                                                                                          04/13/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 15, 2019

             JONATHAN ALAJEMBA v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Rutherford County
                         No. 75357 David M. Bragg, Judge
                     ___________________________________

                           No. M2018-01470-CCA-R3-PC
                       ___________________________________


The Petitioner, Jonathan Alajemba, filed a petition for post-conviction relief from his
convictions of facilitation of conspiracy to commit especially aggravated robbery,
attempted especially aggravated robbery, attempted voluntary manslaughter, aggravated
assault, reckless aggravated assault, and aggravated burglary. The Petitioner alleged that
his trial counsel was ineffective by persuading the Petitioner not to testify and failing to
present proof of an insanity defense. He further alleged that newly discovered evidence
in the form of recanted testimony established he did not intend to commit robbery. The
post-conviction court denied the petition, and the Petitioner appeals. 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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT H. MONTGOMERY, JR., JJ., joined.

Brock East (on appeal and at trial) and C. Benjamin Lewis (at trial), Murfreesboro,
Tennessee, for the Appellant, Jonathan Alajemba.

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant
Attorney General; Jennings Hutson Jones, District Attorney General; and Trevor H.
Lynch and Shawn Puckett, Assistant District Attorneys General, for the Appellee, State
of Tennessee.

                                        OPINION

                                 I. Factual Background
        The Petitioner was convicted for offenses that occurred during the attempted
robbery of Tommy Moss by the Petitioner and co-defendants Coty Heath1 and Bobby
Joel (B.J.) Wilson on the night of December 9, 2008. During the offense, Moss was
killed, and three other occupants of the house, Kaitlynn Kennedy, David Tompson, and
Jeff Fogle, were injured.

       “Disposition of the [Petitioner’s] charges resulted from two separate trials,
occasioned by mistrials on some of the charges at the conclusion of the first trial.” State
v. Jonathan Alajemba, No. M2013-00968-CCA-R3-CD, 2014 WL 5840369, at *1 (Tenn.
Crim. App. at Nashville, Nov. 12, 2014). At the initial trial, Fogle testified that he was
living at Moss’ house with Moss, Tompson, Kennedy, Shawn Sherfield, and Randy
Mansell. Id. at *4. Fogle said that on the afternoon of December 9, 2008, he and
Tompson were in the kitchen cooking hamburgers when he heard shots. Id. Fogle turned
and saw B.J. Wilson pointing a gun at him. Id. at *4. Fogle got down and told Wilson
“‘he didn’t have to do this,’” but Wilson shot him. Id. Fogle saw Wilson “‘messing with
his gun’” and grabbed Wilson to try to get the gun from him. Id. Fogle yelled for help,
and Mansell came into the kitchen and helped him. Id. After a struggle, Fogle went into
a nearby bathroom and called 911 for help. Id. Fogle acknowledged that Mansell and
Moss each owned a handgun. Id.

       Tompson testified that while he and Fogle were in the kitchen, three men wearing
hoodies came into the house and asked for Mansell. Id. Moss responded that Mansell
might be in the back of the house, and Fogle said that Mansell was in his room. Id. The
three men went into Mansell’s bedroom, and when they emerged, one of the men stopped
in the kitchen, and the other two walked into the living room. Id. Tompson continued to
cook, but he heard something that sounded like thunder and glass shattering. Id. at *5.
The man in front of Tompson and Fogle removed the hood from his head and pointed a
gun at Fogle. Id. Tompson heard gunshots, and the man shot Fogle. Id. Tompson
ducked then stood up, and the man shot Tompson in the head. Id. Tompson tried to run
away but was shot in his right side, in the back, and a bullet grazed his forehead. Id.
Tompson told the police that one of the men was Caucasian and that he assumed the two
other men were also Caucasian. Id. Tompson identified the man who shot him and Fogle
from a photograph lineup but was unable to identify the other two men. Id.

      Kennedy testified that around noon on the day of the offense, the Petitioner came
to Moss’ house around noon to see Mansell. Id. The Petitioner left after Kennedy told
him Mansell was not at home. Id. Three or four hours later, the Petitioner returned with
a white man whom Kennedy did not know, and the Petitioner bought marijuana from

       1
          Coty Heath and his brother, Dustin Heath, both testified at the post-conviction hearing. For
clarity, we have chosen to use the first names of these witnesses. No disrespect is intended.
                                                -2-
Kennedy. Id. The Petitioner acted “‘weird’” when Kennedy again told him Mansell was
not home. Id. Near 9:00 p.m., the Petitioner returned to Moss’ house with two white
men. Id. at *6. Mansell was at home, and the Petitioner went into Mansell’s bedroom.
Id. Shortly thereafter, the Petitioner and one of the men walked into the living room and
talked with Moss. Id. The Petitioner pulled out a gun, said he had obtained it recently,
and handed it to Moss for his examination. Id. Moss looked at the gun then returned it to
the Petitioner. Id. The Petitioner asked Kennedy if she had any more marijuana. Id.
After she said no, the Petitioner shot Moss then shot Kennedy twice. Id. After he was
shot, Moss ran through a glass door. Id. Kennedy stated that “‘gun fire just followed
with horrifying screams. You could tell that this was a massacre. And I did not know
what was going on. It was just gun fire and screams.’” Id. Kennedy said that Moss did
not show or display a firearm to the Petitioner on the night of the offense. Id. at *7.
Kennedy identified the Petitioner from a photograph lineup as the person who shot her
and Moss. Id. She also identified the two white males who were with the Petitioner on
the night of the shooting. Id.

       Wilson testified that on the day of the offense, Coty called and said that he knew
where they could get marijuana and asked Wilson to meet him and bring a gun. Id. at *8.
Wilson met Coty and the Petitioner at McDonald’s. Id. The men got into Wilson’s car,
and Wilson asked whom they planned to rob and what they planned to take. Id. Coty
said that they would rob Moss, who had marijuana, and the Petitioner said that Moss had
$10,000 he had saved for a music promotion party. Id. The Petitioner showed Wilson
that he had a .357 gun in a shoulder holster. Id. After they arrived at Moss’ house,
Wilson got out of the car, put his gun in his waistband, and gave the Petitioner money.
Id. Wilson went into the kitchen and stayed until he heard gunshots. Id. at *9. He then
he shot at the two men in the kitchen. Id. Wilson struggled with one of the men over
Wilson’s gun, and Wilson ran outside. Id. Wilson saw that his car was gone. Id.

        Coty testified that on December 8, 2008, he was released from a juvenile detention
facility. Id. The next morning, the Petitioner came to Coty’s house and said that he had
recently obtained a .357 revolver. Id. The Petitioner said that he knew someone named
Moss who had marijuana and money and that he wanted to steal the marijuana. Id. The
Petitioner asked Coty to join him, but Coty initially declined. Id. The Petitioner said he
would try to recruit Marcus Johnson to assist in the crime. Id. Later that day, Coty
contacted the Petitioner to find out if he had committed the crime. Id. Upon discovering
that he had not, they met at Coty’s house and discussed the robbery. Id. Coty called
Wilson and asked if he wanted to help rob someone for marijuana. Id. Wilson was
interested, and the three men met at McDonald’s. Id.

       Afterward, they left the restaurant and drove to Moss’ house. Id. at *10. Coty
said that “[t]he plan was for the [Petitioner] ‘to stick up Moss and pull the gun on him.
                                          -3-
And [Wilson] was supposed to hold the gun on whoever else was in the house. And
[Coty] was just supposed to get the [marijuana] or whatever they had.’” Id. Coty thought
that “‘something went wrong,’” and the Petitioner shot Moss two or three times. Id.
Coty did not see the first gunshots. Id. Coty was “‘spooked’” by the gunshots and
grabbed the marijuana before leaving the house. Id. Coty saw the Petitioner standing
over Kennedy, and he also saw Wilson shooting toward two people in the kitchen. Id.
Coty acknowledged that he initially lied to the police when he said he remained in the car
while Wilson and the Petitioner went into Moss’ house. Id. at *11. He explained that he
had wanted to avoid a felony murder charge for taking the marijuana but maintained that
he was telling the truth at trial. Id. Coty said that the Petitioner told him, “‘[Y]ou better
not testify against me. You know, I can do the rest of my life in jail . . . .’” Id.

       Johnson testified that the Petitioner tried to recruit him to help with a robbery, but
he declined. Id. The Petitioner said that he needed money to pay a car note, and he
showed Johnson his .357 revolver. Id. The Petitioner said that “‘he was going to go back
and rob that old dude,’” and he asked if Johnson would “‘ever be with him when he killed
somebody. [Johnson] said no. [The Petitioner] said why not. He wanted [Johnson] to be
there. [Johnson] told him, no, [he] couldn’t do that.’” Id. After the offense, the
Petitioner called Johnson and told him that “‘it was a robbery gone wrong.’” Id.

       Murfreesboro Police Detective Paul Mongold testified that the Petitioner was
interviewed at the police station on December 10, 2008. Id. at *13. After the interview,
the Petitioner was incarcerated. Id. During his incarceration, he sent a note to Detective
Mongold that he wanted to make a statement about the case. Id. On December 22, 2009,
Detective Mongold interviewed the Petitioner again, and the Petitioner gave a four-page
written statement, which stated in pertinent part:

                     “So we walk to the house and I knock on the storm
              door and Moss opens up the front door and sees me and lets
              us in so we walk inside I walked towards the kitchen seen Re-
              run and Jeff [Fogle] and stood next to the couch and [Wilson]
              & Coty stood to the left and back of me by the stairs. I give
              [Kennedy] a $20 bill and told her to give me a dub. So she
              weighs the weed and bags it up and gives it to me. Then
              [Wilson] asked Moss where is Buck and Moss says he’s
              asleep. Then me and Moss started talking about misc. things
              like his nephew, weed and his promotion party he was
              having. . . . Moss pulls out a gun from somewhere. I’m not
              fully sure where it came from and puts a clip in it and starts
              pointing it towards me without saying a word. So I then shot
              him in the chest area twice then I see [Kennedy] move to my
                                            -4-
              right so I turn to her and I see her dig into the couch and pulls
              out a small chrome looking gun so I remember shooting her
              twice then I look towards Moss and he is running towards the
              door and I shot again and the storm door shatters and he runs
              outside and I move in front of the coffee table and I see Moss
              running then he falls face down in the ground then I went
              outside and stood over Moss’s body for a few seconds and to
              my left Re-run runs out from the back of the house running
              towards the front and he runs to [Wilson’s] parked car and
              falls down by the passenger side door. . . .”

Id. at *14.

        The Petitioner was convicted of facilitation of conspiracy to commit especially
aggravated robbery; attempted especially aggravated robbery; attempted first degree
murder; two counts of attempted voluntary manslaughter; aggravated assault; two counts
of reckless aggravated assault; and aggravated burglary. Id. at *1, 14, and 28. The jury
was unable to reach a verdict on one count of second degree murder and three counts of
first degree felony murder, and a second trial was held on those charges. The Petitioner
was convicted as charged. The proof at the second trial was largely consistent with that
at the first trial. Id. at *27-28. Coty added that no one was supposed to get killed or hurt
during the robbery. Id. at *27. The Petitioner did not testify at either trial. Id. at *14, 28.
On direct appeal, this court held that the evidence was insufficient to sustain the
Petitioner’s convictions of aggravated burglary and first degree felony murder in the
perpetration or attempted perpetration of a burglary. Id. at *1. Accordingly, this court
reversed the convictions. Id. The judgments were affirmed in all other respects, resulting
in an effective sentence of life plus twenty-nine years. Id. at *38.

       Thereafter, the Petitioner filed a pro se petition for post-conviction relief. Counsel
was appointed, and two amended petitions were filed. The Petitioner alleged in pertinent
part that his trial counsel was ineffective by advising him not to testify at trial and by not
presenting proof of an insanity defense. The Petitioner also alleged that Coty would
recant his trial testimony and establish that the Petitioner did not intend to commit a
robbery.

        At the beginning of the post-conviction hearing, the State objected to the
admission of any recanted testimony, arguing that Tennessee appellate courts have held
that recanted testimony is essentially an issue of sufficiency of the evidence, which is not
a cognizable issue in a post-conviction proceeding. The post-conviction court agreed
with the State that the Petitioner was not entitled to relief in a post-conviction proceeding

                                             -5-
due to recanted testimony, but the court said it would allow the Petitioner to make an
offer of proof on the issue.

       The Petitioner testified that trial counsel “coerce[d]” him not to testify at trial by
giving him “bad advice.” The Petitioner told trial counsel he thought his testimony was
necessary, particularly regarding self-defense.

       The Petitioner explained that until two weeks before the offense, he was a member
of the Gangster Disciples. Due to internal gang issues, he decided to switch to a rival
gang, the Vice Lords. The Petitioner was “vocal” about his reasons for changing
allegiances. The Gangster Disciples’ leadership became upset with him and issued an
order for any member to try to kill him on sight.

       The Petitioner said that on the night of the offense, Coty called the Petitioner and
said that Wilson wanted to buy marijuana. The Petitioner said, “Bobby Wilson is a timid
individual. He is a Caucasian individual. The area that – where the weed was, was a
predominantly black place. He was scared to go by himself. So he asked that I go for
him and buy the weed for him.” The Petitioner said that he agreed and that he planned to
“take Bobby’s money, and [the Petitioner] would charge Bobby a higher price than what
the weed was. So, [the Petitioner] was making money [him]self.” Three of the people at
the residence where the Petitioner went to purchase marijuana were Gangster Disciples.
The Petitioner acknowledged that he was aware of their gang affiliation before he went to
the residence, that he feared for his safety and took a firearm with him, and that he went
despite the danger “[f]or the money.”

       Wilson and Coty went with the Petitioner to the residence. The Petitioner
purchased a small amount of marijuana and handed it to Wilson for his approval.
Meanwhile, the Petitioner and Moss, a Gangster Disciple, began arguing about the
Petitioner’s leaving the gang. The Petitioner said that after he “used a few choice words
towards” Moss, Moss reached toward his waistband. The Petitioner thought Moss was
reaching for a gun, so he drew the gun from the holster at his waist and shot Moss. The
Petitioner acknowledged that he never saw Moss pull out a gun. The Petitioner said that
he saw Kennedy, a “Crip” gang member, reach under the couch cushions in an “odd”
manner. The Petitioner thought he saw her start to pull out a gun, and he shot her. After
she fell to the floor, a silver and pink gun fell to the floor beside her. The Petitioner left
the residence, and he was arrested the next morning.

       The Petitioner said that after he explained the foregoing to trial counsel, they
discussed the possibility of the Petitioner testifying that he acted in self-defense. Trial
counsel advised the Petitioner not to testify because his prior convictions could be used
against him. The Petitioner told trial counsel that he “didn’t think that would matter.”
                                            -6-
Trial counsel also advised the Petitioner that “the gang stuff is not going to work.
Rutherford County, Murfreesboro, these people don’t care about gangs. They will be
glad that you killed him, and they’ll be happy to send you to prison for it.”

        The Petitioner acknowledged that he relied on trial counsel’s advice and chose not
to testify. The Petitioner said, “I don’t know why I relied on him. I shouldn’t have. At
the time he made it seem like it was the best thing to do.” The Petitioner did not believe
trial counsel provided “fair or competent advice.” The Petitioner said that if given the
opportunity, he would have testified at trial.

       The Petitioner explained that he wrote a statement detailing his involvement in the
offenses after he had spent a year in the Rutherford County Jail following his arrest. He
spent the entire time in jail in solitary confinement, which detrimentally affected his
mental state and left him willing to “say anything to get out. If it would get me from –
get out of jail and go to prison, I didn’t care.”

       The Petitioner said that before his incarceration, he had been hospitalized eight
times for mental health issues, including “schizophrenia, hearing voices.” He informed
trial counsel about his mental health issues, and trial counsel filed a “motion for
psychological services.” Dr. Lynne Zager was appointed, but Dr. Zager never reviewed
the Petitioner’s medical records, never interviewed him, and never visited him. Trial
counsel told the Petitioner that Dr. Zager reviewed the Petitioner’s police interview and
thought the Petitioner was “okay.” Trial counsel told the Petitioner that Dr. Zager could
be used as a mitigation witness during sentencing, but she did not testify at the sentencing
hearing.

       On cross-examination, the Petitioner acknowledged that he had two trials on the
charges. He maintained that if he had testified at either trial, his testimony would have
been that he feared retaliation from the Gangster Disciples for leaving the gang and that
he shot Moss, a Gangster Disciple, because he thought Moss was reaching toward his
waistband for a weapon.

       The Petitioner agreed that when he initially was interviewed by law enforcement,
he said that he was not present at the residence and knew nothing about the incident. He
again was untruthful in his four-page written statement, notably failing to mention any
gang involvement. The Petitioner agreed that in his written statement, he said that he
handed his loaded firearm to Moss and offered to sell it to him. The Petitioner
maintained that a portion of the statement was accurate, explaining that he and Moss had
not yet started arguing. The Petitioner acknowledged he had not mentioned that detail in
his direct testimony, explaining, “[T]here was a lot of things that happened in the house
that I left out. You know, I forget things.” The Petitioner acknowledged that in his
                                           -7-
statement, he said Moss “actually pulled out a gun and started to put a clip in it,” but that
Moss had merely reached toward his waistband. The Petitioner explained that he did not
intend to lie in his statement but that he made a mistake and wrote the statement when he
“was mentally unstable. . . . I made a lie up when I was sick in the head.”

        The Petitioner was not concerned that the jury might have problems with changes
in his story, noting, “It doesn’t matter what it sounds like, as long as it’s the truth.” The
Petitioner acknowledged that he had a previous conviction of burglary. The Petitioner
contended that Wilson and Coty lied at trial.

      The Petitioner agreed that during both trials, the trial court questioned him about
whether he wanted to testify and that he informed the trial court he did not want to testify.
The Petitioner further agreed that he had “every opportunity” to tell the trial court that he
wanted to testify despite trial counsel’s advising him against it.

       Trial counsel testified that he had been an attorney since 1982 and that he had tried
many criminal cases. By the time trial counsel was appointed to represent the Petitioner
in January 2010, the Petitioner had spoken with law enforcement on two occasions. Trial
counsel was especially concerned about the statement the Petitioner gave in December
2009 “that allowed the State to essentially put him [at the crime scene] by his own
words.” Trial counsel filed a motion to suppress the statement, arguing that the Petitioner
had been in jail for a long time and had significant psychological issues. The trial court
denied the motion to suppress, and the denial was affirmed on direct appeal.

        Trial counsel stated that he obtained the Petitioner’s psychological records and
that following an evaluation, the Petitioner was found competent to stand trial.
Subsequently, trial counsel asked Dr. Zager to evaluate the Petitioner and potentially
testify as a mitigating witness at the sentencing hearing. Dr. Zager confirmed that the
Petitioner was competent to stand trial and determined “that it would not be wise on [trial
counsel’s] part to call her as a witness at the sentencing hearing.” Trial counsel discussed
the evaluations with the Petitioner on many occasions.

       After the second trial, trial counsel again talked with the Petitioner about the
possibility of having Dr. Zager testify at the sentencing hearing, but he did not recall
what the Petitioner said. Trial counsel said Dr. Zager was clear that on cross-
examination, she would give her truthful assessment of the Petitioner, which was that she
thought he would reoffend if he were released. Trial counsel stated that Dr. Zager’s
testimony would not have been favorable to the Petitioner. Trial counsel did not recall
relaying this information to the Petitioner specifically but was “sure” he did.



                                            -8-
         Trial counsel stated that his clients often failed to follow his advice and that the
Petitioner did not comply with all of his advice, such as not speaking with other inmates.
Trial counsel advised the Petitioner not to testify because (1) the State would have the
opportunity to cross-examine him; (2) the State would be able to use his prior criminal
record against him; and (3) he “would not make a very good witness, even though he
truly believes that he would.” Trial counsel said that in his experience, many defendants
did not do well when subjected to cross-examination by a “skilled” prosecutor. Given the
Petitioner’s prior convictions, trial counsel was concerned about exposing the Petitioner
to cross-examination. Trial counsel noted that the Petitioner had given the police a four-
page written statement because he thought “that he could talk his way out of it” and that
the Petitioner thought he would be a good witness for the same reason. Trial counsel did
not think the Petitioner would be a good witness because his versions of events were
inconsistent with each other and “with the base facts of the case.” Trial counsel warned
the Petitioner that the State would “pick [him] apart on any inconsistencies” in his
versions of events. Trial counsel also advised the Petitioner about “the pluses and the
minuses [of testifying]. And generally the minuses far outweigh [the] pluses.”
Nevertheless, trial counsel left the decision of whether to testify to the Petitioner. At both
trials, a Momon hearing was conducted, and the Petitioner chose not to testify.

        Trial counsel explained that the Petitioner’s versions of events kept changing, and
trial counsel had ethical concerns about allowing the Petitioner to testify. He contacted
the disciplinary board for advice on how to proceed. Trial counsel never told the
Petitioner that he would have to withdraw from the Petitioner’s case but explained that
the trial court ultimately would decide whether trial counsel should withdraw. Trial
counsel recalled that he also contacted the disciplinary board after the Petitioner
threatened him with physical harm. He said the threats did not cause him to be biased
against the Petitioner and did not impact his advice that the Petitioner should not testify.

        Trial counsel said that the Petitioner told him about his gang affiliation. Trial
counsel thought the Petitioner’s gang affiliation might cloud the jury’s judgment of the
Petitioner. Accordingly, trial counsel did not want the gang affiliation mentioned at trial
and filed a motion in limine to exclude it. The trial court granted the motion, which
prevented any mention of the Petitioner’s gang involvement “unless we made it an issue.
In other words, if [the Petitioner] testified, that was coming out – was another factor to
come into it, too.” Trial counsel did not recall if the Petitioner mentioned that he had
transitioned from one gang to another shortly before the offenses but acknowledged it
was possible. Trial counsel did not recall the Petitioner ever saying that he was a “target”
because of his transfer from the Gangster Disciples to the Vice Lords. Trial counsel
explained that the most important issue at trial was to establish that Moss had a gun.



                                            -9-
       Trial counsel said that in the Petitioner’s first trial, they used the statement the
Petitioner gave to the police in December to pursue the self-defense theory. Trial counsel
thought the “incompetence” of some of the State’s witnesses also helped to establish the
Petitioner’s claim of self-defense. Trial counsel opined that “[e]verybody involved” with
the offenses “had trouble with the truth,” which he believed he conveyed to the juries.
Notably, trial counsel said that Coty and Wilson were “pathological liars,” which was
evident to the juries.

        On cross-examination, trial counsel stated that generally, all criminal defendants
wanted to testify. He advised his clients of the advantages and disadvantages of
testifying and cautioned them that most prosecutors could “make mincemeat out of them”
on cross-examination. Regardless, trial counsel always allowed his clients to make the
ultimate decision on whether to testify.

        Trial counsel noted that Coty’s first statement to the police reflected that he was
not at the scene and had nothing to do with the offense and that “every time he testified it
was different.” Trial counsel cross-examined Coty about the inconsistencies in his
versions of events. Trial counsel agreed that his primary focus and strategy was to cross-
examine the State’s witnesses on their inconsistent statements.

        Trial counsel acknowledged that the Petitioner initially told the police that he was
not at the scene and had nothing to do with the crime. However, the State obtained video
footage of the Petitioner with Coty and Wilson at McDonald’s immediately prior to the
homicide. Thereafter, the Petitioner contacted law enforcement and gave a detailed, four-
page statement, which trial counsel moved to suppress. After the trial court ruled the
statement was admissible, trial counsel used the statement as the “building block” for the
self-defense theory. According to the statement, Moss expressed interest in purchasing
the Petitioner’s gun, and the Petitioner gave the gun to Moss to examine. After the
examination, the Petitioner put the gun back in his holster. Moss pulled out a different
gun, slid a magazine into the gun, and pointed the gun in the Petitioner’s direction. The
Petitioner felt he was in danger and shot Moss. Trial counsel noted that “a magazine was
found at the scene that matched that gun. But we never could find the gun.”

        Trial counsel said that he did not recall the Petitioner’s telling him that “[h]e
showed Mr. Moss his gun, he got his gun back, and then there was this argument over the
weed, but then Mr. Moss just reached for his waistband, and he didn’t know what he was
going for, and he shot him[.]” Trial counsel opined that the Petitioner’s testimony at the
post-conviction hearing was yet another version of events and would have made self-
defense harder to establish because the Petitioner did not see a weapon, merely someone
reaching toward his waist. Trial counsel said that he advised the Petitioner against
testifying because the State would have easily dismantled the inconsistencies in his story.
                                           - 10 -
       Trial counsel said that he obtained funds for an expert evaluation of the
Petitioner’s mental health issues and hired Dr. Zager. Dr. Zager told trial counsel that
“she would not be an effective witness.” Trial counsel told the Petitioner that Dr. Zager’s
testimony would not be favorable, and trial counsel and the Petitioner decided she should
not be called as a witness at trial or sentencing.

        The Petitioner was recalled in rebuttal. The Petitioner said that after he told trial
counsel he wanted to testify, trial counsel responded that the Petitioner had given trial
counsel several different statements and that trial counsel could not “put [the Petitioner]
on the stand and direct [him] during the trial.” Trial counsel told the Petitioner that he
was going to contact the disciplinary board for advice on how to proceed. A couple of
days later, trial counsel told the Petitioner that he would be unable to continue
representing the Petitioner if he chose to testify. The Petitioner said that trial counsel told
him, “I can’t be no part of perjury.” The Petitioner said that trial counsel also said that if
the Petitioner insisted on testifying, he would have to make a statement without being
asked questions by trial counsel. The Petitioner said that after this conversation, he felt
that “[t]he only choice I had was not to testify.”

       As an offer of proof, Coty testified that he was incarcerated for facilitation of the
second degree murder of Moss. Coty said that he and the Petitioner were friends and that
on the day of the offense, they “hung out” with Wilson before going to Moss’ residence
to buy marijuana. Coty said that “[t]here was no plan, no intent” to rob anyone that
evening. Coty acknowledged he knew the Petitioner had a gun that night, but he did not
ask the Petitioner why he had the weapon because it was not “out of the ordinary.”

       Coty said that he had never been to Moss’ residence before that day but that it was
well-known that Moss sold marijuana. Coty did not interact with anyone at Moss’
residence. Coty said that he and Wilson were standing behind the Petitioner when the
Petitioner and Moss began “arguing kind of aggressive.” Coty and Wilson were talking
when Coty heard a gunshot. Coty did not know who “drew first,” noting that he did not
see either the Petitioner or Moss pull a weapon. After hearing the first gunshot, Coty ran
from the scene. Coty said that Kennedy “might have had” a gun and that a gun was
recovered from the crime scene.

       Coty said that before the Petitioner’s trial, the State prepared him to testify. Coty
asserted that the State had not made any plea offers in exchange for his testimony and
that the State never suggested that he needed to testify that “this was a robbery.” He
further asserted, “I told [the State] at trial it wasn’t a robbery. It wasn’t planned. . . .
There were no demands for nothing. Nobody demanded nothing. Like I said, we went
there to buy some weed.”
                                            - 11 -
        On cross-examination, Coty said that he was seventeen years old at the time of the
offense. Initially, while his case was in juvenile court, Coty told the State that he had
nothing to do with the offense and that he knew nothing about it. Coty acknowledged
that throughout the prosecution of his case, he gave the police a couple of false
statements, explaining that he was a “kid” and “[s]cared.” Coty acknowledged that he
had testified on two occasions in front of two juries and that to his knowledge, he did not
lie during his testimony.

       On redirect examination, Coty said that he did not remember testifying at trial that
the Petitioner was the one who had the idea to rob someone for marijuana or that the
“plan was to . . . stick up Moss and pull the gun on him, and [Wilson] was supposed to
hold the gun on whoever else was in the house, and [Coty] was supposed to get the weed
or whatever they had.”

        Dustin Heath, Coty’s brother, testified that he knew the Petitioner prior to the
offenses and knew that the Petitioner had changed his gang affiliation just prior to the
offenses. Dustin said that a gang member was often killed after changing gang
affiliations. After the Petitioner and Coty were arrested, Dustin received telephone calls
that caused him to fear for his safety. He said that people came by his house late at night
and that on one occasion, a man with a gun tried to break into his house. Dustin recalled
that a house belonging to a friend’s parents was “shot up,” and Dustin thought the
shooting, calls, and attempted break-in were related to the Petitioner’s case. Dustin told
the police about these encounters.

      On cross-examination, Dustin acknowledged that he was serving a sentence for
aggravated assault and that he had prior convictions of automobile burglary, sale of
schedule III drugs, and theft of property valued over $500. Dustin acknowledged that he
was not able to identify the person who tried to break into his house.

        The post-conviction court denied the petition. On appeal, the Petitioner challenges
this ruling.

                                       II. Analysis

       To be successful in a claim for post-conviction relief, the Petitioner must prove the
factual allegations contained in the post-conviction petition by clear and convincing
evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means
evidence in which there is no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn.
Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn.
                                           - 12 -
1992)). Issues regarding the credibility of witnesses, the weight and value to be accorded
their testimony, and the factual questions raised by the evidence adduced at trial are to be
resolved by the post-conviction court as the trier of fact. See Henley v. State, 960
S.W.2d 572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are
entitled to substantial deference on appeal unless the evidence preponderates against
those findings. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

       A claim of ineffective assistance of counsel is a mixed question of law and fact.
See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction
court’s findings of fact de novo with a presumption that those findings are correct. See
Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s
conclusions of law purely de novo. Id.

        When the Petitioner seeks post-conviction relief on the basis of ineffective
assistance of counsel, “the [P]etitioner bears the burden of proving both that counsel’s
performance was deficient and that the deficiency prejudiced the defense.” Goad v.
State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). To establish deficient performance, the Petitioner must show that counsel’s
performance was below “the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the
Petitioner must show that “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. Moreover,

              [b]ecause [the P]etitioner 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.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697).

        The Petitioner alleges that trial counsel was ineffective by advising him not to
testify at trial, by not allowing him to testify regarding his claim of self-defense, and by
not presenting proof of an insanity defense based upon his mental health history and an
evaluation by a defense expert. The Petitioner also alleges that the trial court “erred by
finding that [he] offered no proof of the claim of newly discovered evidence presented by
co-defendant Coty Heath and his brother, Dustin Heath.”

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        Turning to the Petitioner’s claims regarding his failure to testify, we note that the
post-conviction court accredited trial counsel’s testimony that the Petitioner chose not to
testify after trial counsel fully advised him regarding the potential problems with his
testimony. The post-conviction court noted trial counsel’s testimony that he told the
Petitioner he would not be a good witness, particularly noting the inconsistencies in the
Petitioner’s various versions of events. The post-conviction court found that the
Petitioner did not present testimony or other evidence to support his claim that “he was
denied the right to testify on his own behalf.” The record does not preponderate against
these findings. See Thomas Lee Carey, Jr. v. State, No. M2018-00292-CCA-R3-PC,
2019 WL 669762, at *6 (Tenn. Crim. App. at Nashville, Feb. 19, 2019), perm. to appeal
denied, (Tenn. June 19, 2019).

       Regarding the Petitioner’s claims concerning the insanity defense and the failure
to present a psychological expert, the post-conviction court found that the Petitioner had
been found competent to stand trial and that an insanity defense could not be supported.
The post-conviction court accredited trial counsel’s testimony that Dr. Zager’s testimony
would not be favorable to the Petitioner. The post-conviction court found that the
Petitioner failed to present any evidence at the post-conviction hearing to demonstrate
how an insanity defense “could be made or supported.” The record does not
preponderate against these findings. See William Arthur Shelton v. State, No. E2009-
00582-CCA-R3-PC, 2009 WL 5083495, at *7 (Tenn. Crim. App. at Knoxville, Dec. 28,
2009).

        Finally, concerning the Petitioner’s claims of newly discovered evidence, the post-
conviction court held that “allegations of newly discovered or recanted testimony are
matters related to the sufficiency of the evidence and not appropriate for post-conviction
relief.” On appeal, the Petitioner concedes that “Tennessee courts have concluded that
presenting newly discovered evidence, even challenging the sufficiency of past evidence,
is not proper in Post-Conviction Hearings.” We agree. This court has stated that
“[r]ecanted testimony amounts to no more than a request to relitigate the sufficiency of
the evidence at trial and is not a proper subject of post-conviction relief.” Teresa Deion
Smith Harris v. State, No. W2000-02611-CCA-R3-PC, 2001 WL 892848, at *1 (Tenn.
Crim. App. at Jackson, Aug. 3, 2001). Therefore, the post-conviction court did not err by
denying the Petitioner relief on this basis.

                                     III. Conclusion

       Finding no error, we affirm the judgment of the post-conviction court.

                                                    _________________________________
                                                    NORMA MCGEE OGLE, JUDGE
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