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

ugust 7, 2001 REGINALD WEBB v. STATE OF TENN ESSEE Direct Appeal from the Criminal Court for Shelby County No. P-21318 Bernie Weinman, Judge

No. W2000-01895-CCA-R3-PC - Filed August 27, 2001

Petitioner appeals the denial of post-conviction relief by the Shelby County Criminal Court. He contends he received ineffective assistance of counsel at his jury trial where h e was conv icted of second degree murder. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed J OE G. R ILEY , J., delivered the opinion of the court, in which D AVID G. H AYES and A LAN E. G LENN , JJ., joined. Russell C. Rutledge, Memphis, Tennessee, for the appellant, Reginald Webb. Paul G. Summers, Attorney General and Reporter; La ura McMullen Ford, Assistant Attorney General; William L. Gibbon s, District Attorne

y General ; and Betsy L. Carnesale, Assistant District Attorney General, for the appellee, State of Tennesse e.

OPINION Petitioner testified at the post-conviction hearing that his trial counsel was ineffective by (1) withdrawing a mo

tion to suppress his s

tatements made to authoritie

s; (2) not calling Willie Miller as a trial witness since Miller would have exonerated the petitioner ; and (3) forcing or othe rwise improperly advising him to testify at his trial. No other witnesses wer e presented by petitioner on his behalf at the post-conviction hearing. Trial counsel testified at

the post-conviction hearing that she met with the petitioner sixteen (16) times at the county jail prior to trial. Trial counsel testified that she had no legal basis to suppressthe statements to aut horities, and that the statements were somewhat self-serving since petitioner denied be ing involved in the shooting. She further testified that Willie Miller had-2-

pre viously

given incrimina

ting statements a

bout the petitioner

to authorities, told

her invest

igato r that “he had seen Mr. Webb do the shooting,” an d su bse que ntl y told her that “he didn’t know anything.”

Trial counsel did not belie ve Miller would be a helpful witness. Finally, trial counsel testifiedthat she in

no way forced the petitioner to testify but simply explained to him the advantages and disadvantages of doing so. She stated it was the petitioner’s choice to testify a t his trial. The post-conviction court promptly entered model findings of fact and conclusions of law addressing each issue raised by petitione r. It fo und, giving credibility to the testimony of trial counsel, that the withdrawal of the motionto suppress, the failure to call Miller as a witness, and the advice given to petitio ner about testifying were proper and within the rang e of competency demanded by an attorney in a c riminal case. This court reviews a

claim of ineffective assistance of counsel under the standards of Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975), and Strickland v. Washington , 466 U. S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984). The petitio ner has the burde

n to prove th at (1) the attorney’s performance

was deficient, and (2) the deficient performance r

esulted in prejudice to the defendant so as to deprive him of

a fair trial. Strickland , 466 U.S. at 687, 104 S. Ct. at 2064; Goad v. State , 938 S.W.2d 363, 369 (Tenn. 1996) . The post-conviction court’s fin dings of fact on post-conviction hearings are conclusiveon a ppeal unless the evidence preponderates otherwise. State v. Burns , 6 S.W.3d 453, 461 (Tenn. 1999). Here, the evidence does no t preponderate a

gainst the findings of the trial court. Petitioner has failed to establish any deficiency by trial counsel. Furthermore, as to the failure to call Miller as a witness, petit

ioner has failed

to establish prejud

ice since Miller w

as not called as a

witness in the post-conviction hearing. See Black v. State , 794 S.W.2d 752, 757 (Tenn. Crim. A pp. 1990). Accordingly, we affirm the judgment of the trial c ourt.

___________________________________ JOE G. RILEY, JUDGE