IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs March 31, 2021

TRACY ROBERSON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Hamilton County

No. 293781 Thomas C. Greenholtz, Judge

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No. E2020-00643-CCA-R3-PC

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Tracy Roberson, Petitioner, was convicted of one count of aggravated burglary, one count 

of especially aggravated kidnapping, one count of aggravated robbery, two counts of 

aggravated rape, and three counts of theft. The trial court sentenced Petitioner to an 

effective sentence of sixty years in the Tennessee Department of Correction. On direct 

appeal, this court modified one of the theft counts and merged the three theft convictions, 

affirming all other judgments. Petitioner filed a pro se post-conviction petition and three 

amended petitions through counsel. Following a hearing, the post-conviction court denied 

relief. On appeal, Petitioner argues that he was denied the effective assistance of counsel 

and due process. After a thorough review, we affirm the judgment of the post-conviction 

court.

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

ROBERT L. HOLLOWAY,JR.,J., delivered the opinion of the court, in which JOHN EVERETT 

WILLIAMS, P.J., and ROBERT H. MONTGOMERY, JR., J., joined.

Douglas A. Trant and Julia Anna Trant, Knoxville, Tennessee, for the appellant, Tracy 

Roberson.

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

Attorney General; Neal Pinkston, District Attorney General; and Cameron Williams, 

Assistant District Attorney General, for the appellee, State of Tennessee.

06/09/2021
 

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OPINION

Factual and Procedural History

Pretrial Motion to Suppress

On direct appeal, this court summarized the proceedings on Petitioner’s pretrial 

Motion to Suppress as follows:

Richard Roberson, [Petitioner]’s grandfather, testified that in August 2008, 

[Petitioner] lived with him in Hixson, Tennessee. Roberson described his 

house as having a five-foot high picket fence along the front, which was lined 

with Bradford pear trees. He said a driveway ran down the right side of the 

house to the back where the garage was located. An RV was in the backyard, 

and [Petitioner]’s vehicle was in the garage. He described tall hedges located 

along the sides of the house, saying that the shrubbery was overgrown 

because his health had prevented him from maintaining the yard. Roberson 

said that a person would be unable to see the garage or RV from the front 

road.

Roberson testified that, at around 1:30 p.m. on August 7, 2008, he 

awoke to find police officers “milling around” outside his house. He stepped 

out on his porch “[t]o find out what was going on” and found [Petitioner] 

speaking to the police. Shortly thereafter, police placed [Petitioner] in a 

police vehicle. Roberson told police that he needed to pick up [Petitioner]’s 

daughter from school. A police officer escorted Roberson into his house 

while Roberson changed and then walked Roberson out. Roberson said the 

police officer did not go anywhere in the house other than to escort Roberson 

in and out and that the police officer did not take anything from his home.

Roberson left the house to pick up [Petitioner]’s daughter from school and 

did not return until around midnight. Roberson said he waited “another hour 

or two” before police allowed him to re-enter his home. Roberson said that 

police officers showed him a search warrant at “one or two in the morning.”

On cross-examination Roberson testified that nothing obstructed his 

driveway from the street. He explained that the five-foot picket fence ran on 

either side of the driveway but did not close off his driveway from the public 

street. Roberson said that he did not see police officers go inside 

[Petitioner]’s vehicle. He recalled that police officers asked permission, 
 

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which he granted, to search Roberson’s truck before he went to pick up 

[Petitioner]’s daughter from school.

[Petitioner] testified that he saw a police vehicle pull into the driveway 

at 1:56 p.m. on August 7, 2008. [Petitioner] said that one police officer 

“drove to the back corner of the house and was standing at the back corner 

of the house” when the [Petitioner] came outside. [Petitioner] said that police 

never presented him with a search warrant or arrest warrant. [Petitioner] said 

that he was placed in the front passenger seat of a police vehicle and told they 

were “detaining [him] for the city.” As [Petitioner] sat in the vehicle, he 

observed two officers “wandering around the back of the house.”

On cross-examination, [Petitioner] testified that his car was parked on 

the righthand side of the two car garage and was visible from the back of the 

house. [Petitioner] agreed that police officers saw his black BMW when they 

initially pulled into the driveway. [Petitioner] said that he was unaware at 

the time of the search that he was a suspect in these crimes.

Melissa Croft testified that she and [Petitioner] had a child together. 

Croft recalled that [Petitioner] drove her to the hospital on August 6 in his 

grandfather’s truck. Croft inquired about [Petitioner’s] BMW, and 

[Petitioner] told her that his cousin had borrowed the car. They returned to 

[Petitioner]’s home at 10:00 p.m. or 11:00 p.m. and, when [Petitioner] parked 

the truck next to the house, Croft did not see the BMW inside the garage. 

Croft said that she did not see the BMW the following morning, August 7, 

when she left the house at 7:00 a.m.

Following the proof, the trial court denied the motion after making the 

following findings:

I find that there was probable cause for [the police] to be there 

looking for [Petitioner] and detaining him. I find that they did 

nothing improper driving down the driveway, seeing the 

BMW, and not conducting a search at the time, securing the 

premises and going for a search warrant. I find that there was 

nothing improper about going to Judge Steelman instead of a 

magistrate and obtaining a search warrant. I find that there’s 

probable cause in the search warrant for . . . going to his home 

and searching his home and car based on all the information 

that they had and that’s contained in the search warrant.
 

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State v. Tracey A. Roberson, No. E2011-01907-CCA-R3-CD, 2013 WL 5775832, at *2-3 

(Tenn. Crim. App. Oct. 24, 2013), perm. app. denied (Tenn. April 9, 2014).

Trial and Direct Appeal

On direct appeal, this court summarized the facts presented at trial as follows:

Lucas Timmons, a Chattanooga Police Department officer, testified 

that, at a little after 2:00 a.m. on August 7, 2008, he responded to a call at the 

1500 block of Mississippi Avenue. Police had received a report of a darkcolored vehicle parked in front of an empty house where two males were 

“checking out” the house. After investigating the complaint, and as Officer 

Timmons was leaving, he noticed a black BMW parked approximately a half 

of a block down the street. Based upon the report of a dark-colored vehicle, 

Officer Timmons ran the license plate to identify the owner. The black BMW 

was registered to [Petitioner].

Officer Timmons testified that, later that same morning, he was 

dispatched to investigate the report of a potential rape/burglary at a residence 

located on Centennial Drive, which was in the same area where he had earlier 

observed the black BMW. He arrived at the residence shortly after 5:00 a.m. 

A neighbor met him outside and [led] him into the house. Inside a bedroom 

in the house, Officer Timmons found the victim on the side of the bed with 

her hands duct-taped behind her back and her ankles duct-taped together. 

Officer Timmons said that he cut the tape from her wrists and ankles, and he 

described the victim as “extremely upset and frightened.” The victim told 

the officer she had been slapped in the face, and the officer testified that he 

observed minor swelling in the area.

Officer Timmons testified that he walked through the entire house and 

found evidence of forcible entry through the basement door at the rear of the 

house. Officer Timmons also observed a wall in the master bedroom closet 

that was damaged and a hammer lying on the floor near the area. Officer 

Timmons described the damage as a hole in the wall that appeared to be 

where a wall safe would be kept. As Officer Timmons was exiting the home, 

the victim advised him that her vehicle was missing.

Officer Timmons said that he proceeded nearby to the 1500 block of 

Mississippi Avenue where another officer had found the victim’s vehicle 

parked. Officer Timmons said that he found it “curious” that the victim’s 
 

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vehicle was parked directly behind where [Petitioner]’s black BMW had 

been parked a few hours earlier. [Petitioner]’s BMW was no longer there.

The victim testified that she was nineteen-years old and a college 

student at the time of these crimes. She was staying in the home on 

Centennial for a few days while the homeowners, Allen and Alison Lebovitz, 

were out of town. . . . At around 10:45 p.m., she took the Lebovitz[es’] dog 

outside before going to bed. At around 2:00 a.m., the dog began barking, so 

the victim took the dog outside again, locking the doors after she returned 

back inside the house.

The victim testified that the dog awoke her again barking. She 

assumed the dog needed to go outside and picked up her cellular phone to 

check the time and saw it was 4:00 a.m. Almost immediately she heard 

footsteps and realized a man was in her room, which she described as dimly 

lit. The man walked around to the victim’s side of the bed. She said that she 

saw a small light that appeared to be emanating from an item held in the 

man’s hand, but she could not determine the source of the light. She 

compared the light to a small flash light found on some types of cellular 

phones. The man yelled at the victim to put her cellular phone down and 

began hitting the victim. The victim could not see what was in the man’s 

hand but felt a hard object as he repeatedly hit her. The victim dropped her 

cellular phone, and the man picked it up and placed her phone on the bed side 

table out of the victim’s reach. The man then bound the victim’s hands 

behind her and her feet together with duct tape. The man asked the victim 

where the safe was located in the house, and the victim told him she did not 

know. The victim said that she could hear the man going through the rooms 

of the house until he found the safe. She then heard banging and hammering

for approximately a half hour coming from the upstairs bedroom.

The victim testified that the man came in and out of her room multiple 

times, and she observed that he was wearing a brimmed hat and a bandana 

around his head that “came down to a point at his chin.” She said the man 

wore heavier shoes “like maybe work boots” and also pants and either a 

three-quarters length shirt or a long-sleeved shirt with the sleeves pushed up. 

She described something like a fanny pack or tool belt around the man’s 

waist, from which she heard metal “clanking together.” The man also wore 

short gloves that she described as being neither leather nor cloth. The victim 

identified a hat collected from [Petitioner]’s vehicle as looking like the hat 

the man wore the night of the burglary. The victim then felt a pair of gloves 
 

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also collected from [Petitioner]’s vehicle and agreed that the gloves felt the 

same as those worn by the intruder when he touched her.

The victim testified that the man returned to the room and said to the 

victim, “you said you would do whatever I asked and now it’s time.” The 

victim said that she had never made such a statement to the man. The man 

turned the victim over, pulled her pajama pants down and raped her. The 

victim recalled that the man called her “baby.” The victim began screaming, 

and the man told her that he would “bust [her] head in if [she] didn’t stop.”

In her statement to police, the victim said the man said to her, “I have guns, 

don’t make me use them.”

After the man penetrated the victim both anally and vaginally, he 

pulled her pajama pants back up and walked over to her backpack. He found 

her wallet, took out her driver’s license, and addressed her by name saying 

that he was going to take her driver’s license so that if she made a report to 

police, he would know her name and where she lived in order to find her. 

The victim said her school identification was also in her wallet. Upon seeing 

the school identification[,] he told the victim to stay in school so that she 

could get a good job. He then told the victim that it was 5:00 a.m. and that 

the housekeeper would arrive at the house at 7:00 a.m. He said that he would 

return and remove the duct tape before the housekeeper arrived, and he left 

the room. Less than a minute later, he came back into the room, went through 

the victim’s backpack and took her car keys. The man left through the front 

door of the house.

The victim testified that she waited for a period of time and when she 

heard no noises she slid off the bed and retrieved her cellular phone from the 

bedside table to call 911. The parties then stipulated that a recording 

submitted by the State was the 911 call placed by the victim.

The victim testified that two weeks before her stay at the Lebovitz[es’]

home, there had been a storm that caused damage to the roof of the house. 

The victim said that a construction crew worked on the roof while she stayed 

there. The victim said that she did not know Wayne Ledford but that he was 

working with the construction crew at the Lebovitz[es’] house. She said that 

the man who raped her was not Ledford. She explained that the man spoke 

“a lot,” and she had spoken with Ledford the day before and it was not his 

voice.
 

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The victim testified that she had a 2004 Ford Escort that was taken 

that night. The victim testified that she had “no idea” of the value of the 

vehicle. The victim said that the man also took $60.00 cash from her purse.

On cross-examination, the victim explained that she babysat for the 

Lebovitz[es’] next-door neighbors on both Tuesday and Wednesday. On 

Tuesday, when she returned to the Lebovitz[es’] home, the construction crew 

was at the house for approximately an hour and she spoke with Ledford. She 

provided this information to police, even though it occurred the day before 

the burglary, to help develop potential suspects. After babysitting on 

Wednesday, August 6, 2008, and going to her apartment, she returned to the 

Lebovitz[es’] home where she was alone.

April Tumlin, a sexual assault examiner, testified that she examined 

the victim on August 7, 2008. Tumlin said that the victim explained what 

had occurred during the assault, and then Tumlin conducted a physical 

assessment of the victim. She prophylactically treated the victim for sexually 

transmitted diseases and conducted an anal and vaginal exam, which 

included swabs for DNA testing. Tumlin said that the victim had a small 

abrasion to her left eyelid and a small abrasion to her left ear. During the 

vaginal exam, Tumlin found a small abrasion at the base of the victim’s 

vagina. Tumlin described the victim as fidgeting, “reluctant to speak,” and 

crying during the exam. Tumlin said that the victim indicated that she had 

been penetrated vaginally and then anally for a short time before the man 

penetrated her vaginally again.

Alan Lebovitz testified that he lived at 1104 Centennial Drive. 

Lebovitz recalled that on August 6 and 7, 2008, he was in New York City 

and returned home on August 7, 2008. Lebovitz said that, during his 

departure, a construction crew worked on roof and water damage sustained 

to the house during a bad storm, and Wayne Ledford supervised the project. 

Lebovitz said that Ledford had worked on several projects on the home over 

the past two to two and a half years. Lebovitz said that a guest room was 

located on the main floor of his home, and the master bedroom was upstairs. 

Lebovitz testified that he had a safe in his house that was located inside a 

closet “off the master bedroom/bathroom.”

Lebovitz testified that he learned of the burglary to his home at 

approximately 6:30 a.m. on August 7, 2008, and he arrived home at 

approximately 3:00 p.m. that afternoon. When he arrived, he found that the 
 

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safe had been forcibly removed from the closet. He said that he kept 

passports, paperwork, small jewelry items, an antique watch, and some cash 

in the safe. He estimated a total value of the items inside the safe of 

$57,612.00. This value was based on appraisals through the insurance 

agency and the purchase price of some of the items. He estimated the value 

of the safe at between $1,000.00 and $2,000.00. Lebovitz identified a black 

and gray gym bag that he had been missing for the past year. Lebovitz also 

identified the safe that was inside the gym bag as the one that had been 

removed from the closet in his home. On cross-examination, Lebovitz said 

that the hammer found in the closet did not belong to him.

Heather Stone, a Chattanooga Police Department officer, testified that 

she processed the crime scene, [Petitioner]’s residence, and [Petitioner]’s 

BMW for fingerprints and evidence. Officer Stone identified evidence 

collected from the crime scene, which included a Jansport book bag, duct 

tape, bedding from the bed the victim slept in, and a fiberglass claw hammer. 

Later that day, Officer Stone reported to [Petitioner]’s residence for further 

collection of evidence. Officer Stone said that she was instructed to look for 

several items: a “boonie-type” hat, a dark-colored bandana, a long-sleeved 

shirt, jeans, a tool belt, leather or suede work gloves, a metal safe, passports, 

jewelry, and a Verizon wireless cellular phone. Officers processed 

[Petitioner]’s BMW first and, upon opening the trunk of the car, Officer 

Stone saw a blue boonie hat and a rolled up long-sleeved red shirt. Upon 

further inspection, Officer Stone observed a gun, a gun belt, and a black 

duffel bag with a safe inside. The BMW was transported back to the police 

department where the BMW was photographed and the contents inventoried.

Officer Stone testified that, in the driver’s side door pocket, police 

found flashlights, one of which was a gun tac light. Officer Stone described 

a tac light as a small light that attaches to the under side of a pistol barrel. 

Between the console and the driver’s seat, police found a Glock pistol 

wrapped in a Nautica shirt. The Glock was loaded with a magazine and 

another magazine was found in the console of the car. In the glove 

compartment box, police found two packaged Lifestyle condoms, two 

packaged Durex condoms, two packages of sexual stimulants, Stamina Rx 

tablets, one of which was empty, and a “mini ephedrine packet of pills” with 

several pills missing. On the floorboard behind the driver’s seat, police 

found a “flag of our fathers” green bag that contained a pair of black tactical 

police gloves, a stack of 50 one dollar bills, a stack of 24 one dollar bills, and 

a stack of 53 one dollar bills. From the trunk, police collected a Cabelas’
 

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camouflage fanny pack. Inside the fanny pack were three screw drivers, a 

hammer, a chisel, a small crow bar, “a glass suction cut item,” a half face 

mask, and a roll of black duct tape.

Officer Stone testified that the dial on the safe she found in the trunk 

of [Petitioner]’s BMW was missing, and the door was broken. Inside the 

safe were passports and paperwork. Inside the trunk, police found black hand 

ties, tools, an extension cord, police body armo[r], a ski mask that covered 

the entire head except for the eye area, a fanny pack, black duct tape, a blue 

bucket with cleaning supplies, a red long-sleeved shirt, and a black bag that 

contained two black crow bars, a wrench, a chisel, and a Dewalt grinder. 

Police also found a police duty belt containing a Glock 23, 40 caliber pistol 

with a full 13–round magazine, pepper spray, handcuffs, a flashlight, a baton, 

and two gun magazines.

Officer Stone testified that, after [Petitioner] was transported to the 

police department, she obtained a buccal swab and fingerprints from 

[Petitioner] for analysis.

Gregory Mardis, a Chattanooga Police Department officer, testified 

that he was assigned to the crime scene unit and helped processed the 

victim’s car for evidence. On the front floorboard of the vehicle, the officer 

found a bag, a checkbook, and the victim’s Tennessee driver’s license. Later 

that day, Officer Mardis searched [Petitioner]’s house for evidence. Officer 

Mardis said that he collected two pairs of underwear and a pair of gloves. 

Officer Mardis testified that he swabbed [Petitioner]’s penis for DNA 

analysis.

Steve Wertel testified that he worked in the Chattanooga Police 

Department as a crime scene investigator in August 2008. In furtherance of 

the investigation in this case, Officer Wertel collected a buccal swab from 

Wayne Ledford.

. . . .

Alexis Mercado, a Chattanooga Police Department officer, testified 

that he reported to the crime scene at 7:00 a.m. on the morning of August 7, 

2008. After learning [Petitioner]’s name from the tag information on his 

BMW, police officers began asking potential witnesses if they recognized 

the name. Police officers asked Wayne Ledford, a supervisor of the 
 

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construction being done on the Lebovitz[es’] home, and he said that he 

recognized the name as his cousin’s. Later that same day, Officer Mercado 

participated in the execution of a search warrant at [Petitioner]’s residence, 

where [Petitioner] was placed under arrest. At the police station, a cellular 

phone was taken from [Petitioner]’s person. Through the telephone number 

associated with the phone, the police obtained cellular phone call records 

showing the call activity for the phone.

Officer Mercado testified that he obtained a value for the victim’s 

vehicle from Kelly Blue Book . . . in “fair condition” [at] $2,805.00. . . .

On cross-examination Officer Mercado testified that, when officers 

arrived at the residence where [Petitioner] was staying, [Petitioner]’s black 

BMW was parked in the back portion of the driveway. He said that no one 

touched the BMW until he obtained the search warrant.

Mark Hamilton, a Chattanooga Police Department officer, testified 

that he is trained to conduct technological investigations, which includes 

cellular phone records analysis. He explained that cellular phones 

communicate through towers that are located throughout a city. When a 

transmission occurs, the cellular phone company records the activity. Officer 

Hamilton said that the cellular phone on [Petitioner]’s person at the time of 

his arrest was a Cricket cellular phone. He identified the phone records for 

the number associated with the phone taken from [Petitioner] and a listing of 

the location of all Cricket cellular phone towers in the area.

[Officer] Hamilton identified a map he created showing the location 

of the cellular phone towers used to transmit [Petitioner]’s phone calls 

throughout the night of August 6 and the morning of August 7, 2008. At 

11:13 p.m., cellular phone activity for [Petitioner]’s phone was transmitted 

using a tower near [Petitioner]’s residence. There were three cellular phone 

towers in the area near the Lebovitz[es’] home. Beginning at 12:20 a.m., 

[Petitioner]’s cellular phone activity was transmitted through one of these 

three cellular phone towers near the area of the crimes. [Petitioner]’s cellular 

phone activity continued to use one of the three towers located near the 

Lebovitz[es’] home until 3:58 a.m., when [Petitioner]’s cellular phone was 

turned off until 4:23 a.m. Officer Hamilton said that, using a “special 

engineer’s phone,” he placed calls in the area of the crimes and one of the 

three towers predominantly transmitted the signal and “occasionally” the 
 

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other two towers transmitted the call. Officer Hamilton explained that 

cellular tower signals overlap in some areas.

Wayne Ledford, [Petitioner]’s cousin, testified that, through his work 

in the home repair business, he had been involved in multiple home 

improvement projects on the Lebovitz[es’] house over the course of two to 

two and a half years. During this time, Ledford said that he converted the 

attic into living space, remodeled the basement area into a children’s 

playroom, expanded the house to add a storage area, waterproofed the front 

of the house, and remodeled the master bath[]room. Ledford recalled that, 

in August 2008, he was working on some repairs to the Lebovitz[es’] home.

Ledford described his relationship with [Petitioner] as one where the 

two men would occasionally go to clubs, talked on the phone, and were at 

family events together. He said that he and [Petitioner] “never really h[u]ng 

out.” Ledford said that he called and spoke with [Petitioner] on the day 

before these crimes after leaving the Lebovitz[es’] house for the day. 

Ledford said that he called [Petitioner] to see if he wanted to “get together” 

on Friday or Saturday of that week. Initially, the two men engaged in small 

talk and then [Petitioner] asked if Ledford was working. Ledford told 

[Petitioner] that he was “baby-sitting” subcontractors, masons, and a sheetrock finisher. [Petitioner] asked if the homeowners were at home while the 

sheet[]rock was being torn out of the ceiling in the kitchen. Ledford told 

[Petitioner] that the homeowners were out of town while “that demo work” 

was being done. [Petitioner] responded saying, “they just let you go in and 

out of the house like that.” Ledford said that he told [Petitioner] that the 

homeowners trusted him and that a housekeeper was present most of the time 

as well as there was a house sitter who was taking care of the family dog.

Ledford testified that [Petitioner] had been to the Lebovitz[es’] house 

before when [Petitioner] had picked up Ledford to go to lunch. Ledford said 

that he had also shown [Petitioner] before and after pictures of the 

remodeling on the house. Ledford said that on Wednesday, August 6, 2007, 

he left the Lebovitz[es’] house after lunch, around 1:30 p.m. or 2:00 p.m. and 

went home where he remained until the following morning. Ledford denied 

borrowing [Petitioner]’s BMW the night of August 6 and stated that he had 

never driven the BMW. Ledford further denied possessing [Petitioner]’s 

cellular phone or underwear during the night of August 6.
 

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Ledford testified that, at 7:00 a.m. on August 7, 2008, his boss called 

to tell Ledford that the Lebovitz[es’] house had been burglarized and the 

house sitter raped. Ledford arrived at the Lebovitz[es’] house at 8:00 a.m., 

where he found a lot of police officers. Ledford explained that electricians 

were scheduled to work on the house that day, so he went to the Lebovitz[es’]

house to let the electricians know they were not needed at that time. Ledford 

said that police detectives requested a DNA sample, and Ledford agreed. At 

some point, a police officer asked if anyone knew someone by [Petitioner]’s 

name, and Ledford told police that was his cousin’s name.

On cross-examination, Ledford agreed that, at the time of these 

crimes, he was “several thousand dollars” behind in his child support 

payments. Ledford agreed that there were times that the electricity at his 

home was turned off, explaining that he paid his child support rather than his 

electric bill on several occasions. He further agreed that, in 2008, he was 

also two months behind on his mortgage payments. Ledford said that, 

through his work in the Lebovitz[es’] house, he was familiar with the layout. 

Ledford said that he gave his cellular phone to police who looked at the call 

log and then returned it to him. Ledford denied owning a Glock pistol.

The State then submitted, by stipulation of the parties, two latent 

fingerprint reports. Shelly Betts, a Tennessee Bureau of Investigation 

(“TBI”) agent, testified on behalf of a colleague who examined the safe and 

a claw hammer found in the closet where the safe was kept. Betts said that 

the TBI was able to conclude that the claw hammer produced two of the tool 

marks present on the door of the damaged safe that was recovered from 

[Petitioner]’s BMW. Another tool mark on the safe was produced by a 

rotating blade, but the mark was insufficient for purposes of comparison with 

tools collected from [Petitioner]’s BMW.

Linda Littlejohn, a TBI agent, testified as an expert in the area of 

microanalysis. [Agent] Littlejohn identified the report she generated from 

her examination of duct tape submitted in this case. [Agent] Littlejohn 

examined a piece of duct tape from the victim and found that it did not match 

up with the fracture lines found on the end of the roll of duct tape found in 

[Petitioner]’s car. Her physical comparison of the roll of duct tape and the 

pieces of duct tape were that the pieces and roll were consistent with respect 

to size, appearance, and construction.
 

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Michael Turbeville, a TBI agent, testified as an expert in serology 

DNA. [Agent] Turbeville said that he examined the victim’s blood sample 

and buccal swabs from Ledford, the victim’s boyfriend, and [Petitioner]. 

Other items submitted for analysis were the victim’s panties, [Petitioner]’s 

underwear, a pair of gloves, bedding from the guest room of the 

Lebovitz[es’] house where the victim stayed, and the wall safe. The victim’s 

shorts and vaginal and anal swabs failed to reveal the presence of semen. 

Upon examination of the victim’s panties, [Agent] Turbeville found a limited 

presence of spermatozoa on the crotch area. The sample was a mixture of

DNA from two individuals. The two individuals were identified as the victim 

and her boyfriend.

[Agent] Turbeville testified that a pair of black gloves recovered from 

[Petitioner]’s car also contained a mixture of DNA. The major contributor 

of the DNA was [Petitioner], and the victim could not be excluded as a minor 

contributor. [Agent] Turbeville said that he received two pairs of 

[Petitioner]’s boxer briefs, one pair black and the other white. He swabbed 

the inside surface of the fly area of [Petitioner]’s black boxer briefs and found 

the presence of a DNA mixture. The partial profile indicated that the major 

contributor of the mixture was the victim, and the minor contributor was 

consistent with [Petitioner]’s DNA profile. [Agent] Turbeville also tested 

the second white pair of boxer briefs and found the presence of a DNA 

mixture in the fly area. The sample contained a complete DNA profile for 

the major contributor, who was the victim. The minor contributor was 

consistent with [Petitioner]’s DNA profile. The sample from the white boxer 

briefs was also compared against Ledford’s sample, and he was excluded as 

a contributor. [Agent] Turbeville also noted that, although there is no test to 

confirm, he observed fecal matter on the fly area of the white boxer shorts.

Melissa Croft testified on [Petitioner]’s behalf. She said that she and 

[Petitioner] had a child together. Croft recalled that in the afternoon of 

August 7, 2008, she called [Petitioner] and asked him to meet her at “SaveA-Lot” to take her to the hospital. [Petitioner] drove Croft, in his 

grandfather’s truck, to Memorial Northpark first, but the hospital was “kind 

of packed,” so they proceeded to Erlanger North. After treatment and release 

from the hospital, [Petitioner] drove Croft to Walgreens to fill a prescription. 

[Petitioner] and Croft then drove to an area on Old Hixson Pike where there 

was an abandoned house and “had sex” without the use of a condom. Croft 

estimated they were at that location approximately an hour before driving to 

a Steak and Shake restaurant to eat, at around 4:00 p.m., located on Hixson 
 

- 14 -

Pike. Next, they picked up [Petitioner]’s daughter from school and took her 

to a McDonald’s to let the child “play and eat.” After leaving McDonald’s, 

at approximately 8:00 p.m., they drove to [Petitioner]’s house.

Croft testified that, after arriving at [Petitioner]’s home, [Petitioner]

bathed his daughter and put her to bed. Around 10:00 p.m., [Petitioner] came 

into the bedroom where Croft was in bed, and the two again engaged in 

unprotected sex. Croft said that they fell asleep at approximately 4:00 a.m.

Croft testified that [Petitioner] drove her, in his grandfather’s truck, 

back to her car at around 7:00 a.m. on August 7, 2008. Croft said she did not 

see [Petitioner]’s BMW while at his house, explaining that she entered and 

exited through the front door and could not see “the back.”

On cross-examination, Croft agreed that, prior to the night of August 

6, she and [Petitioner] were “estranged.” [Petitioner] had custody of their 

child and would not allow Croft to see the child. Croft admitted to an 

addiction to “meth” but testified that she had “been clean for two months.” 

Croft said that she had not spoken to [Petitioner] in eight months when he 

called her from jail “to talk.” She said that she tried to visit him in jail “just 

recently” but was not permitted to see him because she did not have 

identification. After the State played a portion of a May 2009 recorded jail 

telephone conversation between [Petitioner] and Croft, Croft agreed that, 

during the conversation, she asked [Petitioner] when she could see their 

daughter. Croft did not agree that [Petitioner] had “control” over her 

visitation with their daughter, but said that he had “custody of her.” Croft 

explained that [Petitioner]’s response to Croft’s request during their 

telephone conversation to see their child, “I don’t know, baby, I need to talk 

to you,” meant that he wanted to make sure she was “clean.” Croft denied 

ever discussing the alibi with [Petitioner].

After hearing this evidence, the jury convicted [Petitioner] of one 

count of aggravated burglary, one count of especially aggravated kidnapping, 

one count of aggravated robbery, two counts of aggravated rape, one count 

of theft of property valued under $500.00, one count of theft of property 

valued over $1,000.00, and one count of theft of property valued over 

$60,000.00.
 

- 15 -

Id. at *3-11. On direct appeal, this court modified Petitioner’s conviction for theft of 

property over $60,000 to theft of property over $10,000, merged the theft convictions, and 

affirmed Petitioner’s remaining convictions. Id. at *1. 

Post-Conviction Petitions

Petitioner filed a timely pro se post-conviction petition, arguing that he was denied 

the effective assistance of trial counsel and appellate counsel. Following appointment of 

first post-conviction counsel, Petitioner filed an amended petition through counsel. First 

post-conviction counsel withdrew, and the court appointed second post-conviction counsel. 

Petitioner filed a second amended petition through counsel, incorporating the claims in the 

first two petitions and further arguing that evidence was seized in violation of the Fourth 

Amendment, various other evidentiary issues, improper prosecutorial argument and 

judge’s comments, denial of due process due to the trial court’s failure to order a change 

of venue, and denial of due process due to the trial court’s failure to charge the jury pursuant 

to State v. White, 362 S.W.3d 559 (Tenn. 2012). Third post-conviction counsel was 

appointed, and a third amended petition was filed.1

Post-Conviction Hearing

Post-conviction counsel told the post-conviction court that Petitioner would proceed 

solely on the enumerated claims in the second and third amended petitions. Upon 

questioning by the post-conviction court, Petitioner agreed to voluntarily waive all other 

claims. 

Petitioner, a former Hamilton County Sheriff’s Department deputy, testified that, 

when police searched his phone and vehicle, he was not present. He said that, when he 

arrived home, police detained him for over an hour in a police car. Petitioner stated, “[T]wo 

detectives had walked around behind the house and were gone for about [twenty] minutes 

or so.” Petitioner told one officer that they did not have permission to be behind the house, 

nor did they have a search warrant, so the officer called the two other officers to “come 

back up. But they had already been back there for [twenty] or [thirty] minutes[.]” 

Petitioner stated that his “out-buildings” were searched behind his home. He explained, 

“[T]here was no way from the street or from the side -- either side of the house or the rear 

to know if those buildings were there to know that a fifth-wheel camper was there.” He 

said that the trunk and the interior of his BMW, which was parked “halfway” in the garage 

with the trunk inside the garage, “had been gone though and searched as well.”

 

1 The third amended petition does not appear in the record on appeal.
 

- 16 -

Petitioner stated that he did not know if the officers found anything in his BMW or

the fifth-wheel camper but said that there were “subsequent searches” of the BMW. He 

said that his phone was not searched. Petitioner said that he never saw a search warrant or 

arrest warrant and that officers did not have permission to be on the property. He said that 

he never received a “chain of evidence” for things removed from his property. Petitioner 

agreed that trial counsel filed a Motion to Suppress the evidence found during the searches 

and that appellate counsel raised the issue on direct appeal.

Petitioner stated that he received a report that officers “took swabs” from various 

places in his car but said that “it was never tested[.]” Petitioner explained that he tried to 

independently raise money for DNA testing since an indigent, non-capital post-conviction 

petitioner is not entitled to independent testing. He also said that the swabs of his penis 

were tested by the TBI lab and that the results showed DNA from “an unknown female 

excluding the victim.” Petitioner wanted the swabs to be tested against Ms. Croft, who 

was his alibi witness, to bolster her credibility since she was discredited at trial as a 

methamphetamine addict. Petitioner stated that he wanted the bedding and the victim’s 

clothing tested for lubricant since the State’s theory was that the attacker used a condom to 

prevent leaving his DNA. Petitioner said that there was no evidence presented at trial that 

a condom was used during the rape. He said that trial counsel was deficient for failing to 

file a motion for further DNA and lubricant testing.

Petitioner asserted that no “voice lineup” was conducted and that trial counsel was 

deficient for failing to file a motion for one. He said that, after the victim testified at trial, 

she sat in the courtroom while recordings of jailhouse calls were played. He asserted that 

she never came forward to say that his was the voice she heard on the night of the rape.

Petitioner said that the gloves found at the scene and allegedly worn by the attacker 

were tested for DNA and revealed DNA for both Petitioner and an unknown female. He 

said that there was “most definitely” tension between trial counsel and the trial court.

Petitioner testified that the TBI report showed that the “fracture lines” on the 

victim’s duct tape and the roll found in Petitioner’s BMW did not match. Petitioner stated 

that trial counsel never filed a motion in limine before trial seeking to exclude the duct tape

from his vehicle. 

Petitioner said that the TBI tested his cell phone for DNA and that the report came 

back saying “unknown male number three[.]” Petitioner asserted that trial counsel failed 

to request further DNA testing of his weapon or cell phone or any other object that could 

have been used to hit the victim. He said that the State “picked and [chose] what they 
 

- 17 -

wanted to send to the TBI lab.” Petitioner stated that, among the DNA testing that was 

performed, there were three unknown males and two unknown females.

Petitioner testified that trial counsel talked to him about cross-contamination but 

then offered no expert proof at trial and did not file a motion in limine to exclude the 

evidence that was allegedly contaminated. He said that one detective testified that he put 

two pair of underwear into the same evidence bag and then later put Petitioner’s penis swab 

in the same bag with the two pair of underwear from Petitioner’s house. Petitioner said 

that the same officer placed the victim’s driver’s license and checkbook in the same bag 

together.

Petitioner stated that the pry marks on the back door of the home did not match the 

tool markings on the safe. He explained that the TBI report of the tools found in his vehicle 

showed that none of the tools matched the back door or the safe. He said that trial counsel 

did not object to any of the evidence the State offered and did not offer an expert in tool 

mark identification.

Petitioner testified that the State’s expert witness only had one eight-hour course on 

cell towers and that trial counsel did not object to him as an expert witness. Trial counsel 

also did not offer his own cell tower expert witness. Petitioner said that, when he received 

his file, he noted that the records from Cricket Wireless said that the information was “raw 

data” and was “not to be used for location or anything to do with like that, especially 

because it [wa]s not authenticated from Cricket Wireless.”

Petitioner said that he wanted the hair samples and fingerprints found in his car to 

be tested against Ms. Croft and Mr. Ledford. He said that, because Mr. Ledford used his 

vehicle on the night of the rape, trial counsel should have requested testing to prove the 

defense theory of mistaken identity. 

Petitioner testified that trial counsel did not pursue plea negotiations. He said that 

trial counsel presented an offer from the State where Petitioner would receive fifteen or 

twenty years if he “were to tell them where the jewelry could be recovered[.]” Petitioner 

asked trial counsel to get the plea offer in writing and that he would “make every effort” 

and “beg and plead with Mr. Ledford to try to recover the jewelry.” He said that he would 

have taken such a plea agreement.

On cross-examination, Petitioner agreed that trial counsel filed a Motion to Suppress 

the evidence taken pursuant to the search warrant but said that the trial court did not allow 

trial counsel to finish arguing. He said that the trial court had already concluded that “there 

wasn’t anything wrong with the search warrant itself[.]” Petitioner agreed that the 
 

- 18 -

propriety of the search was litigated on direct appeal and that his appeal was denied on that 

point. 

Petitioner stated that Officer Mercado testified at the preliminary hearing that the 

duct tape found in the BMW matched the duct tape on the victim. He explained that trial 

counsel confronted Officer Mercado on cross-examination at trial, and Officer Mercado 

“corrected hi[m]self.”

Petitioner testified that trial counsel cross-examined Agent Turbeville “a lot about 

DNA touch evidence and mitochondrial DNA[.]” He agreed that trial counsel also 

questioned Agent Turbeville and Investigator Mardis about cross-contamination. 

Petitioner agreed that Investigator Mardis also found the two pair of underwear, which he 

collected in the same evidence bag, in “close proximity.” He said, “The two pair of 

underwear c[a]me back to the victim and matching [him].”

Petitioner recalled telling trial counsel first that he was not in the location of the 

rape. Later, when the cell tower report came back, Petitioner told trial counsel that he was 

in the area “working a skip trace.” He asserted that mistaken identity was his defense 

theory from “the git-go.” Petitioner agreed that he told trial counsel that the police may 

have set him up. He explained that he had an affair with a police officer’s wife and that 

Officer Mercado worked with that officer. He claimed that, “for several years after that, 

[officers] w[ere] relentless on harassing [him].” Petitioner asserted that “[h]alf the 

Chattanooga Police Department” harassed him by constantly pulling him over, showing up 

at his gym, and driving by his apartment.

Petitioner agreed that some of the DNA evidence was exculpatory and excluded 

him, including the DNA on a bag in his car, DNA found in the victim’s car, and DNA from 

the bedroom comforter. He agreed that DNA from an unknown male was on all those 

items. Petitioner agreed that the victim’s DNA was found on both pair of underwear from

Petitioner’s house.

Trial counsel testified that, prior to Petitioner’s case, he tried “well over twenty” 

bench and jury trials. He said that he received discovery from Petitioner’s attorney at the 

preliminary hearing and that he met with Petitioner about a dozen times. Trial counsel 

recalled that he filed and litigated a Motion to Suppress prior to trial. He recalled that the 

perpetrator took the victim’s vehicle and that it was found by Petitioner’s BMW, which 

was the basis for the search warrant. 

Trial counsel recalled that he was concerned about the trial judge because she was 

female and because the case involved “a pretty vicious, violent rape of a young woman.” 
 

- 19 -

Trial counsel said that he presented Ms. Croft as an alibi witness for Petitioner and that he 

located her through the use of a private investigator. He said that Petitioner did not tell 

him that he was in contact with Ms. Croft or that there were jailhouse calls between the 

two.

Trial counsel said that he attempted plea negotiations prior to the suppression 

hearing and that Petitioner “didn’t want a deal.” When discussing potential defenses, 

Petitioner told trial counsel several theories:

First, he didn’t know anything about it. Then he was . . . looking for 

somebody skipping bond. Then it went to [Mr.] Ledford having something 

to do with it. There was that [Officer] Mercado had a personal dislike for 

him and just fingered him. Because supposedly [Petitioner] had an affair 

with [Officer] Mercado’s girlfriend or something of that nature. And so it 

was a vendetta thing. From [Petitioner]’s employment over at the sheriff’s 

office, there was some animosity. 

And then the Ledford thing actually had more legs to it [because he] 

had access, not only to [Petitioner]’s home, but more importantly the 

residence [where] [h]e was . . . doing some construction work. So [Mr. 

Ledford] had knowledge of the residence, he had knowledge of the layout. 

He had knowledge of the dog. He had knowledge of a safe. Mr. Ledford 

also had financial problems. I was able to verify some of those.

Trial counsel explained several financial difficulties Mr. Ledford had and that Mr. 

Ledford “suddenly [] got out of that” at the “same time frame” as the rape and burglary. 

Trial counsel said that he was able to cross-examine Mr. Ledford about his financial 

problems and his juvenile record. He said that Petitioner “filed a disciplinary complaint” 

against him prior to the motion for new trial, so he withdrew as counsel. 

On cross-examination, trial counsel denied that he and the trial judge “didn’t get 

along.” Trial counsel did not remember saying in his opening statement that he would 

prove that someone else committed the crime. Trial counsel stated that he did not hire an 

expert on tool or pry markings. He agreed that, had an expert found that Petitioner’s tools 

did not make the pry markings, that evidence would have been helpful at trial. Trial counsel

added, “And also if [Petitioner’s] alibi that turned out to be false was actually correct, that 

would have been helpful as well.” 

Trial counsel recalled that his Motion to Suppress was based on the curtilage search. 

He stated that he did not request a voice lineup and agreed that it would have been helpful 
 

- 20 -

if the victim had been unable to identify Petitioner in the voice lineup. He agreed that, at 

trial, the victim did not recognize Petitioner’s voice on the jailhouse phone calls.

Trial counsel could not recall the nature of the disciplinary complaint that Petitioner 

filed against him. He could not recall statements made by the trial court admonishing him. 

Trial counsel stated that he did not investigate cellular tower pings “[b]ecause [Petitioner] 

was not there, according to [Petitioner]. And in fact, according to him and Ms. Croft, Mr. 

Ledford not only ha[d] his vehicle, but also had his phone and also had all this other 

equipment.” Trial counsel testified that he did not request any DNA testing. 

Trial counsel recalled writing a letter to Petitioner after he withdrew as counsel, 

stating that he was “stunned at evidence from [Petitioner’s] [jailhouse] phone call [with 

Ms. Croft] that at the time was rebuttal and not disclosed[.]” He agreed that he “probably” 

called Petitioner a “liar” in the letter “because he was a liar.” Trial counsel said that he 

was not familiar with State v. White regarding jury instructions for kidnapping.

Trial counsel recalled that the State’s theory was that the perpetrator wore a condom 

but said that he did not request lubricant testing of the bedding. Trial counsel said that 

there would “not necessarily” be lubricant on the bedding if a condom was used. Trial 

counsel recalled that the duct tape found in Petitioner’s car was consistent with the duct 

tape used to bind the victim but said that he did not remember anything about the “fracture 

line” being inconsistent. 

The post-conviction court granted Petitioner forty-five days to file a post-conviction 

hearing brief. In his post-hearing brief in support of post-conviction relief, Petitioner 

argued that he was denied the effective assistance of trial counsel due to trial counsel’s (1) 

improper opening argument; (2) unauthorized abandonment of sentencing negotiations; (3) 

failure to investigate and request DNA and lubricant testing of the firearms, cell phone, 

penis, bedding, the victim’s clothes, [and] gloves; (4) failure to retain expert witnesses 

regarding cross-contamination, tool pry markings, and cellular towers; (5) failure to object 

to evidence related to tool and pry markings; (6) failure to object to evidence related to the 

duct tape found in Petitioner’s car; and (7) failure to request a voice lineup. Next, Petitioner 

argued that he was denied due process because (1) the trial court failed to charge the jury 

pursuant to State v. White; (2) trial counsel was biased against Petitioner; (3) the trial court 

was biased against Petitioner; (4) improper prosecutorial argument; and (5) evidence was 

seized in violation of the Fourth Amendment. Finally, Petitioner argued cumulative error.

The post-conviction court denied Petitioner’s post-conviction petition in a highly detailed 

written order, which we will address in our analysis. This court granted Petitioner 

permission to late-file a notice of appeal. 
 

- 21 -

Analysis

On appeal, Petitioner reiterates verbatim his claims and arguments from his posthearing brief, as asserted above. The State responds that Petitioner has not established that 

trial counsel was deficient or, alternatively, that any deficiency prejudiced Petitioner. It 

argues that Petitioner’s stand-alone due process claims are previously determined or 

waived.

Standard of Review

In order to prevail on a petition for post-conviction relief, a petitioner must prove 

all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828, 

830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and 

fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound by 

the post-conviction court’s factual findings unless the evidence preponderates against such 

findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing the postconviction court’s factual findings, this court does not reweigh the evidence or substitute 

its own inferences for those drawn by the post-conviction court. Id.; Fields, 40 S.W.3d at 

456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally, “questions 

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

testimony, and the factual issues raised by the evidence are to be resolved by the [postconviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579); see also

Kendrick, 454 S.W.3d at 457. The trial court’s conclusions of law and application of the 

law to factual findings are reviewed de novo with no presumption of correctness. Kendrick, 

454 S.W.3d at 457.

I. Ineffective Assistance of Counsel

The right to effective assistance of counsel is safeguarded by the Constitutions of 

both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const. 

art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel, a 

petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the 

deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); 

see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same 

standard for ineffective assistance of counsel applies in both federal and Tennessee cases). 

Both factors must be proven in order for the court to grant post-conviction relief. 

Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363, 

370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is 

no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007) 

(citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of 
 

- 22 -

counsel’s performance “requires that every effort be made to eliminate the distorting 

effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and 

to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 

689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial 

strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful, tactical 

decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006).

As to the first prong of the Strickland analysis, “counsel’s performance is effective 

if the advice given or the services rendered are within the range of competence demanded 

of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523 

S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that 

counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions 

were so serious as to fall below an objective standard of reasonableness under prevailing 

professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see 

also Baxter, 523 S.W.2d at 936.

Even if counsel’s performance is deficient, the deficiency must have resulted in 

prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong of 

the Strickland analysis, the petitioner “must show that there is 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. (quoting Strickland, 466 U.S. at 694) (internal quotation marks omitted).

(1) Trial Counsel’s Opening Statement

Petitioner claims that trial counsel made assertions in his opening statement that 

were unsupported by the evidence at trial. In State v. Zimmerman, this court said, in regards 

to opening statements by trial counsel, “The trial attorney should only inform the jury of 

the evidence that he is sure he can prove. . . . His failure to keep [a] promise [to the jury] 

impairs his personal credibility. The jury may view unsupported claims as an outright 

attempt at misrepresentation.” State v. Zimmerman, 823 S.W.2d 220, 225 (Tenn. Crim. 

App. 1991) (quoting McCloskey, Criminal Law Desk Book, § 1506(3)(O) (Matthew 

Bender, 1990)).

The post-conviction court quoted trial counsel in its written order: 

The evidence is going to show that somebody else did this crime. We’re not 

denying that this girl was assaulted. It just wasn’t [Petitioner]. And I feel 

confident in telling you that or at least guessing or foreseeing that the 

evidence is not going to go beyond the 50[-]yard line.
 

- 23 -

The post-conviction court listed several pieces of evidence presented at trial that 

supported trial counsel’s assertion in his opening argument:

 that Mr. Ledford had access to the front door key; that Mr. Ledford had access to 

the code to open the garage door; and that Mr. Ledford knew how to gain entry to 

the house;

 that Mr. Ledford knew the layout of the house; that he knew where the bedrooms 

were located; and that he knew where the safe was located;

 that Mr. Ledford had a tool belt and carried various tools in his red truck, including 

a hammer, chisels, and a couple of pry bars;[]

 that Mr. Ledford’s work was “feast or famine”; and that he was several thousand 

dollars behind in child support; and that he had his power turned off five times; and 

that his residence was starting to go into foreclosure[; and]

 [that] the victim . . . told police that she felt like the suspect knew the area and the 

house well because he never asked where the bedrooms were.

The post-conviction concluded, “consistent with the defense theory, [t]rial [c]ounsel 

elicited proof at trial to support the argument that someone else committed the crime, and 

he argued this proof to the jury.”

We agree. Trial counsel supported his opening statement with evidence. As the 

post-conviction court stated, “It is clear from the jury’s verdict that it credited the State’s 

proof over the alternative theories advanced by [t]rial [c]ounsel.” Thus, Petitioner has not 

shown deficient performance.

(2) Abandonment of Sentencing Negotiations

Petitioner argues that trial counsel abandoned plea negotiations. The Strickland

standard for determining whether a petitioner received the ineffective assistance of counsel 

applies in plea negotiations as well as during trial. Hill v. Lockhart, 474 U.S. 52, 58 (1985); 

see also Missouri v. Frye, 566 U.S. 134, 147 (2012). 

The post-conviction court found that trial counsel presented Petitioner with a plea 

offer from the State for a fifteen- or twenty-year sentence. It noted that the State’s offer 

required Petitioner to reveal the location of the jewelry taken from the home as “a condition 
 

- 24 -

precedent to the offer being presented to the [c]ourt in the first instance.” The postconviction court stated:

The contingent nature of this offer is important. At the post[-]conviction 

hearing, [Petitioner] testified that he would have accepted the offer and that 

he would have “attempted” to recover the jewelry. However, there is no 

proof before the [c]ourt that these attempted efforts would have been 

successful, even partially. . . . As such, this [c]ourt cannot conclude that clear 

and convincing evidence exists to show that the results of the sentencing 

hearing would have been different[.]

We agree. Petitioner was offered a plea deal, but he was unwilling or unable to meet 

the requirement of the plea offer. A petitioner must show by clear and convincing evidence 

that he would have been able to meet the condition precedent to a contingent plea offer in 

order to show that he suffered prejudice by going to trial. See Arturo Jaimes-Garcia v. 

State, No. M2015-02109-CCA-R3-PC, 2016 WL 6087668, at *12 (Tenn. Crim. App. Oct. 

18, 2016) (concluding that the petitioner did not receive ineffective assistance where the 

petitioner’s co-defendants’ acceptance of a plea was a condition precedent to his contingent 

plea offer), perm. app. denied (Tenn. Feb 15, 2017); see also Billy Cate v. State, No. 

03C01-9107-CR-00211, 1992 WL 42771, at *3 (Tenn. Crim. App. Mar. 9, 1992)

(concluding that the petitioner did not receive ineffective assistance where the petitioner 

was “unable or unwilling” to name his suspected accomplices, which was a condition 

precedent to a contingent plea offer), perm. app. denied (Tenn. May 26, 1992). 

(3) Failure to Investigate and Request DNA & Lubricant Testing

Petitioner argues that trial counsel was ineffective for failure to pursue further DNA 

testing or lubricant testing of several items. The post-conviction court concluded that 

Petitioner did not produce the results of any DNA or lubricant testing and thus did not meet 

his burden to show that such results would have changed the outcome of the case. We 

agree. Petitioner did not present any evidence at the post-conviction hearing that further 

DNA or lubricant testing would have changed the outcome of the case, and we cannot grant 

relief based on speculation. See John Moffitt v. State, No. W2016-02487-CCA-R3-PC, 

2017 WL 4124166, at *7 (Tenn. Crim. App. Sept. 18, 2017) (stating that, because the 

petitioner “did not offer any DNA testing[,] there is no proof that any of this evidence 

would have aided the [p]etitioner’s defense”), perm. app. denied (Tenn. Jan. 22, 2018).
 

- 25 -

(4) Failure to Retain Expert Witnesses on Cross-Contamination and Cellular Towers

Petitioner argues that, while trial counsel understood that several pieces of evidence 

were inappropriately collected and stored together, trial counsel did not retain an expert 

witness to investigate and discredit the State’s evidence on the basis of crosscontamination. He also asserts that trial counsel was deficient for failing to retain an expert 

in cellular towers to show that the “raw data” was not reliable to determine his location at 

the time of the rape. The post-conviction court noted that Petitioner did not present 

evidence of actual contamination about which an expert witness would testify. It also 

stated that Petitioner “also failed to present an expert on cell-tower location data in these 

proceedings.” The post-conviction court concluded, “Without expert proof being 

presented at the post-conviction hearing, this [c]ourt cannot find that [Petitioner] has shown 

by clear and convincing evidence how [t]rial [c]ounsel’s failure to call an expert here 

constituted ineffective assistance of counsel.”

“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.” Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. 

App. 1990). “To establish prejudice, the petitioner must: (1) produce the witness at his 

post-conviction hearing; (2) show that through reasonable investigation, trial counsel could 

have located the witness; and (3) elicit both favorable and material testimony from the 

witness.” Denton v. State, 945 S.W.2d 793, 802-03 (Tenn. Crim. App. 1996) (citing Black, 

794 S.W.2d at 757). Because Petitioner presented no expert witness at the evidentiary 

hearing, he is not entitled to relief on this ground.

(5) Failure to Object to Evidence 

Petitioner argues that trial counsel was deficient for failing to object to, and move

to exclude, evidence of tool and pry markings on the safe as none of the tools found in 

Petitioner’s car matched the markings. The post-conviction court stated:

It is true that the State’s forensic expert from the TBI could not identify the 

marks on the safe as having come from [Petitioner]’s tools recovered from 

his BMW, and, indeed, [t]rial [c]ounsel brought this fact out in cross[-

]examination. However, this fact went to the weight of the evidence and not 

to its fundamental admissibility. As such, [Petitioner] has not shown that this 

evidence was inadmissible as being irrelevant or that, had a relevancy 

objection been made, the objection would have been sustained by the trial 

court.
 

- 26 -

We agree. The evidence of tool pry markings and of the tools in Petitioner’s trunk 

were relevant and admissible. See Tenn. R. Evid. 401, 403. Petitioner has not shown that 

an objection would have been sustained or that the evidence would have been excluded, 

and as such, he cannot show deficient performance. See Goad, 938 S.W.2d at 370. 

Moreover, even if the evidence had been excluded, the evidence of Petitioner’s guilt -- with 

the victim’s DNA in his underwear -- was overwhelming, and the result of the trial would 

not have been different. See id. Thus, Petitioner cannot show prejudice. 

Petitioner also argues that trial counsel was deficient for failing to object to Officer 

Hamilton’s expert testimony regarding cell phone towers on the basis that Officer Hamilton

had only a single class in the subject.2 Petitioner has failed to show that any objection to 

the trial court’s finding that Officer Hamilton was a qualified expert would have succeeded. 

See id. Moreover, he has failed to show how a successful objection to this testimony would 

have resulted in a different outcome. See id. Petitioner is not entitled to relief.

(6) Failure to Move to Exclude Duct Tape

Petitioner argues that, because Agent Littlejohn’s report showed that the “fracture 

lines” did not match between the duct tape used to bind the victim and the duct tape found 

in Petitioner’s car, trial counsel was deficient for failing to move to exclude evidence of 

the duct tape in Petitioner’s car.

The post-conviction court found that Officer Mercado “may have testified” at the 

preliminary hearing that the two sets of duct tape were a match but said that trial counsel 

used that preliminary hearing testimony at trial to “impugn” Officer Mercado’s trial 

testimony. Regarding the admissibility of the duct tape, the post-conviction court found 

that Agent Littlejohn testified that “both sets of duct tape ‘were consist[e]nt with respect 

to size, appearance, and construction.’” It concluded, “Although Agent Littlejohn was 

unable to conclusively match the two samples as having come from the same roll, this 

evidence went to the weight of the evidence, not to its admissibility.”

Petitioner offers no authority or rule of evidence that would have supported a motion 

to exclude the duct tape from his car simply because the “fracture lines” did not match. 

Moreover, trial counsel used Agent Littlejohn’s report at trial to discredit a State’s witness 

based on his prior sworn testimony. Thus, trial counsel was not deficient for failing to 

move to exclude the duct tape. See id.

 

2 The post-conviction court made no findings on this issue.
 

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(7) Failure to Request a Voice Lineup

Petitioner argues that, because the victim could not identify Petitioner in a 

photographic lineup, and because the victim did not recognize Petitioner’s voice in 

recorded jailhouse phone calls that were played at trial, trial counsel was deficient for 

failing to request a voice lineup. The post-conviction court found that the victim was never 

asked to make a voice identification at trial. It stated:

In this case, [Petitioner] failed to present the victim to testify at the 

post-conviction hearing. Even absent calling the victim, [Petitioner] failed 

to show of what a voice lineup would have consisted or what the result of the 

experiment would be. In essence, [Petitioner] asks the [c]ourt to speculate 

that the victim would not have identified [Petitioner]’s voice as the one she 

heard the night of the crimes. And, while the [c]ourt could believe that this 

outcome is one possibility among a range of possibilities, any such belief is 

hardly proof by clear and convincing evidence. To the contrary, it is 

speculation in fact.

We agree. Because Petitioner failed to present either the victim or the result of a 

voice lineup at the post-conviction hearing, he cannot show deficient performance. Ricky 

Franklin York v. State, No. M2002-00817-CCA-R3-PC, 2003 WL 213782, at *3 (Tenn. 

Crim. App. Jan. 31, 2003) (citing Black, 794 S.W.2d at 757) (“It is the [petitioner’s] duty 

to present evidence or witnesses at the evidentiary hearing to support his claim.”).

(8) Trial Counsel’s Alleged Bias Against Petitioner

Petitioner alleges that trial counsel was biased against Petitioner, and he submits a 

post-trial letter from trial counsel in support of his assertions. The post-conviction court 

found that the evidence at the post-conviction hearing 

did not show that [Petitioner] and [t]rial [c]ounsel had an irreparable 

relationship or that [t]rial [c]ounsel was motivated by any personal animus 

toward [Petitioner] during the trial of the case. Rather, the animus cited by 

[Petitioner] came in response to events that arose after the trial in which 

[Petitioner] made a complaint about [t]rial [c]ounsel’s representation to the 

Board of Professional Responsibility.

The post-conviction court found that trial counsel “constructed a reasonable defense 

theory of the case; he conducted rigorous cross-examination of [S]tate witnesses; he 
 

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presented the defense’s case-in-chief through available witnesses; and he made 

impassioned and logical closing arguments on the proof introduced at trial.”

Reviewing the letter from trial counsel to Petitioner, the post-conviction court noted 

“direct and personal reflections” on Petitioner’s case, which were quite negative. However, 

the post-conviction court concluded that, “[e]ven presuming that [t]rial [c]ounsel harbored 

some or all of these feelings through the trial of the case, [Petitioner] has not shown by 

clear and convincing evidence that he was effectively or constructively deprived of the 

effective assistance of counsel” because “the proof presented at the post-conviction hearing 

in this case did not demonstrate anything close to . . . the virtual or complete abandonment 

of the duty of loyalty.”

The evidence does not preponderate against the findings of the post-conviction 

court. Trial counsel testified that he sent the letter to Petitioner after trial and after 

Petitioner filed a disciplinary action against him with the Board of Professional 

Responsibility. Petitioner presented no evidence that any animus existed between himself 

and trial counsel during the course of the trial. Moreover, Petitioner retained trial counsel 

and never sought to replace him. As such, Petitioner has not established that he was denied 

the effective assistance of counsel.

II. Due Process

(1) Absence of a State v. White Jury Instruction on Kidnapping

Petitioner argues that, because the victim’s confinement was only incidental to the 

robbery and rape, he was prejudiced by the trial court’s failure to issue a jury instruction

pursuant to State v. White.

In White, the Tennessee Supreme Court addressed how due process considerations 

affect convictions for kidnapping and an accompanying felony. In that case, the supreme 

court held:

[T]he legislature did not intend for the kidnapping statutes to apply to the 

removal or confinement of a victim that is essentially incidental to an 

accompanying felony, such as rape or robbery. This inquiry, however, is a 

question for the jury after appropriate instructions, which appellate courts 

review under the sufficiency of the evidence standard as the due process 

safeguard.

White, 362 S.W.3d at 562.
 

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Here, the post-conviction court noted that the holding in White was entered after 

Petitioner’s conviction in 2012. The post-conviction court also found that this issue was 

previously determined on direct appeal when this court determined that Petitioner’s rights 

were violated but that the error was harmless beyond a reasonable doubt. Tracy A. 

Roberson, 2013 WL 5775832, at *23-26. Thus, the post-conviction court declined to 

review the White jury instruction claim.

We agree. An issue or ground for relief is previously determined if “a court of 

competent jurisdiction has ruled on the merits after a full and fair hearing. 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.” Tenn. Code Ann. § 40-30-106(h) (2019). Because we have previously 

determined this issue, we cannot relitigate it. Holland v. State, 610 S.W.3d 450, 458 (Tenn. 

2020). Petitioner is not entitled to relief.

(2) Trial Judge’s Alleged Bias

Petitioner argues that the trial judge was biased against him since she was a female 

and, as trial counsel testified, the charges against Petitioner were a “pretty vicious, violent 

rape of a young woman.” He asserts that the trial court pre-judged his motion to suppress 

without hearing the evidence and that it “repeatedly mocked and criticized” trial counsel.

After reviewing the trial transcript and the direct appeal, the post-conviction court 

concluded:

[T]his [c]ourt cannot find that one would reasonably or objectively believe 

that the trial judge harbored any bias in the case. Nevertheless, and aside 

from the merits, this issue is substantially identical to an issue raised by 

[Petitioner] on his direct appeal, and, as such, the issue is likely one that has 

been previously determined.

It declined to review the claims, stating that, even if the claims on post-conviction 

were “slightly different” from the one presented on direct appeal, Petitioner “had an 

opportunity to raise all issues related to judicial bias previously,” and thus, any claim of 

judicial bias was waived.

We conclude that this issue was previously determined on direct appeal. Tracy A. 

Roberson, 2013 WL 5775832, at *28 (“The Defendant claims that the trial court showed 

bias in favor of the State throughout the proceedings to such a degree that it deprived him 

of a fair trial.”); Tenn. Code Ann. § 40-30-106(h) (2019). As such, we will not consider
 

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any off-hand comments made by the trial court or the trial court’s gender as stand-alone 

claims available for review. Holland, 610 S.W.3d at 458.

(4) Improper Prosecutorial Argument

Petitioner argues that the prosecutor made inappropriate statements during his 

closing argument because he called Petitioner a person of “small stature.” The postconviction court found that the prosecutor did refer to Petitioner as a person of “small 

stature.” It stated that, even if the term was “derogatory,” this issue was waived.

A ground for post-conviction relief is waived if:

the petitioner personally or through an attorney failed to present it for 

determination in any proceeding before a court of competent jurisdiction in 

which the ground could have been presented unless:

(1) [t]he claim for relief is based upon a constitutional right not 

recognized as existing at the time of trial if either the federal or 

state constitution requires retroactive application of that right; 

or

(2) [t]he failure to present the ground was the result of state 

action in violation of the federal or state constitution.

Tenn. Code Ann. § 40-30-106(g) (2019). Because Petitioner’s claim is not based upon a 

newly determined constitutional right requiring retroactive application, and because his 

failure to present this ground on direct appeal was not the result of State action, it is waived. 

(5) Fourth Amendment

Petitioner argues that his constitutional rights were violated when the trial court 

denied his motion to suppress evidence pursuant to an illegal search and seizure. The postconviction court found that a post-conviction petition was not the proper vehicle for this 

claim and that the claim was previously determined, both in the trial court and on direct 

appeal.

Petitioner raised this issue in a suppression motion, and this court reviewed on direct 

appeal the trial court’s determination. Tracy A. Roberson, 2013 WL 5775832, at *1, *13-

16. On direct appeal, we reviewed the language of the search warrant and determined that 
 

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[t]he affidavit include[d] specific language about the crimes committed, 

evidence linking [Petitioner] to the crimes, and a basis for belief that items 

relating to the crimes would be found in [Petitioner]’s home, car, or on his 

person. This information supported issuance of the search warrant and, 

therefore, the evidence seized in this case was found pursuant to the lawful

execution of the search warrant.

Id. at *15. Moreover, we explained that “observations while approaching the residence do 

not constitute information obtained as a result of a warrantless entry into the residence and 

could properly be considered in issuing the search warrant.” Id. Finally, we concluded 

that the period of time Petitioner was detained during the search was “no longer than 

reasonably necessary for the police, acting with diligence, to obtain the warrant.” Id. We 

are prohibited from relitigating this previously determined issue. Tenn. Code Ann. § 40-

30-106(h) (2019); Holland, 610 S.W.3d at 458. 

III. Cumulative Error

Petitioner argues that cumulative error warrants reversal. The cumulative error 

doctrine recognizes that there may be many errors committed in trial proceedings, each of 

which constitutes mere harmless error in isolation, but “have a cumulative effect on the 

proceedings so great as to require reversal in order to preserve a defendant’s right to a fair 

trial.” State v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010). To warrant review under the 

cumulative error doctrine, there must have been more than one actual error during the trial 

proceedings. Id. at 77.

Here, we have found no errors. Thus, cumulative error review is unwarranted.

Conclusion

For the foregoing reasons, the judgment of the post-conviction court is affirmed.

____________________________________

ROBERT L. HOLLOWAY, JR., JUDGE