### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs A pr il 14, 200 9

ELR OY GAIN ES v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. 01-03286 Jame s M. Lamme y, Jr., Judge

No. W2008-01341-C CA-R 3-PC - Filed Augu st 5, 2009

The pe titioner, Elroy

Gaines, a ppeals the Shelby

County Criminal Court’s denial of his petition for
po st- c on vic tio n r e lie f. F oll ow ing a jur y tr ia l, he wa s c on vic te d of a g g ra vate d se xua l batte ry , a

Cla ss B f elony , and wa s subsequently sentenc ed as a care er of

fende r to thirty

y ear s in the Depa

rtment of Correc tion. On appea l, the petitioner ar g ues t hat he was denied his rig ht to the ef fec tive assistance of counse l based upon c ounsel’s failure to: (1) prope rly investigate the ca se and pr epar e for trial; (2) adequately

communicate w ith the petitioner; and (3) proper ly prese rve appellate issues. Following revie w of the r ecor d, the judg ment of the post-c onviction court is aff irmed.

Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

J OHN E VERET T W I L L I AMS , J., delivere d the opinion of the court, in which A LA N E. G LE NN a ndJ. C. M C L IN , JJ., joined.

Ju ni G a ng uli , M e mph is, Te nn e sse e , f or the app e lla nt, El ro y G a ine s.
Robert E. Cooper, Jr ., Attorney Ge nera l and Reporter ; Deshea Dulany Faughn, Assistant Attorney Gene ral; Will iam L. Gibbons, District Attorney Ge nera l; and Gre g Gilbert, Assistant District Attorney Ge nera l, for the a ppellee, State of

Tenne ssee.

OP IN ION

Fa c tu al B ac kgr ound

Th e re le va

nt u nd e rl y ingfa c ts o f t

he c a se , a s e sta

bli sh e d o n d ir e c t a

pp e a l, a re a s f oll ow s:

The thi rty -five- y ear -old victim, Renita Br own, t estified that on J uly 14, 2000, she left he r mother’ s residenc e with the [ petitioner] in order to pur chase marijuana

. She stated the [petitioner] gra bbed her and pulled her

into an alley an d
, wh en she started sc rea

ming, punc hed her in the eye. Br own testified the [petiti oner] took her to a par k wher e he choked her and made her perf orm oral sex on him. She stated the [petit ioner] f

orce d her to a ccompa

ny him to an empty house, wher e the [petitioner]-2-

ag ain forc ed her

to perfor m oral sex on him. Br own s tated she had ora l sex with the [petit ioner] beca

use he threatened to kill her with a brick he was holding . She stated the [pe tit ion e r] be a t he r w ithhis fi st o n h e r l e g s, c ho ke d h e r, c ov e re d h e r m ou th w ith his ha nd , a nd fo rc e d h e r t o h a ve va g ina l int e rc ours e “ fo r h ours ” be fo re sh e fi na lly “passe d out.” . . . .

Paulina Perkins, the vi ctim’s mother, t estified that on the m orning of Jul y 14, the victim appea

red at her house br

uised and blee ding w ith her clothes “ tore off of her.” Perkins stated the victim said she ha d been be aten by the [petiti oner].

State v. Elroy Gaine

s , No. W2003-01442-C C A- R 3 -C D (Tenn. Crim. App. at J ackson, Ma r. 30, 2004). At an e x amination the following morning , it was noted that the victim had a contusion on h er fore head, a swollen and bruised left ey e, bruises on both side s of her arms, and a very l ar ge wound on her

rig ht hip. Id . Medica l personnel we re una ble to perf

orm a gen i tal examination beca use there was “so much swelling ” and the are a wa s “ver y tender and ver y painful.” Id . I t was noted that the victim’s injuries wer e consistent with a f orcible r ape ha

ving oc curr ed within the day prior to th e e xa mi n a ti o n , a n d te s ti n g o n a

v a g in a l s a mp le ta

k e n f r o m t h e v ic ti m m a tc h e d

the petitioner’s DN A. Id

. Th e pe tit ion e r a c kn ow le dg e d th a t he ha d s e xua l in te rc ours e wi th t he vic tim but stated that it wa s consensua l. Id

. He fu rt her a dmitted that he had beaten the victim but contende d it was only

afte r she c ommented that he wa s involved in his nephew’s murde r. Id

. A Shelby County g rand jury indicted the petitioner for two counts of ag g ravated kidnapping and two counts of a g g ravated ra pe. F ollowing a

jur y t rial, he w as ac quitted on three c ounts and found g uilty

of ag g ravated s exual battery , as a le sser off ense of ag g ravated ra

pe, on the r emaining count. He w as subseque ntly sent en ce d as a c are er of fende r to a ter

m of thirty

y ear s in the Depa rtment of Corre ction. A direc t appea l was filed, c hallen gi n g only the suffic iency

of the evidenc e, and a panel of t his court affirmed the conviction. Id . Subsequently , the petitioner filed

a t i m e l y pr o s e petition for post-conviction relief alleg ing, among other g rounds, that he wa s denied his Si x th Amendment rig ht to the effe cti v e as sistance of counsel. F ollowing the a ppointment of counsel, a n am en d ed p eti tion was filed, and a hear ing w as conduc ted at which the petitioner, two trial counsels, a

nd appellate counsel testified.

P os t- Co nvi c ti on H e ar ing

Th e f i r s t w i t n e s s t o t e s t i f

y a t t h e h e a r i n g w a s t h e a s s i s t a n t p u b l i c d e f e n d e r a p p o i n t e d to
repr esent the pe titioner (“tria l counsel”) . Trial counse l was the division hea d of the major violators unit, wh e r e th e p e ti ti o n e r w o u ld b e tr ie d b a s e d u p o n h is p r io r

c o n v ic ti o n s f

o r v o lu n ta ry manslaug hter, attempted assault with rape , rec eiving and conc ealing stolen proper ty , acc essory

afte r the fa ct, murder

in the perpe tration o f a ro b b er y , g rand la rce ny , burg lary

of a building , and seve n

c ounts of a g g ra vate d a ssa

ult . T ri a l c ouns e l e xpla ine d to the pe tit ion e r t hat, i f c on vic te d, he wo uld be sente nced a s a ca

ree r off ender and could be subject to “60 y ear s, mandatory .”-3-

Trial counsel testified t hat s he wa s appointed to repr esent the pe titioner on April 1, and that his first repor

t date was May

11. She acknow ledg ed that the only pretria l motion which she filed, the di scover

y motion, was not filed unt il May 23, afte r t he first repor t date. Howeve r, she related that the g ener al pra ctice in the ma jor violator’s unit was for the S tate to prepa re the discovery

packe t and g ive it to defense counsel at arr aig nment. Trial counsel specific ally testified that she re ceive d

a dis c ov e ry

pa c ke t pr ior

to t he pe tit ion e r’ s r e po rt

date in t his c a se . T he mot ion

sh e su bs e qu e ntl y filed wa s prec autionary

following reindictment of the petitioner.

Trial counse l stated that she worke d more than se venty -five hour s on the petitioner’s c ase. She also testified that she visited with the petitioner at the jail on at least two occ asions, as we ll as
at var ious report dates. Additionally , when the pe titioner wanted to see trial counsel, he would notify he r an d he wo uld

the n b e br ou g ht t o th e c ourt ro om f or a me e tin g . A c c or din g to t

ri a l c ouns e l, t

his

occur red at l ea s t fo u r o r five times. In the four months prior to the tria l, trial counsel re called meeting with the petitioner “at least a c oupl e of times per month.” Additionally , trial counsel

re qu e ste d a

n a dd iti on a l a ssi sta

nt p ub lic de fe nd e r s it as se c on d- c ha ir on the c a se a nd me t w ithhim

on numerous occ asions to go over the file. Trial counsel also utiliz ed the se rvice s of an investig ator in her off ice.

Acc ording to trial counsel, bef ore the trial beg an, she a nd the investig ator met with the wi tne sse s the y we re a

ble to loc a te

. She te sti fi e d that the de fe nd a nt ha d pr e vio us ly g ive n th e m a lis t of witnesses but fa iled to include addr esses, phone numbers, or, in some instances, last names. She testified t hat t he petiti oner complained t o the trial cour t reg ardingher f

ailure to intervie w witnesses and re quested that she be relieved based upon he r fa ilure to investiga te. Howe ver, the trial court explained to the petitioner that trial counse l and the investi gat o r we re unable to conduc t the investigation based upon t he information he had supplied. The petiti oner the n supplied trial counsel with a more thoroug h list, and she and the investigator interviewe d the wit nesses they could locate

. Howeve r, ac cordingto trial counsel, none w ere ey ewitnesses to the crime and did not provide any useful information for the petitioner’ s defe nse. Tria l counsel ac knowledg ed that she did not speak with the v ic ti m b u t t e s ti f

ie d th a t i t w a s a

s tr a te g ic d e c is io n

. T h e v ic ti m h a d p r e v io u s ly

g iv e ntw o contra dictory sworn statements, which trial counsel intended to use to impeach t h e v ictim’s

c re dib i l i t y

. T r i a l c o u n s e l a l s o t e s t i f i e d t h a t s h e i n v e s t i g a t e d t h e v i c t i m ’ s c r i m i n a l h i s t o r y p ri or to trial.

Prior to trial, counsel advise d the petitioner that his pre vious criminal convictions could be used to impeac h him and advised him ag ainst testify ing, advice which t he petitioner did not follow. Howeve r, trial counse l testified that she did prepa re the petitioner for

testify ing by

telling him what
to e xpe c t; h ow e ve r, sh e did no t c on du c t a

moc k c ro ss- e xami natio n w ithhim

. During jury deliberations, the j ury asked a question reg ardingthe instructions for a g g ravated
rape and ra

pe. As a result of that question, the trial court a ltered the instructions. Accor ding to tria l counsel, the e lement of bodily injury h ad i n ad v er tently

been inc luded in the cha rg e for rape . The
court re moved the improper element f rom the cha

rg e. Additionally , the cour t added the element that the vic timdid

no t c on se nt t o th e c ha

rg e for agg rava ted ra

pe . T he c ourt

state d th a t it

ma de thi s-4-

a dd iti on be c a us e the ins tr

uc tio n, a s wr itt e n, wo uld

a llo w the jur

y to b e lie ve the pe tit ion e r a nd sti ll convict of a ggra vated r ape. T rial counse l did not object to the addition, despite the fac t that the added element was not presc ribed by statute as it added a

n additional element, thus incre asing the burden on the State. As noted, the jury found the petitioner not g uilty of ag g ravated ra

pe and r ape, convicting him only

of the lesse r off

ense of ag g ravated sexual battery . No amendment was made to the char g e for

the lesser offe nse.

Next to t estify

was sec ond-cha ir defe nse counsel. He testified that he wa s broug ht in later in the case “basic ally

to run interfe renc e betwe en trial c ounsel and [the petitioner] and to a nswer a ny quest i o ns the petitioner mig ht have r eg ardingthe trial.” H e testified that he rec alled that the witnesses sug g ested by

the petitioner we re not he lp fu l t o his defense . Finally , he testified that no objection was made to the altere d jury char g e, as it inured to the de fenda nt’s benef it by incre asing the State’s burde n of proof

. Appellate counsel was also called to testify at the hea ring and stated that the only issue raised on direc t appea l was suffic iency of the e vidence . When qu es t i o n ed reg ardingthe jury instruction

a lte ratio n, a

pp e llate c ouns e l state d that he did no t se e a ny thi ng imp ro pe r a

nd that he c e rt a inl y

wo uld not appea l something the pe titioner was ac quitted of, stating the re w as no basis to complain af ter the petitioner had be en ac quitted of ag g ravated ra pe. Appe llat e co u n s el s tated that he c ommunicated with the petitioner by

letter, sendingcopies of his brie f and tra nscripts to the petitioner.

Finally , the petitioner testified and a cknowledg ed that he ha d informed tria l counsel that he had sex with the victim and beat her , althoug h he cla imed the sex was consensua l

. He f urther acknow ledg ed that this was the strateg y pursued by

trial counsel. He comp l ai n ed that he did not

rec eive discove ry

materia l “ f

o r a b o ut t hr e e mo n th s ” f

o ll o w ing c ounsel’s appointment. The pe titioner went on to state that he filed multiple moti ons, which we re r uled upon by the trial cour t, beca use trial counsel did not file any . He testified that he gave trial counsel the na mes of four

or five w itnesses and that she made no eff

ort to speak with them. Acc ording to the petit ioner, trial counsel stated the re

was no ne ed to speak with the additional witnesses bec ause the victim had told so many l ies. He further testified t h at trial counsel ne ver visited him in jail and failed to re spond to his numerous letters. He testified that he a sked that trial counse l be re moved from his ca se and that he made a complaint to the Boa

rd of Profe ssional Responsibil ity . He c laimed t hat he met se cond-c hair c ounsel about five da

y s prior to trial and that ne ither attorne y prepa red him for

cross- ex am i n at i on. He acknow ledg ed that he te stified ag ainst the advice of counse l. He also testified that neither attorney

answe red his questions during t he trial. When he asked why they failed to object to the alter ation of the jury ch ar ge, t hey

told him t hat the trial judg e “r an the c ourtroom” a nd could do what he wanted.

Acc ording to the petitioner, trial counse l informed him that sufficie ncy of the evidenc e wa s the on ly iss ue tha t w ou ld b e ra ise d o n a

pp e a l. H e te sti fi e d that he wr ote nu me ro us le tte rs to a pp e llate counsel but did not rec eive a response befor e the appea l was filed. The pe titioner believed that the jury instruction issue should ha ve bee n included in the motion for new trial and should have been raised on a

ppeal.-5-

After hear ing the evidenc e pre sented, the post-c onviction court found that the pe titioner had failed to e stablish his claim of ineffe ctive assistance of counsel. Following the denial of his petition, the petitioner filed the instant tim ely appea l.

Ana lys is

On appea l, the petitioner asser ts that the post-conviction court err ed in de ny ing his petition for post-c onviction relief. Spec ifically
, he conte nds that the court e rre d in finding that trial counsel was not ineff

ective ba sed upon trial counse l’s failure to: (1) prope rly investigate the ca se and
pr e pa re fo r tr ia l; (2 ) a de qu a te ly

c omm un ic a te wi th t

he pe tit ion e r; a nd

(3 ) p ro pe rl y

pr e se rv e a

pp e llate issues. To succe ed on a challeng e of ineffe ctive assist ance of counse l, the petitioner bea rs the burde n of establishi ng the allegations set forth in his petition by clea r and c onvincingevidenc e. T.C.A. § 40-30-110( f) ( 2006). The pe titioner must demonstrate that counsel’s repre sentation fell below the
rang e of c ompetence demande d of attorne y s in criminal case s. Ba x te r v . R os e , 523 S.W .2d 930, 936 (Tenn. 1975). Under Strickland v. W ashington , 466 U.S. 668, 687, 104 S. C t. 2052, 2064 (1984), the petitioner must establish (1 ) d ef i cient per formanc e and ( 2) pre judice re sulting fr om the de fi c ie nc y . T he pe tit ion e r i s n ot e nti tle d to the b e ne fi t of hin ds ig ht, may

no t se c on d- g ue ss a

rea sonably based trial strategy , and cannot criticize a sound, but unsucce ssful, tactica l decision made during the cour se of the pr ocee dings. Ad k ins v . S tat e , 911 S.W .2d 334, 347 (Tenn. Crim. App. 1994). This defe renc e to the tac tical dec isions of trial counsel is depende nt upon a showing that the decisions wer e made afte r ade quate pr epar ation. Coo pe r v . S tat e , 8 47 S.W. 2d

52 1, 52 8 ( Te nn . Cr im. App. 1992).

I t is unnecessa

ry for a court to addr ess def

iciency an d p re judice in any

particula r orde r or

even to addre ss both if the petitioner makes a n insufficient showing on either. Strickland , 4 66 U. S.

a t 69 7, 10 4 S. Ct. a t 20 69 . In o rd e r t o e sta bli shpr e jud ic e , the pe tit ion e r m

us t e sta bli sha “ re a so na ble probability

that, but for counse l’s u

n p r ofessional e rror s, the result of the pr ocee ding w ould have be en differ ent. A re asonable probability is a probability

sufficie nt t o undermine c onfidenc e in the outcome.” State v. Burns
, 6 S

. W

. 3 d 4 5 3
, 4 6 3 (T en n

. 1 9 9 9 ) ( qu o t i n g Strickland
, 466 U.S. at 694, 104 S. Ct . at 2068).

The issues of de ficient pe rf o rm an ce by

counsel a

nd possible prejudice to the defe nse ar e mix ed questions of lawand fa ct. Id. a t 46 1. “ [A] tr ia l c ourt ’s findings of fact underlying a

claim of ineffe ctive assistanc e of c ounsel are revie wed on appea l under a de novo sta nd a rd , a c c omp a nie d w ith

a presumption that those finding s are corr ect unless the pre pondera nce of the evidenc e is otherwise .” Fi e lds v . S

tat e , 4 0 S. W.3 d 4 50 , 4 58 (T e nn

. 20 01 ) ( c iti ngTe nn . R. Ap p. P. 1 3( d) ; He nle yv . S tat e , 960 S.W .2d 572, 578 (Tenn. 1997)). How ever , conclusions of law ar e r e v i e w e d u n d e r a p u r e l y de novo standard w ith no presumption that the post-conviction court’s f indings a re c orre ct. Id.

Following the pre sentati o n of evide nce at the post-conviction hea ring , the cour

t made the following finding s with reg ard to the a mendment of the jury

char g e:-6-

An d b a sic a lly , [th e tr ia l c ourt ] ma de it - - g a ve the State so me thi ng e lse the y ha d to
prove w hich they

wer e unable to prove a

nd beca use of that, [the petitioner] did not
g et - - if he was found g uilty

of an Afelony

as a c are er of

fende r, he’ d be fa cing 120
y ear s rig ht now. . . . And but for the fac t that appar ently [t he trial c ourt] did t he rig ht thing, he went on about it, talking about what he s h o u l d d o and that basic ally if he did not do what he did, in his opinion he thoug ht the defe ndant would g et convicte d and he thoug ht it was the appropr iate thing to do.

To ob je c t to that by de fe ns e c ouns e l, fr a nk ly I thi nk wo uld be - - that w ou ld have be en inef

fec tive assistance of counse l if they would of obj ecte d to it, y ou know,

a nd if they had preva ile d. So I do n’ t se e ho w a

ny thi ngthe de fe ns e c ouns e l di d

a c tu a ll y in ju r e d [t h e p e ti ti o n e r

. ]

I n it s w ri tte n o rd e r d e nyingre lie f, the po st- c on vic tio n c ourt fu rt he r f ound :
[The p] etitioner conte nds that counsel fa iled to timely secur e discove ry materia ls in ti me to a dequate ly investigate the ca se. [Trial counsel] testified that the discovery motion was filed May

23, 2001. [Tria l counsel] further testified that d is c o v e r y p a c k e ts w e r e u s u a ll y a lr e a dy p r e p a r e d
, e n a b li n g c o u n s e l to g et the dis c ov e ry ma te ri als on

a rr a ig nme nt d a te . T he la te r m oti on fo r d isc ov e ry

wa s a protec tive measure to e nsure counsel had rec eived all materia ls. This Court finds that [t rial counse l] exercised r easona ble profe ssional judg ment in se curing the discover y materia ls.

. . . . [The p] etitioner cla ims counsel failed to c onduct a full and adequate pre -trial investigation. Specifica lly
, [t he p]etit ioner contends that counsel did not interview potential witnesses and ignor ed im portant aspects of t he investi g ation, including the

c on se ns ua l pa st r e la tio ns be tw e e n [the p] eti tio ne r a nd the vic tim . [T ri a l c ouns e l] testified that she submitted the ca se for investigation and she met with witnesses she

wa s a ble to f ind . [T ri a l c ouns e l] a lso te sti fi e d th a t [th e p]e tit ion e r d id n ot s up ply addre sses or phone numbe rs for w itnesses, nor did [the p]etitioner provide last name s

un til sh or tly be fo re tr ia l. T his c ourt

fi nd s th a t [tr ia l c ouns e l] e xer cise d r e a so na ble profe ssional judgme n t an d that the re prese ntation did not fall below an objec tive
sta nd a rd of re a so na ble ne ss.

. . . . [Th e p]e tit ion e r c on te nd s that c ouns e l wa s ine ff e c tiv e fo r fa ilure to me e t w ith [t he p]etitioner as nec essar y

. . . . [ T ri al counsel] testified that she met with [the p]etit ioner in the jail on at lea st two occa sions. [Trial counsel] also testified that she met with [t he p] etitioner another four or five times on non-trial or r eport da tes in the-7-

courtroom. This Court finds that [the p] etitioner has fai l ed to prove how [trial counsel] acted be low an objec tive rea sonable standa rd.

. . . . [The p] etitioner conte nds that couns el d id not object to the trial court’ s amending the jury

instructions, w aiving the issue for appea l. [Trial counsel] testified that she did not object t o the j ury instruction amendment because it added a n element the Sta t e t o p r o v e

. [S e c o n d

- c h a i r c o u n s e l ] t e s t i f i e d t h a t a d d i n g t h e e l e m e n t w a s a benef it for [the p] etitioner. [The p]etit ioner has failed to pr ove how counsel’s a ction fell below a

n objectively

rea sonable standa

rd.

Appellate Counsel f

ailed to ra ise the jury

instruction amendment issue under plain err or, thus waiv i n g the issue. [Appellate counse l] testified that he would not raise some thing on a

ppeal if a defe ndant was a cq u i t t ed

. As [the p] etitioner wa s convicted of

a lesser included off

ense, [appellate counsel] ma de a tac tical dec ision to not appeal this issue. This Court finds that [ ap p el l at e counsel] exercised

rea sonably

objective r epre sentation.

I. F ailure to Investigate and Pre pare

On a pp e a l, t he pe tit ion e r f

ir st c on te nd s th a t tr ia l c ouns e l w a s in e ff e c tiv e fo r f

a ilur e to pr op e rl y inv e sti g a te a

nd pr e pa re the c a se

. Spe c if

ic a lly
, he a sse rt s that tr ia l c ouns e l f a ile d to tim e ly file appr o p ri at e d i s co v ery

m o t i o n s , p ro p er l y

i n v es t i gat e d ef

en s e w i t n esses, a

nd interview pr osecution wi tne sse s, sp e c if

ic a lly the vic tim

. He a rgue s that “ in thi s mul tip le of fe ns e fe lony

c a se , [tr ia l c ouns e l] fi le d o nly on e pr e -t ri a l mo tio n, inv e sti g a te d w itn e sse s o nly a fe w w e e ks be fo re tr ia l, and chose to not investigate the victim in the twenty [-] two[-] month period that [the petitioner] awaited trial.”

Wit h reg ard to the discove ry motion, trial counsel, as obser ved by the post-conviction cour

t in its finding s, testified that she re ceive d a discove ry packe t from the State prior to the f iling of the motion, which the petitioner i g nores in his argument. Trial counse l also specific ally stated that the motion was filed only

as a pr otective mea sure to insu re t h at s h e wa s in possession of all releva nt information following reindictment. Clear ly , based upon its finding s, the post -c o n v i cti on court

acc redited the testimony

of trial counse l, and i t i s n o t t he provinc e of this cour t to rewe igh or

ree valuate suc h a dete rmination. See H enley , 960 S.W .2d at 579. Reg ardle ss, the petitioner fa iled to put forth evidenc e of any discovery materia l w hich was not timely rec eived that would have a ided in his de f e n s e

. Wi th

r e g a r d to h is a r g u me n t t

h a t t r ia l c o u n s e l f

il e d o n ly o n e s in g le mo ti o n in

the

c a se , th e pe tit ion e r ha s like wi se fa ile d to pre se nt pr oo f that any su c h moti on wo uld have inu re d to his benefit. In fac t, the rec ord establishes that multiple motions were f iled b y t h e petitioner and denied by the trial cour

t.

L ikewise, with re g ard to the pe titioner’s as sertion that trial counse l only interviewe d witnesses immediately

prior to trial, trial counsel g ave a valid explanation as to why this occurr ed,-8-

wh ic h th e po st- c on vic tio n c ourt a g a in a c c re dit e d b a se d up on its fi nd ing s. Ac c or din g to t ri a l c ouns e l, the pe tit ion e r f

a ile d to pr ov ide the m w ithe no ug h in fo rm a tio n to loc a te the wi tne sse s. I mme diate ly afte r th e tr ia l c o u rt in s tr u c te d th e p e ti ti o n e r to p r o v id e th e in f o r mati o n , tr ia l c o u n s e l and an investigator beg an i n terview ing the witnesses. Tria l counsel ca nnot be held re sponsible for the petitioner’s fa ilure. More over, both trial c ounsel and se co n d -cha ir counsel testified that the witnesses they

interviewe d wer e not ey ewitnesses to the c rime and w ere unable to provide any useful inf or ma tio n to the de fe ns e . B e c a us e the peti ti on er f

a ile d to pr e se nt t

he se wi tne sse s at th e po stc on vic tio n h e a ri ng , b oth

thi s c ourt a nd the po st- c on vic tio n c ourt are un a ble to d e te rm ine wh a t th e ir
te s ti mo n y w o u ld h a v e b e e n

. I t is th e p e ti ti o n e r ’ s b u r d e n to p r e s e n t s u c h w it n e s s e s. See B l ack v

. Sta te , 794 S.W .2d 752, 757 (Tenn. Crim. App. 1990)

. The pe titioner also contends that trial c ounsel was inef fec tive in failing to inve s tigate the victim. However , he off

ere d no proof of what such inve stigation would have re veale d. See B lack
, 794 S.W .2d at 757. Moreove r, trial counse l t es t i fi ed that she did revie w statements made by the vic tim , a s w e ll a s th e vic tim ’s pr ior c ri min a l his tor y . A ft e r a de qu a te pr e pa

ratio n, tr ia l c ouns e l c ho se to p u r s u e a

v a l i d s t r a t e g y o f i mp e a c h m e n tb a s e d

u p o n i n c o n s i s t e n c i e s i n t h e v i c t i m ’ s s t a te me nts , which wa s apparen t l y s u ccessful at trial. See Coope r , 847 S.W .2d at 528. This issue is without merit.

II. Adequate Com m uni cation

Ne xt, th e pe tit ion e r c on te nd s th a t tr ia l c ouns e l fa ile d to a de qu a te ly c omm un ic a te wi th h im, based upon the ir poor wor king r elationship, and asser ts that trial counsel wa s “sca red of her c lient.” Whi l e t h e p e t i t i o n e r t e s t i f i e d t h a t t r i a l c o u n s e l r a r e l y m e t w i t h h i m a n d f a i l e d t o r e s p on d to his

corr espondenc e, the post-c onviction court, ag ain acc rediting the contra dictory testimony

g iven by
tr ia l c ouns e l, fo un d tha t tria l couns e l had su ff ic ie ntl y me t with the pe tit ion e r. Th e re c or d s up po rt s this finding, as tria l counsel testified that she met with the petitioner on at least two occa sions at the jail, a nother four or

five times in the cour

troom on non-re port dates, a nd wrote the petitioner seve ral letters advising him of the status. Trial counsel also testified that betwe en De cembe r of 2002 a nd Marc h of 2003, s h e m et t h e petitioner “at least a c ouple of times a month.” While trial counsel acknow ledg ed that she a

nd the petitioner had a

poor workingrelationship, she continued to repre sent him. Moreove r, following t he petiti oner’ s complaint to the trial cour t, a hea ring was he ld at which the petitioner e ventually

ag ree d that she should continue with her repr esentation. Base d upon the record b e fo re us , w e a re un a ble to c on c lud e that th e re c or d p re po nd e ra te s a g a ins t th e po stconviction’s cour

ts finding that the pe titioner failed to esta blish how trial counsel ac ted below a n objective r easona

ble standar d.

III. App ellate Issues

Th e pe tit ion e r al so c on te nd s tha t his att or ne y s fa ile d to pro pe rl y

pr e se rv e g ro un ds fo r a

pp e a l,
sp e c if ic a lly
, by fa ili ng “ to ob

je c t to a lte ratio ns ma de to the jur y ins tr uc tio n, to inc lud e a ll iss ue s in the mot ion

fo r n e w tri a l, a

nd fu rt he r t o p ro pe rl y

inv e st igat e all ground s f or a pp e a l.” He a lso contends that a

ppellate c ounsel was ineffec tive by failing to “fully familiarize himself with the client-9-

and with the tec hnical re cord be fore filing the appea l.” Howeve r, nothing preponde rate s ag ainst the
pos t -convic tion court’s finding s with reg ard to this issue. All the attorney s involved in the petitioner’s re prese ntation testified that the alteration of the cha rg e inure d to his benefit by requiring an additional ele ment to be prove n by the State. M oreove r, t he petiti oner was not convicted of the crime f or which the char g e was amende d. Thus, the petitioner cannot show pr ejudice ba sed upon the amendment or how counsel was defic ient for failing to prese rve or raise the issue. Fur thermore
, the pe tit ion e r ha s p oin te d to no oth e r i ssu e s w hic h w ou ld h a ve be e n me ri tor iou s if ra ise d o n a

pp e a l; indeed, he has pointed to no other a ppeala ble issues. The pe titioner bear s the burden of establishing the m erits of a claim, which was not appea lable, in order to be entitl ed to relief

. Car pe nte r v . S

tat e , 12 6 S. W.3 d 8 79 , 8 87 (T e nn . 2 00 4) . T his iss ue is w ith ou t me ri t.

Finally , the petitioner, c onceding“that [ whi le] each a lleg ed deviation perhaps doe s not individually

war rant a deter

mination of ineff

ective a ssistance of c ounsel[,] [t ]he cumulative eff ect of these e rror s, howeve r, illustrates prior c ounsel’s ineptitude.” We disag ree . The pe titioner has fa ile d to c a rr

y his burd e n that his c ouns e l de viate d fr om the re qu ir e d sta nd a rd of a ssi sta

nc e . T hu s, there can be no cumulative ef fec t.

CO NC LU SION

Ba sed upon the for eg oing, the denial of post-c onviction relief is a ffirme d.

___________________________________ JOHN EVE RETT WILL IAMS, JUDGE