        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs August 4, 2015

                JAMES LAMBERT v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for McNairy County
                        No. 2863 J. Weber McCraw, Judge


              No. W2015-00238-CCA-R3-PC - Filed October 15, 2015


The Petitioner, James Lambert, appeals the McNairy County Circuit Court’s denial of his
petition for post-conviction relief from his convictions for rape of a child, incest, and
aggravated sexual battery, for which he is serving a twenty-five-year sentence. The
Petitioner contends that the post-conviction court erred in denying relief on his
ineffective assistance of counsel claims. We affirm the judgment of the post-conviction
court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ALAN E.
GLENN and ROGER A. PAGE, JJ., joined.

Lisa M. Miller, Selmer, Tennessee, for the appellant, James Lambert.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; D. Michael Dunavant, District Attorney General; Bob Gray, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

      The Petitioner’s convictions relate to his sexual abuse of his then-twelve-year-old
daughter. In the appeal of the convictions, this court summarized the facts as follows:

             In March or April of 2010, the victim was watching television with
      Appellant. He told her to go get a glass of milk. When the victim returned
      from the kitchen, Appellant was sitting on the couch under a blanket.
      Appellant lifted the blanket and exposed himself to the victim. She could
      see that his underwear was down around his ankles. Appellant told the
      victim to “suck” his private. The victim explained that Appellant put his
      private in her mouth while her grandmother was cooking dinner in the
      kitchen. The victim was told to stop when her grandmother informed them
      that dinner was ready. The victim stated that her grandmother could not see
      the living room from the kitchen.

             According to the victim, one night during May of 2010 while she
      was in the sixth grade, she dragged her mattress to the living room to sleep.
      The victim slept in her underwear on the mattress. The victim was
      awakened in the middle of the night by Appellant. He was removing her
      clothing. The victim knew that it was morning but described it as still dark
      outside. Appellant removed her underwear. The victim could see her
      father’s “private.” He instructed her to “ride him,” then picked her up and
      had her sit on his waist. Appellant was lying on his back at the time and
      ordered the victim to wrap her legs around him and “slide” back and forth.
      The victim explained that her “front private” was touching his “front
      private.” After five to ten minutes, the victim stated that “white, gooey
      stuff” came out of Appellant’s private. He instructed her to get a paper
      towel to clean up the gooey stuff.

             Sometime later, the victim told her cousin about the incidents. The
      victim also talked to a police officer and was interviewed by someone at the
      Child Advocacy Center. As a result of her statements, Appellant was
      arrested and subsequently indicted by the McNairy County Grand Jury in
      October of 2011 with rape of a child, two counts of aggravated sexual
      battery, attempted aggravated sexual battery, and incest.

             At trial, the victim testified about the incidents leading up to the
      indictment. She had lived with her father and grandmother since the age of
      five. At the time of trial, the victim was living with her mother and
      stepfather. The victim acknowledged that she did not tell the interviewer at
      the Child Advocacy Center everything that had happened because she was
      scared.

State v. James A. Lambert, No. W2012-01681-CCA-R3-CD, 2013 WL 3131004, at *1-2
(Tenn. Crim. App. June 14, 2013).

       In his post-conviction petition and the amended petitions, the Petitioner alleged
that he received the ineffective assistance of trial counsel in numerous respects related
generally to counsel’s investigation, preparation, consultation with the Petitioner, and
advocacy during the trial and sentencing hearing.



                                           -2-
       At the post-conviction hearing, trial counsel testified that he filed discovery
motions and spoke with the Petitioner “[o]n numerous occasions” about the discovery
information and the evidence. He said he and the Petitioner reviewed the transcript of the
victim’s forensic interview. He did not recall the Petitioner’s stating that the Petitioner
had a sixth-grade education and that the Petitioner did not read well.

       Trial counsel testified that he received two plea offers from the State, which he
conveyed to the Petitioner. One offer provided for an eight-year sentence, and the other
provided for a twelve-year sentence. Counsel said he had noticed defects in the
indictment and had discussed possible defense strategies with the Petitioner based on the
defects. Counsel said the State discovered the error and made a twelve-year plea offer on
one count of aggravated sexual battery. He noted that at the time, the Petitioner was
charged with offenses related to two victims but that one of the indictments was
dismissed. He said that after consultation with the Petitioner, the other indictment was
amended in order to have the case heard more quickly due to the Petitioner’s
incarceration.

       Trial counsel testified that he advised the Petitioner it was “not uncommon” for
the court to impose consecutive sentences in sexual abuse cases and that the Petitioner
faced twenty-five years on one count and eight years on the remaining counts.

       Trial counsel thought that the Petitioner was brought to court on January 27, 2012,
for a “mandatory appearance date” to announce whether the case would be resolved by a
plea agreement or would go to trial. Counsel agreed that the case was set for trial on
February 6, 2012. He said problems might have existed regarding his subpoenas for
Department of Children’s Services (DCS) records relative to the victim’s prior sexual
abuse allegations. Counsel said he did not use the DCS records to impeach the victim’s
credibility because they pertained to the allegations against someone other than the
Petitioner. Counsel said the records reflected an opinion by the person who conducted a
forensic examination that the victim had been “coached” to make unfounded accusations
by the Petitioner, the Petitioner’s girlfriend, or both, due to an ongoing custody dispute
between the Petitioner and the victim’s mother. Counsel said he faced a dilemma
because if he had presented proof of the prior allegations involving a different
perpetrator, the State could offer proof that the prior allegations were false and that the
Petitioner coached the victim to make them.

       Trial counsel testified that he did not know the credentials of the persons who
interviewed the victim relative to her separate allegations against the Petitioner and
another individual. Relative to the person who interviewed the victim regarding the
allegations that were determined to be unfounded, counsel said he did not know if the
person was qualified to determine that the victim had been coached. Counsel said he
discussed the interview records with the Petitioner. Counsel said he did not request the

                                            -3-
résumé of Monica Goodman, who conducted the victim’s forensic interview relative to
the allegations against the Petitioner. Counsel acknowledged that Ms. Goodman was one
of the State’s main witnesses but said he thought the verdict was based upon the victim’s
testimony. He said he made a successful hearsay objection when the State attempted to
offer proof of what the victim told Ms. Goodman about the offense. He said he had never
seen a successful challenge to the qualifications of a forensic interviewer employed by
DCS or the sexual assault center at which the victim was interviewed. He said that the
forensic interviewers from these agencies did not ask leading questions and that the
questioning of the victim relative to the Petitioner’s case was not suggestive or leading.

        Trial counsel estimated he met with the Petitioner at least ten to fifteen times to
discuss the case. He said they met a sufficient number of times to prepare adequately for
the trial. Counsel said that if the Petitioner testified counsel had only talked to Petitioner
for about ten minutes before the court appearances, the Petitioner’s testimony would not
be truthful. He said that he had access to the Petitioner at the jail and that jail personnel
never restricted his access or impeded the trial preparation. He said he probably did not
meet with the Petitioner every time the Petitioner requested. He explained that his role
was not to be his clients’ friend but that he saw them when he had information to give
them.

       Trial counsel testified that the offense occurred at the home shared by the
Petitioner and his mother. He said the Petitioner’s mother was home during one incident
and was in the kitchen adjacent to the living room where the offense occurred. Counsel
acknowledged he did not visit the home to determine if the Petitioner and the victim
would have been in the Petitioner’s mother’s line of sight, but he said the Petitioner’s
mother stated she had not seen anything. He did not recall how many times he spoke
with the Petitioner’s mother. He did not think her testimony that she had been in an
adjacent room within eyesight but did not see anything would have been helpful to the
defense, although he thought he said in his closing argument that she would have been
able to witness the offense if it had occurred. He thought he interviewed the police
officer who filed the charges.

        Trial counsel did not specifically recall coming to court on February 6 and having
the case reset until February 27 in order for subpoenas to be issued. He did not
specifically recall the Petitioner’s giving him a list of witnesses for whom the Petitioner
wanted subpoenas issued. Counsel said, though, he told the Petitioner that unless the
witnesses were present and had first-hand knowledge, they would not be allowed to
testify. He did not recall if the Petitioner requested that counsel subpoena DCS employee
Harry Nolan but “[v]aguely . . . remembere[d]” Mr. Nolan’s name. Counsel said that he
did not subpoena or talk to Mr. Nolan but that he subpoenaed any DCS records related to
allegations made by the victim. He said that when he received the documents, “none of
them were in reference to that name.”

                                             -4-
       Trial counsel did not recall whether the Petitioner requested he subpoena Patricia
Foster, the Petitioner’s girlfriend, and counsel did not think he subpoenaed her. Counsel
said that he did not dispute the accuracy of the court file if it reflected that Brandon
Campbell, whom counsel thought the Petitioner had identified as having information
about the victim’s prior allegations against a person other than the Petitioner, was
subpoenaed on February 9, 2012. Counsel did not recall whether a subpoena was served
on Mr. Campbell. He said that he did not subpoena anyone who did not have information
about the case and that he did not talk to Ms. Foster or Mr. Campbell to determine if they
had information about the case. He said he did not call Mr. Campbell as a witness.
Counsel said that if Mr. Campbell did not appear pursuant to a subpoena, counsel would
have requested a continuance, although the trial court typically denied continuances
based upon unserved subpoenas. Counsel did not recall whether he requested a
continuance. He said that it was not uncommon to have difficulty locating a witness. He
said that in this situation, he would subpoena the witness, and that when the witness
appeared, he would question the witness about any relevant information.

       Trial counsel testified that his understanding from the Petitioner was that Mr.
Nolan, Mr. Campbell, and Ms. Foster had information about a prior unfounded allegation
the victim made because the victim had been coached to make the allegation.

       Trial counsel thought he subpoenaed the Petitioner’s mother but said he did not
call her as a witness because she did not know anything about the offense. Counsel said
her subpoena should have been in the court file “unless she was present.”

       Trial counsel testified that he understood the victim, the Petitioner, and the
Petitioner’s mother were the only people present at the time of the offense. He said any
other witnesses he might have subpoenaed were not present for the relevant events.

      Trial counsel testified that the trial court questioned the victim to determine if she
knew the difference between right and wrong and was competent to testify.

       Trial counsel testified that the defense did not offer any proof. He said that he and
the Petitioner discussed the Petitioner’s right to testify and that the Petitioner signed a
waiver of the right to testify. He recalled discussing a prior conviction that could have
been used to impeach the Petitioner’s credibility.

       Trial counsel testified that he did not file a notice of sentence mitigating factors
because he was unaware of any that applied to the Petitioner. Counsel said he reviewed
the presentence report with the Petitioner. Counsel did not call any witnesses to testify at
the sentencing hearing. He said both the Petitioner and the Petitioner’s mother were


                                            -5-
adamant the offense did not occur. Counsel said that calling the Petitioner or the
Petitioner’s mother as sentencing hearing witnesses “would do more harm than good.”

       Trial counsel testified that he did not call any witnesses to testify at the motion for
a new trial hearing. He did not recall being hesitant to represent the Petitioner in the
appeal of the convictions, but he acknowledged that he had requested that the trial court
appoint new counsel for the Petitioner’s appeal. Counsel “[v]aguely” recalled advising
the court that the Petitioner was not happy with counsel’s representation. He said that he
submitted an appellate brief on behalf of the Petitioner and that his representation was
unaffected by his efforts to have substitute counsel appointed.

       Trial counsel did not recall any discussion in which the Petitioner advised him of
identifying marks on the Petitioner’s body that the victim should be able to identify if her
allegations were accurate. Counsel said he had not heard about the Petitioner’s body
marks before the post-conviction petition was filed.

        Trial counsel testified that he recalled the Petitioner’s concern that the assistant
district attorney general had a conflict of interests. Counsel thought the issue had been
raised in a sidebar conference during the trial. He said he brought it to the court’s
attention at the Petitioner’s request. He said he did not think a conflict existed based
upon the assistant district attorney general having previously acted as a judge when a
“completely separate incident took place years ago.” Counsel said he explained his view
to the Petitioner.

       Trial counsel testified that he saw photographs of the home in which the offense
occurred. He did not recall if they were in the State’s or his possession. He said that if
they were in his possession, he would have shown them to the Petitioner before the trial.

        Trial counsel agreed he had a transcript of the victim’s forensic interview and said
he reviewed it with the Petitioner. Counsel thought he did not receive a video recording
of the interview from the State and did not recall reviewing a recording of the interview.
He agreed a video recording of the interview would have shown the victim’s body
language and possibly would have been helpful in impeaching the victim’s credibility.
He agreed, though, that the recording was inadmissible hearsay. He said the video
recording would not have assisted him materially in preparing the case for trial. He said
that the most important time for evaluating a witness’s credibility was when the witness
testified and that the victim had been credible when she testified. Counsel thought the
victim’s mother had not permitted him to talk to the victim outside of the courtroom, but
he said he had questioned the victim at the preliminary hearing. He did not see any
significant inconsistencies between her testimony at the preliminary hearing and at the
trial. He said that if he argued at the trial that the victim’s testimony contained a “glaring
contradiction,” he was not referring to a contradiction between her trial testimony and her

                                             -6-
preliminary hearing testimony because her preliminary hearing testimony was not
admitted as trial evidence.

      Trial counsel testified that he never had any indication the Petitioner did not
understand their discussions and trial preparations. Counsel said, “The only . . . issue I
had with [the Petitioner] along those lines is him not accepting what I was telling him.”
He explained,

       I would point out to him what I thought the strengths in the State’s case and
       he didn’t see it – would not see it as such. I would inform him of what he
       was potentially looking at . . . in regards to punishment and it wasn’t a
       matter . . . [of] whether he did not understand it, he just didn’t accept it as
       such.

        The Petitioner testified that in his opinion, the assistant district attorney general
who prosecuted him had a conflict of interests because the assistant district attorney
general had acted as the judge in a custody matter involving the victim. The Petitioner
said he had been awarded custody of the victim “because she said a man supposedly
molested her.” The Petitioner thought the conflict existed based upon the assistant
district attorney general’s prior knowledge of him and the similarity of the allegations in
this case and those in the custody case. The Petitioner acknowledged that the custody
litigation took place around 2002, about ten years before the offense in this case.

       The Petitioner testified relative to the custody case that the judge told the victim’s
mother not to have any contact with the victim except through the Carl Perkins Center.
He said that the victim’s mother took the victim to the forensic interview relative to this
case and that he thought the victim’s mother had influenced the victim’s statement in the
interview.

       The Petitioner testified that trial counsel and he never reviewed the victim’s DCS
records relative to the prior allegation. The Petitioner said that when he walked into the
courtroom, counsel slid the records to him and said, “Here’s the records you wanted to
see.” The Petitioner said he had informed counsel that he had a sixth-grade education
and had trouble reading. He clarified at the hearing, though, that he could read but had
trouble writing. He said that although he had not seen the DCS records until he arrived at
court, he had possessed the transcript of the forensic interview for some time. He said
that he asked counsel to subpoena witnesses, that he complained to the trial court about
counsel’s failure to subpoena witnesses, and that he asked the court to appoint another
attorney. He acknowledged that the court ordered the subpoenas to be issued. He
acknowledged counsel’s post-conviction testimony that the subpoenas were to be issued
for the DCS records, but the Petitioner said his understanding had been that the witnesses
were to be subpoenaed, as well. He said the witnesses for whom he wanted subpoenas

                                             -7-
issued were Brandon Campbell, Patricia Foster, the Petitioner’s mother, and Harry Nolan.
He agreed that Mr. Campbell was subpoenaed, but said that Mr. Campbell did not appear
to testify at the trial and that no continuance was requested. He said that to his
knowledge, his mother was the only witness identified by the Petitioner with whom
counsel spoke.

       The Petitioner testified that he had wanted Ms. Foster to testify at the trial about
“some of the stories that [the victim] was telling.” He said he and Ms. Foster spoke to
counselors about how to deal with the victim’s untruthfulness. He said the victim’s
claims included that the victim’s mother injected drugs and that the victim had to eat dog
food. The Petitioner said that counsel claimed not to have been able to locate Ms. Foster
but that the Petitioner had been able to locate her address after he was in prison and that
the Petitioner’s mother had contacted Ms. Foster.

      The Petitioner testified that trial counsel told him Mr. Nolan was no longer
working for DHS.1 The Petitioner said that this information was inaccurate and that Mr.
Nolan worked for DHS but had transferred to a different county.

       The Petitioner acknowledged DCS records from a 2004 investigation regarding the
victim’s having been touched inappropriately by a man other than the Petitioner. The
notes of the investigation indicated that two witnesses thought the Petitioner and Ms.
Foster coached the victim to make the accusation in order for the Petitioner to obtain
custody of the victim. The Petitioner acknowledged that if trial counsel had called the
witnesses he requested, the witnesses would have testified about the Petitioner and Ms.
Foster’s coaching the victim to make a false accusation. The Petitioner said that he had
not understood at the time of the trial that counsel did not call witnesses who had been
determined by DCS not to be credible but that he now understood. He said counsel never
discussed the matter with him and merely provided him with the DCS records. He
claimed he had not known until “just a while ago” that the records contained a finding
that he and Ms. Foster coached the victim to make a false accusation.

       The Petitioner testified that trial counsel did not call his mother as a witness. He
said his mother could have stated that she was present and that she would have seen the
offense if it occurred as the victim claimed.

       The Petitioner testified that he had three or four court appearances after the
arraignment. He said trial counsel met with him a few minutes before these appearances.
He said he only met with counsel once other than at court appearances. He later said he
met with counsel twice other than court appearances, once being a meeting at which
counsel’s investigator was also present. The Petitioner said he told counsel and the

1
    The record contains inconsistent information about whether Mr. Nolan worked for DCS or DHS.

                                                       -8-
investigator the things he thought they should discuss with the witnesses who he thought
had relevant information.

       When asked if requested trial counsel visit the home in which the offense
occurred, the Petitioner said he assumed counsel would visit it. He said the “motion of
discovery” he received stated that the offense occurred in a different location.

        The Petitioner testified that he declined the first plea offer. He said he told trial
counsel he did not want to accept the offer because, “I hadn’t done nothing to do 8 years
at a hundred percent.” He said counsel left the room and returned later with a second
plea offer of “12 years at a hundred percent and 6 years on paper.” The Petitioner said he
declined this offer, as well. He said that at the trial, counsel stated that the assistant
district attorney general wanted the Petitioner to know that the twelve-year offer was still
available but that the Petitioner rejected it. The Petitioner was unaware of any plea offer
providing for a lesser sentence.

       The Petitioner testified that he told trial counsel about a distinctive mark on his
body from a welding burn. He said he asked counsel if the victim could be questioned
about this mark, which would have been visible if the victim had seen his genitals. The
Petitioner said counsel said, “No, that’s no good. All she has to say is I don’t know.”

        The Petitioner testified that trial counsel’s reluctance to represent the Petitioner in
the appeal of the convictions probably affected counsel’s effectiveness. The Petitioner
said counsel acted as if he did not like the Petitioner. He said counsel did not talk to him
much and just told him, “This is what they’re offering you.” When asked if counsel
discussed the positive and negative aspects of the plea offer, the Petitioner responded that
counsel “[j]ust said this is what they’re offering, pretty much.” When asked if counsel
discussed the positive and negative aspects of going to trial, the Petitioner said counsel
stated, “Well, if you don’t want this, I’ll see you in a few minutes,” and left the room.
The Petitioner said, “[T]hey’d call me into the courtroom and here we’d be.”

        Relative to the sentencing hearing, the Petitioner testified that counsel advised the
Petitioner that the Petitioner faced a twenty-five-year sentence. The Petitioner did not
recall counsel’s reviewing the presentence report with him. The Petitioner said he
wanted counsel to present evidence at the sentencing hearing that the victim’s mother had
let the victim drink alcohol to the point of intoxication, but he claimed that counsel told
him the victim’s mother was not the person on trial. The Petitioner said that someone
from DHS spoke with the victim about the alcohol use but that the Petitioner never saw
any records relative to this allegation.




                                             -9-
       The Petitioner testified that charges against him relative to another victim were
dropped. He thought the charges were dropped because he was found guilty in the
present case.

      The Petitioner acknowledged that counsel told him the State would have been able
to impeach him with his prior felony drug conviction if he had testified at the trial.

      After receiving the proof, the post-conviction court made these findings:

             The Court accredits the testimony of [trial counsel].

             The Court finds that [trial counsel] provided adequate assistance; he
      met with petitioner and discussed the case, including possible defenses and
      negotiated plea opportunities. The defense counsel presented a reasonable
      defense for the petitioner, a jury did not accept the defense.

             Petitioner failed to show any deficient performance by [trial
      counsel]. The facts did not permit a reasonable finding of not guilty unless
      the jury did not believe the victim. [Trial counsel] explained to petitioner .
      . . the difficulty of a trial based on the facts which he expected to be
      presented by the State.

             The Court finds that petitioner has failed to establish the factual
      allegations contained in his petition by clear and convincing evidence.
      Tenn. Code Ann. § 40-30-210. The petitioner has not shown that the
      services rendered or the advice given was below the range of competence
      demanded of attorneys in criminal cases. The petitioner has not shown that
      there is a reasonable probability that, but for counsel’s deficient
      performance, the result of the proceeding would have been different. The
      petitioner has not shown that he was incapable of defending himself in a
      court of law.

             It is therefore ORDERED that the petition for post conviction relief
      is denied and dismissed.

This appeal followed.

       In his appellate brief, the Petitioner contends that the post-conviction court erred
in determining that he did not prove he received the ineffective assistance of counsel.
The State responds that the Petitioner has not shown error in the post-conviction court’s
determination.


                                           -10-
       Post-conviction relief is available “when the 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 (2012). A
petitioner has the burden of proving his factual allegations by clear and convincing
evidence. Id. § 40-30-110(f) (2012). A post-conviction court’s findings of fact are
binding on appeal, and this court must defer to them “unless the evidence in the record
preponderates against those findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn.
1997); see Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction
court’s application of law to its factual findings is subject to a de novo standard of review
without a presumption of correctness. Fields, 40 S.W.3d at 457-58.

       To establish a post-conviction claim of the ineffective assistance of counsel in
violation of the Sixth Amendment, a petitioner has the burden of proving that (1)
counsel’s performance was deficient and (2) the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell,
506 U.S. 364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland
standard to an accused’s right to counsel under article I, section 9 of the Tennessee
Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

       A petitioner must satisfy both prongs of the Strickland test in order to prevail in an
ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the
performance prong, a petitioner must show that “the advice given, or the services
rendered . . . , are [not] within the range of competence demanded of attorneys in criminal
cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at
690. The post-conviction court must determine if these acts or omissions, viewed in light
of all of the circumstances, fell “outside the wide range of professionally competent
assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy by his counsel, and
cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d
334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn.
2008). This deference, however, only applies “if the choices are informed . . . based upon
adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
To establish the prejudice prong, a 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.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.




                                            -11-
                                              I

  Failure to Investigate and Present Evidence Regarding the Petitioner’s Mother’s
                         Presence at the Time of the Offense

       The Petitioner contends that trial counsel’s investigation and presentation of the
defense were inadequate relative to the Petitioner’s mother’s presence when the offense
occurred and her ability to witness any misconduct. The Petitioner argues that although
his mother was in an adjacent room at the time the victim said the offense occurred,
counsel failed to investigate the scene and failed to call the Petitioner’s mother as a
witness to testify that if anything occurred, she would have seen it. The Petitioner notes
that counsel did not go to the home where the incident occurred to take photographs.

       Trial counsel testified that although he did not visit the home, the Petitioner’s
mother told him she had not seen anything. Counsel said he reviewed photographs of the
home. Counsel said he did not call the Petitioner’s mother as a witness because she had
no knowledge of the offense. The Petitioner has not explained how investigation of the
scene would have benefitted him. We note that no photographs of the scene were offered
as exhibits at the post-conviction hearing. The petitioner’s mother was not called as a
witness at the hearing. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)
(“When a petitioner contends that trial counsel failed to discover, interview, or present
witnesses in support of his defense, these witnesses should be presented by the petitioner
at the evidentiary hearing.”). We note that at the trial, the victim testified that her
grandmother, the Petitioner’s mother, could not have seen the living room where the
offense occurred from the Petitioner’s mother’s location in the kitchen. James A.
Lambert, 2013 WL 3131004, at *1. The Petitioner failed to establish his claim, and he
has not shown that the post-conviction court erred in denying relief on this basis.

                                              II

         Failure to Challenge the Qualifications of the Forensic Interviewer

       The Petitioner contends that trial counsel provided ineffective assistance because
counsel did not request and review the résumé of Monica Goodman, the forensic
interviewer who spoke with the victim relative to the offense. The Petitioner argues that
counsel should have used the information to challenge Ms. Goodman’s qualifications to
conduct the forensic interview.

       Trial counsel testified that in his experience as a trial attorney, he had never seen a
successful challenge to the qualifications of a forensic interviewer employed by DCS or
the sexual assault center at which the victim was interviewed. Counsel said the forensic
interviewers from DCS and the sexual assault center did not ask leading questions. He

                                            -12-
said that he reviewed the transcript of the forensic interview and that the questioning of
the victim was not suggestive or leading. No evidence was presented at the post-
conviction hearing regarding Ms. Goodman’s qualifications, and no evidence established
any basis upon which a successful challenge to Ms. Goodman’s qualifications might be
made. The Petitioner has not shown that the post-conviction court erred in denying relief
on this basis.

                                             III

                  Consultation with and Preparation of the Petitioner

       The Petitioner contends that trial counsel failed to consult with him and failed to
prepare him adequately for the trial and the sentencing hearing. The Petitioner notes his
own post-conviction hearing testimony that counsel met with him for a few minutes
before each court appearance and two other times at the jail. The Petitioner said counsel
merely advised him of the plea offer but did not discuss the benefits and disadvantages of
accepting the offer versus going to trial. The Petitioner testified that counsel never
reviewed with him the DCS records relative to the victim’s prior allegations, that counsel
did not discuss the benefits and perils of calling DCS employees as witnesses to testify
about the prior allegations, and that he and counsel never reviewed the presentence report
together.

       Trial counsel testified that he met with the Petitioner ten to fifteen times, that they
spoke numerous times about the discovery information and the evidence, that they
reviewed the transcript of the victim’s forensic interview, and that their meetings were
sufficient to prepare adequately for the trial. Counsel said that if the Petitioner testified
they met only a few minutes before court appearances, the Petitioner’s testimony was
untruthful. Counsel said that he never had any indication the Petitioner did not
understand their discussions but that when he pointed out the strengths of the State’s case
and the punishment the Petitioner faced, the Petitioner refused to accept the information.
Counsel said he advised the Petitioner of the plea offers and of the likelihood the
Petitioner would receive consecutive sentences. Counsel said he reviewed the
presentence report with the Petitioner. The Petitioner argues that counsel failed to file a
notice of mitigating factors relative to sentencing, but counsel testified that no factors
applied to the Petitioner’s case.

       Relative to the conflicts between the testimony of the Petitioner and that of
counsel, we note the post-conviction court’s findings that counsel’s testimony was
credible and that counsel met with the petitioner and discussed the case, including the
plea offers. The evidence does not preponderate against the court’s findings. The post-
conviction court did not err in denying relief on this basis.


                                            -13-
                                             IV

            Failure to Challenge the Victim’s Competency and Credibility

        The Petitioner argues that trial counsel provided ineffective assistance in failing to
challenge the victim’s competency and credibility through cross-examination regarding
her prior allegations of sexual assault by an individual other than the Petitioner. The
Petitioner has not articulated how the prior allegations affected the victim’s competency
to testify as a witness. Counsel testified that the trial court questioned the victim to
determine if she knew the difference between right and wrong and was competent to
testify. The Petitioner has not identified the actions counsel should have taken relative to
the victim’s competency, and we will not speculate in this regard.

        Relative to impeachment of the victim’s credibility with evidence of her prior
allegations against an individual other than the Petitioner, trial counsel testified that he
did not impeach the victim’s credibility through cross-examination about the prior
allegations because the DCS records of the prior allegations reflected the investigator’s
opinion that the Petitioner, the Petitioner’s girlfriend, or both of them coached the victim
to make the allegations in order to influence the outcome of a custody dispute. We note,
though, that the trial transcript reflects counsel attempted to ask the victim about the prior
allegations. During cross-examination at the trial, counsel asked the victim if she
recalled someone other than the victim touching her inappropriately. The victim
responded, “No, sir.” Counsel then asked, “Do you remember your dad taking you to
talk to some folks about an incident when you were around five years old?” The victim
responded that she did not. Counsel then asked if the victim understood that she was
under oath, and the victim said she did. The trial transcript also reflects the court’s ruling
that extrinsic evidence of the victim’s prior allegations would not be allowed.

       The post-conviction court did not specifically address the discrepancy between
counsel’s recollection and the trial transcript relative to impeachment of the victim’s
credibility. The trial transcript reflects that counsel attempted to challenge the victim’s
credibility by cross-examining her about facts relative to the prior allegations, but the
victim could not remember. The Petitioner’s factual premise – that counsel did not
attempt to impeach the victim’s credibility by inquiring about the prior allegations – is
unsupported by the trial transcript.

       The Petitioner contends that trial counsel was ineffective in impeaching the
victim’s credibility because counsel did not cross-examine her about identifying marks
the Petitioner claimed to have on his body with which the victim would be familiar if the
allegations were accurate. At the post-conviction hearing, trial counsel did not recall the
Petitioner’s having mentioned the identifying marks and said he first heard about the
marks after the post-conviction case was filed. As we have noted, the post-conviction

                                            -14-
court found that counsel’s testimony was credible. The evidence does not preponderate
against the court’s determination.

       The Petitioner contends that trial counsel was ineffective because counsel failed to
request copies of any psychological assessment that may have been performed on the
victim and failed to obtain the victim’s recorded forensic interview. He argues, without
explanation, that these items could have aided the defense by impeaching the victim’s
credibility. The Petitioner did not offer any evidence of the existence of a psychological
assessment or the contents of such an assessment, and he did not offer the recorded
forensic interview as an exhibit at the post-conviction hearing. The Petitioner failed to
prove his claim, and the post-conviction court did not err in denying relief.

                                              V

              Failure to Subpoena Witnesses and Request a Continuance

        The Petitioner contends that trial counsel provided ineffective assistance relative
to witnesses for whom the Petitioner wanted subpoenas issued and in failing to request a
continuance because of an unserved subpoena. At the post-conviction hearing, the
Petitioner testified that he wanted subpoenas issued for the Petitioner’s mother, Brandon
Campbell, Patricia Foster, and Harry Nolan. Relative to the Petitioner’s mother, the
record reflects that counsel spoke with her before the trial and that she was present for the
trial but did not testify. Relative to the other witnesses, the Petitioner testified that they
had information about the victim’s prior allegations. The record reflects that at least
some of these witnesses may have been subpoenaed after a hearing at which the
Petitioner expressed his grievances that the witnesses had not been subpoenaed, but none
of the witnesses whom the Petitioner has identified relative to this issue testified at the
trial or at the post-conviction hearing. The Petitioner’s failure to call his mother and the
other individuals as post-conviction hearing witnesses is fatal to his claim. See Black,
794 S.W.2d at 757. Without their testimony, the Petitioner failed to show how he was
prejudiced by any alleged deficiencies in failing to secure their attendance and testimony
at the trial. The trial court did not err in denying relief on this basis.

                                             VI

                                    Zealous Advocacy

       The Petitioner contends that trial counsel provided ineffective assistance in failing
to advocate zealously on the Petitioner’s behalf. The Petitioner notes counsel’s
disagreement with him regarding the prosecutor’s alleged conflict of interests because the
prosecutor had acted as the judge in a prior custody matter in which the Petitioner was
awarded custody of the victim. Counsel testified that although he did not think a conflict

                                            -15-
existed and explained his view to the Petitioner, he nevertheless brought the Petitioner’s
concerns to the trial court’s attention. The Petitioner also argues that counsel was
hesitant to represent him on appeal and attempted to have different appellate counsel
appointed, although the trial court denied counsel’s request to be relieved of his duties of
appellate representation. Counsel did not recall being hesitant to represent the Petitioner
in the appeal and vaguely recalled advising the court that the Petitioner was not happy
with the representation. The trial transcript reflects that counsel raised the issue as part of
the motion for a new trial and that the court denied the motion. Counsel testified that he
submitted an appellate brief on behalf of the Petitioner and that his representation was
unaffected by his efforts to have substitute counsel appointed. As we have stated, the
post-conviction court found that counsel’s testimony was credible. The evidence does
not preponderate against the court’s finding. The Petitioner is not entitled to relief on this
basis.

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


                                              _____________________________________
                                               ROBERT H. MONTGOMERY, JR., JUDGE




                                             -16-
