IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 8, 2016

MICHAEL TYRONE GANT v. STATE OF TENNESSEE

Appeal from the Circuit Court for Bedford County

No. 17954 Forest A. Durard, Jr., Judge

No. M2015-01566-CCA-R3-PC – Filed June 1, 2016

The Petitioner, Michael Tyrone Gant, appeals the denial of his petition for postconviction relief. He argues that he received ineffective assistance of counsel based on 

trial counsel‟s failure to present evidence on his behalf that would have established both 

his innocence and the victim‟s bias. Upon review, we affirm the judgment of the postconviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.

WOODALL, P.J., and D. KELLY THOMAS, JR., J., joined.

Brian C. Belden, Shelbyville, Tennessee, for the Petitioner, Michael Tyrone Gant.

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

Robert James Carter, District Attorney General; and Michael D. Randles, Assistant 

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

OPINION

On October 22, 2012, a Bedford County jury convicted the Petitioner of 

aggravated robbery, aggravated burglary, possession of a weapon by a convicted felon, 

and possession of a firearm during the commission of a dangerous felony, and the trial 

court imposed an effective sentence of forty-eight years‟ incarceration. See State v. 

Michael Tyrone Gant, No. M2012-02727-CCA-R3-CD, 2013 WL 5873278, at *1 (Tenn. 

Crim. App. Oct. 30, 2013), perm. app. denied (Tenn. Mar. 5, 2014). This court affirmed 

the Petitioner‟s convictions and sentences on direct appeal, and the Tennessee Supreme 

Court denied his application for permission to appeal. See id. On October 14, 2014, the 

Petitioner filed a timely pro se petition for post-conviction relief. Following the 

appointment of counsel, an amended petition was filed. 
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The facts underlying the Petitioner‟s convictions were summarized by this court 

on direct appeal. See id. at *1-6. In short, on June 22, 2010, the Petitioner accompanied 

Daneile Jeffery to buy pain pills from the victim after Jeffery picked him up at a gas 

station. At the time, the Petitioner and Jeffery had known one another for a few months

because the Petitioner‟s son and Jeffery‟s daughter had a child together. When they 

arrived at the victim‟s address, the Petitioner stayed inside the car while Jeffery went 

inside the victim‟s home. Jeffery came back outside to get her money from the car and 

just after she reentered the home, the Petitioner forced his way into the victim‟s house, 

brandished a handgun, and informed the victim that he was robbing her. 

The victim said she had never seen the Petitioner before that day and described 

him as a six-foot tall African-American male who was wearing a white t-shirt. The 

Petitioner held his gun to the victim‟s head before taking her cell phone, seventy Percocet

pills, and between $180 and $200 in cash. During the robbery, the victim recalled Jeffery 

asking the Petitioner, “Clint, why are you doing this[?]” Jeffery denied calling the 

Petitioner “Clint” the day of the robbery and could not recall what name, if any, she had 

used when speaking to the Petitioner inside the victim‟s home. Although the victim said

that she had sold pain pills to Jeffery three times in the past, Jeffery stated that she had 

bought pills from the victim on fifteen prior occasions. Jeffery identified the Petitioner as 

the “gunman” to police, and the victim identified the Petitioner as the perpetrator from a 

photographic lineup. The Petitioner, during his interview with police, said he had never 

been to Bedford County, where the victim resided, and knew nothing about a robbery. 

He claimed he “dealt in cocaine” and not in pain pills. 

At trial, Jeffery acknowledged that she had pending charges for theft and 

aggravated robbery for her role in the instant offenses and had prior convictions for 

obtaining a controlled substance by fraud, theft of property valued over $10,000, theft of 

property valued under $500, and introduction of contraband into a penal facility. She 

claimed that although she was guilty of buying prescription drugs, she was not guilty of 

robbing the victim. Jeffery admitted that she was addicted to pain pills, particularly

Lortab, Oxycodone, and Percocet, and that she would go to the Petitioner‟s house and 

smoke crack cocaine with him. 

The parties stipulated that the Petitioner was a convicted felon on June 22, 2010. 

The Petitioner admitted that he had been convicted of escape, attempt to commit a felony, 

burglary in the second degree, and receiving stolen property. He said he and Jeffery had

been involved in an “intimate relationship” and that she had asked him for money for 

pills in the past. The Petitioner testified that he had never seen the victim prior to his 

court case and that he had never been to the victim‟s home. He claimed that he had been 

working on a neighbor‟s porch at the time of the alleged robbery, although he failed to 

mention this alibi to police during his interview. 
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Post-Conviction Hearing. The Petitioner testified that he discovered during trial 

or prior to trial that the victim had overheard Daniele Jeffery1calling the perpetrator by 

the name of “Clint” during the offenses. He claimed that trial counsel never investigated 

the existence of “Clint,” even though he had told counsel that Jeffery had dated someone 

by that name. He admitted that he had never met “Clint,” did not know “Clint‟s” last 

name or address, and was unaware if “Clint” had a criminal record. The Petitioner said 

he only knew that “Clint” was a man that Jeffery had dated and that Jeffery‟s daughter

had told him that “Clint” was African-American. The Petitioner maintained that if trial 

counsel had located “Clint,” it would have changed the outcome at trial because it would 

have cleared him of all the charges in this case. He admitted that even if trial counsel had 

tried to talk to Jeffery about “Clint,” he could not have spoken to her without the 

permission of her attorney because Jeffery was charged as a codefendant in his case. 

The Petitioner stated that he gave trial counsel a list of possible alibi witnesses, 

which included Jeffery‟s daughter; his brother, Tony Gant; Tonica2and Rodney Phillips, 

the two individuals for whom he worked on their porch; and Rodney Phillips‟s brother, 

whose name he believed was Jeremy Phillips. Despite this, he claimed the only people 

trial counsel developed as alibi witnesses were Tonica and Rodney Phillips. He 

acknowledged that Tonica Phillips testified as an alibi witness at trial and that her 

husband, who was present at trial, did not testify because of his failing health. The 

Petitioner conceded that Tonica Phillips could not testify that he worked on her porch the 

day the offenses occurred, only that he had been working on her property around the time 

of the offenses. However, he asserted that if trial counsel had interviewed the other 

witnesses on his list, the outcome of his trial would have been different because those 

witnesses could have confirmed his claim that he was working on the Phillips‟ porch at 

the time the offenses in this case were committed.

The Petitioner also claimed that trial counsel had failed to vigorously crossexamine the victim and Jeffery at trial. However, he admitted that trial counsel was able 

to get both the victim and Jeffery to admit that the victim was selling Jeffery pain pills. 

He also admitted that trial counsel was able to highlight the fact that the victim and 

Jeffery had differing stories as to how many times Jeffery had bought pills from the 

victim. Nevertheless, the Petitioner claimed that trial counsel failed to sufficiently attack 

the victim‟s and Jeffery‟s credibility during cross-examination based on these

admissions. While he acknowledged that the victim and Jeffery provided different 

testimony as to how many times Jeffery had bought pills from the victim prior to the 

 

1 Although this witness‟s last name is spelled “Jeffries” in the transcript from the post-conviction 

hearing, we will spell her last name “Jeffery” in accordance with her own testimony at trial. 

2 While this witness‟s first name is spelled “Tamika” in the transcript from the post-conviction 

hearing, we will spell her first name “Tonica” in accordance with her own testimony at trial. 
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offenses, he claimed that trial counsel should have emphasized this discrepancy during 

cross-examination because it supported his theory that the victim and Jeffery were 

“covering up something.” 

Although the Petitioner claimed that Jeffery was bisexual and would engage in 

sexual acts in exchange for pills, he initially said he could not remember telling trial 

counsel this information. Later, he testified that he told trial counsel that Jeffery was 

bisexual, that he and Jeffery had engaged in sexual relations, and that Jeffery often traded 

sex with other individuals for drugs, but he claimed that counsel refused to question 

Jeffery about these issues at trial. The Petitioner said this evidence would have affected 

the outcome of trial because it would have damaged Jeffery‟s credibility and would have 

shown that Jeffery and the victim had a closer relationship than they claimed. 

The Petitioner also asserted that the victim, the victim‟s son, and Jeffery had a 

“vendetta” against him because Jeffery‟s daughter was seeing the Petitioner‟s son while 

she was dating the victim‟s son. He claimed that because of his son‟s relationship with 

Jeffery‟s daughter, the victim, the victim‟s son, and Jeffery concocted a story about his

committing the robbery. The Petitioner said he told trial counsel prior to trial that the 

victim and Jeffery blackmailed him, and trial counsel never investigated or questioned 

these witnesses about that information. Despite his claim that the victim was 

blackmailing him, the Petitioner admitted that the first time he had ever seen the victim 

was at his trial. 

The Petitioner also asserted that if trial counsel had obtained the surveillance 

videotape from the gas station that was made the day of the offenses, it would have 

shown that Jeffery did not pick him up there before going to the victim‟s home, as she 

claimed. He admitted that he did not have this surveillance videotape to present at the 

post-conviction hearing but claimed that trial counsel failed to make a timely request for 

this videotape. 

Trial counsel testified that he had been an assistant public defender for 

approximately seventeen years and had been licensed to practice law in Tennessee for 

close to twenty-five years. At the time he represented the Petitioner, he had handled 

thousands of felony cases in circuit court and was certified to represent defendants in 

capital cases.

Counsel stated that he reviewed the discovery with the Petitioner and met with the 

Petitioner about his case several times, including one or two times at the prison where the 

Petitioner was incarcerated. He said that he was familiar with the State‟s evidence and 

was prepared to defend the Petitioner at trial.
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Trial counsel said the Petitioner never informed him that Jeffery was dating a man 

named “Clint” prior to trial. He acknowledged that, during an interview prior to trial, the 

victim told him Jeffery had referred to the perpetrator as “Clint” during the robbery. He 

said he did not try to locate “Clint” because the Petitioner never told him that Jeffery had 

an acquaintance named “Clint.” Counsel explained that Jeffery was charged as a 

codefendant, and Jeffery‟s attorney refused to allow her to be interviewed prior to the 

Petitioner‟s trial.

Counsel said that he extensively questioned the victim about selling her pain pills

and finally got her to begrudgingly admit that she was a drug dealer, which affected her 

credibility at trial. He said he also highlighted the inconsistencies between the victim‟s 

account and Jeffery‟s account of how often the victim sold pain pills to Jeffery. 

Moreover, trial counsel said he was able to get Jeffery to admit that she heavily used 

drugs and that she had a relationship with the victim, which affected Jeffery‟s credibility. 

Trial counsel said that although he knew of the relationship between the 

Petitioner‟s son and Jeffery‟s daughter, the Petitioner never informed him that the victim, 

the victim‟s son, and Jeffery were blackmailing him because of that relationship. 

Counsel said that he fully explored the relationship between Jeffery and the Petitioner as 

well as the relationship between the Petitioner‟s son and Jeffery‟s daughter.

Counsel stated that the Petitioner and Jeffery had committed offenses similar to 

the instant crimes in Coffee County. However, he had successfully kept the evidence of 

the Coffee County crimes out of the trial in this case.

Trial counsel said the Petitioner gave him a list of possible alibi witnesses that 

included Tonica Phillips and her husband, Rodney Phillips. Although he interviewed Mr. 

and Mrs. Phillips, they could not confirm that the Petitioner was working on their porch 

at the time the offenses in this case were committed. Counsel said he called Tonica

Phillips to testify at trial because she was the best alibi witness available. He said he did 

not have Rodney Phillips testify because he was in poor health and because he did not 

remember as much about the Petitioner‟s work on the porch as his wife.

Counsel said that he interviewed Dale Phillips, who he believed was Rodney 

Phillips‟s brother. Because Dale Phillips was incarcerated in another county on the day 

the offenses in this case were committed, he could not provide an alibi for the Petitioner. 

Trial counsel also interviewed the Petitioner‟s brother, Tony Gant, who was unable to 

confirm that he and the Petitioner had worked on the porch at the Phillips‟ home at the 

time of the offenses. After discussing the information he had gathered from the potential

alibi witnesses, trial counsel said that he and the Petitioner decided to have only Tonica

Phillips testify at trial because she was the best alibi witness, even though her testimony 
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was less specific than they hoped it would be. Counsel did not recall the Petitioner 

mentioning anyone by the name of Jeremy Phillips as a possible alibi witness and did not 

remember the Petitioner suggesting any other alibi witnesses to him. 

Finally, trial counsel said he and the Petitioner discussed obtaining the 

surveillance videotape from the gas station where Jeffery claimed she picked up the 

Petitioner before going to the victim‟s home the day of the offenses. Counsel said he 

contacted the store to see if they had a videotape, but the videotape from that date had 

been recorded over because too much time had passed. Trial counsel explained that the 

offenses were committed on June 22, 2010, and that he was not appointed to represent the 

Petitioner until January 27, 2012. On July 15, 2015, the post-conviction court entered an 

order denying the Petitioner relief.

ANALYSIS

The Petitioner contends that trial counsel provided ineffective assistance by failing 

to: (1) investigate the existence of an individual named “Clint” as the perpetrator; (2) 

investigate and question the victim regarding her drug use and drug dealing and Jeffery, 

his codefendant, regarding her drug use and history of trading sex for drugs; (3) 

investigate and question the victim and Jeffery regarding the nature of their relationship, 

the nature of the relationship between Jeffery‟s daughter and the Petitioner‟s son, and the 

nature of the relationship between Jeffery‟s daughter and the victim‟s son to show that he 

was the victim of a conspiracy; (4) adequately prepare an alibi defense; and (5) obtain the 

surveillance videotape from the gas station to impeach Jeffery‟s testimony. He asserts 

that but for these failures on the part of trial counsel, the outcome of his trial would have 

been different. The State argues that the post-conviction court properly denied relief.

Post-conviction relief is only warranted when a petitioner establishes that his or 

her conviction or sentence is void or voidable because of an abridgement of a 

constitutional right. T.C.A. § 40-30-103. The Tennessee Supreme Court has held:

A post-conviction court‟s findings of fact are conclusive on appeal 

unless the evidence preponderates otherwise. When reviewing factual 

issues, the appellate court will not re-weigh or re-evaluate the evidence; 

moreover, factual questions involving the credibility of witnesses or the 

weight of their testimony are matters for the trial court to resolve. The 

appellate court‟s review of a legal issue, or of a mixed question of law or 

fact such as a claim of ineffective assistance of counsel, is de novo with no 

presumption of correctness. 

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation 
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marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State, 

303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of 

proving the factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f); 

Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn. 2009). 

Evidence is considered clear and convincing when there is no serious or substantial doubt 

about the accuracy of the conclusions drawn from it. Lane v. State, 316 S.W.3d 555, 562 

(Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009); Hicks v. State, 983 

S.W.2d 240, 245 (Tenn. Crim. App. 1998). 

In order to prevail on an ineffective assistance of counsel claim, the petitioner 

must establish that (1) his lawyer‟s performance was deficient and (2) the deficient 

performance prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Baxter v. Rose, 

523 S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)).

A petitioner successfully demonstrates deficient performance when the petitioner 

establishes that his attorney‟s conduct fell “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, 523 S.W.2d at 936). Prejudice arising 

therefrom is demonstrated once the petitioner establishes “„a reasonable probability that, 

but for counsel‟s unprofessional errors, the result of the proceeding would have been 

different. A reasonable probability is a probability sufficient to undermine confidence in 

the outcome.‟” Id. at 370 (quoting Strickland, 466 U.S. at 694). Moreover, 

[b]ecause a petitioner must establish both prongs of the test, a failure to 

prove either deficiency or prejudice provides a sufficient basis to deny 

relief on the ineffective assistance claim. Indeed, a court need not address 

the components in any particular order or even address both if the 

[petitioner] makes an insufficient showing of one component.

Id. at 370 (citing Strickland, 466 U.S. at 697).

First, the Petitioner claims that trial counsel failed to investigate the existence of 

“Clint” as the perpetrator, but he failed to present “Clint” at the hearing. This court has 

held that “[w]hen a petitioner contends that trial counsel failed to discover, interview, or 

present witnesses in support of his defense, these witnesses should be presented by the 

petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. 

App. 1990). The presentation of the witness at the post-conviction hearing is typically 

the only way for the petitioner to establish:

(a) a material witness existed and the witness could have been discovered 

but for counsel‟s neglect in his investigation of the case, (b) a known 

witness was not interviewed, (c) the failure to discover or interview a 
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witness inured to his prejudice, or (d) the failure to have a known witness 

present or call the witness to the stand resulted in the denial of critical 

evidence which inured to the prejudice of the petitioner.

Id. Neither the post-conviction court nor this court may speculate on “what a witness‟s 

testimony might have been if introduced by defense counsel.” Id. Regarding this issue, 

the post-conviction court noted: “Dan[eile] Jeff[ery] during her testimony denied ever 

stating the name of a person called „Clint‟ during the robbery. There is little in the way 

of facts to support Petitioner‟s claim this person exists or could have been located. There 

was not even a last name of this person known.” Because the Petitioner did not present 

“Clint” or any other witnesses showing that “Clint” was the perpetrator in this case, he 

has failed to show that trial counsel was ineffective as to this issue. 

Second, the Petitioner asserts that trial counsel failed to vigorously cross-examine 

the victim about her drug use and drug dealing and Jeffery about her drug use and history 

of trading sex for drugs. He claims that a more forceful cross-examination would have 

made these witnesses, who identified him as the perpetrator, less credible. During the 

evidentiary hearing, the post-conviction court stated: “[Trial counsel] vigorously 

[questioned] several people in that trial. I‟ve read the transcript. He hopped on them 

pretty good.” At trial, the victim acknowledged that she had sold drugs to Jeffery several 

times in the past. In addition, Jeffery admitted that she was addicted to pain medication, 

that she had an extensive criminal history, that she frequently smoked crack cocaine, and 

that she had been charged as a codefendant in these crimes. Despite these admissions, 

the jury chose to accredit the victim‟s and Jeffery‟s testimony regarding their 

identification of the Petitioner as the perpetrator. The record shows that trial counsel 

effectively and vigorously cross-examined these witnesses, and the Petitioner has failed 

to show that additional cross-examination would have further eroded their credibility 

such that it would have changed the outcome of trial. Therefore, trial counsel‟s crossexamination of these witnesses was neither deficient nor prejudicial. 

Third, the Petitioner maintains that trial counsel failed to investigate and question 

the victim and Jeffery regarding the nature of their relationship, the nature of the 

relationship between Jeffery‟s daughter and the Petitioner‟s son, and the nature of the 

relationship between Jeffery‟s daughter and the victim‟s son. He claims such evidence 

would have proven that he was the victim of a conspiracy. However, he has failed to

provide one shred of evidence that a conspiracy existed. As the post-conviction court 

recognized, there was “no credible proof to this allegation,” and even if this allegation 

were true, such evidence “would not have a reasonable probability of changing the 

outcome.” Given the absence of such proof, the Petitioner has failed to show that trial 

counsel was ineffective as to this issue. 

 
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Fourth, the Petitioner claims that trial counsel failed to adequately prepare an alibi 

defense because he only presented the testimony of Tonica Phillips at trial. He claims 

that if his alibi witnesses had been allowed to testify, the jury might have found him

innocent of the charged offenses. Significantly, the Petitioner failed to present any of 

these alibi witnesses at the post-conviction hearing. See Black, 794 S.W.2d at 757 

(“When a petitioner contends that trial counsel failed to discover, interview, or present 

witnesses in support of his defense, these witnesses should be presented by the petitioner 

at the evidentiary hearing.”). Moreover, trial counsel testified that he interviewed several 

individuals before he and the Petitioner agreed that Tonica Phillips was the only person 

who could possibly testify as an alibi witness. In its order, the post-conviction court held 

that the Petitioner had presented no evidence of a feasible alibi defense:

[Tonica] Phillips . . . testif[ied] that [she] had a ramp made for her disabled 

husband during the summer of 2010 and the Petitioner helped construct the 

same. Beyond that she could be no more specific. It did not appear from 

her testimony her husband was in any condition to testify. There was not 

further testimony presented at trial or [at] the [post-conviction] hearing 

which would indicate a viable [alibi] defense. Consequently, this issue has 

no merit and has not been shown it would have a reason[able] probability to 

change the verdict.

For these reasons, the Petitioner has failed to establish that trial counsel‟s performance 

regarding the alibi defense was deficient or prejudicial. 

Finally, the Petitioner claims that trial counsel failed to obtain the surveillance 

videotape from the gas station, asserting that this footage would have impeached 

Jeffery‟s testimony that she picked him up at the gas station before going to the victim‟s 

home. However, the Petitioner failed to include this issue in his petition or amended 

petition for post-conviction relief, which resulted in the post-conviction court making no 

ruling on this matter for this court to review. Issues not included in a post-conviction 

petition may not be raised for the first time on appeal and are waived. See Walsh v. 

State, 166 S.W.3d 641, 645 (Tenn. 2005) (“Issues not addressed in the post-conviction 

court will generally not be addressed on appeal.”); Cauthern v. State, 145 S.W.3d 571, 

599 (Tenn. Crim. App. 2004) (“[A]n issue raised for the first time on appeal is waived.”). 

Regardless, the Petitioner failed to present this videotape at the post-conviction hearing,

and trial counsel testified that he requested this footage after his appointment, but it was 

unavailable. Because the Petitioner has failed to establish that trial counsel‟s 

performance was ineffective, he is not entitled to relief.
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CONCLUSION

After reviewing the record and the relevant authorities, we conclude that the postconviction court properly denied the petition for post-conviction relief. The judgment of 

the post-conviction court is affirmed. 

_________________________________ 

CAMILLE R. McMULLEN, JUDGE