        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 3, 2014

              LAKEITH HUMPHREY v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                   No. 07-03131   Honorable Lee V. Coffee, Judge


                No. W2013-01877-CCA-R3-PC - Filed August 27, 2014


The Petitioner, Lakeith Humphrey, appeals the Shelby County Criminal Court’s denial of
post-conviction relief from his conviction for first degree premeditated murder and his
sentence of life imprisonment. On appeal, he argues that trial counsel was ineffective in
failing to challenge the legal accuracy of the special jury instruction regarding premeditation
given at trial. Upon review, we affirm the judgment of the post-conviction court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN, J.,
joined. J EFFREY S. B IVINS, J., Not Participating.

Andrew R. E. Plunk, Memphis, Tennessee, for the Petitioner, Lakeith Humphrey.

Robert E. Cooper, Jr., Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and David M. Zak, Jr. and Rachel
Russell, Assistant District Attorneys General, for the Appellee, State of Tennessee.

                                         OPINION

       Facts. This court summarized the facts in this case in its opinion on direct appeal:

              On the night of November 28, 2006, the victim in this case, Gina James,
       was tragically shot and killed through her bedroom window. The [Petitioner],
       who had worked in law enforcement, occasionally dated the victim while she
       was in the process of getting a divorce. Their relationship was sometimes
       turbulent; they would periodically break up, and then later get back together.
       On at least two occasions, after the victim broke up with the [Petitioner],
       incidents occurred that caused the victim to briefly reconcile with the
[Petitioner] out of an apparent need for protection. For example, after one
break-up, a brick was thrown through the victim’s window, and after another
break-up, someone fired a gunshot at her car. With his background in law
enforcement, the [Petitioner] appeared to offer the victim some degree of
protection from an oft-violent world filled with unknown criminals and
assailants. Her putative protector, however, was soon unmasked as something
else entirely.

       On the very night she was killed, witnesses testified that the victim
broke up with the [Petitioner] by telephone. Several hours later, family
members heard the sound of glass breaking in the victim’s bedroom and
discovered her, still conscious, lying on the floor in a pool of her own blood.
They promptly called 911, requesting an ambulance and the police. Medical
personnel arrived and attempted to help the victim, but she died a short time
later.

        Police arriving on the scene observed bullet holes in the victim’s
pillows, head board, and bedroom wall. There were corresponding bullet holes
through the victim’s bedroom window, which indicated that the bullets fired
at the victim had been shot from outside that window, angled downward
toward the bed. Outside the same window, police found five spent 9mm shell
casings. Police also found smudges on the glass of the window about two feet
above the bullet holes, consistent with a human face having been pressed
against its surface. Police further determined that a person could see through
the victim’s bedroom blinds by pressing his or her face against the glass in this
manner.

       Investigating officers interviewed the surviving family members and,
upon learning of the [Petitioner]’s prior relationship with the victim, brought
him in for questioning. The [Petitioner] claimed to have been at his job at an
apartment complex working as a security guard at the time of the shooting and
was released. However, the next morning, officers received a phone call from
the [Petitioner]’s mother, claiming that the [Petitioner] had told her that he was
responsible for the victim’s death. Officers arrested the [Petitioner] and
brought him in for further questioning.

        This time, the [Petitioner] asked to speak to one particular officer–a
former childhood friend– alone. He told this officer that his brother had killed
the victim. However, when the police brought the [Petitioner]’s brother in for
questioning, the brother denied any participation in the crime and gave police

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       an alibi that was supported by two witnesses. When officers put the
       [Petitioner] and his brother together, the [Petitioner] again accused his brother
       of killing the victim. However, a short time afterward, the [Petitioner]
       admitted that he was in fact the one responsible for her death.

              An officer executing a search warrant reviewed computerized video
       surveillance footage from the [Petitioner]’s job on the night in question. The
       officer testified that this video footage showed that the [Petitioner] left his
       work place between 1:44 and 1:50 a.m. (before the shooting), and returned at
       3:50 a.m (afterwards). When officers returned two or three days later to take
       possession of the computerized video footage, they found that it had been
       destroyed. As best they could determine, an unknown individual had
       destroyed the computer hard drive containing the video by pouring an
       unidentified liquid onto it.

              Several days later, Ronnie McLemore, a friend of the [Petitioner],
       contacted the police and told them he had possession of a gun that had been
       given to him by the [Petitioner] shortly after the time of the shooting.
       According to Mr. McLemore, the [Petitioner] had told him that his son was
       coming into town and asked that he hold onto the gun until after his son’s visit.
       Mr. McLemore agreed, took possession of the gun, and locked it in his safe.
       When he learned of the shooting, he decided to turn the gun over to the police.
       The TBI tested this gun and determined it to be the murder weapon by
       matching it both to a bullet removed from the victim’s body and to the spent
       shell casings found outside the victim’s window.

State v. Lakeith Humphrey, No. W2009-01367-CCA-R3-CD, 2011 WL 890940, at *1-2
(Tenn. Crim. App. Mar. 15, 2011), perm. app. denied (Tenn. July 15, 2011).

       On March 15, 2011, this court affirmed the trial court’s judgment. Id. at *1.
Specifically, it held that the issue regarding legal inaccuracy of the special jury instruction
had been waived and that the instruction did not rise to the level of plain error. Id. at *7. On
January 24, 2012, the Petitioner filed a timely post-conviction petition and later filed an
amended petition.

       Post-Conviction Hearing. Appellate counsel testified that he had represented the
Petitioner on direct appeal but had not represented the Petitioner at trial. While
acknowledging that trial counsel had challenged the special jury instruction at trial and in the
motion for new trial, appellate counsel opined that trial counsel had not properly raised this
issue because he failed to challenge the legal accuracy of the instruction. Despite this,

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appellate counsel argued on appeal that trial counsel had objected to the special jury
instruction and that the instruction was not a complete and accurate statement of law. He
also asked that the court review the special jury instruction for plain error. Appellate counsel
said that despite his efforts to raise this issue on direct appeal, the Tennessee Court of
Criminal Appeals held that trial counsel had waived the issue after failing to object to the
legal accuracy of the special jury instruction and after conceding that the instruction was an
accurate statement of the law. The court also held that the issue did not rise to the level of
plain error. Appellate counsel acknowledged that the court could have reversed the case but
chose not to do so, opting instead to give a warning against using similar jury instructions in
the future. He said that because the court determined that the issue regarding the special jury
instruction had been waived, the appellate court never reviewed the issue on its merits.

        Appellate counsel stated that the case of State v. Brandon Compton, No. E2005-
014919-CCA-R3-CD, 2006 WL 2924992 (Tenn. Crim. App. Oct. 13, 2006), had been
decided at the time of the Petitioner’s trial and that he heavily relied on it in preparing the
Petitioner’s direct appeal. Just as in Brandon Compton, appellate counsel argued on appeal
that the special jury instruction did not include the independent body of law explaining some
of the factors supporting premeditation and that the instruction came very close to violating
the constitutional prohibition against trial courts commenting on the evidence.

       Appellate counsel asserted that trial counsel’s failure to properly challenge the special
jury instruction prevented him from appropriately arguing the issue on direct appeal and
precluded the Tennessee Court of Criminal Appeals from reviewing the issue. Appellate
counsel opined, “[I]f the objection [at trial] had been made differently, the Court of Appeals
[o]pinion would have been different.” Neither trial counsel nor the Petitioner testified at the
post-conviction hearing.

       Following the evidentiary hearing, the post-conviction court denied relief, holding that
the Petitioner had failed to establish that the Petitioner was prejudiced by trial counsel’s
representation. Specifically, the court held that “[i]n light of the overwhelming evidence of
premeditation in this case, . . . the jury’s guilty verdict was ‘surely unattributable’ to the
erroneous jury instruction.”

                                         ANALYSIS

        The Petitioner argues that the post-conviction court erred in determining that trial
counsel did not provide ineffective assistance of counsel. He asserts that trial counsel’s
failure to challenge the legal accuracy of the special jury instruction on premeditation was
deficient because it led to an instruction that misstated the element of premeditation and that
this deficiency prejudiced his case by adversely affecting the outcome of his trial and appeal.

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Because the Petitioner has failed to establish that he was prejudiced by trial counsel’s
representation, the judgment of the post-conviction court is affirmed.

       Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction or sentence is void or voidable because of an abridgement of a constitutional
right. T.C.A. § 40-30-103. The Tennessee Supreme Court has held:

              A post-conviction court’s findings of fact are conclusive on appeal
       unless the evidence preponderates otherwise. When reviewing factual issues,
       the appellate court will not re-weigh or re-evaluate the evidence; moreover,
       factual questions involving the credibility of witnesses or the weight of their
       testimony are matters for the trial court to resolve. The appellate court’s
       review of a legal issue, or of a mixed question of law or fact such as a claim
       of ineffective assistance of counsel, is de novo with no presumption of
       correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted), see Frazier v. State, 303 S.W.3d 674, 679 (Tenn. 2010). “The petitioner bears the
burden of proving factual allegations in the petition for post-conviction relief by clear and
convincing evidence.” Vaughn, 202 S.W.3d at 115 (citing T.C.A. § 40-30-110(f); Wiley v.
State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and convincing
when there is no serious or substantial doubt about the accuracy of the conclusions drawn
from it. Lane v. State, 316 S.W.3d 555, 562 (Tenn. 2010) (citing Grindstaff v. State, 297
S.W.3d 208, 216 (Tenn. 2009)).

       Vaughn further repeated well-settled principles applicable to claims of ineffective
assistance of counsel:

              The right of a person accused of a crime to representation by counsel
       is guaranteed by both the Sixth Amendment to the United States Constitution
       and article I, section 9, of the Tennessee Constitution. Both the United States
       Supreme Court and this Court have recognized that this right to representation
       encompasses the right to reasonably effective assistance, that is, within the
       range of competence demanded of attorneys in criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotations and citations omitted).

       In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984);

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Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[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 defendant makes an insufficient showing of one component.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697).

       A petitioner successfully demonstrates deficient performance when the petitioner
establishes that his attorney’s conduct fell below “an objective standard of reasonableness
under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S. at 688; Baxter,
523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the petitioner
establishes “‘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.’” Id. at 370 (quoting Strickland, 466
U.S. at 694).

       At the Petitioner’s trial, the State requested that the trial court provide the jury with
a special jury instruction on the issue of premeditation. Lakeith Humphrey, 2011 WL
890940, at *4. After overruling the defense’s objection, the court provided the following
instruction:

               The court further charges you that the elements of premeditation may
       be inferred from the circumstances of the killing. The element of
       premeditation is a factual question to be determined by the jury from all the
       circumstances surrounding the killing. Several circumstances may be
       indicative of premeditation, including declarations of the intent to kill,
       procurement of a weapon, the use of a deadly weapon upon an unarmed
       victim, the fact that the killing was particularly cruel, infliction of multiple
       wounds, the making of preparations before the killing for the purpose of
       concealing the crime, destruction or secretion of evidence and calmness
       immediately after the killing. A jury is not limited to any specific evidence in
       finding or inferring premeditation, but it may be established by any evidence
       from which a rational jury may infer that the killing occurred after the exercise
       of reflection and judgment. In addition to these factors, the establishment of
       the motive for the killing is yet another factor from which the jury may infer
       premeditation.

Id. Pursuant to this court’s opinion on direct appeal, the defense did “not challenge the legal
accuracy of the instruction” and “conceded that the special instruction was the language of
the presently-existing law in Tennessee at the time it was issued[.]” Id. at *5. Instead, the
defense claimed that the special instruction “was unnecessary, unfair, and prejudicial . . .

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because it provided a ‘roadmap’ that was relied on by the prosecution in its closing
argument.” Id.

        In his post-conviction appeal, the Petitioner argues that trial counsel’s failure to
properly challenge the special jury instruction was deficient and prejudicial. The State
contends that the error regarding the special jury instruction on premeditation was harmless
beyond a reasonable doubt because the jury’s guilty verdict was “surely unattributable” to
the instruction. We agree with the State.

        The right to trial by jury is guaranteed by the United States and Tennessee
Constitutions. U.S. Const. amend. VI; Tenn. Const. art. I, § 6. “[I]t follows that a defendant
has a right to a correct and complete charge of the law, so that each issue of fact raised by
the evidence will be submitted to the jury on proper instructions.” State v. Garrison, 40
S.W.3d 426, 432 (Tenn. 2000) (citing State v. Teel, 793 S.W.2d 236, 249 (Tenn. 1990)).
Accordingly, trial courts have a duty “to give a complete charge of the law applicable to the
facts of a case.” State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986) (citing State v.
Thompson, 519 S.W.2d 789, 792 (Tenn. 1975)). When reviewing challenged jury
instructions, we must look at “the charge as a whole in determining whether prejudicial error
has been committed.” In re Estate of Elam, 738 S.W.2d 169, 174 (Tenn. 1987) (citation
omitted); see State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). “‘An
instruction should be considered prejudicially erroneous only if the jury charge, when read
as a whole, fails to fairly submit the legal issues or misleads the jury as to the applicable
law.’” State v. Majors, 318 S.W.3d 850, 864-65 (Tenn. 2010) (quoting State v. Faulkner,
154 S.W.3d 48, 58 (Tenn. 2005)); see State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997)
(citing State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App. 1995); Graham v. State, 547
S.W.2d 531, 544 (Tenn. 1977)). “The misstatement of an element in jury instructions is
subject to constitutional harmless error analysis.” Faulkner, 154 S.W.3d at 60 (citing Pope
v. Illinois, 481 U.S. 497, 501-03 (1987)).

       We conclude the Petitioner has failed to establish that he was prejudiced by trial
counsel’s representation. In State v. Vernon Motley, No. W2010-01989-CCA-R3-CD, 2012
WL 1080479, at *4 (Tenn. Crim. App. Mar. 29, 2012), perm. app. denied (Tenn. Aug. 16,
2012), the trial court gave a special jury instruction regarding premeditation that was
identical to the one given in the Petitioner’s case. This court concluded that the jury’s guilty
verdict was “surely unattributable” to the erroneous instruction because the evidence of
premeditation was overwhelming:

              After review, we are convinced that the proof of premeditation was
       overwhelming in this case. Shaka Jones testified that, when the defendant
       found out she was pregnant, he threatened to kill her, her baby, and the victim.

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       She said that she avoided contact with the defendant and changed residences
       because of the defendant’s threats. She said that she also avoided the victim
       because she took the defendant’s threats seriously. Torre Smith testified that
       he saw the defendant run toward the victim, saying, “I’ve been waiting to catch
       you” and shoot at him as he was running away. There was no evidence that the
       victim was armed. After the crime, the defendant eluded apprehension for
       fourteen months, thus effectively secreting any evidence. In light of this
       evidence of premeditation, we conclude that the jury’s guilty verdict was
       “surely unattributable” to the erroneous jury instruction.

Id. at *6. As in Vernon Motley, the evidence of premeditation in the Petitioner’s case is
overwhelming.

        Moreover, the Petitioner’s reliance on State v. Brandon Compton and State v. Hollis
is misplaced. In Brandon Compton, 2006 WL 2924992, at *11, this court vacated the
defendant’s convictions for first degree murder and remanded the case for entry of
convictions for second degree murder after concluding that the evidence was insufficient to
establish the element of premeditation and that the special jury instruction on premeditation,
which differed slightly from the instruction given in the Petitioner’s case, was erroneous. It
held that there was insufficient proof of premeditation to sustain the defendant’s convictions
for first degree premeditated murder:

       Here, nothing in the record indicates that the Appellant was sufficiently “free
       from excitement and passion” at the time the intent to kill was formed. It is
       undisputed that the Appellant’s hostility was triggered by the victims’
       attempted theft of $1,000 in illicit drugs belonging to the Appellant. The
       entire event was over in seconds. If the purpose to kill is formed in passion
       and executed before the passion cools, it is murder in the second degree, not
       murder in the first degree. Thus, the absence of planning, the absence of prior
       hostility, and the circumstances surrounding the manner of the killings all
       mitigate against the presence of premeditation. By all accounts, the proof in
       the record reveals that the intent to kill was formed in passion following the
       theft of the Appellant’s marijuana. The shooting proceeded to a conclusion
       without any intervening or dispassionate reflection. Absent the element of
       premeditation, the Appellant’s conviction for first degree murder cannot stand.

Id. at *5 (internal citations omitted). The trial court gave the following special jury
instruction regarding premeditation:




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       The elements of premeditation and deliberation are questions for the jury that
       may be established by proof of the circumstances surrounding the killing.
       There are several factors that tend to support the existence of these elements
       which include: declarations by the defendant of an intent to kill, evidence of
       the procurement of a weapon, the use of a deadly weapon upon an unarmed
       victim, the particular cruelty of the killing, infliction of multiple wounds,
       preparation before the killing for concealment of the crime, destruction or
       secretion of the evidence of the murder, and calmness immediately after the
       killing.

Id. at *6 (footnote omitted). This court held that the special jury instruction in Brandon
Compton was erroneous because it failed to completely and accurately instruct the jury on
the element of premeditation:

       [W]hile these factors provided to the jury by the special instruction recite those
       factors enumerated by the Tennessee Supreme Court in Nichols and Jackson
       as appropriate factors for consideration as to the presence of premeditation at
       trial, case law has expounded upon their application and has concluded that
       certain of these factors are insufficient in and of themselves to warrant a
       finding of premeditation. Moreover, the form of the special instruction and the
       specific language, “There are several factors that tend to support the existence
       of these elements which includes . . . [,]” comes perilously close to the
       constitutional prohibition of the trial judge commenting upon the evidence.
       See Tenn. Const. art. VI, § 9. After review, we conclude that instructing the
       jury with regard to the factors, without also instructing on their expanded
       application, could have misled the jury as to the applicable law. Thus, the jury
       instruction, as given, failed to give a complete and accurate instruction of the
       applicable law.

Id. at *7.

        In State v. Hollis, 342 S.W.3d 43, 45 (Tenn. Crim. App. 2011), this court reversed the
defendant’s conviction for first degree premeditated murder and remanded the case for a new
trial, holding that although the evidence was sufficient to sustain the element of
premeditation, the trial court had committed reversible error by commenting on the evidence
and providing an incomplete statement of the law in its special jury instruction on
premeditation, which differed slightly from the one given in the Petitioner’s case. The trial
court provided the following special jury instruction regarding premeditation:




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                Factors which might, if proven, tend to indicate the existence of
       premeditation include declarations previously made by a defendant of an intent
       to kill, evidence of procurement of a weapon by a defendant prior to a killing,
       use of a deadly weapon upon an unarmed victim, particular cruelty of a killing,
       infliction of multiple wounds, destruction or secretion of evidence of a killing
       and a defendant’s calmness immediately after a killing. Should you find
       evidence of any such factor, you should give it such weight and value as you
       think it deserves along with all the other evidence in the case.

Id. at 49. The court concluded that the special instruction “contained an incomplete
statement of the law [that was] misleading to the jury” and “constituted an impermissible
comment by the trial court upon the evidence.” Id. at 51. In response to the trial court’s
assertion that the factors in the instruction came directly from the Tennessee Supreme
Court’s opinions on premeditation, the court noted that language in the special instruction
was “developed in the context of our supreme court’s evaluation of the sufficiency of the
evidence in first degree murder cases to determine whether there was sufficient proof, from
all evidence presented, by which a rational jury could have reasonably inferred
premeditation.” Id. It held that because the special instruction misstated the element of
premeditation, it fell within the category of a non-structural constitutional error requiring
reversal of the conviction unless the error was harmless beyond a reasonable doubt. Id. at
*51-52 (citing State v. Paul Wallace Dinwiddie, Jr., No. E2009-01752-CCA-R3-CD, 2010
WL 2889098, at *10 (Tenn. Crim. App. July 23, 2010)). Consequently, this court held that
the appropriate inquiry was not whether a guilty verdict surely would have been rendered in
a trial without the error but “‘whether the guilty verdict actually rendered in this trial was
surely unattributable to error.’” Id. at 52 (quoting Sullivan v. Louisiana, 508 U.S. 275, 279
(1993)). The court ultimately concluded, “[T]he proof of premeditation, although sufficient
to sustain the jury’s verdict, was not overwhelming, and we are simply unable to conclude
that the erroneous jury instruction did not have a ‘substantial and injurious effect or influence
in determining the jury’s verdict.’” Id. at 52 (quoting Hedgepeth v. Pulido, 555 U.S. 57, 58
(2008)).

       Unlike Brandon Compton and Hollis, the proof of premeditation in the Petitioner’s
case was overwhelming. On direct appeal, this court concluded that the proof presented at
trial was more than sufficient to support a finding of premeditation in the Petitioner’s case:

              Our review of the record amply supports the premeditation found by the
       jury; indeed, there is evidence to suggest that almost all of the factors
       suggested in Bland and Gentry are present. Physical evidence and testimony
       showed that the victim was unarmed and was slain by a firearm wielded by the
       defendant. Evidence of cruelty also exists–the victim was in her bed at the

                                              -10-
       time of the killing and was shot in the dark through her own bedroom window
       while her family members were present in the house. The victim’s neighbor,
       Roderick Bowen, testified that the defendant had made prior threats against the
       victim, including “[b]itch, I’ll kill you,” and “I’ll make a crime scene out of
       this.” There was also evidence of planning before the crime and concealment
       efforts afterwards. The defendant’s confession combined with security footage
       from his place of employment support a conclusion that the defendant
       attempted to set up an alibi prior to the killing by going to work, leaving his
       place of employment to kill the victim, and then returning to work as though
       nothing had happened. Additional evidence of the defendant’s concealment
       activities includes the testimony of his friend Ronnie McLemore, who testified
       that the defendant attempted to hide the murder weapon by giving it to him
       following the murder under the pretext of needing to keep it away from his
       son. Although evidence of many of these factors, standing alone, might have
       sufficed, taken together, the evidence presented at trial was fully sufficient to
       support the jury’s finding of premeditation.

Lakeith Humphrey, 2011 WL 890940, at *3. Therefore, we conclude that the guilty verdict
was “surely unattributable” to the special jury instruction on premeditation and that the
Petitioner was not prejudiced by trial counsel’s representation. Accordingly, we affirm the
judgment of the post-conviction court.

                                     CONCLUSION

       The judgment of the post-conviction court is affirmed.

                                                    ___________________________________
                                                    CAMILLE R. McMULLEN, JUDGE




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