        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 October 18, 2011 Session

              RONNIE LEE JOHNSON v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Putnam County
                      No. 07-0589    David A. Patterson, Judge


                No. M2011-00881-CCA-R3-PC - Filed October 29, 2012


        After a trial by jury, the petitioner was found guilty of possession of over .5 grams of
cocaine with intent to sell, a Class B felony, and possession of dihydrocodeinone, a Class A
misdemeanor. He was sentenced to seventeen years for possession of cocaine and to a
consecutive eleven months and twenty-nine days for possession of dihydrocodeinone, for a
total effective sentence of almost eighteen years. His convictions were affirmed by this court
on direct appeal. The petitioner filed a pro se petition for post-conviction relief and was
appointed counsel. Following an evidentiary hearing, the post-conviction court denied all
claims for relief. On appeal, the petitioner claims that the post-conviction court erred in
denying his motion for recusal and erred in ruling that the petitioner had not received
ineffective assistance of counsel at trial. After carefully reviewing the record and the
arguments of the parties, we affirm the judgment of the post-conviction court.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Post-Conviction Court
                                     Affirmed

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON,
P.J., and J EFFREY S. B IVINS, J., joined.

Jason Francis Hicks, of Cookville, Tennessee, for the appellant, Ronnie Lee Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Randall A. York, District Attorney General; and Anthony Craighead, Deputy
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                        FACTS AND PROCEDURAL HISTORY
        The facts of this case were ably described in State v. Ronnie Lee Johnson, No.
M2008-02848-CCA-R3-CD, 2010 Tenn. Crim. App. LEXIS 143, at **2-9 (Tenn. Crim. App.
Feb. 18, 2010), the petitioner’s direct appeal. In summary, law enforcement officers testified
that they placed the petitioner’s residence under surveillance for four days, during which time
they witnessed between fifty and sixty people enter the petitioner’s residence, stay three to
five minutes, and then leave. Considering this indicative of drug activity and because the
petitioner was a parolee who had consented to random warrantless searches of his premises
as a condition of that parole, officers searched the petitioner’s residence and found: (1) two
bags of a white rock-like substance, (2) a set of digital scales with a white residue, (3)
$2,700.00 in cash, (4) a wooden box containing twenty white pills, and (5) small bags spread
throughout the residence.

       On August 15, 2008, the petitioner was convicted of possession of over .5 grams of
cocaine with intent to sell, a Class B felony, and possession of dihydrocodeinone, a Class A
misdemeanor. The trial court found that the petitioner was a multiple offender and sentenced
him to seventeen years on the first count, to be served consecutively to eleven months,
twenty-nine days on the second count, with both sentences to be served consecutively to a
previously-imposed nine-year sentence on an unrelated conviction. On February 18, 2010,
this court upheld the petitioner’s convictions on direct appeal against, inter alia, a challenge
to the sufficiency of the convicting evidence and a Fourth Amendment challenge to the
police search of the petitioner’s residence. See id. at **9-22.

       The petitioner filed a pro se petition for post-conviction relief on April 27, 2010. He
was appointed counsel and permitted to file an amended petition. On February 23, 2011, the
post-conviction court held a hearing concerning the petitioner’s claims. At this hearing, the
following evidence was presented:

        Ms. Ida Johnson testified that she owned a rental property, which she had rented to
an individual named Mr. Dyers. Ms. Johnson testified that at some unspecified point in time
Mr. Dyers approached her and told her he was having financial difficulties and wanted to
take in a roommate. She testified that afterward, the petitioner moved into the property that
she rented to Mr. Dyers. The witness testified that Mr. Dyers moved out sometime later.

        Ms. Johnson also testified that she had recently suffered a stroke. She testified that
she did not know if she had ever been contacted by anyone concerning the petitioner’s case
or if she had ever met with or had any conversations with anyone from the Public Defender’s
Office.

        Ms. Destiny Sherron Hill, the petitioner’s daughter, testified that she frequently visited
the petitioner at a residence that he shared with Mr. Mike Dyers. She testified that Mr. Dyers

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never moved out of that residence and that he was still living there when her father moved
out sometime after his arrest. The witness testified that there were two bedrooms located in
the residence and that the front bedroom was occupied by Mr. Dyers while the back bedroom
belonged to the petitioner.

        Ms. Hill testified that on February 23, 2007, she was present at the residence shared
by the petitioner and Mr. Dyers when individuals from the Putnam County Sheriff’s
Department arrived stating that they were there to execute a search warrant. When she asked
to see the warrant, one of the officers told her that it was in fact just an agreement between
the police, the petitioner, and the petitioner’s parole officer giving them permission to search
the petitioner’s residence at any time. Ms. Hill testified that she asked to contact her father
but was told that he was already in custody and had consented to the search. She testified
that the police entered the residence and started searching. She testified that one of the
officers searching the back bedroom asked her whose bedroom it was and that she told him
that the back bedroom belonged to the petitioner.

        On cross-examination, Ms. Hill testified that Mr. Mike Dyers was not present in the
apartment during the police search. She also testified that she did not attend the petitioner’s
trial. The witness explained that she had surgery around the time of the trial and that she was
physically located in Alabama at that time. She testified that she did not find out that the
petitioner’s trial had occurred until two days after it was over.

        The witness testified that she and her father were close. When asked why, if they
were so close, she had been unaware of her father’s trial, she replied, “Well if I have cancer
and I’m dying from cancer, do you think I’m going to leave my hospital bed?” When asked
whether she would have attended the petitioner’s trial if she had known about it beforehand,
the witness initially stated, “I would have been [t]here.” When the prosecutor asked whether
her illness would have prevented her from traveling, she replied, “Weighing my options
without my illness, I would have been there,” but given her illness, “I wouldn’t have got out
of my hospital bed and came.” The witness elaborated that her life was more important to
her than “trying to come nine hours out of the way for thirty minutes” and again stated that
because of her illness she could not have been at the trial.

       On redirect examination, the witness testified that she was suffering from pancreatic
cancer at the time of the petitioner’s trial. She also testified that she was never contacted by
her father’s attorney or anyone from the Public Defender’s Office concerning the case.

       The next witness at the post-conviction hearing was the petitioner’s trial counsel.
Counsel testified that when he took over the case from the Public Defender’s Office, he
received an investigative file that included pretrial discovery from the District Attorney’s

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Office. He testified that he reviewed this file prior to trial. He testified that he did some
additional investigation including retracing some of the leads, talking to the petitioner’s
previous employer, and making additional calls to some witnesses mentioned to him by the
petitioner. Counsel also testified that the material he reviewed included a police surveillance
video, two additional pictures taken of the petitioner during police surveillance, and a video
taken by police officers inside the petitioner’s residence.

       When asked specifically about the video police officers had taken inside the
petitioner’s residence, Counsel initially testified that some of the video was played for the
jury while some of it was not, and he could not remember which parts had been played.
Counsel later testified that he was sure that the entire video had been shown to the jury at
trial.

        Afterward, the entire video was played for the witness in open court. At one point in
the video, the witness testified that it “show[ed] three rocks on the bed” of the front bedroom.
Counsel testified that he filed a pretrial suppression motion concerning this evidence because
one of these “rocks” was tested by police, “but not the other.”1 Counsel claimed that he
initially intended to mount a defense based on the comingling of this evidence, claiming that
the police tested the wrong sample. However, Mr Allen testified that during a jury-out
hearing concerning the issue, a key State witness “was confused and the judge, the court
accepted his corrected testimony, the jury didn’t get to hear it,” which negated the planned
defense. Counsel testified that “[w]hen [his initially-intended] defense didn’t fly,” he
adjusted strategies. Counsel testified that he ultimately presented evidence that the petitioner
had called police to his residence on a previous occasion and reported a possible break-in.
Counsel argued to the jury that a drug dealer would not have called police to his residence.
Counsel testified that he did not recall whether he renewed his objection to the admissibility
of the video after it had been ruled on by the trial court.

      Counsel testified that he advised the petitioner of his right to testify in his own
defense, and the petitioner informed him that he was not inclined to do so. Counsel testified


        1
          This testimony would imply that there were only two “rocks” of cocaine discovered in the front
bedroom and depicted in the video. Confusion over whether the video shows two or three “rocks” of cocaine
permeates the record. For example, later in his testimony, when viewing the video, Counsel stated that the
three “rocks” laid out in the first bedroom of the residence were actually three “bags.” Apparently viewing
the video with a closer zoom, petitioner’s counsel stated that it “looks like there are two now closer in” and
the witness appeared to agree.

        The petitioner maintains that there were three “rocks” depicted in the video throughout his brief on
appeal. The trial court made no specific finding on the subject. It is not necessary to resolve the discrepancy
for purposes of resolving the appeal.

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that at some point prior to trial he received a notice of enhancement from the District
Attorney’s Office and that he communicated and explained that notice to the petitioner.
Counsel also testified that he received a plea offer from the District Attorney’s Office prior
to trial and that he also communicated that plea offer to the petitioner. Counsel testified that
he had supplied the petitioner with all of the discovery documents and other pertinent
materials that he requested and that they had reviewed them together before trial. Counsel
testified that he “believe[d]” he had spoken with the petitioner prior to his sentencing hearing
and had explained to him what was going to transpire, but he testified that he “couldn’t say
that for sure.”

        Counsel testified that he had wanted to speak with the petitioner’s daughter, Ms. Hill,
prior to trial. Counsel testified that he talked to the petitioner’s mother on several occasions
in an effort locate the petitioner’s daughter, but the petitioner’s mother told him that she did
not know where the petitioner’s daughter could be located. Counsel testified that he never
attempted to contact Ms. Ida Johnson because there was no dispute about whether the
petitioner lived in the residence.

       Counsel testified that after sentencing, he appealed the petitioner’s convictions with
the petitioner’s consent. After the petitioner’s direct appeal was denied by the Tennessee
Court Of Criminal Appeals, he wrote the petitioner a letter stating that he would be willing
to take the case all the way to the Tennessee Supreme Court. Counsel testified that the
petitioner wrote him back “not long after that telling me he did not want to go to the Supreme
Court, he wanted to do postconviction.”

        On cross-examination, Counsel testified that when he represented the petitioner, he
already had considerable trial experience. He testified that he had plenty of time and
opportunity to prepare for trial. He testified that he met with the petitioner prior to trial on
at least two occasions. He testified that, with respect to his motion to suppress, the trial court
ruled that the contraband that had been found in the petitioner’s car was to be suppressed but
that the contraband found in the petitioner’s residence was admissible. Counsel also testified
that when he discussed the State’s plea offer with the petitioner, he “advised him to take the
offer.”

         Counsel testified that during the State’s case, a witness from the Tennessee Bureau
of Investigation crime lab took the stand and “testified to the 3.8 grams of cocaine base” that
was found in the petitioner’s apartment. This witness also testified that he did not analyze
“the other rock.” Counsel testified that after this testimony was heard, he decided to switch
trial strategies and argue that if the petitioner was a drug dealer, he would not have called
police to his house. He testified that he called two Cookeville City Police Officers to the
stand during the petitioner’s case and had them testify about coming to the petitioner’s

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residence. Finally, counsel testified that after the trial, the petitioner wrote him a letter
thanking him for his performance. Ms. Mary Louise Crawford, the petitioner’s mother,
testified in rebuttal that she had heard counsel’s testimony to the effect that he had contacted
her in an effort to locate the petitioner’s daughter, and she did not recall counsel ever talking
with her.

       After hearing this testimony, the trial court questioned the petitioner under oath
concerning his desire not to testify. The petitioner testified that he had talked with his
attorney about exercising his right to testify at the post-conviction hearing and that he had
decided it was not in his best interest to do so. Following this testimony, the post-conviction
court heard arguments from both sides and took the matter under advisement.

       On April 6, 2011, the post-conviction court issued a written order denying relief. A
timely notice of appeal was filed. Satisfied that the appeal is properly before us, our decision
follows.

                                         ANALYSIS

        Pursuant to Tennessee’s Post-Conviction Procedure Act, relief “shall be granted when
[a] conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.”
T.C.A. § 40-30-103 (Supp. 2011). The petitioner has the burden of proving any factual
allegations made in a petition for post-conviction relief by clear and convincing evidence.
See, e.g., Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011). Any factual findings made by
a post-conviction court are binding on appeal unless the record evidence preponderates
against them. See Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). Any legal
conclusions made by the post-conviction court are reviewed de novo with no presumption
of correctness. See Calvert, 342 S.W.3d at 485.

       The petitioner claims that the post-conviction court erred by denying his motion to
recuse and by ruling that his trial counsel’s performance was not constitutionally deficient.
For the reasons that follow, we deny these claims.

                                              I.
       The petitioner claims that the post-conviction court erred by denying his motion for
recusal, arguing that recusal is required whenever a post-conviction judge has also served as
the petitioner’s trial judge. We disagree.

      Criminal petitioners in Tennessee have the right to have their claims reviewed by a
judge who has not reached a prejudged conclusion concerning their case by reason of

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interest, partiality, or favor. As Article VI of the Tennessee Constitution provides: “No judge
. . . shall preside on the trial of any cause in the event of which he may be interested.” T ENN.
C ONST. art. VI, § 11. Generally speaking, recusal is necessary whenever the public might
have some reasonable basis to doubt the neutrality and impartiality of the judge assigned to
review the matter. See, e.g., State v. Odom, 336 S.W.3d 541, 575 (Tenn. 2011). “The test
in determining whether recusal is necessary is an objective one, since the appearance of bias
is as injurious to the integrity of the judicial system as actual bias.” Id. (internal quotations
omitted). “Under this objective test, recusal becomes necessary when a person of ordinary
prudence in the judge’s position, knowing all of the facts known to the judge, would find a
reasonable basis for questioning the judge’s impartiality.” Id. at 576 (internal quotations
omitted). Decisions concerning the need for recusal rest in the sound discretion of the
assigned judge, and will not be reversed on appeal “unless clear abuse appears on the face
of the record.” State v. Reid, 213 S.W.3d 792, 815 (Tenn. 2006).

        The petitioner’s claim of error concerning the denial of his motion to recuse is based
on his reading of a statutory provision concerning the processing of post-conviction petitions
and designation of reviewing judges. Tennessee Code Annotated section 40-30-105(b)
provides:
        At either the trial proceeding or an appellate proceeding reviewing the
        proceeding, the presiding judge of the appropriate court shall assign a judge
        to hear the petition. The issue of competency of counsel may be heard by a
        judge other than the original hearing judge. If a presiding judge is unable to
        assign a judge, the chief justice of the supreme court shall designate an
        appropriate judge to hear the matter.

The petitioner reads the plain language of this provision as requiring a different judge to
preside over a petitioner’s trial and any ensuing post-conviction petition. However, as the
petitioner acknowledges, in State v. Garrard, 693 S.W.2d 921, 922 (Tenn. Crim. App. 1985),
this court described the statutory provision at issue as addressing the “purely administrative”
function of assigning a hearing judge – and doing “nothing more” – before holding that
“[t]here was no constitutional deprivation” caused by allowing a trial judge to adjudicate a
post-conviction hearing concerning the same petitioner. Our ruling in that case is binding
and fully disposes of the petitioner’s claim.

       The petitioner urges us to overrule Garrard, claiming that this court “gloss[ed] over”
the relevant statutory language in that case. However, this panel is without authority to
overrule Garrard. Rule 4(G)(2) of the Rules of the Tennessee Supreme Court expressly
provides that “[o]pinions reported in the official reporter . . . shall be considered controlling
authority for all purposes unless and until such opinion is reversed or modified by a court of
competent jurisdiction.” Moreover, it is the petitioner’s reading of the relevant statutory

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language that actually conflicts with the plain meaning of the words used. The petitioner’s
post-conviction petition involves numerous claims concerning the competency of his trial
counsel. With respect to such claims, the statute is clear and unambiguous. It states that
another trial judge “may” review such claims – not “shall.” Consequently, we must reject
the petitioner’s argument concerning the proper interpretation of this statute. The petitioner’s
claim that the post-conviction court abused its discretion by denying his motion to recuse is
accordingly denied.

                                                       II.

        The petitioner claims the post-conviction court erred by denying his ineffective
assistance of counsel claim because his counsel committed numerous errors at trial. “A claim
of ineffective assistance of counsel [on appeal] presents a mixed question of law and fact that
is subject to de novo review with no presumption of correctness.” Smith v. State, 357 S.W.3d
322, 336 (Tenn. 2011). The petitioner claims that his trial counsel erred by: (1) raising an
ineffective assistance of counsel claim on direct appeal; (2) failing to object to videotape and
witness testimony presented by the State at trial, which depicted or referenced allegedly
suppressed evidence; (3) failing to inform him that an enhancement notice had been filed by
the State, and failing to confer with him before sentencing; (4) failing to call his daughter as
a trial witness; and (5) failing to file an application for permission to appeal his direct appeal
to the Tennessee Supreme Court.2 We disagree.

        Both the Sixth Amendment to the United States Constitution and article I, section 9,
of the Tennessee Constitution entitle a criminal petitioner to representation by counsel. U.S.
C ONST. AMEND. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to
have the Assistance of Counsel for his defence.”); T ENN. C ONST. art. I, § 9 (“[I]n all criminal
prosecutions, the accused hath the right to be heard by himself and his counsel.”). “Inherent
in the constitutional right to counsel is the right to effective assistance of counsel.” Smith v.
State, 357 S.W.3d 322, 336 (Tenn. 2011). “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 v. Washington, 466 U.S. 668, 686 (1984). As the Tennessee Supreme Court has
explained:
        [I]n Strickland, the United States Supreme Court adopted a two-part analysis
        for ineffective assistance of counsel claims. . . . Under Strickland, the first
        inquiry focuses on counsel’s performance—whether “counsel’s representation


        2
           The State also interprets the petitioner’s brief as claiming that his trial counsel was ineffective for
failing to advise him that the State had offered him a plea agreement prior to trial. We do not so construe
the petitioner’s brief.

                                                       -8-
       fell below an objective standard of reasonableness.” 466 U.S. at 688; Padilla
       v. Kentucky, ___ U.S. ___, 130 S. Ct. 1473, 1482, 176 L.Ed. 2d 284 (2010).
       Counsel is required to “perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.” Pylant [v. State],
       263 S.W.3d [854,] 868 [(Tenn. 2008)] (quoting Baxter v. Rose, 523 S.W.2d
       930, 934-35 (Tenn. 1975)). The second Strickland inquiry is whether “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.”
       Strickland, 466 U.S. at 694 . . . .


Smith, 357 S.W.3d at 337. “Failure to establish either deficient performance or prejudice
necessarily precludes relief.” Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011). With these
standards in mind, we turn to the petitioner’s specific claims.

                                               A.

        The petitioner claims that his counsel erred by raising a claim of ineffective assistance
of counsel on direct appeal. This court has consistently warned that “the practice of raising
ineffective assistance of counsel claims on direct appeal is fraught with peril since it is
virtually impossible to demonstrate prejudice as required without an evidentiary hearing.”
State v. Blackmon, 78 S.W.3d 322, 328 (Tenn. Crim. App. 2001) (internal quotations
omitted). However, this court specifically “declin[ed] to consider the [petitioner’s ineffective
assistance of counsel] claim on direct appeal,” because “[t]he trial court did not have an
opportunity to make findings of fact because the [petitioner] did not include the claim in his
motion for new trial.” Ronnie Lee Johnson, 2010 Tenn. Crim. App. LEXIS 143, at *23.
Consequently, the petitioner has not been barred from pursuing any claim for relief based on
ineffective assistance of counsel as a result of his trial counsel’s ill-advised decision to
include the claim on direct appeal.

       The post-conviction court below in fact reviewed, and we presently review on appeal,
the petitioner’s claim, based on numerous alleged grounds, of ineffective assistance of
counsel at trial. Consequently, the petitioner cannot demonstrate any prejudice stemming
from his counsel’s decision to raise the issue on direct appeal. The petitioner’s claim is
denied.

                                               B.



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        The petitioner claims that his trial counsel was ineffective for failing to object to the
admission of a video that was shown to the jury that included a depiction of “three rocks” of
crack cocaine. The petitioner asserts that these “three rocks” were found by police on his
person during a traffic stop and suppressed as a result of an earlier ruling by the trial court
concerning the constitutionality of that stop. In a related claim, the petitioner claims that his
trial counsel was ineffective for failing to object when an investigating detective and a crime
lab technician allegedly made some reference to this suppressed evidence. However, the
petitioner has failed to meet his burden of proof with respect to these issues.

        While there is evidence in the record – in the form of testimony from petitioner’s trial
counsel – that the petitioner’s jury was shown a video depicting “three rocks on the bed” at
his trial, there is no evidence in the record that any of the “rocks” so depicted were the same
evidence that had been suppressed by the trial court’s ruling. There is no evidence in the
record concerning the weight, size, and consistency of the suppressed evidence. More than
3.8 grams of cocaine base were recovered from the petitioner’s residence and were properly
entered into evidence at his trial. It is impossible to determine whether some or all of the
“rocks” that form the basis of the petitioner’s claim were properly in evidence. Without
more, this court cannot conclude that the post-conviction erred by finding that petitioner’s
trial counsel was not deficient for failing to object to the video and testimony at issue.

                                               C.

        The petitioner claims that his trial counsel was ineffective because he failed to consult
and advise him during the sentencing process, and he failed to advise him that a notice of
enhancement had been filed by the State. However, petitioner’s trial counsel testified at the
post-conviction hearing that he did, in fact, notify the petitioner of the notice, and he also
explained the notice to the petitioner. Petitioner’s trial counsel also testified that he believed
that he had discussed with the petitioner what would occur at his sentencing hearing. The
petitioner did not testify at the post-conviction hearing, and there is no other evidence in the
record concerning the subject. Consequently, we conclude that the post-conviction court did
not err by determining that the petitioner had failed to establish his entitlement to relief by
clear and convincing evidence and did not err by ruling that the petitioner failed to establish
any deficient performance by his trial counsel in this regard.

                                               D.

       Next, the petitioner claims that the post-conviction court erred by ruling that his trial
counsel was not constitutionally deficient for failing to call his daughter, Ms. Destiny
Sherron Hill, as a witness at his trial. However, Ms. Hill testified that she would have been
unable to attend the petitioner’s trial even had she been called as a witness, due to her poor

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health at the time. The post-conviction court found as a factual matter that Ms. Hill would
not have been able to attend the petitioner’s trial, and the evidence in the record does not
preponderate against this finding. The petitioner’s trial counsel also testified that he
attempted to locate Ms. Hill prior to trial through the petitioner’s mother, but he was
ultimately unsuccessful. The petitioner’s trial counsel can hardly be deemed constitutionally
deficient for failing – after making a reasonable attempt – to locate an individual who would
have been unavailable as a witness even had she been found.

                                                 E.

        Finally, the petitioner claims that the post-conviction court erred by ruling that his trial
counsel was not deficient for failing to file an application for permission to appeal this
court’s decision concerning his direct appeal to the Tennessee Supreme Court. The
petitioner’s trial counsel testified at the post-conviction hearing that he did not file an
application because his client instructed him not to do so. No contrary evidence appears in
the record. Consequently, we conclude that the post-conviction court did not err by ruling
that the petitioner failed to establish any deficiency in his trial counsel’s performance in this
regard. The petitioner’s claim is denied.

                                        CONCLUSION

       For the foregoing reasons, the judgments of the post-conviction court are affirmed.




                                                      _________________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE




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