### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs J

anuary 10, 2001
VERNON WEST v. STATE OF TENN ESSEE Direct Appeal from the Criminal Court for Shelby County

No. P-19669 W. Fred Axley, Judge

No. W1999-01604-CCA-R3-PC - Filed February 12, 2001

Vernon We st appeals the Shelby County Criminal Court’s dismissal of his petition for pos t

conviction relief. West collaterally attacks his conviction for second de g ree murder upon the grounds of ineffective assistance of counsel. Specifically, he conten ds that trial counsel was ineffective for failing to file a motion to sever, f o r failing to inve

stigate the cas

e and for failing

to call two witnesses to testify at trial. After review of the record, we affirm the trial court’s denial of post-conviction relief.

Tenn. R. App. P. 3; Ju

dgment of the Crim

inal Court Affirme

d.
D AVID G. H AYES , J., delivered the opinion of the court, in which J OE G. R ILEY and A LAN E. G LENN , JJ., joined. Jeffery S. G

latstein, Memphis, T

ennessee, for th

e Appellant, Ver

non West.
Paul G. Summers, Attorney General and Reporter , Michae l Moore, Solicitor G eneral, Kim R. Helper, Assistant Attorney General, WilliamL. Gibbons, District Attorney General, and William D. Bond, Assistant District Attorney General, for the Appellee, State of Tenne ssee.

OPINION

On July 19, 1995, the Appellant, Vernon West, was convicted of second degree murder and sentenced to twenty y

ears in the Tenne

ssee Departmen

t of Correction. H

is conviction and sentence were aff irmed on direct appeal to this court. See State v. Derenzy Turner and Ver

non West , No. 02C01-9512-CR-00390 (Te nn. Crim . App. at Jackson, July 11, 1997), perm. to appeal denied (Tenn. Feb. 23, 1998). On March 5, 1998, the Appellant filed a pro se petition for post-conviction relief1 The allegation of a Brady claim was no t raised on ap peal.
2 Notwithstanding our holding , we acknow ledge that a cla im that appellate counsel’s performance was deficient remained viable as it was no t yet ripe for dete rmination at trial. See, e.g.
. Jonath an A. Hyler v. State , No. 01C01-9511- CR-00362 (Tenn. Crim. Ap p. at Nashv ille, Sept. 19, 1 996), perm. to appeal denied , (Tenn. Mar. 3, 1997); Kirby George Wallac e v. State , No. 01C01-9308 -CC-00275 (Tenn. Crim. App. at Nashville, Sept. 15, 1994). -2- alleging ineffective

assis tance of trial counsel and a Brady violation. 1 Following appointment of counsel, an evidentiary hearing was held at whi ch time the post-conviction court denied the Appellant relief. On appeal, the Appellant argues that trial counsel was deficient for (1 ) failing to seek a severance of

his case at trial f

rom that of his

co-defendant,

(2) failing to inv

estigate certain aspects of the case no mor e than ten day

s before trial, a

nd (3) failing to

call two witnesses

to testify at trial. After rev

iew, we find no er

ror. Thus, we affirm

the Shelby County Criminal Court’s denial of relief.
The Appellant argues that he received ineffective assistance of counsel at trial. In response, the State contends that

“because petitioner has already litigated his claim of ineff ective assistance of counsel [on direct

appeal], his claim w

as previously

determined and no

t cognizable in his

postconviction petition.” We agree.
On direct appeal, the Appellant raised as an issue the ineffective

assistance of tri

al counsel. On e of the fa ctual grounds for ineffectiveness addressed the question of whether counsel was deficient for not seeking a severance of h is case at trial f

rom that of his co-d

efendant. This c

ourt, on direct appeal, found the Appellant’s ineffec t iveness claims without merit. State v. De renzy Tu rner and Vernon West

, No. 02C01-9512-CR

-00390. This identi

cal issue is aga

in raised on appe

al. Because it has previous ly bee n determined, any further review by this court is foreclosed. T ENN
. C ODE
. A NN . § 40-30-206(f). Moreover, as to the rem aining f actual allegations of deficient performance, ineffective assistance of co uns el i s gen eral ly a “single ground for relief” under the post-conviction statute. Cone v. State , 927 S.W.2d 579, 581-82 (Tenn. Crim. App. 1995), perm. to appeal denied (Tenn. 1996), cert. denied , 519 U.S. 934, 117 S. Ct. 309 (1996). “The fact that such violation may be proved by multiple acts or omissions does not change the fact that there remains only one ground for relief .” Frank McCray v. Sta

te , No. 01C01-9108-CR-00255 (Tenn. Crim. App. at Nashville, Sept. 11, 1992). A petition er ma y not relitigate previously deter mined grounds for relief simply by a dding factual basis for an ineffective as sistance of couns el claim. Cone , 927 S.W.2d at 581-82. Thus, the Appellant’s allegations of i neffective ass

istance of trial c

ounsel in this appea

l are waived bec

ause these claims have been previously determined on direct appeal. 2 See State v. Derenzy Turner and Vernon West , No. 02C01-9512-CR-00390.
Our holding today that

the Appellant’s claim of

ineffectiveness was previously determined is based upon this court’s ruling on direct appeal finding this claim without me

rit. The 1995 PostConviction Act prov

ides that:-3-

A ground for relief is previously determined if a court of competent jurisdiction has ruled on the merits after a full and fair hea

ring. A full

and fair hearing has occurred where the petitioner is afforded the opportunity to call witnesses and otherw ise present evidence, regardless of whether the petitioner actually introduced a n y evidence.
T ENN
. C ODE A NN
. § 40-30-206(h). The issue of ineffective ness of counsel, a

lthough not raise

d in the Appellant’s Motion for New Trial, was raised on direct appeal. State v. Derenzy Turner and Vernon West , No. 02C01-9512-CR-00390. Accordingly, consistent with the authority of House v. State , 911 S.W.2d 705, 706 (T enn. 1995), we co

nclude that the Ap

pell an t was provided the opportunity for a full and fair hearing sufficient to support a finding of “previous determination.” Id. (Tennessee ca

ses generally

dealing wit

h the concept o

f waiver in the post

-convict ion conte xt apply an objective standard and imput e the conduct of counsel to their clients). See, e.g. , Melvin Darrell Sawyer v. Sta

te , No. 01C01-9811-CR-0 0440 (Tenn. Crim. App. at Nashville, Nov. 29, 1999), perm. to appeal denied , (Tenn. Jun. 26, 2000 ); Jonathan A. Hy

le r v. State , No. 01C01-9511-CR00362; Jimmy Wayn

e Wilson v. State , No. 909 (Tenn. Crim. App. at Knoxville, May 29, 1991). This factual s ce nario again illustrates, as noted on direct appeal, that the practice of raising ineffective assistance of counsel claims on direct appeal is “fraught with peril” and should n

ormally be raised by pe

titions for post-conviction relief. State v. Derenzy Turner and Ver

non West , No. 02C01-9512-CR-00390. Again, for the for egoin g reasons, the Appellant’s claim of ineffective assistance of counsel is procedurally defaulted, having been previously

determined on dir

ect appeal. Thus, we affirm the Shelby County Criminal Court’s denial of post-conviction relief

.

___________________________________ DAVID G. HAYES, JUDGE