsel had interviewed the other
witnesses on his list, the outcome of his trial would have been different because those
witnesses could have confirmed his claim that he was working on the Phillips‟ porch at
the time the offenses in this case were committed.

       The Petitioner also claimed that trial counsel had failed to vigorously cross-
examine the victim and Jeffery at trial. However, he admitted that trial counsel was able
to get both the victim and Jeffery to admit that the victim was selling Jeffery pain pills.
He also admitted that trial counsel was able to highlight the fact that the victim and
Jeffery had differing stories as to how many times Jeffery had bought pills from the
victim. Nevertheless, the Petitioner claimed that trial counsel failed to sufficiently attack
the victim‟s and Jeffery‟s credibility during cross-examination based on these
admissions. While he acknowledged that the victim and Jeffery provided different
testimony as to how many times Jeffery had bought pills from the victim prior to the

        1
          Although this witness‟s last name is spelled “Jeffries” in the transcript from the post-conviction
hearing, we will spell her last name “Jeffery” in accordance with her own testimony at trial.
        2
          While this witness‟s first name is spelled “Tamika” in the transcript from the post-conviction
hearing, we will spell her first name “Tonica” in accordance with her own testimony at trial.
                                                    -3-
offenses, he claimed that trial counsel should have emphasized this discrepancy during
cross-examination because it supported his theory that the victim and Jeffery were
“covering up something.”

       Although the Petitioner claimed that Jeffery was bisexual and would engage in
sexual acts in exchange for pills, he initially said he could not remember telling trial
counsel this information. Later, he testified that he told trial counsel that Jeffery was
bisexual, that he and Jeffery had engaged in sexual relations, and that Jeffery often traded
sex with other individuals for drugs, but he claimed that counsel refused to question
Jeffery about these issues at trial. The Petitioner said this evidence would have affected
the outcome of trial because it would have damaged Jeffery‟s credibility and would have
shown that Jeffery and the victim had a closer relationship than they claimed.

       The Petitioner also asserted that the victim, the victim‟s son, and Jeffery had a
“vendetta” against him because Jeffery‟s daughter was seeing the Petitioner‟s son while
she was dating the victim‟s son. He claimed that because of his son‟s relationship with
Jeffery‟s daughter, the victim, the victim‟s son, and Jeffery concocted a story about his
committing the robbery. The Petitioner said he told trial counsel prior to trial that the
victim and Jeffery blackmailed him, and trial counsel never investigated or questioned
these witnesses about that information. Despite his claim that the victim was
blackmailing him, the Petitioner admitted that the first time he had ever seen the victim
was at his trial.

        The Petitioner also asserted that if trial counsel had obtained the surveillance
videotape from the gas station that was made the day of the offenses, it would have
shown that Jeffery did not pick him up there before going to the victim‟s home, as she
claimed. He admitted that he did not have this surveillance videotape to present at the
post-conviction hearing but claimed that trial counsel failed to make a timely request for
this videotape.

       Trial counsel testified that he had been an assistant public defender for
approximately seventeen years and had been licensed to practice law in Tennessee for
close to twenty-five years. At the time he represented the Petitioner, he had handled
thousands of felony cases in circuit court and was certified to represent defendants in
capital cases.

       Counsel stated that he reviewed the discovery with the Petitioner and met with the
Petitioner about his case several times, including one or two times at the prison where the
Petitioner was incarcerated. He said that he was familiar with the State‟s evidence and
was prepared to defend the Petitioner at trial.

                                            -4-
       Trial counsel said the Petitioner never informed him that Jeffery was dating a man
named “Clint” prior to trial. He acknowledged that, during an interview prior to trial, the
victim told him Jeffery had referred to the perpetrator as “Clint” during the robbery. He
said he did not try to locate “Clint” because the Petitioner never told him that Jeffery had
an acquaintance named “Clint.” Counsel explained that Jeffery was charged as a
codefendant, and Jeffery‟s attorney refused to allow her to be interviewed prior to the
Petitioner‟s trial.

       Counsel said that he extensively questioned the victim about selling her pain pills
and finally got her to begrudgingly admit that she was a drug dealer, which affected her
credibility at trial. He said he also highlighted the inconsistencies between the victim‟s
account and Jeffery‟s account of how often the victim sold pain pills to Jeffery.
Moreover, trial counsel said he was able to get Jeffery to admit that she heavily used
drugs and that she had a relationship with the victim, which affected Jeffery‟s credibility.

       Trial counsel said that although he knew of the relationship between the
Petitioner‟s son and Jeffery‟s daughter, the Petitioner never informed him that the victim,
the victim‟s son, and Jeffery were blackmailing him because of that relationship.
Counsel said that he fully explored the relationship between Jeffery and the Petitioner as
well as the relationship between the Petitioner‟s son and Jeffery‟s daughter.

       Counsel stated that the Petitioner and Jeffery had committed offenses similar to
the instant crimes in Coffee County. However, he had successfully kept the evidence of
the Coffee County crimes out of the trial in this case.

       Trial counsel said the Petitioner gave him a list of possible alibi witnesses that
included Tonica Phillips and her husband, Rodney Phillips. Although he interviewed Mr.
and Mrs. Phillips, they could not confirm that the Petitioner was working on their porch
at the time the offenses in this case were committed. Counsel said he called Tonica
Phillips to testify at trial because she was the best alibi witness available. He said he did
not have Rodney Phillips testify because he was in poor health and because he did not
remember as much about the Petitioner‟s work on the porch as his wife.

       Counsel said that he interviewed Dale Phillips, who he believed was Rodney
Phillips‟s brother. Because Dale Phillips was incarcerated in another county on the day
the offenses in this case were committed, he could not provide an alibi for the Petitioner.
Trial counsel also interviewed the Petitioner‟s brother, Tony Gant, who was unable to
confirm that he and the Petitioner had worked on the porch at the Phillips‟ home at the
time of the offenses. After discussing the information he had gathered from the potential
alibi witnesses, trial counsel said that he and the Petitioner decided to have only Tonica
Phillips testify at trial because she was the best alibi witness, even though her testimony
                                             -5-
was less specific than they hoped it would be. Counsel did not recall the Petitioner
mentioning anyone by the name of Jeremy Phillips as a possible alibi witness and did not
remember the Petitioner suggesting any other alibi witnesses to him.

       Finally, trial counsel said he and the Petitioner discussed obtaining the
surveillance videotape from the gas station where Jeffery claimed she picked up the
Petitioner before going to the victim‟s home the day of the offenses. Counsel said he
contacted the store to see if they had a videotape, but the videotape from that date had
been recorded over because too much time had passed. Trial counsel explained that the
offenses were committed on June 22, 2010, and that he was not appointed to represent the
Petitioner until January 27, 2012. On July 15, 2015, the post-conviction court entered an
order denying the Petitioner relief.

                                       ANALYSIS

       The Petitioner contends that trial counsel provided ineffective assistance by failing
to: (1) investigate the existence of an individual named “Clint” as the perpetrator; (2)
investigate and question the victim regarding her drug use and drug dealing and Jeffery,
his codefendant, regarding her drug use and history of trading sex for drugs; (3)
investigate and question the victim and Jeffery regarding the nature of their relationship,
the nature of the relationship between Jeffery‟s daughter and the Petitioner‟s son, and the
nature of the relationship between Jeffery‟s daughter and the victim‟s son to show that he
was the victim of a conspiracy; (4) adequately prepare an alibi defense; and (5) obtain the
surveillance videotape from the gas station to impeach Jeffery‟s testimony. He asserts
that but for these failures on the part of trial counsel, the outcome of his trial would have
been different. The State argues that the post-conviction court properly denied relief.

       Post-conviction relief is only warranted when a petitioner establishes that his or
her conviction or sentence is void or voidable because of an abridgement of a
constitutional right. T.C.A. § 40-30-103. The Tennessee Supreme Court has held:

              A post-conviction court‟s findings of fact are conclusive on appeal
       unless the evidence preponderates otherwise. When reviewing factual
       issues, the appellate court will not re-weigh or re-evaluate the evidence;
       moreover, factual questions involving the credibility of witnesses or the
       weight of their testimony are matters for the trial court to resolve. The
       appellate court‟s review of a legal issue, or of a mixed question of law or
       fact such as a claim of ineffective assistance of counsel, is de novo with no
       presumption of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation
                                             -6-
marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State,
303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f);
Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009).
Evidence is considered clear and convincing when there is no serious or substantial doubt
about the accuracy of the conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562
(Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983
S.W.2d 240, 245 (Tenn. Crim. App. 1998).

       In order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish that (1) his lawyer‟s performance was deficient and (2) the deficient
performance prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Baxter v. Rose,
523 S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)).
A petitioner successfully demonstrates deficient performance when the petitioner
establishes that his attorney‟s conduct fell “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, 523 S.W.2d at 936). Prejudice arising
therefrom is demonstrated once the petitioner establishes “„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. at 370 (quoting Strickland, 466 U.S. at 694). Moreover,

       [b]ecause a petitioner must establish both prongs of the test, a failure to
       prove either deficiency or prejudice provides a sufficient basis to deny
       relief on the ineffective assistance claim. 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.

Id. at 370 (citing Strickland, 466 U.S. at 697).

       First, the Petitioner claims that trial counsel failed to investigate the existence of
“Clint” as the perpetrator, but he failed to present “Clint” at the hearing. This court has
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). The presentation of the witness at the post-conviction hearing is typically
the only way for the petitioner to establish:

       (a) a material witness existed and the witness could have been discovered
       but for counsel‟s neglect in his investigation of the case, (b) a known
       witness was not interviewed, (c) the failure to discover or interview a
                                             -7-
       witness inured to his prejudice, or (d) the failure to have a known witness
       present or call the witness to the stand resulted in the denial of critical
       evidence which inured to the prejudice of the petitioner.

Id. Neither the post-conviction court nor this court may speculate on “what a witness‟s
testimony might have been if introduced by defense counsel.” Id. Regarding this issue,
the post-conviction court noted: “Dan[eile] Jeff[ery] during her testimony denied ever
stating the name of a person called „Clint‟ during the robbery. There is little in the way
of facts to support Petitioner‟s claim this person exists or could have been located. There
was not even a last name of this person known.” Because the Petitioner did not present
“Clint” or any other witnesses showing that “Clint” was the perpetrator in this case, he
has failed to show that trial counsel was ineffective as to this issue.

        Second, the Petitioner asserts that trial counsel failed to vigorously cross-examine
the victim about her drug use and drug dealing and Jeffery about her drug use and history
of trading sex for drugs. He claims that a more forceful cross-examination would have
made these witnesses, who identified him as the perpetrator, less credible. During the
evidentiary hearing, the post-conviction court stated: “[Trial counsel] vigorously
[questioned] several people in that trial. I‟ve read the transcript. He hopped on them
pretty good.” At trial, the victim acknowledged that she had sold drugs to Jeffery several
times in the past. In addition, Jeffery admitted that she was addicted to pain medication,
that she had an extensive criminal history, that she frequently smoked crack cocaine, and
that she had been charged as a codefendant in these crimes. Despite these admissions,
the jury chose to accredit the victim‟s and Jeffery‟s testimony regarding their
identification of the Petitioner as the perpetrator. The record shows that trial counsel
effectively and vigorously cross-examined these witnesses, and the Petitioner has failed
to show that additional cross-examination would have further eroded their credibility
such that it would have changed the outcome of trial. Therefore, trial counsel‟s cross-
examination of these witnesses was neither deficient nor prejudicial.

       Third, the Petitioner maintains that trial counsel failed to investigate and question
the victim and Jeffery regarding the nature of their relationship, the nature of the
relationship between Jeffery‟s daughter and the Petitioner‟s son, and the nature of the
relationship between Jeffery‟s daughter and the victim‟s son. He claims such evidence
would have proven that he was the victim of a conspiracy. However, he has failed to
provide one shred of evidence that a conspiracy existed. As the post-conviction court
recognized, there was “no credible proof to this allegation,” and even if this allegation
were true, such evidence “would not have a reasonable probability of changing the
outcome.” Given the absence of such proof, the Petitioner has failed to show that trial
counsel was ineffective as to this issue.

                                            -8-
        Fourth, the Petitioner claims that trial counsel failed to adequately prepare an alibi
defense because he only presented the testimony of Tonica Phillips at trial. He claims
that if his alibi witnesses had been allowed to testify, the jury might have found him
innocent of the charged offenses. Significantly, the Petitioner failed to present any of
these alibi witnesses at the post-conviction hearing. See Black, 794 S.W.2d at 757
(“When 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.”). Moreover, trial counsel testified that he interviewed several
individuals before he and the Petitioner agreed that Tonica Phillips was the only person
who could possibly testify as an alibi witness. In its order, the post-conviction court held
that the Petitioner had presented no evidence of a feasible alibi defense:

       [Tonica] Phillips . . . testif[ied] that [she] had a ramp made for her disabled
       husband during the summer of 2010 and the Petitioner helped construct the
       same. Beyond that she could be no more specific. It did not appear from
       her testimony her husband was in any condition to testify. There was not
       further testimony presented at trial or [at] the [post-conviction] hearing
       which would indicate a viable [alibi] defense. Consequently, this issue has
       no merit and has not been shown it would have a reason[able] probability to
       change the verdict.

For these reasons, the Petitioner has failed to establish that trial counsel‟s performance
regarding the alibi defense was deficient or prejudicial.

       Finally, the Petitioner claims that trial counsel failed to obtain the surveillance
videotape from the gas station, asserting that this footage would have impeached
Jeffery‟s testimony that she picked him up at the gas station before going to the victim‟s
home. However, the Petitioner failed to include this issue in his petition or amended
petition for post-conviction relief, which resulted in the post-conviction court making no
ruling on this matter for this court to review. Issues not included in a post-conviction
petition may not be raised for the first time on appeal and are waived. See Walsh v.
State, 166 S.W.3d 641, 645 (Tenn. 2005) (“Issues not addressed in the post-conviction
court will generally not be addressed on appeal.”); Cauthern v. State, 145 S.W.3d 571,
599 (Tenn. Crim. App. 2004) (“[A]n issue raised for the first time on appeal is waived.”).
Regardless, the Petitioner failed to present this videotape at the post-conviction hearing,
and trial counsel testified that he requested this footage after his appointment, but it was
unavailable. Because the Petitioner has failed to establish that trial counsel‟s
performance was ineffective, he is not entitled to relief.




                                             -9-
                                    CONCLUSION

       After reviewing the record and the relevant authorities, we conclude that the post-
conviction court properly denied the petition for post-conviction relief. The judgment of
the post-conviction court is affirmed.



                                                  _________________________________
                                                  CAMILLE R. McMULLEN, JUDGE




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