IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 29, 2020

CAREY R. FAUGHT v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 105530 Bobby R. McGee, Judge

No. E2019-00436-CCA-R3-PC

The Petitioner, Carey R. Faught, appeals from the Knox County Criminal Court’s denial 

of his petition for post-conviction relief from his jury trial convictions of aggravated 

burglary, employing a firearm during a dangerous felony, reckless endangerment, two 

counts of attempted aggravated robbery, and two counts of especially aggravated 

robbery, and his effective forty-eight-year sentence. He contends that the post-conviction 

court erred in denying relief on his claim that he received the ineffective assistance of 

counsel because counsel failed to challenge an impermissibly suggestive photograph 

lineup. We affirm the judgment of the post-conviction court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ROBERT 

W. WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the Appellant, Carey R. Faught.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior 

Assistant Attorney General; Charme Allen, District Attorney General; Ta Kisha 

Fitzgerald, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The Petitioner’s convictions result from a home invasion and robbery. The 

mother of the Petitioner’s children contacted the authorities and later testified at the 

Petitioner’s trial that the Petitioner had confessed details of the crimes to her in a 

telephone conversation. State v. Carey Faught, No. E2012-02419-CCA-R3-CD, 2014 

WL 12653822, at *1 (Tenn. Crim. App. Mar. 3, 2014). Two accomplices testified about 

the offenses, including the Petitioner’s involvement in them. Id. at *1-2. A victim 

testified that he had identified the Petitioner in a photograph lineup as one of the 

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perpetrators, although he was unable to identify the Petitioner at the trial. A police 

officer testified at the trial that the Petitioner was biracial and that the photograph lineup 

included “‘light-skinned’ males” who were not white.

The Petitioner’s convictions were affirmed on appeal. See id. Thereafter, he filed 

the present post-conviction action, in which he alleged numerous constitutional 

shortcomings in the conviction proceedings. Because his appeal is limited to the question 

of whether the post-conviction court erred in denying his claim of the ineffective 

assistance of counsel related to counsel’s failure to challenge the photograph lineup, we 

will limit our recitation of the evidence to that which is relevant to this issue.

At the post-conviction hearing, the Petitioner testified that the only discovery he 

saw before the trial was a police report and the photograph lineup from which the victim 

had identified him. The Petitioner said he advised trial counsel of the Petitioner’s 

concerns that the Petitioner was the only biracial person in the lineup. The Petitioner said 

that by “biracial,” he meant “black and white.” He said the other individuals in the 

photograph lineup were Hispanic. The Petitioner said he pointed out to counsel that 

although the police report stated “they were looking for two white males, not of Hispanic 

race,” the lineup had been compiled with photographs of five Hispanic individuals. The 

Petitioner identified the photograph lineup that had been introduced at the trial and 

agreed he was in the bottom, center position. The Petitioner testified that he had “lightcolor” hair and blue eyes and that the other individuals in the lineup had black hair and 

brown eyes. He said he also tried to explain to counsel that the Petitioner’s photograph in 

the lineup was several years old and that his appearance had been different when the 

photograph had been made. He agreed he had “a little bit of hair” in his photograph in

the lineup and said he had been “smaller” in the photograph. He estimated that the 

photograph had been taken in 2006, whereas the offenses in the present case occurred in 

2011.

The Petitioner was unsure whether trial counsel filed a motion to suppress 

evidence of the victim’s identification of him from the photograph lineup. The Petitioner

did not recall the victim’s identifying him or testifying about the photograph lineup at the 

preliminary hearing.

The Petitioner testified that trial counsel showed him two versions of the 

photograph lineup: one that was black and white, and one that was color. He agreed that 

the color lineup was introduced at the trial. When asked if the skin tones of the other 

individuals in the lineup were similar or different from his skin tone, he said, “Some of 

them look similar to me.” He acknowledged that some had hairstyles similar to his. He 

said, however, that his photograph in the lineup did not resemble his appearance at the 

time of the crimes. He said a viewer could tell his eyes were blue “[a] tad bit” in the 

photograph and said his eyes were different from the others’ eyes. 
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The Petitioner testified that he did not commit the crimes and said his accomplices 

and the mother of his children had lied about his involvement. The Petitioner said the 

victim had been erroneous in the victim’s identification of the Petitioner in the 

photograph lineup. 

Trial counsel testified that he had represented the Petitioner in a carjacking case 

before he represented the Petitioner in the conviction proceedings in this case. Counsel 

said that in the previous case, the photograph lineup was “a central issue” because the 

individuals other than the Petitioner who were depicted were “five dark-skinned AfricanAmericans.” Counsel did not think he had discussed filing a motion to suppress with the 

Petitioner in the present case because he had not thought a sufficient disparity in skin 

color existed in the lineup and because he thought the victim would be unable to identify 

the Petitioner at the trial. He thought the victim ultimately had not been able to identify 

the Petitioner at the trial. 

After receiving the evidence, the post-conviction court noted that the victim had 

been unable to identify the Petitioner at the trial, although the victim testified that he had 

identified the Petitioner from a photograph lineup. The court found that the Petitioner 

had not established by clear and convincing evidence that he had received the ineffective 

assistance of counsel. The court found that the Petitioner had presented no evidence of 

prejudice from trial counsel’s failure to challenge the photograph lineup. The court noted 

the eyewitness testimony that the Petitioner had been present for the crime and had been 

the shooter and the Petitioner’s confession to the mother of his children that he had shot 

the victim.

On appeal, the Petitioner contends that the post-conviction court erred in denying 

relief on his ineffective assistance of counsel claim relative to the lack of a motion to 

suppress the photograph lineup. 

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 (2018). A

petitioner has the burden of proving his factual allegations by clear and convincing 

evidence. Id. § 40-30-110(f) (2018). 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. 
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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.

The Petitioner argues that trial counsel was ineffective by failing to challenge the 

photograph lineup because it was impermissibly suggestive in that the individuals 

depicted other than the Petitioner were Hispanic, whereas the Petitioner is biracial, and 

the photograph of the Petitioner was several years old and did not accurately depict his 

appearance at the time of the crimes.

Trial counsel testified that he had challenged a photograph lineup in a previous 

case in which he represented the Petitioner but that he did not think a sufficient basis 

existed for suppression in this case because, in his view, no sufficient disparity in skin 

color between the Petitioner and the other individuals existed in the lineup. Also, counsel 

thought the victim would not be able to identify the Petitioner at the trial. 

The photograph lineup was received as an exhibit at the post-conviction hearing. 

It depicts six young men, all of whom have short haircuts and short facial hair. The 
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Petitioner’s skin tone appears neither substantially lighter nor darker than any of the other 

individuals. To the extent that the Petitioner testified that he had blue eyes, his eye color 

is not discernible as blue in the lineup. 

The evidence supports the post-conviction court’s determination that the Petitioner 

did not receive the ineffective assistance of counsel. Trial counsel made an informed 

decision not to challenge the lineup because he did not believe it was impermissibly 

suggestive and because he did not think the victim would be able to identify the 

Petitioner at the trial. In addition, even if the lineup had been suppressed, other evidence 

existed to identify the Petitioner as a participant and as the shooter, including the 

testimony of the Petitioner’s accomplices and the mother of the Petitioner’s children, to 

whom the Petitioner had confessed. 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