        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs May 1, 2012

       TIMOTHY DEWAYNE WILLIAMS v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Tipton County
                       No. 5815     Joseph H. Walker, Judge


                No. W2011-01919-CCA-R3-PC - Filed August 21, 2012


The Petitioner, Timothy Dewayne Williams, appeals as of right from the Tipton County
Circuit Court’s denial of his petition for post-conviction relief. The Petitioner contends that
he received ineffective assistance of counsel from the attorneys representing him at trial
because they failed to call an eyewitness to the crime. Following our 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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and C AMILLE R. M CM ULLEN, JJ., joined.

George D. Norton, Jr., Ripley, Tennessee, for the appellant, Timothy Dewayne Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; D.
Michael Dunavant, District Attorney General; and Jason Poyner, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

       Following a jury trial, the Petitioner was convicted of possession of cocaine with
intent to deliver, a Class B felony, evading arrest in a motor vehicle, a Class E felony,
evading arrest, a Class A misdemeanor, and driving on a suspended license, a Class B
misdemeanor. See State v. Timothy Dewayne Williams, No. W2008-02730-CCA-R3-CD,
2010 WL 1172206 (Tenn. Crim. App. Mar. 26, 2010), perm. app. denied, (Tenn. Sept. 2,
2010). The Petitioner received an effective twenty-year sentence as a Range III, persistent
offender. On appeal, this court merged the misdemeanor evading arrest conviction with the
felony evading arrest conviction and affirmed the Petitioner’s remaining convictions. Id. at
*3-5.
        At trial, the arresting officer testified that he saw the Petitioner run a stop sign while
driving a white Buick Regal. When the officer attempted to stop the vehicle, the Petitioner
drove away. The Petitioner then parked the Buick sideways, blocking the road, and fled on
foot to another car. While the Petitioner was running away from the Buick, he threw a bag
containing cocaine on the ground. The arresting officer “found an unidentified teenager
waiting” in the passenger seat of the Buick. The arresting officer testified that he “did not
speak with the teenager because the teenager’s mother arrived shortly after he discovered the
teenager.” The arresting officer further testified that he knew who the Petitioner was because
he had previously cited the Petitioner for traffic violations and had seen him “around town.”
The arresting officer elaborated that anyone in the local area law enforcement knew the
Petitioner. Williams, 2010 WL 1172206, at *1.

         On April 21, 2011, the Petitioner filed a timely pro se petition for post-conviction
relief. The post-conviction court appointed counsel, and an amended petition was filed on
July 8, 2011. Both petitions alleged that the attorneys who represented the Petitioner at trial
were ineffective because they failed to call the juvenile found in the white Buick as a witness
at trial. In his pro se petition, the Petitioner asserted that this witness would have established
that the Petitioner was not the driver of the white Buick and was not at the crime scene. On
August 8, 2011, the post-conviction court held a hearing on the petition.

       At the post-conviction hearing, the Petitioner testified that he was represented by two
attorneys at trial, lead counsel and assistant counsel. The Petitioner testified that he told lead
counsel that he “need[ed] to find” the passenger who police found in the car. According to
the Petitioner, he learned from his fellow inmates that the passenger was Kevin Somerville.
The Petitioner testified that lead counsel told him that he had spoken to Mr. Somerville and
that Mr. Somerville had stated that the Petitioner was never in the car. However, lead
counsel later informed the Petitioner that Mr. Somerville had then told the prosecutor
“something different” and that they would not call Mr. Somerville as a defense witness. The
Petitioner recalled that lead counsel informed him that Mr. Somerville had been subpoenaed
as a witness for the State. The Petitioner told lead counsel, “That’s cool. If the State [was]
going to call him, then we still could cross-examine him.” The Petitioner testified that he
understood that there was no need to subpoena Mr. Somerville if he was going to be a
witness for the State.

       The Petitioner testified that he told his attorneys “over and over” that he wanted Mr.
Somerville to testify at his trial. According to the Petitioner, on the day of his trial, lead
counsel informed him that the State had decided not to call Mr. Somerville as a witness. The
Petitioner testified that he then asked lead counsel to subpoena Mr. Somerville because Mr.
Somerville was not present in the courtroom that day. The Petitioner claimed that his
attorneys never contacted Mr. Somerville. However, the Petitioner admitted that he had no

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proof that his attorneys lied to him about speaking with Mr. Somerville. The Petitioner also
admitted that Mr. Somerville was the only possible witness that he told his attorneys to
investigate and that he did not provide his attorneys with the names of any other witnesses
who could provide him with an alibi. The Petitioner further admitted that he knew Mr.
Somerville “from around town” and that they were “kin folks.”

         At the hearing, Mr. Somerville testified that the Petitioner was not with him in the
white Buick and that he would have testified to that if he had been called as a witness at trial.
According to Mr. Somerville, he told the arresting officer that someone called “Black” was
in the car with him. Mr. Somerville testified that he never told anyone that the Petitioner was
in the car with him. Mr. Somerville also testified that he never received a subpoena to appear
in court and that he did not know when the Petitioner’s trial was to take place. Mr.
Somerville claimed that assistant counsel “tried to cross [him] up” and “tried to . . . switch
it all around and like he [was] going [to] blame everything” on Mr. Somerville unless Mr.
Somerville would say that the Petitioner was in the car. Mr. Somerville insisted that if
assistant counsel testified that he said the Petitioner was in the car, it would be “a bold-faced
lie.” Mr. Somerville also repeatedly insisted that someone tried to get him to say the
Petitioner was in the car and threatened that if he did not “they would try to blame everything
on [him].” However, it was unclear whether Mr. Somerville was referring to the prosecution
or the Petitioner’s attorneys.

        On cross-examination, Mr. Somerville admitted that he had been subpoenaed by the
State and that he “came” to the Petitioner’s trial, “but they said they didn’t need [him].” Also
on cross-examination, Mr. Somerville testified that he knew the Petitioner “from around the
way” and that he had “been knowing him for a long time.” Mr. Somerville also testified that
he did not know if he was related to the Petitioner because he was “kin to everybody in
Covington.” Mr. Somerville further insisted that the Petitioner was not his friend. When
asked whether it bothered him that the Petitioner went to jail for twenty years because he did
not testify at trial, Mr. Somerville responded that it did not because, “It ain’t me.”

       Lead counsel testified that he represented the Petitioner at trial and on appeal. Lead
counsel testified that he did not speak with Mr. Somerville but that assistant counsel did.
Lead counsel recalled that Mr. Somerville “voluntarily presented himself” at the District
Public Defender’s office, and he thought that if he needed Mr. Somerville to testify he would
not need to subpoena Mr. Somerville because Mr. Somerville was a “friendly, available
witness.” However, lead counsel determined that Mr. Somerville would have been a “good
prosecution witness” after speaking with assistant counsel.

       Assistant counsel testified that he assisted with the trial preparation for the Petitioner’s
case and that he spoke with Mr. Somerville because he was acquainted with Mr. Somerville’s

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mother. Assistant counsel recalled that Mr. Somerville had “inadvertently stopped in” his
office on his way to meet with the prosecutor. Mr. Somerville agreed to come back and
speak with assistant counsel after he spoke with the prosecutor. Assistant counsel testified
that Mr. Somerville told him that the Petitioner was in the car with him. Assistant counsel
further testified that the prosecutor informed assistant counsel that he planned to call Mr.
Somerville as a witness for the State. Assistant counsel testified that he believed that the
State would call Mr. Somerville as a witness, but regardless he would not have called Mr.
Somerville as a defense witness because he did not believe that Mr. Somerville would have
been a good witness for the Petitioner. Assistant counsel further testified that he thought Mr.
Somerville would not have made “a good witness for either party.” Assistant counsel
recalled that the arresting officer testified at trial that Mr. Somerville told him the Petitioner
was with him in the car. Assistant counsel also recalled that he could not find anyone to
provide the Petitioner with an alibi.

       On August 12, 2011, the post-conviction court entered an order denying post-
conviction relief. The post-conviction court accredited the testimony of the lead and assistant
counsel and found “Mr. Somerville’s testimony untrustworthy and unbelievable.” The post-
conviction court also stated that “it is not ineffective assistance of counsel to not call as a
witness a juvenile who tells you your client committed the crime.” The post-conviction court
described the decision not to call Mr. Somerville as a “wise” strategic decision. The post-
conviction court concluded that the Petitioner “failed to present anything on this issue to
show that the service rendered by trial counsel were deficient or the deficient performance
was prejudicial.”

                                             ANALYSIS

         The Petitioner contends that the post-conviction court erred by denying him post-
conviction relief. The Petitioner argues that his trial attorneys’ failure to call Mr. Somerville
as a witness amounted to ineffective assistance of counsel.1 The State responds that the
Petitioner has failed to prove by clear and convincing evidence that his trial attorneys’
decision not to call Mr. Somerville as a defense witness was deficient and prejudicial. The
State argues that the decision was a strategic one based on adequate preparation.

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence. Tenn.


1
 The Petitioner in both his original pro se and amended petitions raised several other factual claims of
ineffective assistance of counsel. The post-conviction court denied post-conviction relief on these claims
as well. The Petitioner has waived appellate review of these issues by not raising them in his brief. See
Tenn. R. App. P. 13(b).

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

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

        When a petitioner contends that trial counsel failed to call a known witness in support
of the defense, the witness “should be presented by the petitioner at the evidentiary hearing.”
Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). This is the only way the
petitioner can establish that failure “to call the witness to the stand resulted in the denial of
critical evidence which inured to the prejudice of the petitioner.” Id. In order for the
petitioner to receive post-conviction relief based upon trial counsel’s failure to call a witness,
the petitioner must “produce a material witness who (a) could have been found by a
reasonable investigation and (b) would have testified favorably in support of his defense if
called.” Id. at 758.

        We are bound by the post-conviction court’s determination that Mr. Somerville was
an “untrustworthy and unbelievable” witness. We agree with the post-conviction court’s
assessment that the trial attorneys’ decision not to call Mr. Somerville was a “wise” strategic
decision. Mr. Somerville told the arresting officer, the prosecution, and the defense attorneys
that the Petitioner was with him in the car at the time of the incident. Both lead and assistant
counsel believed that Mr. Somerville would have ultimately been a witness for the State.
Calling Mr. Somerville as a defense witness would have amounted to no more than a “fool’s
errand” and would have likely prejudiced the Petitioner much more than not calling him.
Therefore, we decline to second-guess trial counsels’ strategic decision and affirm the

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judgment of the post-conviction court. See Ben Mills v. State, No. W2005-00480-CCA-R3-
PC, 2006 WL 44381, at *8-9 (Tenn. Crim. App. Jan. 5, 2006), perm. app. denied, (Tenn. May
1, 2006).

                                    CONCLUSION

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




                                                 _________________________________
                                                 D. KELLY THOMAS, JR., JUDGE




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