IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

November 13, 2013 Session

QAWI NUR, aka DARRIUS JAMES v. STATE OF TENNESSEE 

Appeal from the Criminal Court for Shelby County

No. 02-06231 W. Otis Higgs, Jr., Judge

No. W2013-00434-CCA-R3-PC - Filed January 22, 2014

The petitioner, Qawi Nur, also known as Darrius James, appeals the post-conviction court’s

denial of his petition for post-conviction relief, arguing that he received the ineffective

assistance of counsel. After review, we affirm the denial of the petition.

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

ALAN E. GLENN, J., delivered the opinion of the Court, in which ROBERT W. WEDEMEYER

and ROGER A. PAGE, JJ., joined.

Gregory D. Allen (on appeal) and Juni Ganguli (at hearing), Memphis, Tennessee, for the

appellant, Qawi Nur, aka Darrius James.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;

Amy P. Weirich, District Attorney General; and Alexia Crump, Anita Spinetta, Charles

Summers, and David Zak, Assistant District Attorneys General, for the appellee, State of

Tennessee.

OPINION

FACTS

The petitioner was convicted by a Shelby County Criminal Court jury of one count of

first degree felony murder and one count of second degree murder, which the trial court

merged into one conviction for first degree felony murder. State v. Qawi Nur, a/k/a Darrius

James, No. W2004-01259-CCA-R3-CD, 2005 WL 1467904, at *1 (Tenn. Crim. App. June

21, 2005), perm. app. denied (Tenn. Oct. 24, 2005). He was sentenced to life imprisonment

without the possibility of parole. Id. This court affirmed his convictions on direct appeal,

and the Tennessee Supreme Court denied permission to appeal. Id.
The underlying facts of the case were recited by this court on direct appeal as follows:

Christie Lee Holmes was the girlfriend of the victim, David Romanoli.

Immediately prior to the shooting, Ms. Holmes, the victim, the victim’s

younger brother, James, and his friend, Steven Inglis, were sitting in a

bathroom in the victim’s second floor apartment smoking marijuana. The

group heard someone kick the front door open. The victim left the bathroom,

and Ms. Holmes heard him call out, asking who the intruder was and what he

or she wanted.

Ms. Holmes followed the victim as he ran down the stairs after the

intruder. When she reached the ground floor, Ms. Holmes saw a black car

drive by with its doors open. A woman was running after the car, trying to flag

it down. Ms. Holmes chased the woman. The woman stopped, and an

African-American man stepped out of some bushes near the apartment

building. Ms. Holmes said that the woman told the man “to shoot [Ms.

Holmes], shoot her, pop a cap in her ass, too.” Ms. Holmes saw that the man

was unarmed and demanded his name. The man and woman ran away.

Ms. Holmes identified [the petitioner] and Melissa Swift from photo

line-ups asthe man and woman she encountered outside the victim’s apartment

building. Ms. Holmes said that [the petitioner] was wearing a white shirt,

baggy jeans, and tennis shoes when she saw him. Ms. Holmes did not see the

shooting nor did she hear gunshots.

David Barnwell, the victim’s neighbor, said that he heard gunshots and

stepped out onto his second floor patio. He saw a woman run past his

apartment followed by an African-American man wearing baggy jeans and a

red baseball cap.

Officer Hope Bebout with the Memphis Police Department found a red

cap in a bush next to the apartment building. A pair of red nylon sweat pants

and a bandana were also found behind the building. Officer Robert Harris

found a .38 caliber revolver in a bush next to the apartment building’s back

stairwell. Officer Sherman Bonds said that the .38 caliber revolver had four

spent casings and two live rounds. Heath Barker, a special agent with the

Tennessee Bureau of Investigation, testified that the bullet removed from the

victim’s body during the autopsy was fired from the .38 caliber revolver found

at the crime scene.

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Nina Sublette, a nurse practitioner, took a blood sample from [the

petitioner] for the purpose of DNA sampling. Special Agent Lawrence James

attempted to obtain a DNA sample from the clothes found at the crime scene.

Agent James was unable to secure a sample from the pants or bandana. The

DNA sample taken from the red cap contained DNA from two contributors,

one of whom was possibly [the petitioner]. The DNA analysis indicated that

the probability of obtaining that mixed profile from the African-American

population is approximately one in eight. Although the DNA sample did not

conclusively match [the petitioner’s], he could not be excluded as a

contributor.

Dr. Teresa Allen Campbell performed the victim’s autopsy. Dr.

Campbell said that the cause of death was a gunshot wound to the right side

of the chest. The bullet struck the victim’s left lung and aorta and did not exit

the body. There was no soot around the wound indicating that the shooter was

more than two feet from the victim when the gun was discharged.

Melissa Swift testified that she was indicted for first degree felony

murder in connection with the victim’s shooting, but pled guilty to the lesser

included offense of facilitation of first degree felony murder. On the afternoon

of the shooting, Ms. Swift met Coty Childress and Jennifer Mohrhoff at a gas

station, and invited the women to her apartment to smoke marijuana. When

the marijuana was gone, Ms. Childress said that the victim had a supply of

marijuana and suggested that the group rob him. Ms. Swift called [the

petitioner] and asked him to go with the women. The three women picked [the

petitioner] up at his apartment and then drove to the victim’s apartment

building.

Ms. Swift said that she and [the petitioner] went upstairs and knocked

on the victim’s front door. No one answered, and the two returned to the car.

[The petitioner] and Ms. Childress then went up the stairs while Ms. Swift

waited outside. Ms. Childress knocked on the door, and, once again, no one

answered. [The petitioner] kicked the front door down. Ms. Childress and

[the petitioner] went inside the apartment but ran back out in a few seconds.

[The petitioner] pushed Ms. Childressinto Ms. Swift as he ran down the stairs.

Ms. Childress hurt her ankle and ran toward the car. Ms. Swift said a man

came down the stairs behind [the petitioner] and Ms. Childress.

Ms. Swift ran around the corner of the apartment building. She saw

[the petitioner] coming toward her with a gun in his hand. Ms. Swift said that

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she heard gunshots but did not see [the petitioner] shoot the victim. [The

petitioner] took off some of his clothes and hid the clothes and gun behind the

apartment building. Ms. Swift said that she and [the petitioner] got back into

the car and returned to Ms. Swift’s apartment. When he got into the car, [the

petitioner] said, “I think I shot him.” Ms. Swift said that she was not armed

that afternoon.

On cross-examination, Ms. Swift said that she saw Ms. Holmes as she

ran away from the scene. Ms. Swift said she initially thought that the victim

had fired a gun. She did not see [the petitioner’s] gun when he first got in the

car prior to the incident. [The petitioner] left Ms. Swift’s apartment, and Ms.

Swift and her friends ate dinner at a local restaurant.

Ms. Mohrhoff said that she was indicted for facilitation of first degree

felony murder in connection with the shooting. Ms. Mohrhoff generally

confirmed Ms. Swift’s description of the sequence of events that afternoon.

Ms. Mohrhoff said that she and her friends, April Smith and Coty Childress,

saw Ms. Swift and her friend, Dara Wiginton, at a gas station, and the group

went to Ms. Swift’s apartment to smoke marijuana. Ms. Mohrhoff said that

Ms. Childress told them where they could getsome more drugs. Ms. Mohrhoff

drove Ms. Smith’s car first to [the petitioner’s] apartment and then the

victim’s. Ms. Wiginton and Ms. Smith stayed behind at Ms. Swift’s

apartment.

Ms. Mohrhoff said that Ms. Swift and [the petitioner] went to the

victim’s apartment on the second floor and knocked on the door. When no one

answered the knock, Ms. Swift and [the petitioner] came back downstairs. Ms.

Childress and [the petitioner] then went upstairs and knocked on the door. Ms.

Mohrhoff said that [the petitioner] came running down the stairs followed by

Ms. Childress. The victim chased Ms. Swift and [the petitioner] around a

corner of the apartment building, and Ms. Mohrhoff heard gunshots. She and

Ms. Childress drove off.

Ms. Mohrhoff said that she had trouble driving because she was so

nervous, and pulled the car over to the side of the street. She saw Ms. Swift

and [the petitioner] run up behind the car. Both of them got in, and Ms. Swift

directed Ms. Mohrhoff to drive back to Ms. Swift’s apartment. [The

petitioner] said that he had fired his gun but did not know whether or not he

had shot the victim.

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Ms. Mohrhoff said that [the petitioner] was wearing red pants and a tee

shirt when he first got into the car, but she did not remember whether or not

he was wearing a hat. Ms. Mohrhoff remembered seeing another woman at the

crime scene that afternoon. Ms. Mohrhoff said that news of the shooting was

on television that night, but the license plate number of the car reportedly seen

at the scene was not Ms. Smith’s. The group ate dinner at a local restaurant

and then returned to Ms. Swift’s apartment. Ms. Mohrhoff’s next-door

neighbor called and said that the police had Ms. Smith’s license plate number.

The police were waiting at Ms. Mohrhoff’s apartment when she, Ms. Smith,

and Ms. Childress arrived.

Id. at *1-3.

Thereafter, the petitioner filed a timely pro se petition for post-conviction relief and,

after the appointment of counsel, two amended petitions. Among the allegations raised in

his petitions, the petitioner alleged, as on appeal, that he received the ineffective assistance

of counsel because counsel failed to contact alibi witnesses, failed to investigate

inconsistencies in the statements of his accomplices, failed to request independent DNA

testing, and argued in closing argument that the petitioner was present in the area during the

time of the murder.

The post-conviction court conducted an evidentiary hearing, at which the petitioner’s

trial counsel testified that she had worked in the public defender’s office for over twenty-one

years. She said that the petitioner had a previous conviction for second degree murder.

Because the State filed a notice of intent to seek the death penalty, the capital case team, of

which counsel was a part, worked on the petitioner’s case. Counsel recalled that she filed

numerous motions on the petitioner’s behalf.

Counsel stated that the State’s case was based on the testimony of the victim’s

girlfriend, Christie Holmes, and two of the petitioner’s accomplices, Melissa Swift and

Jennifer Mohrhoff, as well as “DNA testing that could not exclude [the petitioner] as

someone who had worn the clothing that had been discarded . . . running away from the

scene.” Swift pled guilty to facilitation of first degree murder prior to the petitioner’s trial,

so counsel had no problem interviewing her. Counsel or a member of the defense team also

interviewed several other witnesses from the apartment complex. Counsel was unable to

interview Mohrhoff because her case was pending, and counsel was notsure whether Holmes

was interviewed. However, counsel said that she had a copy of all their statements prior to

trial. Counsel stated that Mohrhoff identified the petitioner out of a single photograph. She

said that Coty Childress, another accomplice who did not testify at trial, identified the

petitioner from a single photograph as well. Counsel was not sure if Childress was

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interviewed. Counsel filed motions to suppress the photographic identifications. Counsel

cross-examined Mohrhoff and Holmes at a hearing to suppress their identifications.

Counsel testified that she interviewed the State’s expert before trial and, after

interviewing him, made the tactical decision to not call her own expert or seek independent

testing. She was concerned that an independent test could return more incriminating results

than the State’s test, which she would be obligated to turn over, and because there were

eyewitnesses who placed the petitioner at the scene. Counsel stated that the DNA evidence

against the petitioner was not “real hard clad” and easily allowed her to argue reasonable

doubt.

Regarding the alibi issue, counsel recalled that the petitioner initially told her that he

was doing drugs and having an orgy with the three female accomplices on the morning of the

crime and then he passed out and woke up around 11:00 p.m. or midnight. He said that a

couple of days later he decided to go to New Orleans. Counsel recounted that the petitioner

later changed his story and said that he was in New Orleans at the time of the crime. The

petitioner gave her the name of Charrel Reed to call in New Orleans to confirm his story, and

counsel or someone in her office attempted to contact Reed but was ultimately unable to

confirm the petitioner’s story. Moreover, by the time of trial, the petitioner was no longer

insisting on an alibi defense. Their defense at trial was that the petitioner was not the

shooter, “[o]r truthfully more trying to blow holes in the State’s case.” She said that, at trial,

she attempted to discredit the State’s witnesses and tried to raise doubt as to whether the

petitioner was at the scene or had a gun. Other than Reed’s name, the petitioner gave her no

other names of alibi witnesses.

Regarding closing argument, counsel stated that she had no specific recollection of

what she said but acknowledged that the transcript showed that in her closing argument she

stated that the petitioner was present at the scene with the three accomplices and that he ran

away. However, she explained that what she says in closing argument depends on the facts

that come out at trial and that “you can’t really argue something that is completely contrary

to the facts that have come in[.]” Counsel said that, because eyewitnesses placed the

petitioner at the scene, possibly her strategy was to agree that he was at the scene but not with

a gun or involved in the incident.

The petitioner admitted that he had a prior conviction for second degree murder and

that counsel informed him that the State was seeking the death penalty. He testified that he

was arrested for the present crime in New Orleans and was represented by counsel and

members of the Capital Defense Team of the Shelby County Public Defender’s Office. He

recalled that he met with counsel or a member of the defense team five or six times in the

jail, in addition to meetings on several court dates. The petitioner admitted that his defense

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team interviewed witnesses and discussed the results of their investigation with him. He was

given a copy of the discovery package but believed that it was missing some pages. He

shared his concerns regarding the missing material via several letters to counsel. He also

tried to have counsel removed from his case. The petitioner said that he asked his lawyers

to challenge the DNA evidence against him and that was the source of his disagreements with

counsel and the defense team. He could not recall what they told him as to the reason for not

retaining an independent DNA expert.

The petitioner acknowledged that counsel attempted to challenge the witnesses’

identification of him, which was the strongest part of the State’s case. However, he

complained that counsel did not prepare a defense and that “her idea of challenging the

identification [by] asking questions” was inadequate. He also complained that, in closing

argument, counsel told the jury that he was “present at the scene and basically participated

with the girls.” He contended that there was no corroboration that he was at the scene and,

thus, counsel’s stating in closing argument that he was at the scene was ineffective. On

cross-examination, the petitioner asserted he was not at the scene but admitted that no one

testified at the hearing in support of that contention.

The petitioner testified that he told counsel that his defense was that he “was not

there,” and that he “always maintained actual innocence.” He told counsel that he believed

he knew who committed the crime, but he did not provide a name at the hearing. The

petitioner admitted that he knew the co-defendants through his younger stepbrother and was

friendly with them. The petitioner claimed that he told counsel that he was at a friend’s

apartment in Memphis at the time of the crime, which was not in the apartment complex

where the murder occurred. He said that he also gave counsel the names of his potential alibi

witnesses, but he did not know where those people were presently located. The petitioner

insisted that counsel was confused when she testified that he told her two different versions

of events. He said that he told her where he was on the day of the crime and that he

“subsequently left and went to New Orleans on a trip that [he] had planned previously.”

On cross-examination, the petitioner acknowledged that he did not have any witnesses

who could say that he was not at the scene of the crime. However, he claimed that he told

counsel that he was at “Derrick’s” apartment at the time of the crime but acknowledged that

Derrick was not present at the evidentiary hearing. The petitioner stated that he “was leaning

to testify” at trial but decided not to based on the advice of counsel. He admitted that, since

the trial, he had not consulted a DNA expert to testify that there were tests that should have

been done.

Following the hearing, the post-conviction court entered an order denying relief. The

court found no merit in any of the petitioner’s allegations of ineffective assistance of counsel

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and that the petitioner failed to establish that counsel was ineffective or that he was

prejudiced by counsel’s representation.

ANALYSIS

On appeal, the petitioner argues that he received the ineffective assistance of counsel

because counsel: (1) failed to contact his alibi witnesses; (2) failed to investigate

inconsistencies in his accomplices’ statements; (3) failed to request independent DNA

testing; and (4) argued in closing argument that the petitioner was present in the area during

the time of the murder.

The post-conviction petitioner bearsthe burden of proving his allegations by clear and

convincing evidence. See Tenn. Code Ann. § 40-30-110(f). When an evidentiary hearing

is held in the post-conviction setting, the findings of fact made by the court are conclusive

on appeal unless the evidence preponderates against them. See Tidwell v. State, 922 S.W.2d

497, 500 (Tenn. 1996). Where appellate review involves purely factual issues, the appellate

court should not reweigh or reevaluate the evidence. See Henley v. State, 960 S.W.2d 572,

578 (Tenn. 1997). However, review of a post-convictions court’s application of the law to

the facts of the case is de novo, with no presumption of correctness. See Ruff v. State, 978

S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which presents

mixed questions of fact and law, is reviewed de novo, with a presumption of correctness

given only to the post-conviction court’s findings of fact. See Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

To establish a claim of ineffective assistance of counsel, the petitioner has the burden

to show both that trial counsel’s performance was deficient and that counsel’s deficient

performance prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S.

668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting

that same standard for determining ineffective assistance of counsel that is applied in federal

cases also applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient performance

prejudiced the defense. This requires showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687.

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The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).

Moreover, the reviewing court must indulge a strong presumption that the conduct of counsel

falls within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690,

and may not second-guess the tactical and strategic choices made by trial counsel unless

those choices were uninformed because of inadequate preparation. See Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a

reasonable probability, i.e., a “probability sufficient to undermine confidence in the

outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694.

Courts need not approach the Strickland test in a specific order or even “address both

components of the inquiry if the defendant makes an insufficient showing on one.” 466 U.S.

at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either deficiency or

prejudice provides a sufficient basis to deny relief on the ineffective assistance claim”).

I. Alibi Witnesses

The petitioner first contends that he received the ineffective assistance of counsel

because counsel failed to contact his alibi witnesses. The petitioner asserted at the

evidentiary hearing that he was passed out in someone’s apartment at the time of the crime

but admitted that he could not provide the name of anyone who could vouch for his alibi.

Counsel testified that the petitioner gave her the name of a person in New Orleans, who was

either not found or unable to provide an alibi, but did not give the name of any alibi witness

to support his contention that he was passed out in Memphis at the time of the crime.

The post-conviction court found that the petitioner failed to prove this allegation

because he admitted at the evidentiary hearing that he could provide no witness that would

say he was not present at the crime scene. To satisfy the prejudice requirement of Strickland

when alleging that counsel was ineffective for failing to offer testimony from a favorable

witness, the post-conviction petitioner must “(1) produce the witness at his post-conviction

hearing; (2) show that through reasonable investigation, trial counsel could have located the

witness; and (3) elicit both favorable and material testimony from the witness.” Denton v.

State, 945 S.W.2d 793, 802-03 (Tenn. Crim. App. 1996) (citing Black v. State, 794 S.W.2d

752, 757 (Tenn. Crim. App. 1990)). Accordingly, we discern no deficiency in counsel’s

performance or any resulting prejudice.

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II. Accomplices’ Statements

The petitioner argues that he received the ineffective assistance of counsel because

counsel failed to investigate inconsistencies in the statements of his accomplices. By

referring this court to his amended petition, the petitioner elaborates that the

“inconsistencies” were in the statement of Coty Childress and the “identical” statements of

Jennifer Mohrhoff and Melissa Swift, detailing who was present at Swift’s house and how

the petitioner came to be with them. However, an examination of the record before this court

does not reveal what statement, if any, Coty Childress gave to the police, and no proof was

developed at the evidentiary hearing on this matter. Thus, there is no way to determine

whether counsel performed deficiently or whether the petitioner was prejudiced because of

any failure to investigate said inconsistencies. The petitioner suggests in his brief that

counsel performed deficiently by not challenging the photographic identification of him as

being tainted “based on inconsistent statements” and by not exploring the relationship

between the victim’s girlfriend, Christie Holmes, and Coty Childress, but he also presented

no proof in support of or developed such issues.

III. Independent Testing

The petitioner argues that he received the ineffective assistance of counsel because

counsel failed to request independent DNA testing of a red cap found at the scene. Counsel

testified that she made the tactical decision to not call her own expert or seek independent

testing because she was concerned that an independent test could return more incriminating

results than the State’s test, which she would be obligated to turn over, and because there

were eyewitnesses who placed the petitioner at the scene. Counsel stated that the DNA

evidence against the petitioner was not “real hard clad” and easily allowed her to argue

reasonable doubt. The post-conviction court accredited counsel’s testimony and noted that

its function was not to second guess tactical and strategic decisions concerning defense

matters. The petitioner has, therefore, failed to prove that counsel performed deficiently.

Moreover, the petitioner has not consulted with a DNA expert or provided any evidence to

show that additional testing would have been beneficial and, thus, has not shown prejudice.

Along these lines, the petitioner also alleges that counsel failed to subject the firearm

and other physical evidence retrieved from the scene to further testing. The petitioner

presented no evidence on this issue at the evidentiary hearing to show that the failure to

conduct further testing on these items prejudiced his case.

IV. Closing Argument

The petitioner argues that he received the ineffective assistance of counsel because

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counsel placed him at the scene of the crime in her closing argument. Review of the record

of closing argument shows that counsel argued that the petitioner’s accomplices were not

credible and that no one testified that they saw the petitioner kick in the door of the victim’s

apartment. Counsel argued that the police investigation was deficient and that the State’s

case essentially rested on the two accomplices who had a reason to lie. Counsel pointed out

that Melissa Swift had robbed someone with a handgun just two weeks prior to the offense

in this case. Counsel argued that Swift and Mohrhoff “cooked it up together[,] [a]nd when

it hit the fan, they decide to cut [the petitioner] loose. They decided to blame him.” Counsel

then acknowledged that the petitioner ran away, “[b]ut wouldn’t you when something went

bad . . . that you were with someone and it just went to hell and back? I’d run, too.”

The post-conviction court found counsel’s argument was a tactical decision based

upon the circumstances of the case. The court noted that eyewitnesses and the proof

developed over the course of trial placed the petitioner at the crime scene. The court stated

that counsel “had to frame her closing argument according to the proof that comes out during

trial.” The court noted that counsel “had a clear understanding of the proof and testimony

in this case, and she decided that it would be harmful to argue in closing something that is

completely contrary to the facts presented.” The court determined that counsel’s decision to

include a statement placing the petitioner at the scene “was reasonable because arguing to

the contrary could diminish her credibility and hurt [the] [p]etitioner’s defense.” The court

concluded that counsel’s decision was “objectively reasonable under the circumstances” and

that counsel did not render deficient performance. The record supports the post-conviction

court’s determination.

The petitioner contends that the facts of his case mirror those in State v. Burns, 6

S.W.3d 453 (Tenn. 1999), where counsel was found to be ineffective for failing to utilize

affidavits and testimony from witnesses that two other persons had openly discussed plans

to kill the victim and were observed on several occasions making verbal threats and physical

assaults against him. Id. at 462-63. This is contrary to the present case, where the only

information that someone else committed the crime was from the petitioner’s bare assertion

at the evidentiary hearing that he believed he knew who committed the crime. The petitioner

simply cannot show any deficiency or prejudice of the kind established in Burns.

Although he complains about counsel’s closing argument, the petitioner has not

shown that any other viable defense strategy was possible. The petitioner presented no

witnesses at the evidentiary hearing and even admitted that he could produce none to support

his assertion that he was alone in an apartment at the time of the crime. Counsel’s argument

was a reasonable approach to arguing a difficult set of facts, and the petitioner has shown no

reasonable probability that, given the proof, any other argument would have had a better

outcome.

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CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the denial of the petition.

_________________________________

ALAN E. GLENN, JUDGE

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