         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     July 14, 2009 Session

                   JOHN JOHNSON v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                      Nos. 00-05917, 00-05918   W. Mark Ward, Judge



                  No. W2007-02847-CCA-R3-PC - Filed September 14, 2009


The petitioner, John Johnson, appeals the denial of his petition for post-conviction relief, arguing
that he received the ineffective assistance of counsel. Following our review, we conclude that the
petitioner has not met his burden of demonstrating either that counsel was deficient or that any of
the alleged deficiencies in representation prejudiced the outcome of his case. Accordingly, we affirm
the denial of the petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE, JJ., joined.

Lance R. Chism (on appeal) and Byron B. Winsett, III (at hearing), Memphis, Tennessee, for the
appellant, John Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Paul Hagerman, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                              FACTS

       The petitioner was convicted of especially aggravated robbery and theft of property over
$10,000 and sentenced to twenty-five years and ten years, respectively, to be served consecutively.
His convictions and sentences were affirmed on direct appeal, and our supreme court denied his
application for permission to appeal. See State v. John Johnson, No. W2002-01333-CCA-R3-CD,
2003 WL 22794530 (Tenn. Crim. App. Nov. 18, 2003), perm. to appeal denied (Tenn. May 10,
2004).

       The underlying facts of the case as presented by this court on direct appeal are as follows:
                Edgar Hawkins testified he owned a courier service which picked up cash
        deposits at businesses and delivered them to banks. He recounted he had just picked
        up over $57,000 from the hardware store, placed the deposit in his green shoulder
        tote bag, and exited the store when he noticed a teal Ford pickup truck parked behind
        his van. According to Hawkins, the [petitioner] approached him and said, “Drop it
        off, dog.” Hawkins stated the [petitioner] then put a semi-automatic pistol to his
        head and said, “Give me the bag.” He said he gave the [petitioner] the bag, and the
        [petitioner] shot him in the leg. He testified he and the [petitioner] then struggled
        over the gun for an extended time “all over that parking lot.” Hawkins stated he
        finally wrested the gun away from the [petitioner] just before the police arrived. The
        police cuffed both the [petitioner] and Hawkins, not knowing at that point which one
        was the perpetrator.

                Kimberly Stevens, the hardware store employee, testified Hawkins picked up
        the bank deposits and exited the store. She said she saw the [petitioner], who was
        wearing a black ski mask and holding a gun, get out of the teal truck and point the
        gun at Hawkins. She testified Hawkins and the [petitioner] struggled over the bag
        and the gun. She heard a gunshot when the [petitioner] and Hawkins moved behind
        her truck, which was in the parking lot. She said that when the [petitioner] and
        Hawkins returned from behind the truck, they no longer had the bag and were still
        struggling over the gun. According to Stevens, Hawkins’ green bag was later found
        behind her truck. She indicated the men continued to struggle over the gun until the
        police arrived.

                Andre Farmer testified that his teal green Ford Ranger pickup truck was
        stolen the week before the robbery. Farmer stated his truck was stolen at a gas
        station, although the [petitioner] was not the person who actually stole the truck.
        Farmer identified his truck as the one the [petitioner] drove to the hardware store.

Id. at *1.

        At the evidentiary hearing, the petitioner testified that his doctor told him that he is easily
misled by others, “ha[s] a lower score IQ that a person can score which falls up under the mental
retarded range,” and has trouble understanding legal issues. However, he acknowledged that he
understood English and the conversations he had with his trial counsel. According to the petitioner,
a man named Shaka Jones, driving a gold 2000 Tahoe, picked him up at a friend’s house and asked
if he wanted to make some money. They drove around for approximately an hour and then pulled
into an apartment complex. Another man pulled in behind them, and Jones got out of his vehicle
and talked to the other man. Jones and the petitioner got into a truck that was sitting in the parking
lot and drove to the hardware store, followed by the other man who was driving Jones’ Tahoe. Jones
put a pistol in the petitioner’s pocket and told him that “all [he] had to do was show [the victim] the



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gun and he was going to give [him] the money.” The petitioner said that he informed his trial
counsel and the detective of this sequence of events.

        The petitioner admitted his involvement but asserted that he was not the one who stole the
truck and that he never got the money bag from the victim. He stated that the gun discharged and
struck the victim in the leg when he and the victim were “tussling” over his gun. He said that at the
time of the incident, he “had been up about two or three nights . . . smoking marijuana and drinking,
drink a little alcohol, a little syrup, [and] popped a couple of pills[.]” The petitioner stated that he
had a conflict with one of the jurors in the past and believed that the juror did not like him. In
addition, the juror told one of the petitioner’s girlfriends that he and another juror were planning to
find the petitioner not guilty, “but somebody told them that majority rules.” The petitioner
acknowledged that he did not tell trial counsel during the trial that he knew the juror because he was
not “sure who he was” until afterward. However, after the trial, he asked counsel to investigate the
jury’s verdict.

        The petitioner’s second trial counsel testified that he represented the petitioner for
approximately thirty days before the petitioner’s case went to trial. Counsel discussed the State’s
offer with the petitioner and argued the motions that were filed by the petitioner’s first counsel.
Counsel recalled that the petitioner told him that “there were some people who had set him up to be
involved in a scam that involved a phony robbery.” Asked if he had an opportunity or reason to
review the petitioner’s mental health abilities, counsel stated, “I knew there had been a mental health
evaluation that came back positive, but I don’t remember anything other than that. And I don’t
remember my being alarmed in any way that I thought maybe he was not competent to make the
decisions he needed to make.” He elaborated that he did not recall anything that caused him alarm
about the petitioner’s mental health or he would have asked for another evaluation.

        The petitioner’s third trial counsel testified that he took over representation of the petitioner
from attorneys at the public defender’s office around the time the case was getting ready to go to
trial. When counsel was appointed, several motions had already been argued, and the petitioner had
already been sentenced in federal court on a weapons charge arising out of the same incident.
Counsel was unable to get the State to offer the petitioner a plea bargain because “they had revoked
offers upon his arguing the motion to suppress and were not going to make another offer.” Counsel
stated that he had concerns about the petitioner’s mental status. However, the federal presentence
report indicated that a May 2000 evaluation of the petitioner revealed that he had “at least a low
average to average reasoning abilities,” appeared to function in the normal intellectual range, and
did not have “any mental disease, or defect which would hinder his ability to understand the nature
and consequences of the proceedings against him, or to assist properly in his defense.” Counsel
determined that the results of the evaluation would not have affected the petitioner’s competency to
stand trial, support an insanity defense, or negate elements of the offense, but could be helpful as a
mitigating factor at sentencing.

        Third trial counsel testified that the possible defense theories were that someone else had
stolen the truck, the victim did not sustain serious bodily injury, and the petitioner never “asportated”


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with the money bag. The petitioner also told counsel that he had been tricked into committing the
crime, but he never gave counsel the name of the person who tricked him or otherwise help locate
that person. However, the petitioner’s statement contained his admission of guilt and the assertion
that other people were involved. Counsel also tried to suggest, during his cross-examination of the
victim, that the victim himself was involved. Counsel recalled that the petitioner elected not to
testify at trial.

        Third trial counsel testified that he ordered a state mental evaluation of the petitioner between
trial and sentencing in an effort to find some mitigation for sentencing. Counsel offered the new
evaluation into evidence at the sentencing hearing without calling the doctor as a witness.

        Counsel testified that the petitioner did not inform him that one of the jurors bore a personal
animus toward him until after the trial, otherwise counsel would have struck that juror. Members
of the petitioner’s family also informed counsel after trial but before the motion for new trial that the
juror had informed them that the jury had come to a compromise on the verdict. In response to that
allegation, counsel asked to have the hearing on the motion for new trial reset so he could
investigate. Counsel recalled that he talked to the juror on the telephone, and “it didn’t pan out as
something that we could put forward at the motion for new trial.” Therefore, counsel informed the
court that he could not in good faith pursue the issue of the quotient verdict. He recalled that the
State also informed the court that it “had interviewed a couple of jurors and that they denied any
arrangement of that sort.”

        On cross-examination, third trial counsel testified that some investigation had already been
done when he took over the case, and he had six months in which to prepare before trial. Counsel
had a discussion with the previous attorney, including a discussion regarding the petitioner’s
defenses. Counsel recalled that the evidence against the petitioner consisted of his statement to
police, a surveillance videotape of the encounter, eyewitness testimony, his identification from a
photographic array, and his apprehension at the scene. Counsel said that he questioned the
petitioner’s mental status when he saw the petitioner wearing store-bought eyeglasses that still had
an adhesive label on the lenses. However, he clarified that it did not cause him to question the
petitioner’s competency or sanity.

       Third trial counsel acknowledged that he only requested funding for the expert services of
one psychologist and that was during the sentencing proceedings. The psychologist reached the
conclusion that the petitioner was in the very low range of intelligence. Asked if he should have
pursued the petitioner’s mental health issue at trial, counsel said:

        [T]hinking about it now, there’s a way to get it admitted, you know, I suppose you
        may have a relevancy heard if it really provides a defense it would be relevant,
        because they don’t sentence, they just decide the facts of the crime. I think
        conceivably that there could be something there that would -- you’d either get to the
        point where he’s so impaired that he doesn’t really know what would stop this. He



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        wouldn’t know that you’re not suppose[d] to hop in a truck and drive it off, if it’s
        somebody else’s, assuming that’s what happened.

                That’s a pretty hard standard to sell, in my mind.

Counsel stated that he did not have the psychologist testify at the sentencing hearing even though
he could have. He elaborated that he “had a lot of difficulty dealing with the psychologist” and
getting the report from her.

         With regard to allegations regarding impropriety within the jury, third trial counsel testified
that he personally spoke with the juror, and he acknowledged that his statements at the motion for
new trial indicated that he had subpoenaed the juror twice but the sheriff’s office had either never
attempted or obtained service on the juror. Counsel acknowledged that he did not make any other
efforts to get in contact with the juror. Counsel said that he did not think he spoke to other jurors
regarding the allegation of a quotient verdict but that the prosecutor “went on the record and said that
he, or someone in his office[,] had inquired with a couple of jurors about that issue.”

        In support of a motion to subpoena the jury panel from the petitioner’s trial, Loretta Starks,
a “[f]riend girl” of the petitioner’s for approximately twenty years, testified that she was present
throughout the petitioner’s trial. She recalled that the jury returned with a verdict in less than ten or
fifteen minutes. Afterward, she and a friend waited outside for the juror, whom they had known for
many years, to inquire why it took such a short time to return with a verdict. According to Starks,
the juror told her:

        [W]hen we got back we didn’t read no laws or nothing. He said the bailiff came in
        and said if you all don’t want to be here all day, you all just go ahead and take a vote
        and when you all take the vote, you all will be out of here. And I was like, you all
        didn’t read anything or nothing? And he was like, uh uh, he said, three of us pleaded
        guilty and -- I mean three of us pleaded not guilty and the rest of the jury pleaded
        guilty and we -- they made the verdict and we came out.

Starks said that they stood there for another ten minutes, and the juror said, “[T]hey just gave him
a bum deal” and left. Starks stated that she had since tried unsuccessfully to locate the juror.

        On examination by the court, Starks testified that she called the petitioner’s attorney in
response to the juror’s statement, and the attorney told her, “[W]e just got a bum deal, so the only
thing you all can do is probably just re-appeal it.” She acknowledged that the attorney investigated
the claim but said he was not “really giving his total commitment to it[.]”

        Deputy Alfredo Henry with the Shelby County Sheriff’s Department testified that he worked
as a court room deputy and had no recollection of the petitioner’s trial.




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       Following the conclusion of the multi-part evidentiary hearing, the post-conviction court
entered a lengthy order denying the petitioner relief.

                                              ANALYSIS

         The post-conviction petitioner bears the burden of proving his allegations by clear and
convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2006). When an evidentiary hearing
is held in the post-conviction setting, the findings of fact made by the court are conclusive on appeal
unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.
1996). Where appellate review involves purely factual issues, the appellate court should not reweigh
or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However,
review of a trial court’s application of the law to the facts of the case is de novo, with no presumption
of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de novo, with a
presumption of correctness given only to the post-conviction court’s findings of fact. See Fields v.
State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

        To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show
both that trial counsel’s performance was deficient and that counsel’s deficient performance
prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 2064 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that
same standard for determining ineffective assistance of counsel that is applied in federal cases also
applies in Tennessee). The Strickland standard is a two-prong test:

        First, the defendant must show that counsel’s performance was deficient. This
        requires showing that counsel made errors so serious that counsel was not
        functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
        Second, the defendant must show that the deficient performance prejudiced the
        defense. This requires showing that counsel’s errors were so serious as to deprive the
        defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S. Ct. at 2064.

         The deficient performance prong of the test is satisfied by showing that “counsel’s acts or
omissions were so serious as to fall below an objective standard of reasonableness under prevailing
professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S.
at 688, 104 S. Ct. at 2065; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). The prejudice prong
of the test is satisfied by showing a reasonable probability, i.e., a “probability sufficient to undermine
confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.




                                                    6
                                         I. Quotient Verdict

        The petitioner argues that third trial counsel was ineffective for failing to investigate and
challenge the jury’s verdict as having been a quotient verdict and the product of outside influences.
The State responds that the petitioner has waived the issue or, in the alternative, that the petitioner
did not meet his burden of proving that counsel was ineffective in this regard.

        In its findings, the court noted that this allegation was not contained in the petitioner’s
original or amended petitions but was instead only an oral allegation. The court did not clearly allow
the oral amendment of the petitioner’s petition to include this allegation, but the court rendered
findings on the issue. However, after its specific findings, the court stated that a petitioner cannot
raise additional claims or allegations that were not contained in his or her petition or amended
petition.

        The petitioner asserts that the issue regarding third trial counsel’s ineffectiveness in handling
the issue of juror misconduct is properly before this court because the issue was first brought up by
the State during its direct examination of counsel, the State objected on grounds that the issue had
been previously determined at the motion for new trial hearing and not as being outside the petition,
he asked that he be allowed to orally amend his petition, the issue was thoroughly discussed at the
hearing, and the court actually ruled on the issue. Even though the post-conviction court did not
explicitly allow the petitioner to orally amend his petition, in light of the above and Tennessee
Supreme Court Rule 28, § 8(D)(5), which provides “[i]f evidence is objected to on the basis that it
concerns issues not raised in the petition or answer, the court may allow amendments and shall do
so freely when the presentation of the merits of the cause will otherwise be subserved,” we will
address the claim.

        At the motion for new trial hearing, third trial counsel informed the court that one of the
jurors had contacted the petitioner’s family after trial and counsel “believe[d]” he had spoken to him
briefly. Counsel said that the juror told him “that when the jurors retired to deliberate that they
decided that they were going to make it by majority vote, and assuming once the majority was found,
the rest of the jurors would fall in line.” Counsel stated that he subpoenaed the juror, but the juror
was not present at the hearing. The court continued the hearing to allow time for investigation into
the matter.

        Although lengthy, in order to properly address this issue, it is important to detail the portions
of the court record in question. During the continued motion for new trial hearing, the following
exchange occurred:

        [Third Trial Counsel]: As to the issue we’re going to waive for purposes of a new
        trial, and consequently for appeal, I had received some communication that [the
        juror] knew [the petitioner] and also that the jury verdict was not unanimous. We
        subpoenaed [the juror] twice, and the sheriff’s office never – either never attempted
        or never got service of [the juror]. Rather than have that happen again, I decided to


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       look into it a little more. I politely called some jurors, and I believe [the prosecutor]
       can summarize his investigation as well, and the issue simply didn’t pan out. I spoke
       to [another juror], who was on the jury. She said that wasn’t how it happened in the
       jury box at all, and I just don’t feel that I can go forward on that question, and we
       would waive that question for a new trial.

               ....

       [Prosecutor]: I spoke to the foreperson who, likewise, didn’t support that claim. My
       only concern, at this point, absent the statement from counsel is what we have on the
       record is counsel saying that he talked to that person, and he insisted that it was a
       quotient verdict. I don’t know if he’s talked to that juror again, but what I don’t want
       to happen is, eight years now [sic], a post conviction, the public defender’s office
       pick it up and allege ineffective assistance of counsel for failing to call this person
       here. . . .

       The Court: Right, I understand your concern. My assumption was, and tell me if this
       is a fair characterization of your position; that after having spoken to this juror who
       allegedly made this statement regarding a quotient verdict, and evaluating the
       circumstances of his statement, and the circumstances surrounding how this
       information came to you, and then having spoken to other jurors who contradicted
       all of those statements and circumstances, it’s your position, as an officer of the
       court, that you cannot, in good faith and in clean conscience, go forward with that
       assertion. Is that a fair statement?

       [Third Trial Counsel]: That’s absolutely correct.

               ....

              And I’ll stand behind that decision. I think even if we had called [the juror],
       and he testified to that effect, which I have my doubts, there are other jurors who
       would have contradicted that.

        As such, third trial counsel waived the quotient verdict issue, and now the petitioner argues
that counsel rendered deficient performance for not adequately investigating the issue. He asserts
that counsel should have done more than “politely call[] some jurors,” should have sought to
subpoena all of the jurors to the motion for new trial hearing, and should have vigorously pursued
filing a motion asking the trial court to subpoena all of the jurors. He also argues that the post-
conviction court’s failure to subpoena the jury panel for the post-conviction hearing deprived him
of the opportunity to establish that he was prejudiced by counsel’s “deficient” performance.

       As to these claims, the post-conviction court found:



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       Contrary to his assertion, his attorney did investigate the matter to some extent prior
       to the hearing on the motion for new trial and found no evidence to go forward with
       the issue. Petitioner has offered no evidence of any jury impropriety in the post-
       conviction proceedings. Absent a presentation of such evidence in the post-
       conviction court, the Petitioner cannot establish prejudice in his trial attorney’s
       investigation of the matter. The Petitioner did present hearsay testimony [which was
       not admitted for the truth of the matter asserted] in the form of testimony from an old
       long-time girlfriend in an effort to require this court to subpoena into court all of the
       jurors in Petitioner’s trial to make a “fishing expedition” into this matter. This court
       has grave concerns in dragging into court jurors long after a trial for the purpose of
       attempting to impeach a jury verdict. The Court finds that Petitioner[’]s claims that
       there was some impropriety with the jury and its verdict are simply not credible. In
       the post-conviction court, Petitioner only offers the testimony of an old girlfriend, but
       not testimony from [the juror] or any other juror. Petitioner has failed to carry his
       burden of proof on this issue and failed to show sufficient reasons to justify any
       further inquiry on this issue.

        We agree that the petitioner has failed to show that third trial counsel rendered deficient
performance or that such deficient performance caused him prejudice. The transcript of the second
motion for new trial hearing reflects that counsel determined the quotient verdict allegation to be
unsubstantiated based on his and the prosecutor’s discussions with some of the other jurors.
Moreover, he at least twice attempted to subpoena the juror to the motion for new trial hearing to
no avail. At the post-conviction hearing, the only proof the petitioner offered in support of his claim
was the convoluted testimony of his long-time girlfriend relaying what the juror supposedly told her.
Furthermore, the record shows that the court individually polled each juror regarding the verdict, and
no discord is noted in the record.

        In support of his allegation regarding the post-conviction court’s failure to subpoena the jury
panel to the evidentiary hearing , the petitioner relies on State v. Robert Emmet Dunlap, Jr., No.
02C01-9801-CC-00009, 1998 WL 641338, at *3 (Tenn. Crim. App. Sept. 21, 1998), in which a
panel of this court held that the trial court must investigate the alleged wrongdoing when it is brought
to the court’s attention that extrinsic influence or information “may have been brought to bear upon
the jury.” However, the panel noted that the trial court has broad discretion in pursuing this inquiry
and that “[p]otentially suspicious circumstances do not justify such an inquiry. Something more than
unverified conjecture must be shown.” Id.

        We conclude that the post-conviction court did not abuse its discretion in declining to
subpoena the jury panel for the evidentiary hearing because, as noted by the court, the petitioner
“failed to show sufficient reasons to justify any further inquiry on this issue.” At the final
evidentiary hearing, post-conviction counsel stated that he had a list of the names of those on the jury
panel but had not located their addresses. It should be noted that the evidentiary hearing was
conducted in four parts over a five-month period. Asked about his efforts to find the juror, post-
conviction counsel said that he had tried unsuccessfully to locate him through friends of the


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petitioner or the juror and that apparently the juror had not been seen in two or three years. The post-
conviction court concluded that the claim regarding jury impropriety lacked credibility and was only
supported by the hearsay testimony of the petitioner’s long-time girlfriend. The petitioner’s claim
is no more than “unverified conjecture.” The juror neither voiced a complaint when polled by the
trial court nor responded to the petitioner’s attempts to subpoena him into court at the motion for
new trial hearing. Moreover, counsel and the prosecutor’s investigations during the motion for new
trial pendency indicated that there was no good-faith basis to go forward on this claim. The post-
conviction court acted within its discretion in determining that the extreme action of subpoenaing
all the jurors into court to testify was not justified under the facts and circumstances of this case.

                                      II. Mental Health Issue

        The petitioner lastly argues that third trial counsel was ineffective for failing to adequately
investigate a mental health defense for trial. He asserts that counsel should have had him evaluated
by an independent psychologist prior to trial to determine whether he could have relied on a
diminished capacity argument.

       With regard to this issue, the post-conviction court noted:

       The record shows that defense counsel was aware of a mental evaluation conducted
       in federal court prior to trial which did not raise the possibility of a mental defense,
       that he obtained a state mental evaluation prior to sentencing, and that the same was
       presented to the trial judge at sentencing. Further, in the post-conviction court,
       Petitioner has not presented any evidence that a mental defense was available, failed
       to produce any witnesses to support such a defense, failed to show that trial counsel
       could have located such witnesses, and failed to show that any such witnesses would
       have offered favorable testimony.

       As to third trial counsel’s performance, the record shows that counsel had the benefit of an
evaluation contained in the petitioner’s federal presentence report which noted:

       65.     In 1984, the [petitioner] was evaluated by the Memphis City Schools Mental
               Health Center to determine his eligibility for Special Education Services.
               The evaluation determined that the [petitioner] had a developmental reading
               disorder and that he was functioning within the low average range of
               intelligence.

       66.     In May 2000, the [petitioner] was evaluated at the Mental Health Evaluation
               Unit of the United States Medical Center for Federal Prisoners, Springfield,
               Missouri. The results are as follows:

               Psychological Testing: The [petitioner] has at least low-average to average
               reasoning abilities.


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               Clinical Testing: The [petitioner] has difficulties in reading, but he appears
               to be functioning in the normal intellectual range.

               Prognosis: The [petitioner] does not have any mental disease or defect which
               would hinder his ability to understand the nature and consequences of the
               proceedings against him or to assist properly in his defense.

In addition, the petitioner acknowledges the existence of a letter from Dr. Lynne D. Zager to the trial
court contained in the trial jacket that stated, based on her evaluation, it was her opinion that the
petitioner was able to appreciate the nature and wrongfulness of his behavior. While this letter is
not in the record before us, if it exists, it is presumable that counsel would have also been aware of
its contents. Although counsel questioned the petitioner’s mental acumen, he determined that the
results of the federal evaluation would not have affected the petitioner’s competency to stand trial,
support an insanity defense, or negate elements of the offense, but could be helpful as a mitigating
factor at sentencing. For this reason, counsel obtained an independent evaluation for sentencing;
however, the court found the petitioner’s mental health to mitigate only “to a limited extent.” The
petitioner failed to establish, by clear and convincing evidence, that counsel’s performance fell below
an objective standard of reasonableness.

         Furthermore, as to prejudice, the petitioner acknowledges that he did not offer any proof at
the evidentiary hearing regarding his ability to sustain a diminished capacity argument. Instead, he
relies solely on statements made at the sentencing hearing that indicate the psychologist who
evaluated him for sentencing determined that he had an IQ of 54 and was mildly mentally retarded.
To satisfy the prejudice requirement of Strickland when alleging that counsel was ineffective for
failing to offer testimony from a favorable witness, the post-conviction petitioner must “(1) produce
the witness at his post-conviction hearing; (2) show that through reasonable investigation, trial
counsel could have located the witness; and (3) elicit both favorable and material testimony from the
witness.” Denton v. State, 945 S.W.2d 793, 802-03 (Tenn. Crim. App. 1996) (citing Black v. State,
794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)). We will not speculate as to what these unknown
witnesses would have testified. Therefore, the petitioner has failed to prove a reasonable probability
that the results of the proceeding would have been different had counsel conducted additional
investigation into his mental health for trial.

                                          CONCLUSION

        Based on the aforementioned authorities and reasoning, we affirm the denial of the
petitioner’s petition for post-conviction relief.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE



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