IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

November 9, 2021 Session

RASHAD DEWAYNE SEAY, JR. v. STATE OF TENNESSEE

Appeal from the Criminal Court for Wilson County

No. 11-CR-689 Brody N. Kane, Judge

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No. M2020-01287-CCA-R3-PC

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A Wilson County jury convicted the Petitioner, Rashad Dewayne Seay, Jr., of two counts 

of the sale of .5 grams or more of a Schedule II controlled substance, and the trial court 

sentenced him to consecutive sentences of eighteen years for each offense. The Petitioner 

timely filed a petition for post-conviction relief, which the court summarily dismissed as 

untimely. On appeal, we reversed the summary dismissal. Rashad Dewayne Seay, Jr. v. 

State, No. M2017-01128-CCA-R3-PC, 2018 WL 3203442, at *1 (Tenn. Crim. App., at 

Nashville, June 29, 2018), no perm. app. filed. On remand, the post-conviction court held 

an evidentiary hearing after which it filed a written order denying the Petitioner relief. On 

appeal, the Petitioner contends that the post-conviction court erred because his trial counsel 

was ineffective for failing to ensure the Petitioner was present during the jury instructions,

failing to ensure that the jury was properly instructed, failing to adequately investigate and 

prepare an identification expert, and failing to inform the Petitioner of the consequences of 

withdrawing his direct appeal. After review, we affirm the post-conviction court’s 

judgment. 

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and J. Ross DYER , JJ., joined.

Shane K. McNeil, Thompson’s Station, Tennessee, for the appellant, Rashad Dewayne 

Seay, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant Attorney 

General; and Jason L. Lawson, District Attorney General, for the appellee, State of 

Tennessee.

OPINION

I. Facts

03/15/2022
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This case arises from two drug sales that occurred in 2010. In relation to these sales, 

a Wilson County grand jury indicted the Petitioner on two counts of selling .5 grams or 

more of a Schedule II controlled substance, cocaine. The Petitioner’s case proceeded to 

trial, and we briefly summarize the facts presented therein. 

A detective with the Mt. Juliet Police Department, Frank Deriggi, testified that he 

worked in the Narcotics Unit at the time of these drug sales. Detective Deriggi said that, 

before these sales, he had executed an unrelated search warrant in which a man was 

arrested. The detective contacted the man’s ex-girlfriend, Lori Douglas, in an attempt to 

determine where the man was obtaining his drugs. Ms. Douglas then became a confidential 

informant, working for pay for the police department, which paid her $150 per buy. 

Through this relationship, the Detective learned that the Petitioner may have been involved 

in drug sales.

On December 16, 2010, Ms. Douglas contacted Detective Deriggi and said that the 

Petitioner had crack cocaine for sale. Ms. Douglas contacted the Petitioner while in the 

presence of law enforcement, and the two agreed to an exchange of $175 for an “eight ball” 

of cocaine and further agreed to meet at the home of a mutual friend to complete the drug 

transaction. The detective, acting as an undercover officer, drove Ms. Douglas to the 

location. There, the two identified the Petitioner, and then Ms. Douglas exited the 

detective’s vehicle and got into the passenger seat of the Petitioner’s vehicle. From the 

detective’s vantage point, he could see the two exchange the money for drugs. Ms. Douglas 

then exited the Petitioner’s vehicle and reentered the detective’s vehicle, and she handed 

the detective the drugs. Detective Deriggi sent the drugs to be analyzed. After the drug 

transaction, two other detectives followed the Petitioner back to a road in Lebanon. 

On January 13, 2011, Ms. Douglas contacted the detective and informed him that 

the Petitioner had contacted her about purchasing drugs. Ms. Douglas and the Petitioner 

agreed to the sale of an “eight ball” of crack cocaine in exchange for $175. This transaction 

was set to occur in Lebanon, Tennessee, and there were officers viewing the drug 

transaction from concealed locations. Detective Deriggi said that the battery of the 

recording equipment went low, and he was unable to change the battery before the 

Petitioner approached their vehicle. Shortly thereafter, the detective saw the informant and 

the Petitioner exchange money for drugs. Immediately after the transaction, the informant 

returned to the detective’s vehicle and gave him the substance she had purchased. 

Detective Deriggi watched as the Petitioner went into the grocery store.

Detective Deriggi personally identified the Petitioner during both drug transactions 

and also in court.

The confidential informant testified at trial, and her testimony corroborated that of 

the detective. The detective’s testimony was also corroborated by another officer, Justin 
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Cagle, whose job it was to conduct surveillance during the December 16, 2020, and January 

13, 2021, drug transactions.

Tennessee Bureau of Investigation Crime Laboratory agent, Patty Choatie, testified 

that she tested the substances purchased during these drug transactions. The substance 

purchased on December 16, 2020, was 3.2 grams of cocaine. The substance purchased on 

January 13, 2021, was 2.5 grams of cocaine.

At the conclusion of the trial, the jury convicted the Petitioner as charged. The trial 

court imposed two consecutive eighteen-year sentences. 

The Petitioner appealed his convictions and then voluntarily dismissed his appeal. 

Rashad Dewayne Seay Jr., 2018 WL 3203442, at *2 (citing State v. Rashad Dewayne Seay,

Jr., M2014-00456-CCA-R3-CD (Tenn. Crim. App. 2014) app. dismissed (Dec. 3, 2014)). 

B. Post-Conviction

The Petitioner filed his petition for post-conviction relief on March 9, 2015. The 

post-conviction court summarily dismissed his petition as being time barred. The 

Petitioner appealed to this court, and, on appeal, both the State and the Petitioner agreed 

that the trial court had erred. Rashad Dewayne Seay, 2018 WL 3203442, at *2. We agreed, 

finding that the “the final action of the highest state appellate court to which an appeal was 

taken occurred on December 3, 2014, when this court dismissed the Petitioner’s direct 

appeal,” so that was the date that the Petitioner’s statute of limitations for filing a postconviction petition began to run. Id. Accordingly, we reversed the judgment of the postconviction court and remanded the case for an evidentiary hearing on the petition. Id.

On remand, the post-conviction court held a hearing during which the parties 

presented the following evidence: Counsel testified that he represented the Petitioner 

preceding and during his trial. Counsel received and reviewed discovery and investigated 

the case. Counsel recalled that the one defense he considered was that of mistaken identity. 

He expounded that the Petitioner’s son, who had the same name as the Petitioner, was also 

investigated by law enforcement. In further support of this defense, Counsel noted that the 

law enforcement officer’s description of the Petitioner differed from the driver’s license 

photo presented at trial by law enforcement. 

Counsel said he also defended the case by noting that the officers’ testimony was 

not viable or accurate and that there was no video or audio recording that clearly depicted 

the drug transaction. 

Counsel said that he did not recall a jury question being asked in this case. He said 

that, in the event of a jury question, it was the practice of the judge to have the foreperson 

prepare a written question, which would be brought out by the bailiff. The judge would 
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then call the parties into the courtroom, discuss the question on the record, and an answer 

would be provided to the jury. Counsel did not recall consenting to the judge 

communicating with the jury without Counsel being present. 

After having his memory refreshed, Counsel noted that it appeared that the jury  had 

a question about the fine, specifically whether or not the judge set the fine. The record 

appeared to indicate that Counsel waived the question, allowing the judge to speak to the 

jury without bringing them back into the courtroom. Counsel explained that he did not 

have any concern about whether that question would affect the outcome of the case. 

Counsel said that if the Petitioner was present next to him, he would have consulted the 

Petitioner about this decision. 

During cross-examination, Counsel testified that, at the time of the Petitioner’s trial, 

the Petitioner had other drug charges pending, including one related to a traffic stop. He 

also learned the day of trial that there was another case that involved a different law 

enforcement agency who had used a different informant to conduct an undercover drug 

buy from the Petitioner.

About the question to the jury, Counsel said that he did not think that a question

about the fines involved in the case would affect the outcome of the jury verdict. The 

question posed by the jury was whether or not they would set a fine on each count in which 

they found the Petitioner guilty or if they should set one fine. The record indicated that the 

trial judge called all of the parties into the courtroom, including the Petitioner, and 

discussed the question and the proposed answer to the question. The trial judge then said 

that he was going to step back into the jury room and tell the jury the answer. The Petitioner 

never indicated any hesitation about the trial judge stepping back to instruct the jury. 

Counsel said that he had no information to indicate that the trial judge did anything other 

than instruct the jury as he had said that he would. 

Counsel said that he filed the Petitioner’s motion for new trial after his conviction. 

The Public Defender’s Office then, however, took over the case. The Public Defender’s 

Office represented the Petitioner on appeal and also on the other charges that were pending 

against him.

Counsel testified that he filed a written request with the State to obtain the audio 

and video recordings of the transactions, and the State gave him all of the information that 

it had. During the trial, he cross-examined the officers about why a recording did not exist 

of the second transaction. 

Appellate Counsel testified that his office was appointed to represent the Petitioner 

in his direct appeal and also on the other charges pending against him. He said that he did 

not file a brief for the Petitioner’s appeal because the Petitioner withdrew his appeal in 

light of the State dismissing the other charges against him. He explained that the Petitioner 
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was facing other charges against him, and that the State offered to dismiss those charges if 

the Petitioner withdrew his appeal. Appellate Counsel discussed this with the Petitioner “a 

couple of times,” and, the day before a deadline on the appeal, the Petitioner decided to 

dismiss the appeal in exchange for the State dismissing the other charges against him. 

Appellate Counsel said that the Petitioner was fully informed of the consequences of the 

withdrawal of his appeal.

During cross-examination, Appellate Counsel testified that he gave the Petitioner 

the pros and cons of withdrawing his appeal and allowed him to make his own decision. 

He said that his decision was voluntary and the Petitioner’s own choice. The Petitioner

had five charges dismissed, including multiple counts of manufacturing and possessing a 

Schedule II drug and multiple counts of driving on a suspended license. The Petitioner 

executed an affidavit saying that he was of sound mind and that he was making an 

informed, voluntary decision to dismiss his appeal. The affidavit indicated that he fully 

understood his rights, and Appellate Counsel said that he had explained those rights to him.

The Petitioner testified that he believed that the trial judge tampered with the jury. 

He said that, while the jury was deliberating, the trial judge came out and said that the jury 

had a question. The parties agreed that the trial judge could go back to the jury room and 

answer the question. The Petitioner expressed some concern at the time, but Counsel told 

him that everything was going to be okay. The judge then briefly went back and spoke 

with the jury.

The Petitioner said that Appellate Counsel, who was appointed, called him and said 

that he had to have a final decision about his appeal that day. Appellate Counsel said he 

needed to know right then if the Petitioner was going through with his appeal because the 

State was “trying to get him” sixty more years for the other pending charges. The Petitioner 

said that Appellate Counsel never came to visit him but faxed him the relevant information

on the day that the Petitioner was to decide. The Petitioner said that Appellate Counsel 

never sat down with him and discussed what was being put into the paperwork about the

withdrawal of his appeal.

The Petitioner recounted that he felt his appeal had merit. He said that there was no 

audio or video evidence. He noted that there was also no phone call or text message 

evidence. 

During cross-examination, the Petitioner agreed that he had nineteen prior 

misdemeanor convictions and five prior felony convictions. The Petitioner disputed 

Appellate Counsel’s claim that the two had discussed the motion to withdraw his appeal. 

He said the only conversation that they had was the day he was to decide and sign the faxed 

paperwork. He agreed that he made the decision to withdraw his appeal but said his 

decision was based on Appellate Counsel telling him that the State was trying to get him 

sixty more years of incarceration. 
6

About the alleged trial judge tampering, the Petitioner agreed that he had not proven 

that the judge said something to the jury other than the agreed instruction regarding fines. 

He, however, said that the trial judge “could have said something different too.” 

Counsel was recalled, testified, and identified the notice to seek enhanced 

punishments filed by the State before the Petitioner’s trial. He said that eleven offenses 

were listed on the notice and gave notice that the State considered the Petitioner a Career 

Offender. He said that he met with the Petitioner and discussed this fact, which was a 

factor in his decision to go to trial. Counsel said he did not present the video recording of 

the incident to the jury because the video was blank. The equipment had malfunctioned 

and there was no video or audio on the recording. He said he used this to argue to the jury 

that there was a lack of evidence tying the Petitioner to the drug sale. 

Counsel described his theory of defense for the case saying:

I think Officer Deriggi testified that he was aware that there’s another Rashad 

Seay out there selling drugs. And my position, you’ve got the wrong guy. 

I’ve got a driver’s license that does not match the description provided by the 

CI. I’ve got a detective saying he saw this guy through the back rear view 

mirror 70 yards away and he’s positive it’s Rashad Seay. However, the 

testimony was he had a hood – a jacket with a hood that had like fur on it 

pulled over so he couldn’t identify him. So that was kind of the argument.

Counsel opined that the jury got the case wrong, given the lack of evidence against the 

Petitioner. He agreed that it was possible to hire an expert witness to question the reliability 

of eye-witnesses but said that he did not think that such was necessary in this case.

Counsel said that the Petitioner maintained throughout the course of Counsel’s 

representation that he wanted to go to trial. 

The post-conviction court denied the Petitioner’s petition, making the following 

factual findings: 

Denial of effective assistance of counsel: Petitioner alleges the 

dismissal of direct appeal by Appellate Counsel was ineffective. The 

Petitioner after being convicted of the instant charges and then sentenced to 

thirty-six (36) years was faced with a decision. Petitioner could pursue a 

direct appeal, as of right, of the conviction and seek reversal based on the 

alleged errors of the Trial Court the jury the District Attorney, his own private 

attorney or the Public Defender appointed to his appeal, or he could accept 

an offer made by the state’s attorney to dismiss his direct appeal, accept the 

thirty-six (36) year sentence rendered and have the remainder of his pending 
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charges dismissed by the state. Petitioner decided on the latter, having 

nineteen (19) prior misdemeanor convictions and five prior felony 

convictions. Petitioner is well acquainted with the give and take of how plea 

bargains work. The Court finds Petitioner was well aware of his options, 

including his potential for a successful appeal and his potential criminal 

exposure if convicted on two (2) additional Class B felony drug charges as 

well as additional misdemeanors. 

Petitioner testified he had to make the above decisions the very day of 

the deadline. However, the dates of Appellate Counsel’s affidavit was two 

(2) days prior to Petitioner’s affidavit. The Court find Appellate Counsel’s 

testimony to be consistent with the sworn affidavits and Petitioner’s 

testimony to be contradictory. 

Petitioner also alleges Respondent Trial Counsel was ineffective in 

failing to hire and call an expert on eyewitness testimony.

. . . .

This was clearly a strategic decision made by an experienced trial 

lawyer. This Court is precluded from judging strategic decisions with the 

benefit of 20/20 hindsight. Trials are filled with strategic decisions and to 

hold counsel to retroactive application of “perfection” is not required by the 

law nor should it be. Some work and some don’t and this court has no way 

of knowing whether an expert would have made one iota of difference. This 

issue is found in favor of Respondent Counsel.

. . . .

Prosecutorial misconduct judicial misconduct and jury 

tampering:

Proof was presented as to how a jury question was handled at the trial. 

The question concerned how fines applied to each count. . . . The Court went 

back and spoke to jurors in the deliberation room without the presence of 

counsel. Though the actions of the Trial Court are not preferred, they were 

taken with the consent of Counsel after the question, the answer and the 

Court’s request to speak to the jury in the deliberation room were discussed 

and agreed upon. Respondent Counsel did not recall the event in his 

testimony. The Petitioner did not recall the event and was upset he was not 

asked directly at the time if he was in agreement with the Court’s request. 

The Court understands the Petitioner being uncomfortable with how it was 

handled. However, this Court cannot find Respondent Counsel’s agreement 
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with the Judge to be outside the range of reasonable legal representation. 

Each attorney was satisfied that the question was being answered adequately. 

Moreover, the issue addressed did not concern Petitioner’s guilt or 

innocence, merely how the fines should be handled. Further Petitioner 

admits he made no request of Respondent Counsel to demand the discussion 

take place in open court. There is no proof offered that anything untoward 

or prejudicial was said to the jury or that anything was said other than exactly 

what Judge Durham stated that he would say. Absent sworn testimony or a 

juror affidavit to the contrary, this Court cannot find there was judicial 

misconduct or judicial tampering. Petitioner bears the burden of proof and 

failed to meet that burden. As far as the prosecutorial misconduct claim,

Petitioner put forward no proof on that issue. For these reasons this issue is 

found in favor of Respondent Counsel.

. . . . 

Based upon the reasoning set forth above the Court cannot find that 

the right to effective assistance of counsel guaranteed to Petitioner was not 

provided. In fact, the Court finds the opposite is true. 

The essential issue in a Petition alleging ineffective assistance of 

counsel is whether [the Petitioner’s] attorney’s representation fell below an 

objective standard of reasonableness for criminal attorneys. The Petitioner 

has failed to meet his burden on this issue, but as to the Trial Counsel and 

Appellate Counsel for the reasons set forth above. The court also finds that 

the prejudice prong must also fail for lack of clear and convincing proof that 

Respondent’s alleged defective performance was in any way prejudicial. The 

proof in the trial was decided by the jury based upon witness credibility and 

convincing evidence, and a finding of not guilty of the convicted crimes 

would not have been in keeping with that proof. There is simply no evidence 

that the actions or inaction of Trial Counsel prejudiced Petitioner.

It is from this judgment that the Petitioner now appeals. 

II. Analysis

On appeal, the Petitioner contends that the post-conviction court erred because his 

trial counsel was ineffective for failing to ensure the Petitioner was present during the jury 

instructions, failing to ensure that the jury was properly instructed, failing to adequately 

investigate and prepare an identification expert, and failing to inform the Petitioner of the 

consequences of withdrawing his direct appeal. 
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In order to obtain post-conviction relief, a petitioner must show that his or her 

conviction or sentence is void or voidable because of the abridgment of a constitutional 

right. T.C.A. § 40-30-103 (2018). The petitioner bears the burden of proving factual 

allegations in the petition for post-conviction relief by clear and convincing evidence. 

T.C.A. § 40-30-110(f) (2018). The post-conviction court’s findings of fact are conclusive 

on appeal unless the evidence preponderates against it. Fields v. State, 40 S.W.3d 450, 

456-57 (Tenn. 2001). Upon review, this Court will not re-weigh or re-evaluate the 

evidence below; all questions concerning the credibility of witnesses, the weight and value 

to be given their testimony and the factual issues raised by the evidence are to be resolved 

by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 

1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction court’s 

conclusions of law, however, are subject to a purely de novo review by this Court, with no 

presumption of correctness. Id. at 457.

The right of a criminally accused to representation is guaranteed by both the Sixth 

Amendment to the United States Constitution and article I, section 9 of the Tennessee 

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d 

453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following 

two-prong test directs a court’s evaluation of a claim of ineffectiveness:

First, the [petitioner] 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 [petitioner] by 

the Sixth Amendment. Second, the [petitioner] must show that the deficient 

performance prejudiced the defense. This requires showing that counsel's 

errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose 

result is reliable. Unless a [petitioner] makes both showings, it cannot be 

said that the conviction or death sentence resulted from a breakdown in the 

adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419 

(Tenn. 1989).

In reviewing a claim of ineffective assistance of counsel, this Court must determine 

whether the advice given or services rendered by the attorney are within the range of 

competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To 

prevail on a claim of ineffective assistance of counsel, a petitioner must show that 

“counsel’s representation fell below an objective standard of reasonableness.” House v. 

State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

When evaluating an ineffective assistance of counsel claim, the reviewing court 

should judge the attorney’s performance within the context of the case as a whole, while 

taking into account all relevant circumstances. Strickland, 466 U.S. at 690; State v. 
10

Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must 

evaluate the questionable conduct from the attorney’s perspective at the time. Strickland, 

466 U.S. at 690; Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing 

court must be highly deferential and “should indulge a strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional assistance.” Burns, 6 

S.W.3d at 462. Finally, we note that a defendant in a criminal case is not entitled to perfect 

representation, only constitutionally adequate representation. Denton v. State, 945 S.W.2d 

793, 796 (Tenn. Crim. App. 1996). In other words, “in considering claims of ineffective 

assistance of counsel, ‘we address not what is prudent or appropriate, but only what is 

constitutionally compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United 

States v. Cronic, 466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have 

been ineffective merely because a different procedure or strategy might have produced a 

different result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). “The 

fact that a particular strategy or tactic failed or hurt the defense does not, standing alone, 

establish unreasonable representation. However, deference to matters of strategy and 

tactical choices applies only if the choices are informed ones based upon adequate 

preparation.” House, 44 S.W.3d at 515 (quoting Goad v. State, 938 S.W.2d 363, 369 

(Tenn. 1996)).

If the petitioner shows that counsel’s representation fell below a reasonable 

standard, then the petitioner must satisfy the prejudice prong of the Strickland test by 

demonstrating “there is a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 

694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must 

be “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694; 

Harris v. State, 875 S.W.2d 662, 665 (Tenn. 1994). 

The Petitioner first contends that Counsel was ineffective for failing to ensure the 

Petitioner was present when the trial court instructed the jury regarding its jury question 

about whether the fines should be set individually or all together. He asserts this was an 

inappropriate ex parte communication. The record indicates that the jury asked a question 

about the fines. The trial judge spoke with the parties, who agreed that the answer was that 

the fines were based on the range for each individual count. The judge told the parties he 

was going to instruct the jury as follows: “the fine is separate for each count, and like the 

verdicts, they can fine one count, both counts, or no counts but they can only set a fine if 

there’s a finding of guilty in that particular count.” The trial judge asked the parties if they 

would be okay if he went back to the jury room and provided the jury that answer. Neither 

party objected.

While we agree with the post-conviction court that the preferred method would be 

to instruct the jury while both parties were present, we do not find that the trial court’s 

failure to so do, and Counsel’s failure to object, in any way undermined our confidence in 

the outcome. See Strickland, 466 U.S. at 694. This question did not go to the heart of the 
11

Petitioner’s guilt. Further, the Petitioner has not offered any proof that the trial judge did 

anything other than instruct the jury as agreed to by the parties. Accordingly, we conclude 

that the Petitioner has not proven that he is entitled to post-conviction relief on this claim. 

The Petitioner next contends that Counsel was ineffective for failing to adequately 

investigate and prepare an identification expert. Counsel testified that he cross-examined 

the eyewitnesses about their ability to see what they testified they had seen. He said that 

the issue was not one of whether the eyewitness testimony was reliable but rather whether 

the eyewitnesses were credible in saying they could see the drug transaction from their 

respective vantage points. He did not think that expert testimony would aid him in this 

regard. We conclude that the Petitioner has not proven that Counsel was ineffective in this 

regard. As previously stated, Counsel should not be deemed to have been ineffective 

merely because a different procedure or strategy might have produced a different result. 

Williams, 599 S.W.2d at 279-80. The Petitioner is not entitled to relief on this issue.

The Petitioner finally contends that Appellate Counsel was ineffective for failing to 

inform the Petitioner of the consequences of withdrawing his direct appeal. The Petitioner 

himself said that it was his decision to withdraw his appeal and that he got the benefit of 

that bargain but that he did not understand all the implications of his withdrawal. Appellate 

Counsel testified and said that he discussed the consequences with the Petitioner on 

multiple occasions and that the Petitioner understood the consequences of his decision. 

The trial court found Appellate Counsel credible and consistent with the submitted 

affidavits and the Petitioner’s testimony to be inconsistent with the affidavits. All 

questions concerning the credibility of witnesses, the weight and value to be given their 

testimony and the factual issues raised by the evidence are to be resolved by the trial judge, 

not the appellate courts. Momon, 18 S.W.3d at 156. We conclude that the Petitioner has 

not proven that Appellate Counsel was ineffective in this regard. 

As such, we conclude that the evidence supports the post-conviction court’s 

findings, and the Petitioner is not entitled to relief.

III. Conclusion

Based on the foregoing reasoning and authorities, we affirm the post-conviction 

court’s judgment. 

____________________________________

ROBERT W. WEDEMEYER, JUDGE