### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs O ct obe r 15, 200 8

ALM EER

K. NA NC E v. S TAT E OF TEN NES SEE

Direc t Appeal from the Cr iminal Cou rt f or Knox County No. 75969 Kenneth F. Irvine, Jr., Judge

No. E2008-00857-CC A-R3- PC - Filed January 23, 2009

The pe titioner, Almeer K . Nanc e, appe als the judg ment of the Knox County Criminal court denying p o s t

- c o nv i c t i o nr e l i e f

. T h e p e t i t i o n e r

w a s c o n v i c t e d

o f f e l o n y m u r d e r , e s p e c i a l l y a g gr a

v a t e d r o b b e r y, two counts of espe cially ag g ravated kidnapping , and thre e counts of a g g ra v at ed ro b bery . He subsequently

acc epted a

n ag ree d sentenc e of life plus twenty -fiv e y ea rs i n the Depa rtment of Correc tion. On appea l, the petitioner ar g ues that he w as denie d his Si x th Amendment rig ht to the eff ective a ssistance of c ounsel, specif ically arguing that t rial counse l was ineff ective by : (1)

e rr on e ou sly

a dv isi nghim

no t to te sti fy

a t tr ia l, whic h h e a sse rt s e ff e c tiv e ly de pr ive d h im o f h is constitutional right; and ( 2) fa iling to ra ise the issues of suff iciency of the e vidence and seve ranc e
on dir e c t a pp e a l. A ft e r a

tho ro ug h r e vie w o f t

he re c or d b efor e us , the jud g me nt o f t he po stconviction cour

t is affirmed.

Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

J OHN E VERET T W I L L I AMS , J., delivere d the opini o n of the c ourt, in which J ER R Y L. S MIT H and R OBER T W. W EDEMEYER , JJ., joined.

Albert J. Ne wman, Jr., Knoxville, Te nnessee , for the a ppellant, Almeer

T. Nanc e.

Rob e rt E. Coo pe r, Jr
., At torne y G e ne ra l and Re po rt e r; Re ne e W . Turne r, Se nio r C ou ns e l; Ra nd a ll Eu gene Ni cho ls , Di st ri ct A tt orn ey G ener al; and C. Leo n F rank s, As si st ant Di st ri ct A tt orney Ge ne ra l, for the a ppellee, State of

Tenne ssee.

OP IN ION

F ac tu al B ac kgr ound

Th e un de rl y ingfa c ts o f t

he c a se , a s r e c ite d in

the dir e c t a

pp e a l, a re a s f oll ow s:
. . . Essentially , on J anuar y 16, 1996, the [petiti oner] and Robert Ma nning r obbed at g unpoint Scott’s Market in Kn o x v i l le. Two da y s later Ma

nning pic ked up the [ p e t i t i o n e r ] a tt h e [ p e t i t i o n e r ’ s ] h o m e

. A m an d a G o o d e a c c o mp an i e d

t h e p a i r

. In-2-

loo kin g fo r a

pla c e to r ob , th e thr e e fi na lly c a me to a Ra dio Sha c k. Go od e sta

y e d in the ca r while Manning and the [petit ioner], wea ring tobogg ans/ski masks, entere d the

s t o r e

. B o t h m e n w e r e o n c e m o r e ar m e d w i t h g u n s , an d

i nt h e p r o c e s s o f

t h e r o b b e r

y, the sto re c le rk , Jose phRid ing s, wa s sh ot i n th e he a d. He su bs e qu e ntl y

die d f ro m th is wound. Upon lea

ving the store, Manningand the [petitioner] rejoin ed Goode in a stolen Mazda, and the trio drove from the sc ene. T h ey t h en discove red a raised g ara g e door a t t h e h o me belong ing to Ar thur and Patsy

Sipf. Ag ain, Manningand the [petiti oner] exit ed the car . Finding the door fr om the g ara g e to the living a rea of the home unlocke d, the two proce eded into the house . Once more the pa ir donned tobogg ans/ski masks. They stole items from the home while holding both Sipfs on the floor at g unpoint. The offende rs then for ced the couple into the trunk of one of the Sip fs ’ c ars . H a vin g do ne so , M ann ingand the [pe tit ion e r] l e ft in a n a uto mob ile belong ing t o the Sipfs. Goode continued in the Ma zda. At this poi nt . . . the [petit ioner] was appa

rently returne d to his home. . . .

Som e da y s th e re a ft e r, the a

uth or iti e s c a

ptu re d M anningand

Go od e in Ke ntu c ky and the re fr om g a ine d inf or matio n ab ou t the [pe tit ion e r’ s] invo lve me nt i n these c rimes. The police arr ested the [ p et i t i oner] in the ear ly morning hours of J anuary 2 2
, 1 9 96, and subseque ntly obtained a sig ned wa iver a nd confe ssion from him.

State v. Alme er Nance , No. E2000-00170-CCA-R3-CD (Tenn. Crim. App., at Knox ville, Oct. 23, 2001). F ollowing a jury trial, the petit ioner was convicted of felony murder, e specia lly ag g ravated

r o b b e r y, t w o c o u n t s o f

e s p e c i a l l y a g g r a v a t e d

k i dn a p p i n g , an d

t h r e e c o u n t s o f

a g g r a v a t e d

r o b b e r y. Th e pe tit ion e r a

pp e a le d th e c on vic tio ns to t his c ourt , c ha lle ng ingon ly the de nia l of

his mot ion

to suppress. The convictions wer e af firmed on dire ct appe al. Id

.

I n November

2002, the petitioner filed a pr o s e petition for post-conviction re lief asse rting mul tip le ins tanc e s o f i ne ff e c tiv e a ssi sta

nc e of c ouns el at th e ju ve nil e , tr ia l, a nd a pp e llate le ve ls. Counsel was appointed, but no amended pe tition was f iled. On its own motion, t he post-convic tion court dismissed the petition for failure to pr osecute in Septe mber 2005, a nd the petitioner a

ppeale d the dismissal. Al

me e r Na nc e v . S

tate , No. E2005-022 6 5-CCA-R3-PC (Tenn. Crim. App., at Knoxvi lle, J une 9, 2006). O n appea l, this court reve rsed a nd rema nded to the post-convic tion court with instructions to determine whethe r the de lay in the case wa s ca u s ed by the bad f

aith of the petitioner. Id

. On rema

nd, the post-conviction court deter mined that the petition should not have been dismissed, and a

n evidentiar

y hear ing w as sche duled. At the hea ring , only the petitioner a

nd trial counsel testified.

The pe titioner, who was twenty -nine y ear s of ag e at the time of the hea ring , testified that the

c ri me s w e re c omm itt e d w he n h e wa s si xtee n y e ars old . A ft e r a he ari ngin t

he j uv eni le cou rt, h is

c a se wa s tr ans fe rr e d, and he wa s tr ie d a s an a du lt. Tr ia l c ouns e l w a s a pp oin te d to re pr e se nt h im following a disag ree ment with the attorney who had r epre sented him in juvenile court. Ac cording to the petitioner, trial counse l only met with him on four or five oc casions, and he felt that she wa s-3-

not prepa red to try the case. The petiti oner acknowle dg ed that trial counsel had explained the crimes for whic h he wa s char g ed and ha d filed a motion to suppress his confe ssion to the police.

Th e pe tit ion e r te sti fi e d that he tr ie d to e xpla in to tr ia l c ouns e l wh a t he be lie ve d w ou ld b e his de fe ns e , s pe c if

ic a lly tha t he wa nte d to te sti fy

a t tr ia l and

e xpla in t o th e jur

y that he al so wa s a vi c tim of his c o- de fe nd ant. Th e pe tit ion e r t e sti fi e d at th e he ari ngthat he kn ow ing ly pa rt ic ipate d in

the fi rs t robber y but, after

war ds, attempted to distance himself f rom co-de fenda

nt Manning . Howeve r,
acc ording to the petitioner, Manningthreatened him nonver bally into pa rticipating in the subsequent crimes. The petitioner stated that he was a fra id beca use he was aware of Manning’s r eputation and knew that he had shot other pe ople and wa s in possession of a g un. Manning testified at trial for the defe ns e and

a dmi tte d th a t he ha d f

ir e d th e sh ot t

hat ki lle d th e vic timin t

he mur de r c a se . H e a lso admitted that he had f

orce d the petitioner to commit the crimes w ith him.

The pe titioner reiter ated in his testimony at the hearing that he wanted t o testify at trial but stated that trial counse l did not want him to do so. He testified that he believed i f he had testified at trial, the outcome of the c ase w ould have be en diffe rent. He admitted that trial counsel discusse d with him his rig ht to testify and made him awa re that, ultimately
, the decision was his. Howeve r,
accor di ng to the pe tit ion e r, tr ia l c ouns e l ne ve r p re pa re d h im t o te sti fy

and a dv ise d h im a g a ins t it

. Acc ording to the petitioner, he f ollowed trial counse l’s advice even thoug h he wa nted to testify

.
Trial counse l testified, in contradic tion to the petitioner, that b o t h s h e an d the two hired investigators met with the petitioner on numerous oc casions. She st ated that she wa s awa re of the fac ts of th e p e ti ti o n e r ’ s c a s e an d th a t s h e h a d p r o c u r e d c o

- d e f e n d an t M an n in g to te s ti f y in the petitioner’s behalf. Acc ording to trial counsel, she pur sued a the ory of def ense that the co-de fenda

nt forc ed the pe titioner into commit ting the c rimes. She also filed a motion to suppress the pe titioner’s confe ssion and vigor ously pursued it at all leve ls. Accor di n g to trial counsel, this was the pe tit ioner ’s stro ng e st a

pp e a la ble iss ue , a

nd it w a s th e iss ue sh e c ho se to p ur su e on a pp e a l to thi s court be cause she felt she had a viable chanc e of prevailing . She acknow ledg ed that she r aised no other issues on appe al and state d that she felt that the issues of sever ance and suff iciency of the evidenc e did not have merit. She testified that it was her strateg y to present only

what she be lieved to be the strong est issue on appe al so as not to detra ct from its merit.

Wit h reg ard to the petitioner’s right to testify , trial counsel state d that she discussed his rig ht with him on numerou s o cc as i o n s an d made c lear to him that it was ultimately his decision. She

a c kn ow le dg e d th a t sh e a dv ised hi m th at it w ou ld n ot b e a g oo d d e c isi on

to t e sti fy be c a us e of his temper a nd his imm aturity , and she e x plained the r easoningbehind her advice to the petitioner.

After hear ing the tes timony

prese nted, the post-convic tion court found that the pe titioner was

no t e nti tle d to po st- c on vic tio n r e lie f a nd de nie d th e pe tit ion . T he pe tit ion e r n owa pp e a ls that de nia l.

Ana lys is-4-

On appeal
, t he petitioner r aises the sing le issue of whe ther the post-c onviction court er red in concluding that h e was not denied his Six th Amendment rig ht to the effe ctive assistanc e of

c ouns e l. S pe c if

ic a lly , h e con tend s th a t tr ia l c ouns e l w a s in e ff e c tiv e in: (1 ) m isa dv isi nghim reg ardinghis righ t t o t es t i fy ; and (2) f ailing to r aise the issues of sufficie ncy

of the e vidence and

sever ance on direc t appea l. To succe ed o n a challeng e of ine ffe ctive assistanc e of c ounsel, the petitioner bea

rs the bur d en o f es t ab lishing the a lleg ations set forth in his petition by clea r and convincing evidenc e. T.C.A. § 40-30-110( f) (2006). The petitioner must demonstrate that c ounsel’s repr esentation fell below the ra ng e of c ompetence demande d of attorney s in c riminal case s. Baxter

v . R os e , 523 S.W .2d 930, 936 (Tenn. 1975) . Under Strickland v. W ashington
, 466 U.S. 668, 687, 104 S. Ct . 2052 (1984), the pet itioner must establish (1) def icient per formanc e and ( 2) pre judice

re s u l t i n g fr o m the def

iciency . The pe titioner is not entitl ed to the bene fit of hindsight, may not second- g u es s a r ea s o n ab l y

b as edt ri al s t ra t egy , an d

can n o tcr i t i ci z e as o u n d
, b u tu n s u cc es s fu l
, tactica l decision m ade during the course of the proc eeding s. Ad k ins v . S tate , 911 S.W .2d 334, 347 (Tenn. Crim. App. 1994). This defe renc e to the tac t i ca l d ecisions of trial counsel is depende nt upon a showing that the decisions wer e made afte r ade quate pr epar ation. Coo pe r v . S tate , 847 S.W .2d 521, 528 (Tenn. Crim. App. 1992)

.

I t is unnecess ar y for a court to addr ess def iciency and pre judice in any

particula r orde r or even to addre ss both if the petit ioner makes an ins ufficie nt showing on either. Strickland , 4 66 U. S.

a t 69 7, 10 4 S. Ct. a t 20 69

. I n o rd e r t o e sta bli shpr e jud ic e , th e pe tit ion e r m

us t e sta bli sha “ re a so na ble probability

that, but for counse l’s unprofe ssional e r r ors, the re sult of the proce eding would have be en differ ent. A re asonable probability is a probability

sufficie nt to u n d er m i n e confidence in the outcome.” State v. Burns
, 6 S

. W

. 3 d 4 5 3
, 4 6 3 (T en n

. 1 9 9 9 ) ( qu o t i n g Strickland
, 466 U.S. at 694, 104 S. Ct . at 2068).

The issues of defic ien t p er fo rm an ce b y co u n s el an d p o s s i b l e p re j u d ice to the de fense are mix ed questions of law and fa ct. Id. a t 46 1. “ [A] tr ia l c ourt ’s fi nd ing s o f f a c t un de rl yinga

c la im of ineff ective a ssistance of c ounsel are revie wed on a ppeal unde r a de novo standard, a ccompa nied wi th a pr e sumpt ion

tha t th os e fi nd ing s are c or

re c t un le ss t

he pr e po nd e ra

nc e of the e vidence is otherwise.” Fi e lds v . S

tate , 4 0 S.W.3 d 450 , 4 58 (T e nn . 2 00 1) (c iti ngTe nn . R. Ap p. P. 1 3( d) ; Henley

v . S tat e , 960 S.W .2d 572, 578 (Tenn. 1997) ). Ho we v er , conclusions of laware revie wed unde r a p u r e l y de novo standard w ith no presumption.

I

. R ig htt o Te s t if

y
First, the pe titioner contends that trial counsel wa s ineffe ctive bec ause she advised him not to testify at t rial, advice which the petitioner c laims “was wr ong ” “be cause he wa s a fr ail, immature 16 y ear old, when the crimes occurr ed” and because his best defe nse would have been “his own trial testimony .” Thoug h the petitioner acknow ledg es that he made the de cision not to testify based upon trial counsel’ s advice , he conte nds that he did so only beca use he be lieved if he did not he would, in effe ct, have no counsel a nd beca use counse l ne ver prepa

red him to testify

. Thus, the petitioner argues that he ha d no alternative except to acc ept trial counse l’s advice

.-5-

T e n n e s s e e r e c o g n i z e s t h a t a c r i m i n a l d e f e n d an t h a s a f

u n d a m e n t a l r i g h tt o t e s t i f y. Momon

v . S tat e , 18 S.W .3d 152, 157 (Tenn. 2000)

. Moreove r, the rig ht may only be wa ived per sonally

by the def endant. Id

. a t1 6 1 ; Ver mily e v . S tate , 754 S.W .2d 82, 88 (Tenn. Crim. App. 1987) (“The de c isi on a s to wh e the r a

n a c c us e d s ho uld

te sti fy a t tr ia l r e sts wi th th e accus ed, no t de fe ns e counsel.” ). Initially , we note that the proce dure a dopted by the Tennessee Supre me Court in Momon to ensure that a def

endant ha s persona lly

waived his rig ht to testify has no application to this case. The pe ti t i o n er ’s t rial wa s held prior to our supre me cour t’s holding in Momon , a

nd the c ourt in Momon expressly

held t hat t he procedure s set forth “do not e stablish a new c onstitut ional rule whic h must be retroa ctively

applied,” specify

ing that the proc edure should be applied “ in all case s tried or retrie d afte r the date of this decision.” Momon , 18 S.W .3d at 162-63.

At the c on c lus ion

of the po st- c on vic tio n h e ari ng , th e c ourt ma de the fo llo wi ngfi nd ing s:

B y [the pe tit ion e r’ s] ow n te sti mony , th e mos t im po rt ant c omp la int

he ha s is that he didn’t testify

at his trial, and that if he had testified that he c ould have convince d the jurors that he operated under dure s s an d that they

would not have convicted him of f

elony murder.

But he’s also very candid - - [t he petitioner] is very candid that he understood it was h is r ig h t to ma

k e th e d e c is io n a

b o u t w h e th e r h e te s ti f

ie d o r n o t; th a t he followed the a dvice of

counsel, whic h counsel a dmits t hat she g ave that he should not testify and explained to him why . And now he is he re saying he wished he had done otherwise.

This is not a s i t u ati on wher e the Court ca n look and say

with the benef

it of hin ds ig ht h e sh ou ld h a ve tr ie d a dif fe re nt s tr a te g y

be c a us e may be t hat on e wo uld have w orked. A s long a s [t he petitioner] understood his rig hts at the trial which it’s clea r he did, that it was his dec ision to m ake, it’s not inef fec tive assistance

. The post-c onviction court found that the petitioner understood that the decision to testify was his decision and that the pe titioner made that de cision based upon tria l counsel’s a d vice. Indeed, bot h t h e petitioner a

nd trial counsel spe cifica lly testified that the petitioner w as aw are that the decision of whe ther he testified at trial wa s to be made by the petitioner. The petitioner’s a rg ument is essentially

that trial counsel’ s advice was uninfor med and e rrone ous advice . We disag ree

.
Whil e trial c ounsel conc eded that she advised the petitioner not to testify , mere ly informing

a c l i e n tt h a ti ti s i nh i s b e s t i n t e r e s t n o t t e s t i f y d o e s n o t e qu a t e t o a d e n i a l o f t h e r i g h t

. A d d i t i o n a l l y, it appear s that the dec ision to so advise the petitioner was based upon trial counsel’s pre paration and ob se rv a tio ns of

the pe tit ion e r a

nd his ina bil ity to c on tr ol h is t e mpe r. Thus , as fou nd by th e po stconviction cour

t, it appea rs to ha ve been a strateg ic decision for med in further ance of the de fense
, which wa s expl ained to the pe titioner prior to his making his de cision not to testify . As noted by the trial court, it is not the function of t he courts to second- g uess t rial strate g y

. Adkins
, 911 S.W .2d at 34 7. Mo re ov e r, the sa

me te sti mony

wa s p ut b e fo re the jur

y thr ou g h ano the r wi tne ss, and the on ly-6-

evidenc e pre sented tha t t h e re s ult of the trial would have been dif fer ent was the petitioner’s own

asser tions. According ly
, we conclude that there is nothing in the rec ord to preponde rate ag ainst the po st- c on vic tio n c ourt ’s fi nd ing that tr ia l c ouns e l w a s n ot i n e f f e c t i v e a n d t h a t t h e pe tit ion e r p e rs on a lly waived his rig ht to testify

.

II. Issu es on Direc t Appeal

Next, the petitioner contends that trial c ounsel was inef fec tive by failing to raise the issues of suffic iency

of the e vidence and seve ranc e of the offe nses on direc t appea l. Accor ding to the petitioner, “[t] he re asons g iven by counsel, at the evidentiar y hear ing, for not pr esentingthe issues on appea l were wea

k” and “ counsel by

not presenting t he issues for revie w, in eff

ect, substituted counsel’s opinion, as to this merits of the issues, for that of this court.”

I f a c laim of ineff

ective a ssistance of c ounsel is based on t h e fa ilure of c ounsel to raise a particula r issue on appe al, as is the ca s e b ef o re us, then the re viewing court must deter mine the merit s of the omitted issue. Car pe nte r v . S

tate , 126 S.W .3d 879, 887 (Tenn. 2004) (citing Kimmelman v. M

orrison , 477 U.S. 365, 375, 106 S. C t. 2574 (1986)). I f the omitted issue has no

me ri t or is we a k, the n a

pp e llate c ouns e l’ s p e rf

or manc e wi ll n ot b e de fi c ie nt i f c ouns e l f a ile d to ra ise it on appeal. Id. L ikewise, if the issue ha s no merit, then t he petiti oner suffer ed no prejudice fr om the fa ilure to raise the issue on appe al. Id.

“[ T ] h e d et er m i n at i o n o f wh i ch i s s u es t o prese nt on appea l is a matter of counsel’s discretion.” State v. Swanson , 680 S.W .2d 487, 491 (Tenn. Crim. App. 1984) . Fur ther, “ the fa ilure of counse l for a c riminal defe ndant to argue every single issue that a ca se may prese nt or to prese nt

e ve ry iss ue in an a

pp e a l th a t a

c lie nt m ay

re qu e st i s n ot pe r seineffe ctive assistanc e of c ounsel.” See id . at 491. This court should evaluate the que stionable conduc t from counse l’s perspe ctive at the time of her c onduct with “a strongpresumpti o n t h at [her] conduct falls within the wide ra ng e of

rea sonable prof

essional assistance .” Burns
, 6 S.W .3d at 462. Counsel should not be deemed to have been ine ffe ctive mer ely

beca use a diff ere nt proce dure or

strateg y might have produce d a diffe rent result. W ill iam s v . S

tate , 599 S.W .2d 276, 279-80 (Tenn. Crim. App. 1980). Moreover, this cour t has held that “[c]ounsel is not c onstitut ionally require d to argue eve ry issue on appea l, or to prese nt issues chosen by

his client.” Swanson , 6 80 S.W. 2d a t 49 1. “ I ne ff

e c tiv e ne ss i s v e ry

ra re ly fo un d in

c a se s w he re a

de fe nd ant a ssert s tha t a

pp e llate c ouns e l f

a ile d to ra ise an is su e on dir e c t a pp e a l, primarily beca use the de cision of what issues to raise is one of the most important strateg ic dec isions to b e ma d e b y a

p p e ll a te c o unsel.” Ke nn ath He nd e rso n v . S tate , N o. W20 03 -0 15 45 -C CA -R 3- PD (Tenn. Crim. App., at J ackson, June 28, 2005).

Wit h reg ard to the prejudice prong , the petitioner is re quired to demonstrate pre judice due to appella te c o u n s e l’ s e r r o r

. I n o r d e r to e s ta

b li s h p r e ju d ic e , th e p e ti ti o n e r mu s t s h o w th a t, had

c ouns e l ra ise d th e iss ue or iss ue s a sse rt e d, the re is a

re a so na ble pr ob a bil ity that hi s c on vic tio n w ou ld have be en re verse d. Thus, we are require d to e x amine the merits of the issues which w ere not raised by appellant c ounsel on appe al. Carpenter , 126 S.W .3d at 887.-7-

I n d e nyingre lie f, the po st- c on vic tio n c ourt ma de the fo llo wi ngfi nd ing s:

On the a pp e llate iss ue , th e re wa s a str a te g y de c isi on that w a s ma de . A nd

thi s Court is not a llo we d to look be hin d str a te g ic de c isi on s, bu t eve n if I wa s a llo we d to do that, what [trial counsel] did was a proper strateg ic decision. That there ’s one ke y issue she wa

nted to raise, a

nd she made a decision that that would be most effe ctive g oing to the appellate courts i f she focuse d on that issue. That - - i f she didn’t detract from that with other issues. And I think that’s a prope r strate g y

.
The insufficienc y of the evidenc e is an issue that very seldom wins in front of the a ppellate c ourts. I think that can be shown just by a re view of a ppellate c ourt decisions. And I think she correc tly looked at it and said that if y ou - - if the fac ts are strong in thes e ca s es that that would just take awa y from the issue. And she was clea rly trying to be succe ssful on the suppression issue. S o I d o n’t think there’ s ineffe ctive assistanc e of a ppellate c ounsel shown either

. Ag ain, we f

ind nothing in the rec ord befor e us to pr eponder ate ag ainst the post-conviction

c ourt ’s fi nd ing s. Tr ia l c ouns e l sp e c if ic a lly te sti fi e d that, a s a matte r of str a te g y , sh e c ho se to r a ise only the suppression issue on direc t a ppeal beca

use she felt that the petitioner had a g ood chanc e of

rec eiving relief

on that issue. She stated that she did not want to detra ct from the issue she believed to be most meritorious by raising the issues of suff iciency and seve ranc e, which she did not believe

wer e viable f

or re lief on appe al. As found by the trial court, this is a solid strateg ic dec ision which falls “within the wide r ang e of r easona ble assistance .” See B urns , 6 S.W .3d at 462.

Moreove r, we note t hat t he petiti oner has failed to establish the pre judice prongas we ll. He of fe rs no argume nt a

nd c ite s to no a

uth or ity a s to why the su ff ic ie nc y or the se ve ra

nc e iss ue wo uld h a v e b e e n s u c c e s s f

u l o n a p p e a l. A d d it io n a ll y , w e n o te th a t th e p e ti ti o n e r h a s f a il e d to in c lu d e a
re c or d o f t

he tr ial pro ceedin g s b e low or any mot ion s f

ile d; t hu s, we are pr e c lud e d f

ro m f ull y revie wing the merits of the t wo i ssues omitted on appea l. I t is the petitioner’s burde n to prove, by clea r and c onvincing evidenc e, that the issues whic h wer e not raised on a ppeal ha d merit and that if they had bee n raised, the re is a r easona ble proba bility that the convictions would h ave been

reve rsed. The petitioner has f ailed to ca

rry his burden of e stablishing that in this case.

CO NC LU SION

Ba sed upon the for eg oing, the denial of post-c onviction relief is a ffirme d.

___________________________________ JOHN EVE RETT WILL IAMS, JUDGE