### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs F eb ru ar y 8, 200 5

ALF IO ORL AN DO LEWIS v. STA TE OF TEN NES SEE

Appeal f romthe Cr im inal Cou rt for Davidson Coun ty No. 2000-A- 121 Cheryl Blackbu rn, Judge

No. M2004- 01282-CCA -R3-P C - F iled March 16, 2005

Th e pe tit ion e r, Al fi o O rl a nd o L e wi s, app e a ls a s o f rig ht f ro m th e dis mis sa l of

his pe tit ion fo r p os tconviction re lief by

the Davidson County

Criminal Court. He seeks relief from his convic tions for two counts of attempted se cond deg ree m u rd er an d consec utive twelve- y ear sentenc es. The pe tit ion e r c on ten ds that he re c e ive d th e ine ff e c tiv e a ssi sta nc e of

c ou ns e l a t hi s tria l a ndthat hi s
s e n te n c e s ar e in v a li d u n d e r B la k e ly v. Was h in g to n , 5 4 2 U

. S.

___ , 1 2 4 S. Ct

. 2 5 3 1 ( 2 0 0 4 )

. We

a ff ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

J OS EP H M. T I PTON , J
., delivere d the opi nion of the court, in which N OR MA M C G EE O G LE a n d J. C. M C L IN , J J ., joined.

Da vidM. Ho pk ins , N a sh vil le , T e nn e sse e , f or the app e lla nt, Al fi o O rl a nd o L e ws

.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Da vidE. Coe ne n, As sis ta nt A tto rn e y Ge ne ra l; Victor S. (Torry ) Johns on, I I I , District Attorney Gene ral; and Br et Thomas Gunn, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

The following fac ts w hich led to the petitioner’s convictions are taken from th i s court’s opinion in the direc t a

ppeal from his c onvictions: The petitioner fire d his pistol at two brother s, the

ow ne rs of

the Sou th S ide Ma

rk e t a ndDe li, a s th e y

le ft the ir sto re on Mu rf

rees bo ro Ro a d in Nashville, Tenne ssee. Ea rlier that evening
, the petitioner enter ed the store and pur chase d a fr ozen pizz a. When one of

the brother s ref

used the petitioner permission to use the microwa ve to heat the pizz a, the pe titioner beca me ang ry . A spirited ar g ument followed during which the pe titioner threatened to re turn, shoot the brothers, and blow the plac e up. When the brothe rs closed the store and g ot into their car to g o home, the petitioner a nd a man with a shotgun a

pproac hed their c ar a nd be g a n f ir ing a t th e m. T he br oth e rs we re a lso arm e d a ndre turne d fi re. Th e pe tit ion e r andhis companion fled
, b ut the brothers r ecog nized the petitioner. They called the police, desc ribed the-2-

petition er , an d provided the police with the store surve illance video show ing the petitioner in the store ea rlier that da y

.

At trial, the petitioner admitted that he a rg ued with one of

the brother s but testified that he was with his mother, his g irlfriend, a nd his cousin on the evening of the s hooting. The petitioner’s g irlfriend a nd mother also testified the pe titioner was with t hem during the shooting. The jury convicted the petitione r o f t wo counts of attempted se cond deg ree murder and two counts of

a g g ra va te d a ssa

ult . F oll ow ing a

se nte nc ing he ari ng , th e tr ia l co urt mer gedthe a g g ra vate d a ssa ult convictions into the attempted sec ond deg ree murder convictions and imposed sente nces of twelve y ear s as a Rang e I
, standard offe nder for eac h conviction, to be ser ved conse cutively for a n eff ective sentenc e of twe nty -four

y ear s. The petitioner appea led, and this court a ffirme d his convictions and sentenc es. State v. Alfio Or lando L ewis, No. M2000-03160-MR3-CD, Davidson County (Tenn. Crim. App. March 6, 2002) , app. denie d (Tenn. Sept. 16, 2002)

. The pe titioner filed a pe tition for post-conviction relief allegin g that his counsel re ndere d ineffe ctive assist ance by failing to investigate hi s case adequately
, to communicate with him during the trial, and to pr esent certain witnesses. At the post-conviction hearing, the petitioner testified that the attorne y

who re prese nted him at trial was a ppointed approximately

ten months be fore trial and that he wa s th e se c on d a tto rn e y app oin te d to re pr e se nt h im i n th e c a se . H e sa id that he me t w ith his

a tto rn e y tw o o r thr e e tim e s b e fo re tr ia l a ndthat du ri ng tho se me e tin g s, the y didno t r e vie w the fa c ts of his case , the evidenc e ag ainst him, or the materia ls rec eived through discovery

. He said that he knew the sur veillance videotape mig ht be used a s evidenc e ag ainst him at the trial but that he neve r watche d the videotape

. He said he gave his attorney the names of t hree witnesses who c ould testify in his behalf : Anthony Hart, Floy d Robinson and S hea Brow n. He said these witnesse s told him they had information benefic ial to his case. He said that these witnesses could have clea red his name but that his attorney

did not subpoena any

of them. He said that he h ad s p o k en to M r. Ha rt who wa s willing to come to c ourt on the petitioner’ s behalf but that Mr. Hart’s location was unknown at that time. He said Mr. H art would ha ve admitted committing the of fense s in issue.

The pe titioner said he attempted at his trial to tell t he jury what Mr. Ha

rt had told him, but the information wa s ruled inadmissible a s hear say

. When a sked what made him decide to testify at his trial, the petitioner re sponded that his attorney instructed him to take the stand. H e said they

ne ve r m e t be fo re the tr ia l to pr e pa re his te sti mon y or e ve n disc us s whe the r h e wo uldte sti fy . H e sa id that he a sk e d h is a tto rn e y wh e the r the state wo uld of fe r a se ttl e me nt andthat hi s a tto rn e y tol d h im it would make no diffe renc e be ca u s e i t was a lot of time. He said a ple a bar g ain was ne ver discussed. He admitted that he told his attorney he was innocent and that he wa nted the truth to be out. He said his attorne y did not inform him what type of punishment he mig ht rec eive or what

c on se qu e nc e s h e fa c e d g oin g to t ri a l. H e sa id the on ly

a dv ic e he re c e ive d w a s to g o to tr ia l.

On cr oss-examination, the pe titioner said that he learned the fac ts r eleva nt to his case f rom the discovery

materia ls and that his trial attorney told him not hing. He said he rec eived the disc overy materia ls from his first attorney , wh o as k ed to be r emoved f rom the ca se bec ause he and the petitioner did not g et along

. He admitted that he wa s not surprised by any of the e vidence prese nted-3-

at trial and tha t he was primarily conce rned w ith seeing the videotape . He sa id he gave his attorney the na me s o f the thr e e wi tne sse s w he n the y me t a nd tol d him Mr

. Ha rt wo uld“ ste p u p a ndtake thi s char g e” a nd clea

r his name. He said Mr. Robinson told him that he had the shotgun, that Mr. Br own had the automatic wea

pon, and that Mr. Ha

rt observed t h e i n cident from acr oss the street. The petitioner conc eded that he was una ble to g ive his attorney

exact addre sses for the three witnesses

a ndthat he c ou ld o nly

g ive him a g e ne ra l are a

to s e arc h f

or the m.

At the conc lusion of the petitioner’s testimony , the petitioner’s attorney i n fo rm ed the tria l court that he had issued a subpoena f or Mr. Ha rt who had since been pa

roled a nd that he believe d Mr. Har t was living in Na shville. The trial court gr anted the petitioner a c ontinuance to loca te Mr. Hart and hea

rd the testimony

of the pe titioner’s attorney

. The pe titioner ’s t ri al attorney testified he ha d prac ticed law a s a criminal defense attorney since 1986 or 1987. He said that he met with the petitioner at the c ourthouse and at the J ustice Center a couple of times, that he discussed the case with the petitioner, and that the pe titioner was not interested in neg otiating a settlement or pleading g uilty

. He said he mentioned the idea of a ple a ag ree ment only

one time be cause the petitioner wa s adama nt about his innocence and told him that he would not plead g uilty to something he did not do. He said the pe ti tioner wa s confident the testimonyof his alibi witnesses would help his case . He sa id he spoke with the a libi witnesses, and they corr oborate d the petit ioner’s te stimony . He state d that he told the petitioner what was on the videotape but that the pe titioner was unable to view the videotape beca use the rules prohibited taking videotapes inside the Justice Center. He said he discussed the petitioner’s te stimonywith him before trial. Wit h reg ard to Mr. H art’s c onfessing that he wa s involved in the crime, the attorney testified that he did not rec eive this information fr om the petitioner until afte r the trial be g an and that the pe tit ion e r d id n ot kno w M r. Ha rt ’s wh e re abo uts . H e sa id the pe tit ion e r ha d g ive n Mr. Ha rt ’s na me only to his previous attorney . He sa id he aske d a priva te investig ator to assist him in locating Mr. Hart to no avail. He did not re call being advised of the other two w itnesses, Mr. Robinson and Mr. Br own. Howe ver, he admitted he re ad a le tter in the discovery materia ls sent by

the petitioner to the victims w h i ch mentioned the name s of the thre e witnesses w ho could alleg edly attest to the pe tit ion e r’ s in no c e nc e . H e sa id the pe tit ion e r w a s u na ble to g ive him

the loc a tio n o f the wi tne sse s, other than the y

could be found “in the neig hborhood.” H e stated that acc ording to the petitioner, Mr. Hart observed Mr . Robinson and Mr. Br own commit the crime from acr oss the street and that Mr. Robinson’s and Mr. B rown’s a lleg ed involvement in the crime was bas ed sol ely on information furnished the petitioner by Mr. Hart, not Mr. Brow n or Mr. Robinson.

On c ro ss- e xami na tio n, the a tto rn e y te sti fi e d he did no t re c a ll the nu mbe r o f t ime s h e me t w ith t h e p e t i t i o n e r

b e f o r e tr i a l

. W h e n a s k e d w h e t h e r h e a n d t h e p e t i t i o n e r

r e v i e w e d h i s tr i a l t e s t i m o n y, he said that the pe titioner had told him what his testim ony would be on numerous occasions and that it was unwise in his opinion to r ehea rse. He said his a dvice to the petitioner was to g et on the stand

a ndte ll the truth . H e didno t r e c a ll r e vie wi ng the dis c ov e ry ma te ri a ls wi th the pe tit ion e r. He sa id the petitioner ha d a g ood g rasp of the discovery

materia ls and was a war e of the char g es he f ace d. He sa id that they

discussed the a libi defense strateg y and that their succ ess at trial de pended on whom the jury

believed.-4-

When the petitioner’s attorney conclude d his testimony
, the t rial court g rante d the petitioner a thre e-w eek c ontinuance to loc ate Mr. Hart. At the next hearing , the petitioner’s attorney informed the trial court that Mr. Hart could not be found. The petitioner re sted his case on the petition and the p ro o f p re s en t ed at t h e f

i rs th ea ri n g.

I n deny ing the petitioner re lief, the trial c ourt found the petitioner failed to de monstrate by

c l e ar a n d c o n v i n c i n g e v i d e n c e t h a th i s t r i a l a t t o r n e y f a i l e d t o c o m m u n i c a t e a d e q u a t e l y w i t h h i m

. It noted that t he petitioner w as knowledg eable of his case and found tha t the petitioner’s a ttorney discussed with the petitioner both the c ase a nd the state’s e vidence

. Wit h reg ard to the attorney ’s alleg ed fa ilure to investigate, the trial court cre dited the testimony of the attorne y and found tha t he attempted to l ocate the petit ioner’s witnesses but was unable to do so. The trial court also conclude d that th e pe tit ion e r’ s a tto rn e y wa s n ot i ne ff

e c tiv e fo r s uc h f

a ilu re and th at th e pe tit ion e r f a ile d to demonstrate pr ejudice. A s for the attorney ’s failure t o call certain witnesse s, the trial court observed that the petitioner failed to show throug h the witnesses’ te stimonywhat evide nce w ould have be en prese nted if they

had testified.

I. IN EF F EC TIV E A SSIST AN CE OF CO UN SEL

On appe al, the petitioner c ontends th at h e re ceive d the ineff ective a ssistance of c ounsel beca use his trial attorney

failed to i n v es t i gat e ade quately the fa cts in his case, f

ailed to locate and interview w itnesses who could ha ve testified f avorably in his defense , and fa iled to advise the petitioner of the nature of t he charg es and evidenc e against him. The state c ontends the petitioner failed to prove by

clea r and c onvincing evidenc e that his attorney was de ficient or that he was prejudice d by

the alleg ed def

iciency . We ag ree with the state.

The burde n was on the petitioner in the trial c ourt to prove by clea r and c onvincing evidenc e the fa ctual alleg ations that would entitle him to relief. T.C. A. § 40-30-110( f). On a ppeal, we are bound by the trial court’s finding s of fa ct unless we c onclude t h at t he evide nce in the r ecor d p r e p o n d e r a te s a g a in s t th o s e f in d in g s

. Se e F ie ld s v

. St a te , 4 0 S. W. 3 d 4 5 0
, 4 5 8 ( T e n n

. 2 0 0 1 ). Be cause the trial court’s conclusions reg arding the ef fec tiveness of c ounsel involve mix ed questions of law a nd fac t, our revie w is de novo with no presumption of cor rec tness.

When a claim of ineffe ctive assistance of counsel is ma de, the burde n is upon the petitioner to show (1) that c ounsel’s perf ormanc e was defic ient and (2) that the def iciency was pre judicial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); State v. Melson, 772 S.W. 2d41 7, 41 9 n .2 (T e nn . 1 98 9). I n othe r w or ds , a sh ow ing that c ou ns e l’ s p e rf orma nc e fa lls below a r easona b l e s tandar d is not enoug h; rather , the petitioner must also show that but for the substandard pe rformance , “the r esult of t he proc eeding would have be en diffe rent.” Strickland, 466 U. S. at 69 4, 10 4 S. Ct. a t 2068

. I n Ba xter v. Ros e , 523 S.W. 2d 93 0, 93 6 (T e nn . 197 5) , o ur su pr e me court de cided that attorney s should be held to the g ener al standar d of whe ther the se rvice s rende red

wer e within the rang e of competenc e demande d of attorney s in c riminal case s

. I n re viewing

c ou ns e l’ s c on du c t, a “ fa ir a sse ssm e nt o f atto rn e y pe rf orma nc e re qu ir e s th a t e ve ry e ff ort be ma de to eliminate the distorting e ffe cts of hindsig ht, to reconstruc t the circ u mstances of counsel’s c halleng ed-5-

c on du c t, a ndto e va luate the c on du c t fr om c ou ns e l’ s pe rs pe c tiv e a t the tim e .” Str ic kland , 4 66 U. S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629 S.W .2d 4, 9 (Tenn. 1982) . Thus, the fa ct that a particular stra teg y

or tac tic failed or

even h u rt t he def

ense doe s not, alone, support a c laim of ineffe ctive assistanc e. De fer ence is made to trial strate g y or tac tical choice s if they are informed ones base d upon adequate pre paration. See id.; United States v. DeCoster, 4 8 7 F.2d 1197, 1201 (D.C. Cir. 1973).

Th e pe tit ion e r b a se s h is c la im o f i na de qu a te inv e sti gati on prima ri ly on the failu re of

his attorney to locate a nd interview c erta in witnesses that h e wa n t ed to testify at his trial. The petitioner’s trial attorney

testified, howeve r, t hat he rec eived the information conce rning Mr. Hart late in the trial proc eeding s and that t he information was incomplete. Neve rtheless, the attorney tried to l oc a te Mr . H art

wi th the a ssi stanc e of

a private inv e sti g a tor . T he ir e ff orts pr ov e d u ns uc c e ssf

ul, but neither the inve stiga tor nor the attorney had much information with which to work. The petitione r ad m i t t ed that he wa s unable to provide an addre ss or any other spec ific informa tion reg arding Mr. Hart or the other two w itnesses he wa nted his atto rn ey t o l o ca t e. Althoug h the attorney testified the name s of the thre e witnesses w ere provided in the discovery materia ls before trial, he said he was una war e of the importance of Mr. Ha rt’s testimony

until a ft er t h e t rial had sta rt e d. I n a ny

e ve nt, the pe tit ion e r f

a ile d to pr e se nt t e sti mon y from any of th e thr e e wi tne sse s to

s h o w w h a t e v id e n c e w o u ldh a v e b e e n p r e s e n te d if th e y h a d te s ti f ie d

. Wh e n a

p e ti ti o n e r

c o n te n ds that tria l c ou ns e l f

a ile d to dis c ov e r, int e rv ie w, or pr e se nt wit ne sse s in supp ort of his de fe ns e , th e se witnesses should be pre sented by the petitioner at the evidentiary hearing. This is the onl y way the petitioner ca n establish that a material witness exis ted and c ould have be en discove red, that a known witness was not interview ed, that the f ailure to intervie w a witness c aused prejudice, or that the failure to have a

known witness pre sent or to ca ll the witness to the sta nd resulted in the denial of critica l evidence which prejudice d the petitioner’s case

. Bla ck v. State, 794 S.W .2d 752, 757 (Tenn. Crim. App. 1990). Neither a trial judge nor an appellate court c an spec ulate as to whe ther further investigation would have revea led a materia l witness or what a witness’s testimony might have been if introduced by

defe nse counse l. I d.

Reg arding the petitioner’s claim that his attorney failed to a dvise him of the nature of the char g es and the evidenc e ag ainst him, the trial court f ound that the petitioner wa s knowledg eable of the fa c ts o f h is c a se a nd that the pe tit ion e r’ s a tto rn e y dis c us se d wi th the pe tit ion e r his c a se a s w e ll

a s the state ’s e vid e nc e a g a ins t hi m. T he pe tit ion e r a dmi tte d th a t he re c e ive d th e dis c ov e ry ma te ri a ls befor e his trial attorney was a ppointed, well in advanc e of tria l, and that he r ead the m. The attorne y te sti fi e d th e pe tit ion e r h a d a g oo d g ra sp of

the dis c ov e ry

ma te ri a ls a nd kn e w the c ha rg e s a g a ins t hi m. As a result, the attorney admitted he did not revie w the discovery materia ls w ith the petitioner. The petitioner ar g u e s th a t h is a tt o r n e y f a il e d to s h o w h im

th e v id e o ta

p e , b u t th e p e ti ti o n e r ’ s a tt o r n ey testified that the rule s of the Just ice Cente r for bade this practice. The petiti oner claims that he wa s int e re ste d i n a p l e a b ar g a i n , b u t h i s a t t o r n e y t e s t i f i e d t h a t t h e p e t i t i o n e r w a s a d a m a n t ab o u this innocenc e and ref

used to c onsider a g uilty plea. The trial c ourt ac cre dited the attorne y ’s testimony in a ll r e sp e c ts.-6-

Th e re c or d d oe s n ot p re po nd e rate a g a ins t the tr ia l c ou rt ’s fi nd ing s. Th e pe tit ion e r f a ile d to prove his alleg ations by clea r and convincing evidenc e. We c onclude the petitioner did not rec eive the ine ff e c tiv e a ssi sta nc e of

c ou ns e l.

II. SE NTENCING

Th e pe tit ion e r c on te nd s that his se nte nc e s are inv a lidun de r B lake ly v. Was hin g ton , 5 42 U. S. ___, 124 S. Ct . 2531 (2004). He arg ues the trial c ourt violated Blakely by imposing his sentenc es based on f

acts whic h wer e not re flec ted in the jury ver d i ct o r admitted by

the petitioner. The petitioner urg es this court to notice the e rror under Rule 52(b), Tenn. R. Crim. P. The state c ontends that the petitioner ha s waived the se issues for f ailure to r aise them on direc t appea l and in the petition for post-c onviction relief.

The Post-Convi ction Procedur e Act states, “A g round for r elief is wa ived if the pe titioner . . . failed to prese nt it for determination in any proce eding befor e a court of c ompetent jurisdiction in which the g round could ha v e b een presente d . . . .” T.C.A. § 40-30- 106(g ). It also states that appea ls from the dismissal of a petition for post-c onviction relief a re to be g overne d by

the rules of appellate proce dure. T.C.A. § 40- 30-116. The a dvisory commi s s ion comments to Rule 36(a), T.R.A.P., state that it is an “acc epted principle that a pa rty is not entitl ed to re lief if the pa rty invited

err or, waived an err or, or failed to ta ke whateve r steps we re r easona bly available to cure an er

ror.” The pe titioner did not raise sentenc ing issues on dire ct appe al or in his petition for post-conviction

re lie f. Ra the r, he re qu e sts thi s c ou rt to g rant re lie f ba se d u po n a fi nd ing of

plain e rr or

un de r R ule 52 (b ), Te nn . R. Cr im. P.
The plain e rror

doctrine ha s no application in post-conviction re lief proceeding s. Tennesse e Supreme Court Rule 28 addr esses a pplicable pr ocedur es and r emedies with reg ard to Te nnessee ’s Post-Convi ction Procedur e Act, T.C.A. §§ 40-30-101 through 40-30-313. Section 3(B ) of Rule 28 states, “Ne ither the Te nnessee Rules of Civil P roce dure nor the Tenne ssee Rules of Criminal Procedur e apply

to post-conviction proce eding s except as spec ifically provided by these rules.” See State v. West, 19 S.W .3d 753, 756 (Tenn. 2000) (conc luding that plain err or under Rule 52(b), Te nn. R. Crim. P ., does not apply to post-conviction case s).

We also note that althoug h the United States Supreme Court ha s not y et addr essed the retroa ctive application of Blake ly
, it has held that Ring v. Arizona, 536 U.S. 584, 122 S. C t. 2428 (2 00 2) , w hic h r e qu ir e d th a t a jur y , n ot a tr ia l jud g e , fi ndthe e xiste nc e of a g g ra vator s n e c e ssa

ry to imp os e the de a th pe na lty
, wa s no t a wate rs he d ru le of c ri min a l pr oc e du re a ndthe re fo re didno t app ly

re tr oa c tiv e ly to c a se s a lr e a dy fi na l on dir e c t r e vie w. Sc hrir o v . Su mme rl in,

__ U. S. _
_, 12 4 S. Ct. 25 19 , 2 52 6 ( 20 04 ). B a se d o n Su mme rl in, thi s c ou rt has con clud e d th a t B lake ly do e s n ot a

pp ly retroa ctively

to collatera l attacks for

prior convic tions and sentences. See Dona ld Branch v. State, No. W2003-03042-CCA-R3-PC, S helby County(Tenn. Crim. App. Dec. 21, 2004). We ag ree that Bl akely does not apply

in this post -convic tion procee ding c ollatera lly attacking the petitioner’s

se nte nc e s.-7-

B a se d o n th e fo re g oing a ndthe re c or d a s a wh ole , w e a ff

ir m th e jud g me nt o f the po stc on vic tio n c ou rt

.

___________________________________ J OSEPH M. TI PTON, J UDGE