IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

March 19, 2019 Session

ROY ANTHONY HALEY v. STATE OF TENNESSEE

Appeal from the Circuit Court for Bedford County

No. 18180 F. Lee Russell, Judge

___________________________________

No. M2017-00976-CCA-R3-PC

___________________________________

The Petitioner, Roy Anthony Haley, was convicted of theft of property valued at $10,000 

or more but less than $60,000, and he was sentenced as a Range III, persistent offender to 

fifteen years in confinement. Subsequently, he filed a petition for post-conviction relief, 

alleging ineffective assistance of counsel. The post-conviction court denied the petition. 

The Petitioner appeals, contending that he was denied due process at his post-conviction 

hearing because he was not afforded the opportunity to call critical witnesses and because 

the post-conviction court was so biased and prejudiced toward him as to render the 

hearing unfair. Upon review, we affirm the judgment of the post-conviction court. 

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and J. ROSS DYER, JJ., joined.

Michael Meise, Dickson, Tennessee (on appeal), and M. Wesley Hall, IV, Unionville, 

Tennessee (at hearing), for the Appellant, Roy Anthony Haley.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant 

Attorney General; Robert James Carter, District Attorney General; and Michael David

Randles, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

I. Factual Background

On direct appeal, this court summarized the proof adduced at trial as follows:

12/06/2019
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Wallace L. Chambers, Jr., a military veteran, testified that he 

and his wife, Ava Alito Hale Chambers, were both retired. 

Mr. Chambers stated that his wife suffered from Alzheimer’s 

disease and was bedridden, which necessitated his hiring a 

fulltime caregiver, Laketia Grizzle, in January 2012. In April 

2012, Ms. Grizzle married the [Petitioner] and changed her 

name to Laketia Haley. Mr. Chambers occasionally hired the 

[Petitioner] to perform odd jobs on his property, which Mr. 

Chambers classified as “exclusively outside work.” Mr. 

Chambers testified that the [Petitioner] “had no reason to be 

in the house except to come in and eat lunch, maybe.”

Mr. Chambers owned an extensive coin collection, 

weighing approximately 72 pounds and worth between 

$65,000 and $70,000, which he had inherited from his father 

and had added to over the years. Mr. Chambers had planned 

to pass the collection on to his grandchildren upon his death.

Mr. Chambers stored the collection inside a safe which was 

hidden in the back of a closet in his living room. When 

questioned about access to the safe, Mr. Chambers stated that 

he trusted Ms. Haley and that she had opportunities to access 

the safe unseen by either of her employers. The [Petitioner]

also would have had access to the safe when he was inside 

Mr. Chambers’ residence. Mr. Chambers denied that either 

Ms. Haley or the [Petitioner] had permission to remove any of 

the coins from his home.

On July 22, 2012, Mr. Chambers received a telephone 

call from Vickie Bly, a person he had never met or heard of 

prior to receiving the call. Following the call from Ms. Bly, 

Mr. Chambers checked the safe and discovered that his entire 

coin collection was missing. Mr. Chambers immediately 

contacted the sheriff’s department and filed a report. 

According to Mr. Chambers, the sheriff’s department 

interviewed Ms. Haley, and, following that interview, she and 

the [Petitioner] fled. The sheriff’s department recovered “less 

than half” of the coins that were stolen.

Laketia Elaine Haley testified that, while she was 

working for Mr. and Mrs. Chambers, she and the [Petitioner]

were both addicted to painkillers, and the [Petitioner] did not 

have steady employment. In March, Ms. Haley discovered 
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the coin collection inside the Chambers’s safe, and she began 

by stealing “10 to 15 rolls” of coins. She and the [Petitioner]

later stole “the majority” of what remained in the collection. 

Ms. Haley and the [Petitioner] took the coins to local pawn 

shops and sold them, using the majority of the proceeds to 

purchase painkillers. When the sheriff’s department first 

contacted Ms. Haley about the stolen coins, Ms. Haley denied 

any involvement, and when the sheriff’s department 

contacted her to arrange a follow-up interview, Ms. Haley and 

the [Petitioner] fled to Florida. Ms. Haley and the [Petitioner]

were eventually arrested in Florida and returned to Tennessee.

Ms. Haley admitted that she had recently pleaded guilty to 

theft of property valued at $10,000 or more but less than 

$60,000 and that she was awaiting sentencing.

Both Ron Arnold and Michael Bass testified that, 

between March 5 and July 20, 2012, the [Petitioner] and Ms. 

Haley patronized their respective pawn shops and sold 

numerous coins; records of each of those transactions were 

introduced into evidence by the State. Following the 

testimony of Mr. Bass, the parties stipulated that the value of 

the coins at issue was greater than $10,000 but less than 

$60,000.

Detective Scott Jones with the Bedford County 

Sheriff’s Department testified that when he initially 

interviewed Ms. Haley, she had denied all involvement in the 

theft of the coins. After Ms. Haley was arrested in Florida 

and returned to Tennessee, Detective Jones again interviewed 

her, and on that occasion, she admitted that she had stolen the 

coins and that she and the [Petitioner] had sold the coins to 

“fund their drug addictions.”

State v. Roy Anthony Haley, No. M2013-02756-CCA-R3-CD, 2014 WL 5698076, at *1-

2 (Tenn. Crim. App. at Nashville, Nov. 5, 2014). 

At the conclusion of the proof, the jury convicted the Petitioner of theft of 

property valued at $10,000 or more but less than $60,000. Id. The trial court sentenced 

the Petitioner as a Range III, persistent offender to fifteen years with release eligibility 

after serving forty-five percent of the sentence in confinement. Id. On appeal, the 

Petitioner challenged the length of the sentence imposed. Id. This court affirmed the 

Petitioner’s sentence but remanded for correction of the judgment to reflect that the 
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sentence was to be served consecutively to a previously imposed sentence as ordered by 

the trial court at the sentencing hearing. Id. at *5. 

Thereafter, on November 4, 2015, the Petitioner filed a pro se petition for postconviction relief that included multiple allegations of ineffective assistance by the 

attorneys who represented him at his preliminary hearing, trial, sentencing hearing, and 

on appeal. The Petitioner also maintained that the indictment against him was 

unconstitutional, and he made various allegations of judicial and prosecutorial 

misconduct. 

The Petitioner’s first court appearance on his post-conviction petition was on 

November 20, 2015. During the proceeding, the post-conviction court stated it had 

appointed an attorney to represent the Petitioner that morning. The court explained that 

post-conviction counsel would not be in the courtroom to speak with the Petitioner until

after the lunch break. The court suggested that rather than having the guards remain with 

the Petitioner that afternoon, the Petitioner would be taken back to jail, post-conviction 

counsel would speak with the Petitioner while he was in jail, the Petitioner would be 

transported back to court in December, and the post-conviction hearing would be held in 

February. 

The Petitioner told the post-conviction court that it was putting him at a 

disadvantage by “slow walking [him] with a lawyer.” The post-conviction court assured 

the Petitioner, “I’m not slow walking you. You know what, you’re going to sit right here 

until [post-conviction counsel] gets here this afternoon.” The Petitioner replied, 

“Whatever.” The post-conviction court said, “And you can explain to the guards why 

they have to sit here an extra hour.” 

The Petitioner exited the courtroom, and the post-conviction court addressed other 

matters. When the Petitioner and post-conviction counsel entered the courtroom later, the

post-conviction court explained to post-conviction counsel that he “better visit with [the 

Petitioner]. He, he has suggested that I am dragging my feet, so I’m telling you, I’m 

ready tomorrow, morning or afternoon; Christmas Day, morning or afternoon; whenever 

the rest of you can be ready, I’ll stop dragging my feet and have the hearing.” 

Post-conviction counsel responded that the Petitioner wanted the post-conviction 

court to recuse itself “due to some allegations of judicial misconduct.” The postconviction court refused, noting that the Petitioner’s alleged issues of misconduct were 

merely challenges to the court’s rulings at trial. The post-conviction court asked the 

Petitioner to detail his allegations against the court, noting that “foot dragging” was the 

only thing the Petitioner had mentioned. 
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Regarding the recusal, the Petitioner maintained that he had asked to call Tyler 

Grizzle as a witness at the motion for new trial hearing and that the court conducted the 

hearing even though Grizzle was not present. The post-conviction court explained that 

the parties, not the court, determined who would testify at the hearing and that the clerk’s 

office, not the court, was responsible for issuing subpoenas. 

The Petitioner next complained that the court had granted funds for the defense to 

hire an appraiser but that the appraisal was not introduced at trial even though the 

Petitioner thought it should have been. The post-conviction court explained that the 

Petitioner and his trial counsel, not the court, were responsible for deciding the evidence

that was to be presented at trial. The post-conviction court asked if the Petitioner had any 

other complaints about the court. The Petitioner responded, “I don’t know. I guess that’s 

it.” The post-conviction court held that the Petitioner had not presented any grounds for 

recusal. 

Regarding the scheduling of the hearing, the post-conviction court explained to the 

Petitioner that the court and the State had “been right in the middle of this for a long 

time,” but post-conviction counsel was newly appointed and would be at a disadvantage 

if he were not given adequate time to prepare. The Petitioner agreed that post-conviction 

counsel needed to “get familiar with the case.” The post-conviction court advised postconviction counsel, “It’s not the average case. You may need longer [to prepare]. But 

I’m not telling you that to drag my feet. As I say, if you think you can be ready 

tomorrow, let’s go. But, but you can’t. You’ve got to look into this.” Post-conviction 

counsel and the post-conviction court stated that they thought the Petitioner wanted to 

“fast-track[]” the hearing, but the Petitioner interjected, “No, I don’t desire that.” Postconviction counsel said that he would be prepared for the hearing in February. 

At the February 4, 2016 hearing, the post-conviction court announced that because 

of a lockdown at the facility in which the Petitioner was housed, the Petitioner had not 

been transported to court. The prosecutor advised the court that the Petitioner had 

subpoenaed the victim, which was “unusual.” After the subpoena was served, the 

victim’s son, who lived in Hopkinsville, Kentucky, contacted the prosecutor by 

telephone. The victim’s son explained that the victim was “of advanced age,” did not 

leave home often, had mobility problems, and “sometimes his mind is not all there.” The 

victim’s son asked the prosecutor why the subpoena had been issued, but the prosecutor

was unable to offer an explanation. The prosecutor said that if the victim’s son had lived 

nearby, he would have been asked to come to court and explain the situation. The 

prosecutor suggested that the post-conviction court and the parties could call the victim’s 

son and determine the problems with having the victim testify. 

The post-conviction court asked post-conviction counsel to discuss the issue with 

the Petitioner and determine his reasons for subpoenaing the victim. The post-conviction 
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court suggested that the parties try to avoid calling the victim by stipulating his testimony 

or by obtaining a telephone statement “if the son thinks he’s having a good day.” The 

post-conviction court surmised that the victim’s testimony would not “be any help or, or 

harm to the cause, either one.” Post-conviction counsel stated, “As far, as far as the 

former, yes, I will try to contact him. And the latter, yes, I also agree.” 

At a hearing held on February 19, 2016, the post-conviction court noted that

initially, the Petitioner had not raised any complaints about appellate counsel and asked if 

the Petitioner needed appellate counsel to testify at the post-conviction hearing. The 

post-conviction court explained that due to his wife’s illness, appellate counsel could not 

be in court that day, and he might not be available for several weeks. The Petitioner 

responded that he wanted appellate counsel to be present because he had issues with the 

way appellate counsel represented him at the sentencing hearing, the motion for new trial, 

and on appeal. The post-conviction court warned the Petitioner that requiring appellate 

counsel to be present for the hearing could delay the proceedings because the court would 

not “make him leave his very ill wife’s bedside to do this.” The Petitioner expressed his 

sympathies for appellate counsel but repeated that he wanted him present for the hearing. 

At that time, the post-conviction court asked appellate counsel’s employer, who 

was in the courtroom, for an update on appellate counsel’s situation. Appellate counsel’s

employer said that appellate counsel’s wife could be released from the hospital at “midMarch, at best” but that “if things don’t progress positively, it could be much, much later 

than that.” The post-conviction court suggested that the post-conviction hearing be 

continued until April 15. The post-conviction court advised the Petitioner that if, at the 

time of the hearing, appellate counsel was “still with his, his wife, I’m not going to 

require him to be here, which would mean we’d need to put it off again, okay?” The 

Petitioner agreed. 

At the April 15, 2016 hearing, post-conviction counsel called the Petitioner to 

testify. Immediately before the Petitioner began to testify, post-conviction counsel 

announced that he would pursue the “most salient issues” from the Petitioner’s pro se 

post-conviction petition and that afterward, he would give the Petitioner the opportunity 

to raise any additional issues he wanted addressed by the post-conviction court. The 

Petitioner gave his assent. 

The Petitioner testified that prior to trial, trial counsel had an expert appraise the 

coins stolen from the victim. The Petitioner did not receive a copy of the appraisal until 

after his conviction. The appraised value of the stolen coins was $9,144. The Petitioner 

asserted that trial counsel should have introduced the appraisal to show that the value was 

less than $10,000, which would have reduced the Petitioner’s conviction from a Class C 

felony to a Class D felony. 
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The Petitioner said that “the dollar value of the coins would, of course, have made

a difference.” He noted that the victim had testified at trial that the coins weighed 

approximately seventy-eight pounds and that the co-defendant said she had carried the 

coins out of the victim’s house in a tote bag. The Petitioner opined that removing the 

coins in one trip was impossible. 

The Petitioner maintained that trial counsel failed to investigate his case prior to 

trial. He noted that trial counsel never interviewed the Petitioner’s ex-girlfriend, Vicky 

Bly, who had told the victim that the coins were stolen by the co-defendant. The 

Petitioner did not think trial counsel interviewed the co-defendant’s son, Grizzle. 

The Petitioner acknowledged that the co-defendant testified at trial that the 

Petitioner knew the coins were stolen. He contended, however, that “[s]he had 

everything to gain” by testifying against him, noting that she was granted probation and 

moved in with the victim. The Petitioner maintained that his co-defendant stole the coins 

from the victim and that she did not tell the Petitioner the coins were stolen “until after 

the final sale was done.” The Petitioner contended that the co-defendant also gave some 

of the stolen coins to Grizzle. The Petitioner wanted appellate counsel to call Grizzle to 

testify at the hearing on the motion for new trial because “he would have told the same 

thing as I did, that he did not know that they were stolen. She was telling every one of us 

the same story, that she had inherited those coins.” 

The Petitioner said that appellate counsel failed to include all of the issues the 

Petitioner wanted in the motion for new trial, which limited his success on appeal. The 

Petitioner said that appellate counsel could have demonstrated at the motion for new trial 

that the Petitioner did not know the coins were stolen and could have introduced new 

evidence regarding the value of the coins, namely the expert’s appraisal. 

The Petitioner said that at the hearing on the motion for new trial, appellate 

counsel “tried to withdraw, because we couldn’t agree,” but the trial court would not 

allow appellate counsel to withdraw. Appellate counsel then asked for a continuance, 

which the trial court denied. The Petitioner felt appellate counsel was “in the wrong. He 

didn’t do what he should, but he tried in some ways.” 

Regarding the victim’s absence at the hearing, post-conviction counsel asked the 

Petitioner, “You had made some commentary about the victim and his lack of presence 

today. Did you want to comment on that and what kind of testimony you feel you would 

have been able to . . . .” The State objected, arguing that it was irrelevant. The postconviction court sought clarification, asking post-conviction counsel if the Petitioner was 

disappointed the victim was not present for the hearing. Post-conviction counsel 

responded, “That is what he brought forth to me and he wanted to comment on that. I

was just reminding him.” The post-conviction counsel sustained the State’s objection.
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The Petitioner said that “[t]he victim was writing letters to the co-defendant during 

the time that I was going to trial.” He maintained that trial counsel subpoenaed the letters 

but did not submit them as evidence at trial. The Petitioner opined that the letters would 

have made a difference in the jury’s verdict. The Petitioner conceded, however, that he 

“never saw [the letters], other than a brief second.” The Petitioner asserted that the 

victim also visited the co-defendant in jail and that after she was convicted, “she move[d]

back in with him and work[ed] for him again.” The Petitioner opined, “It just seems to 

me like it was a big, big plot. But I think if the jurors would have seen those letters, he 

clearly coerced her into testifying.” The Petitioner thought trial counsel should have 

“addressed that a little bit more at trial.” 

The Petitioner complained that appellate counsel “never even tried to find out if I 

was innocent or guilty in my, in my appeals. He just said that I got an excessive 

sentence.” 

The Petitioner said that he asked post-conviction counsel to have Grizzle testify at 

the post-conviction hearing and that post-conviction counsel said the court would not 

allow it. 

On cross-examination, the Petitioner said that he was in custody prior to trial and 

that he never had any meetings or conversations with the appraiser. Accordingly, he did 

not know what the appraiser may have told trial counsel about his prospective testimony. 

On redirect examination, the Petitioner said that because appellate counsel “did 

such a job on the rest of it,” he wanted appellate counsel to withdraw from his case. 

Nevertheless, appellate counsel wrote a brief which the Appellant opined “was poorly, 

poorly put together.” The post-conviction court asked if the Petitioner was referring to 

the appellate brief. The Petitioner responded, “That’s what I’m talking about, yes. You 

don’t agree with that, Your Honor?” The post-conviction court informed the Petitioner 

that he could not ask the court such questions. The Petitioner stated that he had requested 

that the trial court testify at the hearing but that the court refused. The post-conviction 

court asked if the parties had anything else to discuss, and the State and post-conviction 

counsel responded that they did not. 

Trial counsel testified that the Petitioner was represented by another attorney in 

general sessions court; however, when the Petitioner was indicted for “theft over 

$60,000,” a public defender was appointed to represent the Petitioner. Before the 

sentencing hearing, the Petitioner asked for trial counsel to be relieved, and appellate 

counsel was appointed to represent the Petitioner during sentencing, the motion for new 

trial, and the direct appeal. 
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Trial counsel recalled that after his appointment, he learned the victim had 

reported that a large number of coins had been stolen and that the victim estimated that 

the value of the coins was more than $60,000. Trial counsel doubted the accuracy of the 

victim’s estimate and obtained funding from the trial court to hire an appraiser. 

Trial counsel also spoke with the two pawnshop owners and learned that the 

Petitioner and his co-defendant came into their shops several times, separately and 

together, to sell the coins. Some of the coins were melted, and the silver was sold. The 

pawnshop owners estimated that the value of the melted coins was approximately $1,500 

to $2,000. The defense’s appraiser estimated that the value of the coins recovered by law 

enforcement was $9,100; however, the appraiser advised trial counsel “that coin 

appraisals were very subjective.” Trial counsel was aware that the appraisal did not 

include the value of the melted coins or the coins that were not recovered by law 

enforcement. Trial counsel concluded that the appraisal would not be beneficial because 

the State could establish through the testimony of the pawnshop owners, the victim, and 

law enforcement the value of the coins that were never recovered. Accordingly, the 

State’s proof easily established that the total value of the stolen coins was “well over 

$10,000.” 

On cross-examination, trial counsel said that the victim had asked the State to drop 

the charges against the co-defendant, who was the Petitioner’s wife at the time of the 

offense. The victim wrote the co-defendant “letters about paying for her divorce, about 

her coming back – she’d been fired, she was in jail, about coming back to work and that 

sort of thing.” Trial counsel said that he cross-examined the victim “about those issues, 

and [the victim] admitted it. [The co-defendant] admitted it.” Trial counsel said that the 

allegation at trial was that the victim and the co-defendant had been having an affair; 

however, the victim denied the allegation.

1

 

Trial counsel said that Grizzle was the co-defendant’s son and that the Petitioner 

referred to the co-defendant as his wife. Trial counsel said that at trial, the co-defendant 

“was asked questions about, who did you tell and where did you tell the people that she 

obtained the coins from. Her answer was, I got them from my deceased father. I

inherited them, in other words. She told her son she admitted to it.” Trial counsel said 

that the co-defendant acknowledged she had reached an agreement with the State 

whereby she would receive probation in exchange for her testimony against the 

Petitioner. Trial counsel said that the co-defendant testified that she took the coins and 

that the Petitioner “knew where they came from and where she was getting them and 

pretty much did nothing to stop her. He was all for it. He was as much a party to it as 

 

1 At trial, the co-defendant was not questioned about an alleged affair with the victim. 
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she was, even though he didn’t physically go inside to sell the coins.” Trial counsel said 

that he made a strategic decision not to have Grizzle testify at trial. 

At the conclusion of the hearing, the post-conviction court noted that the $9,100 

appraisal “would have come awfully, awfully close to the $10,000” and that the appraisal 

might have supported the State’s case instead of undermining it. Accordingly, the postconviction court found that trial counsel made a strategic decision not to present the 

appraisal at trial and that the strategy was sound. As to the Petitioner’s claim that counsel 

should have called Grizzle, the post-conviction court found that the Petitioner did not call 

Grizzle at the post-conviction hearing and had failed to establish what Grizzle’s 

testimony at trial would have been. Therefore, the Petitioner had not shown counsel was 

deficient or that the Petitioner had been prejudiced. 

On appeal, the Petitioner contends for the first time that he “was denied due 

process at his post-conviction evidentiary hearing; therefore, the [post-conviction] court 

erred in dismissing his petition for post-conviction relief.” Specifically, the Petitioner 

contends that he “was not afforded the opportunity to call critical witnesses at his 

evidentiary hearing” and that the post-conviction court “was prejudicial toward [him], 

demonstrating such bias and hostility as to render the post-conviction hearing unfair.” 

II. Analysis

We note that “[r]elief under [the Post-Conviction Procedure Act] shall be granted 

when the conviction or sentence is void or voidable because of the abridgment of any 

right guaranteed by the Constitution of Tennessee or the Constitution of the United 

States.” Tenn. Code Ann. § 40-30-103. “‘Due process is flexible and calls for such 

procedural protections as the particular situation demands.’” Seals v. State, 23 S.W.3d 

272, 277 (Tenn. 2000) (quoting Phillips v. State Bd. of Regents, 863 S.W.2d 45, 50 

(Tenn. 1993)). “The flexible nature of procedural due process requires an imprecise 

definition because due process embodies the concept of fundamental fairness.” Id. “All 

that due process requires in the post-conviction setting is that the defendant have the 

opportunity to be heard at a meaningful time and in a meaningful manner.” Stokes v.

State, 146 S.W.3d 56, 61 (Tenn. 2004) (internal quotation marks and citations omitted). 

In a post-conviction proceeding, the requirement of a “‘full and fair hearing’” is fulfilled 

when a “‘petitioner is given the opportunity to present proof and argument on the petition 

for post-conviction relief.’” Brimmer v. State, 29 S.W.3d 497, 531 (Tenn. Crim. App. 

1998) (House v. State, 911 S.W.2d 705, 714 (Tenn. 1995)). Moreover, the determination 

of whether the prospective evidence is relevant is left to the post-conviction court’s 

discretion, which this court will not overturn without a showing of abuse of discretion. 

See State v. Forbes, 918 S.W.2d 431, 449 (Tenn. Crim. App. 1995)).
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Most, if not all, of the Petitioner’s claims on appeal relate to his allegations that he 

was denied due process at the post-conviction hearing by the post-conviction court. Our 

supreme court has stated that “[a]ll that due process requires in the post-conviction 

setting is that the defendant have the opportunity to be heard at a meaningful time and in 

a meaningful manner.” Stokes v. State, 146 S.W.3d 56, 61 (Tenn. 2004) (internal 

quotation marks and citations omitted). In order for a Petitioner to have a full and fair 

post-conviction hearing, he or she must be given only “the opportunity to present proof 

and argument on the petition for post-conviction relief.” House, 911 S.W.2d at 714; see

Tenn. Code Ann. § 40-30-106(h) (“A full and fair hearing has occurred where the 

petitioner is afforded the opportunity to call witnesses and otherwise present evidence, 

regardless of whether the petitioner actually introduced any evidence.”). At the hearing, 

the “[p]roof upon the [P]etitioner’s claim or claims for relief shall be limited to evidence 

of the allegations of fact in the petition.” Tenn. Code Ann. § 40-30-110(c). 

A criminal defendant’s constitutional right to compulsory process to obtain 

witnesses in their favor is not unlimited and “extends to ‘competent, material, and 

resident witnesses whose expected testimony will be admissible.’” William Darryn 

Busby v. State, No. M2012-00709-CCA-R3-PC, 2013 WL 5873276, at *8 (Tenn. Crim. 

App. at Nashville, Oct. 30, 2013) (quoting Bacon v. State, 385 S.W.2d 107, 109 (Tenn. 

1964)); see Paul Graham Manning v. State, No. M2005-02876-CCA-R3-PC, 2007 WL 

4116487, at *12 (Tenn. Crim. App, at Nashville, Nov. 13, 2007). It is within the court’s 

discretion to determine whether the proffered evidence is relevant; thus, we will not 

overturn the court’s decision absent an abuse of discretion. Forbes, 918 S.W.2d at 449 

(Tenn. Crim. App. 1995).

Although the Petitioner stated at earlier hearings that he wanted the victim and 

appellate counsel to be called as witnesses, the record does not reflect why they were not 

present at the post-conviction hearing. The Petitioner asks this court to presume that he 

was denied a full and fair hearing because the witnesses did not appear for the hearing. 

However, the record does not support this presumption. 

Regarding the victim, we note that although the post-conviction court initially 

questioned how the victim’s testimony could benefit the Petitioner’s case, the court did 

not prevent the Petitioner from calling the victim. The post-conviction court merely 

asked the Petitioner to consider an alternate way of obtaining the victim’s testimony, such 

as by affidavit or telephone conference, so that the victim, who was elderly and unwell, 

would not be required to come to court. The record does not reflect that the Petitioner 

pursued obtaining the victim’s testimony by alternate means as suggested by the postconviction court. 

Although post-conviction counsel stated that the Petitioner was disappointed the 

victim was not present to testify, the record does not reflect the victim could have offered 
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any testimony that was relevant to the Petitioner’s ineffective assistance of counsel 

claims. Notably, the Petitioner testified that in order to support the Petitioner’s claim that 

the victim and the co-defendant had a relationship after her arrest, he wanted to question 

the victim about letters the victim wrote to the co-defendant. The Petitioner 

acknowledged that he “never saw [the letters], other than a brief second.” The Petitioner 

did not introduce any letters at the post-conviction hearing. Trial counsel testified that he 

read the letters and, while he did not introduce them at trial, he used them to crossexamine the victim. We have reviewed the direct appeal transcript and note that trial 

counsel cross-examined the victim extensively regarding the letters and his relationship 

with the co-defendant. The victim acknowledged he wrote letters to the co-defendant 

after she was arrested but maintained that he offered only to pay for her divorce from the 

Petitioner so she could end the abusive relationship. The victim also testified that while 

he had been fond of the co-defendant, after the offense, he no longer trusted her and 

would not allow her back in his home. The Petitioner is not entitled to relief. See Bruce 

S. Rishton v. State, No. E2010-02050-CCA-R3-PC, 2012 WL 1825704, at *19 (Tenn. 

Crim. App. May 21, 2012); George T. Haynie, Jr. v. State, No. M2009-01167-CCA-R3-

PC, 2010 WL 3609162, at *7 (Tenn. Crim. App. at Nashville, Sept. 16, 2010); Manning, 

No. M2005-02876-CCA-R3-PC, 2007 WL 4116487, at *12. 

Regarding appellate counsel, the post-conviction court expressed its willingness to 

postpone the hearing until appellate counsel could be present. The court cautioned the 

Petitioner that waiting for appellate counsel would delay the proceedings. The Petitioner 

did not raise an objection to continuing without appellate counsel. Indeed, during his 

testimony, the only witness the Petitioner mentioned that he wanted to testify at the postconviction hearing was Grizzle. Accordingly, we conclude that the Petitioner was not 

deprived of his right to a full and fair post-conviction hearing. 

The Petitioner also contends that the post-conviction court’s tone and comments 

throughout the proceedings reflected that the court was prejudiced and biased against 

him. “The right to a fair trial before an impartial tribunal is a fundamental constitutional 

right.” State v. Austin, 87 S.W.3d 447, 470 (Tenn. 2002). In particular, “[a] trial before 

a biased or prejudiced judge is a denial of due process.” State v. Rimmer, 250 S.W.3d 

12, 37 (Tenn. 2008) (citing Wilson v. Wilson, 987 S.W.2d 555, 562 (Tenn. Ct. App.

1998)). Tennessee Supreme Court Rule 10B section 1.01 “expressly provides that any 

party seeking disqualification or recusal of a trial judge ‘shall do so by a timely filed 

written motion.’” Cain-Swope v. Swope, 523 S.W.3d 79, 88 (Tenn. Ct. App. 2016). 

Although counsel noted the Petitioner’s dissatisfaction with the court at the November 

20, 2015 hearing, the Petitioner never filed a written motion for recusal. It is wellestablished that “recusal motions must be filed promptly after the facts forming the basis 

for the motion become known, and the failure to assert them in a timely manner results in 

a waiver of a party’s right to question a judge’s impartiality.” Duke v. Duke, 398 S.W.3d 

665, 670 (Tenn. Ct. App. 2012) (internal quotation marks and citation omitted). We 
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conclude that the Petitioner waived the issue by failing to timely file a motion for recusal. 

State v. Antonio McMiller, No. E2015-01597-CCA-R3-CD, 2016 WL 3947878, at *9 

(Tenn. Crim. App. at Knoxville, July 18, 2016). This issue is without merit. 

III. Conclusion

Finding no error, we affirm the judgment of the post-conviction court. 

_________________________________

NORMA MCGEE OGLE, JUDGE