IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 5, 2019

PHILLIP HARRIS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 08-03680 Chris Craft, Judge

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No. W2018-01091-CCA-R3-PC

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Phillip Harris, Petitioner, was convicted of one count of attempted second degree murder, 

five counts of misdemeanor reckless endangerment, and one count of unlawful 

employment of a firearm during the attempt to commit a dangerous felony, for which he 

received a total effective sentence of fourteen years and six months to serve in the 

Tennessee Department of Correction. Petitioner sought post-conviction relief, but the 

post-conviction court denied relief following a hearing. On appeal, Petitioner contends 

that he received ineffective assistance of counsel based on trial counsel’s failure to 

discuss trial strategy with Petitioner and inform Petitioner of the proof to be presented by 

the defense at trial. After a thorough review of the facts and applicable case law, 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 ALAN E.

GLENN and ROBERT H. MONTGOMERY, JR., JJ., joined.

Joseph McClusky, Memphis, Tennessee, for the appellant, Phillip Harris.

Herbert H. Slatery III, Attorney General and Reporter; Benjamin A. Ball, Senior 

Assistant Attorney General; Amy P. Weirich, District Attorney General; and Melanie 

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

04/25/2019
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OPINION

Factual Background

On direct appeal, this court summarized the testimony presented at Petitioner’s 

trial as follows:

Redell King, one of the victim[]s in this case, testified that he was 

nineteen years old and was attending college at Southwest Tennessee 

Community College where he played wheelchair basketball. He stated that 

on March 18, 2008, when this incident occurred, he was fifteen years old 

and was out of school for spring break vacation. That day, King, and his 

friends K.C. Carter, Rodney Allen, and Barkary Kassama, played 

basketball at Carter’s home, located off of Ross Road in Memphis.

The young men played basketball for a few hours, and once they 

were finished, King returned a cell phone he had found to its owner on 

Ross Road. Then King, Allen, Kassama, and Carter walked to Lake Point 

Park, where they hung out “just being teenagers” and talked to girls. A few 

minutes later, Paul O’Bannon and Durrell Mickens arrived at the park. 

King said that he knew Mickens from school but did not know O’Bannon.

When it began getting dark, King and his friends left the park and walked 

to Allen’s friend Jermaine Curtis’s house, which was located on Nelson 

Way Drive, off of Ross Road.

King, Allen, Kassama, Carter, O’Bannon, and Mickens walked as a 

group to Curtis’s house. When they arrived, Allen walked up to the door 

and rang the doorbell while the rest of group stayed at the curb. At the 

time, Curtis’s porch light was on and a motion light on the side of the house 

also became illuminated when the group walked toward Curtis’s house.

King stated that this motion light was “very bright” and remained 

illuminated the entire time they were standing outside Curtis’s home.

When no one answered the door, Allen walked back to the group at the 

curb.

King stated that when they were about to leave Curtis’s house, a 

second group of five older men, whom he did not recognize, came up the 

street and yelled, “[W]ho is that? Who is that?” King said that at the time, 

he did not know that there was going to be a fight near Curtis’s house. 

These men approached O’Bannon in the street and began arguing with him. 

He said these older men were of varying heights, and the majority of them 
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had a light skin tone. He also said that three of them had dreadlocks. 

O’Bannon began walking backward and one of the older men, later 

identified as [Petitioner], approached King and his friends at the curb and 

displayed two guns while the other men in his group approached 

O’Bannon. King said [Petitioner] got within one or two feet of him.

[Petitioner] pointed the guns at King and his friends and informed them that 

if “any young black American man move[d], he was going to lay [him] 

out.” King said that when [Petitioner] pulled out his two guns, he aimed 

both guns at his head and his friends’ heads. When the group approached 

[Petitioner], [Petitioner] told them to “handle [their] business[,]” and the 

men began beating up O’Bannon. O’Bannon eventually broke free of the 

men and ran up the street to Ross Road. At the time, King thought, “Just 

let me get away. Just let me . . . just let me live. I didn’t know what 

[Petitioner] was going to do.”

King said that he could clearly observe [Petitioner], who had the two 

guns. He stated that in addition to [Petitioner] being older than him and his 

friends, [Petitioner] was also approximately six feet tall, with medium skin 

tone, long d[r]eadlocks, and no facial hair. He did not remember what 

[Petitioner] was wearing but recalled that both of [Petitioner]’s guns were 

black. King said that he did not see anyone other than [Petitioner] with a 

weapon that night.

When O’Bannon began running, [Petitioner] turned away from King 

and his friends and pointed his guns in O’Bannon’s direction before firing 

four or five gunshots at O’Bannon. King saw the fire coming from the first 

gunshot as [Petitioner] fired shots at O’Bannon. When King heard the 

gunshots, he ran in the opposite direction from O’Bannon through an open 

gate into Curtis’s backyard and kept running until he reached the opposite 

fence, where he tried to jump over the fence. When he climbed up the 

fence, he realized that he could not jump down the opposite side of the 

fence because “sticky bushes” and a tree were in the way. He ran to a 

different part of the fence where there were no bushes or trees. When he 

climbed to the top of this section of fence, he felt like he “was wobbling” 

and began falling backward. He said, “[S]omething came to me that I was 

shot.” He acknowledged that he never saw [Petitioner] shooting in his 

direction because he never looked behind him. He also acknowledged that 

he did not know whether another member of the other group shot a weapon 

during the incident. King said that Carter and Allen were ahead of him 

when they ran into Curtis’s backyard. He did not know where Mickens or 

Kassama were at the time.
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King said that after he fell from the fence, he “stayed still” because 

he did not know if [Petitioner] was still chasing him and his friends. He 

stated that after [Petitioner] fired the gunshots at O’Bannon, there was a 

thirty second pause before he heard three to four additional gunshots before 

he tried to jump over the fence. He could not determine the direction from 

which this second round of shots was fired. After several minutes, he saw 

people inside Curtis’s house, and he began crawling on his stomach toward 

the home. At the time, King thought he might be dying. When he saw blue 

lights in front of Curtis’s house, King yelled for help. He said an officer 

found him in the backyard and asked him what happened. He told the 

officer what he had seen, and the officer called for additional officers to 

assist with the scene. King was then transported to the Regional Medical 

Center at Memphis by helicopter.

King was shot in the upper, middle part of his back, which rendered 

him permanently paralyzed from the chest down. During surgery, 

physicians removed blood around the bullet and removed fluid from the 

left-side of his leg. King underwent physical therapy and remained 

hospitalized for one or two months.

On March 25, 2008, King talked to officers about the incident. The 

officers showed him a photographic lineup, and King, while alert and not 

under the influence of any drugs, identified [Petitioner] as the man with two 

guns who pointed the gun at him and who shot at O’Bannon. He stated that 

the officer did not tell him that the shooter would be in the photographic 

lineup and did not give him any hints or suggestions as to who to choose in 

the lineup. He also stated that no one else told him whom to choose in the 

lineup. King testified that he was one hundred percent sure that the 

photograph he identified in the lineup was the man who had pointed the 

gun at him and who had pointed the gun and shot at O’Bannon.

King identified [Petitioner] in the courtroom as the man who had 

displayed and shot the two guns on March, 18, 2008. He stated that he was 

a hundred percent sure that [Petitioner] was the man who pointed the gun at 

him and who pointed the gun and shot at O’Bannon. King asserted that he 

remembered [Petitioner]’s face and specifically remembered [Petitioner]’s

chin and facial expression during the incident. He said that [Petitioner] was 

the only person who had threatened him and the only person he had seen 

holding a gun during the incident.
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Rodney Allen, another victim, testified that on March 18, 2008, he 

was sixteen and in the tenth grade. That day, he played basketball with 

King, Carter, and Kassama near Ross Road. After they finished their game, 

the group walked to the Lake Point Park, where they saw Mickens and 

O’Bannon, whom Allen knew from school.

Between approximately 7:40 p.m. and 8:00 p.m., Allen, King, 

Carter, Kassama, Mickens, and O’Bannon left the park and walked down 

the street to Curtis’s house. When they arrived, it was not yet dark, and 

Allen asked his friends to stay at the curb because Curtis’s mother did not 

know them. Allen knocked on the front door, but no one answered.

As Allen and his friends began to leave Curtis’s house, another 

group of five “much older” men approached them. He said these older men 

came from two houses down, in the direction opposite the park. These men 

said, “[W]ho is that?,” and Paul O’Bannon said, “[T]his [is] Paul.” The 

men continued to approach Allen and his friends, and [Petitioner] began 

talking to O’Bannon. At that point, the motion light at the corner of 

Curtis’s home became illuminated, and the motion light and the light from 

Curtis’s porch allowed Allen and his friends to clearly see the older men’s 

faces and allowed them to see that [Petitioner] had two guns. Allen said he 

recognized Turrell, or T.B., because he had “seen him around.” He also 

recognized [Petitioner] because he had sold him a puppy a year earlier, and 

had previously had no problems with him. Allen said that T.B. walked 

toward O’Bannon like he was going to hit him, and [Petitioner], who was 

still holding the two guns in his hands, said, “If that’s [O’Bannon], hit 

him.” Allen said [Petitioner] wore a black shirt and had dreadlocks, which 

he wore down. He noticed that some of the other men in [Petitioner]’s 

group had dreadlocks, but the only two men that he knew in the group were 

T.B. and [Petitioner].

When T.B. approached O’Bannon, O’Bannon began walking

backward and stated, “This ain’t what you think.” As Allen and the rest of 

his friends tried to leave, [Petitioner] pointed a gun at Allen’s head and 

waved a gun at Allen’s friends and said, “[If] one of y’all move again I’m 

going to shoot one of y’all.” Allen explained that [Petitioner] raised only 

one gun during the incident, although he was holding another gun “like he 

was ready to use that [one] too[.]” Allen and his friends did not move after 

[Petitioner]’s threat.
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Then, [Petitioner], who still had his guns raised, walked behind T.B. 

like he was going to help T.B. hurt O’Bannon. O’Bannon “took off 

running,” and [Petitioner] began shooting at O’Bannon. Allen saw 

[Petitioner] fire his first shot at O’Bannon and said that [Petitioner] fired a 

total of two or three shots at O’Bannon. Allen identified [Petitioner] in the 

courtroom as the man who shot the guns the night of the incident. He 

stated that he did not see anyone else with a weapon that night.

When Allen and his friends heard the first shot, they ran through 

Curtis’s gate to the backyard, where they jumped the fence and ended up at 

Holmes Road. All of his friends, except for King, arrived at Holmes Road. 

Allen said [Petitioner] probably shot toward them when they ran, but he 

was unsure because he was running away from [Petitioner]. After the shots 

were fired in O’Bannon’s direction, Allen heard additional shots as he was 

jumping over the fence but could not determine whether they were coming 

toward him or not. He did not know how many additional shots he heard 

because he was running, although the gunshots were “[c]onstant[.]” Allen 

learned that King had been shot when he called Curtis that night. He 

returned to Curtis’s home later that night to speak to the police about the 

incident. Allen said he told the police that the shooter’s nickname was 

“Phil” because he did not know his full name at the time.

Allen acknowledged that he did not know whether someone other 

than [Petitioner] pulled out a gun and began shooting. He did not recall 

telling the police that he was unable to describe the person shooting the 

guns because the street was really dark and that he did not know any of the 

other men in the group.

Paul O’Bannon, who was a few years older than the other victims, 

testified that approximately a week prior to March 18, 2008, he witnessed 

an incident involving his neighbor Edgar (last name not provided), and 

Tony Brown, also known by the nickname of T.B., at a car wash. 

O’Bannon explained that he and Edgar were “like brothers” and that he 

knew T.B. through mutual friends, although Edgar and T.B. disliked one 

another. During this incident, which occurred prior to March 18, 2008, 

O’Bannon rode with Edgar to the car wash at the intersection of Riverdale 

Road and Holmes Road and saw T.B. washing his car. When O’Bannon 

greeted T.B., Edgar began “acting funny . . . like he was up to something.” 

Shortly thereafter, some of Edgar’s friends arrived at the car wash, got out 

of their truck, and beat up T.B. O’Bannon stayed in his car during the fight 

because he did not want to be involved. After Edgar’s friends beat up T.B., 
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they left, and Edgar drove his car around to look at T.B. As they got close, 

O’Bannon and T.B. “locked eyes,” which made O’Bannon think that T.B. 

believed he set him up because O’Bannon had just talked to T.B. before the 

fight. O’Bannon insisted at trial that he had nothing to do with T.B.’s 

beating. He said he tried to contact T.B. about the incident at the car wash 

but was unable to get in touch with him.

On March 18, 2008, O’Bannon planned on working the late shift that 

night at Fed Ex starting at 9:30 p.m. O’Bannon, Edgar, and Mickens went 

to the park that afternoon, where they saw Allen, Carter, and someone 

whose name he could not remember. They hung out at the park for a while, 

and Edgar left the park to go home. When Edgar left, O’Bannon walked 

with Carter, Allen, Mickens, and the guy whose name he could not recall, 

to “the other neighborhood” on Nelson Way Drive off of Ross Road. He 

said he did not go to this neighborhood to fight T.B.

When the group walked halfway down Nelson Way Drive, they 

heard ask, “[W]ho is that?,” and he replied, “Paul . . . who is that?[,]” and 

the other man replied, “T.B.” O’Bannon was not concerned, and he and his 

friends continued to walk down the road. T.B. approached O’Bannon as if 

he wanted to fight. Suddenly, five or six men came from the house where 

they had been standing, and O’Bannon began wondering what was going 

on. At that moment, O’Bannon realized that T.B. thought that he had set 

him up at the car wash. O’Bannon recognized Chris and Chris’s brother

Pee-wee, who were also in T.B.’s group. He also recognized [Petitioner]

who he had seen “[a]round the area,” although he had never had any trouble 

with him. O’Bannon said that [Petitioner] was “a little bit taller” than him, 

had lighter skin than him, and wore his dreadlocks down that night. He 

said [Petitioner] stood out because he was “the tallest one out there.” He 

said he did not know where his friends were standing at the time because he 

was concentrating on T.B.

O’Bannon said that when the rest of T.B.’s group approached him, 

he took a step back. He and the men in T.B.’s group exchanged a few 

words, and [Petitioner] asked T.B. if O’Bannon was one of the guys who 

jumped him, and O’Bannon said, “[N]aw.” [Petitioner] displayed one gun, 

which he pointed at O’Bannon’s face and neck. He was unsure whether 

[Petitioner] had a second gun in his other hand. When O’Bannon saw the 

gunfire from [Petitioner]’s first shot, he closed his eyes because he thought 

he had been shot. When he heard the second shot, he took off running. 

O’Bannon said [Petitioner] was standing ten to fifteen feet away from him 
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when he fired the first shot at him and was able to see [Petitioner] face as 

he shot the gun, even though it was “getting dark” outside. He identified 

[Petitioner] in the courtroom as the person who shot at him the night of the 

incident and was one hundred percent certain of his identification. When 

he heard the first gunshot, O’Bannon believed that he had been hit. When 

he realized that he had not been shot, he ran and “heard several more shots” 

as he ran toward Ross Road.

Once he escaped, O’Bannon went home. He later got in his car and 

drove around the area, but the police had the area closed, and he returned 

home. The next day, when he spoke to officers at the police station about 

the incident, O’Bannon said he did not tell them everything that happened 

because he did not like the manner in which the officers “pulled [him] out 

of [his] house like [he had] committed a crime.” O’Bannon said that 

[Petitioner] was the only person he saw holding a gun on the night of 

March 18, 2008.

O’Bannon admitted previously testifying that he and his friends went 

to the neighborhood on Nelson Way Drive to see a fight that was unrelated 

to T.B.’s beating at the car wash. He said he did not know if the fight he 

was going to see ever occurred because the incident with T.B. and 

[Petitioner] prevented them from going to the area.

K.C. Carter, still another victim, testified that on March 18, 2008, he 

was fifteen years old and in the ninth grade. That day, he played basketball 

with Allen, Kassama, King, and Mickens in their neighborhood near Ross 

Road before walking with them to the park near Ross Road. They saw 

O’Bannon at the park and stayed there talking until it started to get dark 

outside. Around 7:30 p.m., Carter, Allen, Kassama, King, Mickens and 

O’Bannon left the park and walked to Curtis’s house.

When they got to Curtis’s house, Allen knocked on the front door 

while the rest of the group stayed behind in the driveway. When no one 

answered the door, Carter and his friends began to leave the home when 

five to seven men that he did not know approached and began asking them 

questions. Carter said these men looked older than him and his friends and 

appeared to be in their twenties.

While most of the men in the other group approached O’Bannon, 

[Petitioner][] approached Carter and his friends, waived his two guns in 

their faces, and told them that he would shoot them if they moved. Carter 
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said [Petitioner]’s two guns were black in color and looked like “40 cals.”

He said [Petitioner] was six feet, three or four inches tall, had dreadlocks 

that he wore down, and had one gold tooth.

After [Petitioner] threatened to shoot Carter and his friends, 

[Petitioner] told T.B. to “get” O’Bannon. When [Petitioner] and T.B. 

began walking toward O’Bannon, Carter saw [Petitioner] fire two or three 

shots in O’Bannon’s direction. When O’Bannon fell and got up and began 

running, Carter and his other friends ran into Curtis’s backyard and tried to 

find the best place to climb over the fence because there were woods on the 

other side. When they got to the top of the fence, they heard three or four 

gunshots in their direction, two of which hit the fence, so they knew the 

shooter was close. Carter acknowledged that he did not see who was 

shooting at the fence. He and his friends jumped over the fence, fell into 

the woods on the other side, and ran to a four-way stop at the nearest street.

At that point, they realized that King was not with them.

Carter later discovered that King [had] been shot in Curtis’s 

backyard. He talked to the police about the incident and identified 

[Petitioner] from a photographic lineup. Carter stated that the officer that 

showed him the photographic lineup did not tell him that the shooter was in 

the lineup and did not give him any hints about which photograph to select. 

He chose [Petitioner]’s picture because [Petitioner] was the “person that [he 

had] seen outside that was pointing the guns towards our way. That was 

aiming all in my face.” He said that although he had never seen Harris 

before the incident, he would never forget [Petitioner]’s face because the 

incident was “like a nightmare[.]” Carter said that he was one hundred 

percent sure of his identification of [Petitioner] as the man who pointed the 

guns at him and his friends the night of the incident. Carter also identified 

[Petitioner] in the courtroom as the person who had the two guns during the 

incident. He confirmed that [Petitioner] was the only person that he saw 

with a weapon the night of the incident.

Carter said [Petitioner] was the only person in the other group with 

dreadlocks. However, he admitted that he could not see the other people in 

[Petitioner]’s group because [Petitioner] was the only man that got close to 

him and his friends. Carter said he told the police that [Petitioner] had 

dreadlocks and one gold tooth but did not recall telling Sergeant 

Cunninghan that the person who pulled the guns on them was tall and 

skinny with dark skin. He admitted that he had no idea who fired the 

gunshots at him and his friends in the backyard and did not know the origin 
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of those gunshots. He also admitted that someone other than [Petitioner]

could have pulled out a weapon and begun firing shots.

Bernard Cleveland, who lived on Nelson Way Drive, testified that 

on March 18, 2008, at 6:30 or 7:00 p.m., he heard two or three gunshots 

outside his home. He looked out his window and saw five to seven men 

quickly get into their vehicles and leave the house across the street. He was 

able to see these men well because it was still light outside. Cleveland did 

not see any of these men carrying a weapon and did not see any shots being 

fired.

Cleveland saw the men get in three different vehicles, a green Ford 

Expedition, a red Pontiac Sunfire, and an Oldsmobile, before driving away 

from the scene. He said at least two of the men, around twenty years of 

age, got into the Expedition and at least two men got into the Sunfire and 

the Oldsmobile. The Expedition and the Oldsmobile traveled west and the 

Sunfire traveled east on Nelson Way Drive. Cleveland said it took 

approximately thirty minutes to drive from his house to downtown.

When Cleveland heard the shots, he told his fiancé to call 9-1-1.

After the three vehicles left the scene, Cleveland went outside and saw his 

neighbor across the street. As he talked his neighbor about what had just 

happened, he saw a Pontiac Sunfire, that appeared to be the same car that 

had just left the area, return to the neighborhood. He said a woman was 

driving the Sunfire, and a man was riding in the passenger seat. The man, a 

young African-American male with a slim build and dreadlocks, took off 

his shirt and threw it underneath the car next to the Sunfire before getting 

back inside the Sunfire and leaving the neighborhood. Approximately two 

minutes later, a sheriff’s deputy arrived at the scene. Cleveland said that 

the deputy arrived from the same direction that the Sunfire had just left the 

neighborhood.

Rhonda Davis, the Shelby County Sheriff’s Department 

Communication Specialist, testified that she was the keeper of the records 

for all 9-1-1 calls. On March 18, 2008, she stated that the Sheriff’s 

Department received six 9-1-1 calls from the area near Nelson Way Drive.

She said the first call was received at 8:01 p.m. from Larry Brown at 6681 

Nelson Way Drive. Brown told the dispatcher that “there were subjects 

shooting in the area” and that one of the subjects was armed with a pistol. 

A second call was received at 8:02 p.m. from 6685 Nelson Way Drive, and 

this caller stated that she had heard eight to nine shots behind her house. A 
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third call was also received at 8:02 p.m. from a caller who was “next door 

to 6696 Nelson Way Drive” and who stated that shots had been fired. The 

fourth call was received at 8:03 p.m., via a cellular phone, from Martha 

Hunt at 6662 West Spencer Forest Cove, who said that she had heard 

approximately ten gunshots from a field behind her house. A fifth call was 

received at 8:05 p.m. from 6609 Silver Oak Cove. The caller stated that he 

was walking his dog when he saw four or five juveniles running across his 

neighbor’s yard and around a corner. The sixth call was received at 8:06 

p.m., and the caller stated that she had seen subjects get into a green Ford 

Expedition and a red vehicle and leave the crime scene.

James Stroud, a patrolman with the Shelby County Sheriff’s office, 

testified that on March 18, 2008, he received a call that shots had been fired 

on Nelson Way Drive. His report indicated that the shots had been fired 

between 7:40 p.m. and 8:00 p.m. The call stated that cars, including a 

green Ford Expedition or Explorer and a red vehicle, had been at the crime 

scene. Officer Stroud got to the scene within a few minutes of the call but 

did not see vehicles matching those descriptions. When he investigated the 

scene, he found over twenty .40 caliber shell casings in the street east of 

6665 Nelson Way Drive near Ross Road. He then talked with several 

witnesses in the neighborhood, who told him that some African-American 

men had been shooting west down Nelson Way Drive.

As Officer Stroud looked for rounds that might have gone in nearby 

houses, he heard someone moaning. He walked into the fenced-in 

backyard of a home in the 6000 block of Nelson Way Drive and found an 

African-American male juvenile, later identified as Redell King, lying on 

his stomach. King appeared to have a gunshot wound in his back but was 

able to talk. Officer Stroud called an ambulance for King before securing 

the crime scene and calling for detectives. Officer Stroud stated that he did 

not find any shell casings in the backyard and that all the shell casings were 

in the front yard.

James Sneed, a sergeant with the homicide unit of Shelby County 

Sheriff’s Department, testified that he responded to the shooting at 6665 

Nelson Way Drive on March 18, 2008. He observed and collected nine .40 

caliber shell casings, from different manufacturers, near 6665 Nelson Way 

Drive. He found four of these casings in the front yard of 6665 Nelson 

Way Drive and five of these casings in the street near the drainage area. He 

also observed several holes, that looked to be bullet holes, in the six foot 

fence at the property located at 6665 Nelson Way Drive. Sergeant Sneed 
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also found a bullet hole in the glass next to the front door of a home at 6690 

Nelson Way Drive, which was east of the home located at 6665 Nelson 

Way Drive. When he inspected the home, he found that the bullet had 

entered the home through the front door and traveled through the den and 

out the rear window of the home. He found a bullet fragment near the 

bullet hole near the home’s rear window.

Lewis Chapman, a deputy with the Shelby County Sheriff’s 

Department, testified that on March 24, 2008[,] [he] was asked by a 

supervisor to conduct surveillance and to locate [Petitioner]. He was told 

that a green Ford Expedition was seen leaving the scene, and he obtained 

[Petitioner]’s driver[’]s license photograph so that he could identify him. 

He parked his unmarked, white Ford truck in an area of southeastern 

Shelby County where his supervisor had told him to go and waited for a 

green Ford Expedition to enter the area. As he was waiting, he saw a green 

Ford Expedition pass his car from the rear and park in front of a home a 

short distance away. He then saw an African-American male, who was 

approximately six feet tall with dreadlocks and who was wearing a t-shirt 

and shorts and carrying a gym bag, exit the green Expedition and walk 

through the front door of the house. Deputy Chapman concluded that the 

man who entered the home appeared to be [Petitioner]. He quickly 

informed his supervisor that he had possibly located [Petitioner]. He then 

told Lieutenant Hubbard that he had located a subject driving a green Ford

Expedition that matched [Petitioner]’s description. Shortly thereafter, 

several officers arrived at Deputy Chapman’s location and entered the 

home. Deputy Chapman identified [Petitioner] in the courtroom as the man 

he had seen driving the green Ford Expedition on March 24, 2008.

Chris Harris, a sergeant with the Shelby County Sheriff’s 

Department, testified that on March 24, 2008, he received a call from 

Lieutenant Hubbard that [Petitioner] had been located at a home at 6310 

Harvest Run. Sergeant Harris told his team of officers to go to that 

location. When Sergeant Harris arrived at the scene, he saw an older model 

green Ford Expedition parked in front the home. Several of the officers 

approached the home and knocked on the door. A woman, later identified 

as [Petitioner]’s mother, answered the door, and the officers asked for 

[Petitioner]. When [Petitioner] appeared, Sergeant Harris concluded that he 

matched the description and photograph they had. He told [Petitioner] that 

detectives wanted to talk with him, and the officers handcuffed him before 

transporting him downtown. Sergeant Harris identified [Petitioner] in the 
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courtroom as the man he saw at the 6310 Harvest Run address on March 

24, 2008.

Sergeant Harris obtained consent from [Petitioner]’s mother, Paula 

Mickens, to search the home and the green Ford Expedition, which 

belonged to her. Inside [Petitioner]’s bedroom, he found a gun box, a 

holster, a shooting target, and ammunition in a box next to the bed but did 

not find a weapon. The ammunition box contained Federal .40 caliber 

ammunition, but four of the bullets were missing. The gun box contained 

the label “Mauser M2 pistol 40 caliber Smith and Wesson.” He stated that 

even though the missing gun was a Smith and Wesson, it was capable of 

firing bullets of the appropriate caliber from other manufacturers, such as 

Winchester and Federal. Sergeant Harris did not discover any weapons or 

ammunition during his search of the Expedition. He stated that [Petitioner]

and Mickens cooperated with the officers on March 24, 2008.

Richard Goforth, a detective with the Shelby County Sheriff’s 

Department, testified that on March 28, 2008, he was instructed by 

Sergeant Pam Hazel to photograph a vehicle located at 6310 Harvest Run 

Cove, Memphis, Tennessee. After obtaining written consent from Paula 

Mickens to search the 1997 Ford Expedition, Detective Goforth searched 

and photographed the vehicle. During his search he found a Tennessee 

license tag on the car’s floorboard, a direct deposit statement from the 

Hershey Company payable to Phillip A. Harris at 6310 Harvest Run Cove 

inside the passenger side door pocket, and men’s shoes under the car seat. 

Reginald Hubbard, a lieutenant with the narcotics division of the 

Shelby County Sheriff’s Department, testified that he was the lead detective 

in the shooting case at 6665 Nelson Way Drive. By the time Lieutenant 

Hubbard got to the crime scene on March 18, 2008, it was nighttime and 

the crime scene was in “chaos,” with ambulances, patrol cars, and 

neighbors standing outside. He talked with six to ten witnesses that night 

and instructed other officers to collect evidence in the case. Lieutenant 

Hubbard stated that Bernard Cleveland, a next-door neighbor, told him that 

he had seen a green Ford Expedition, a red Pontiac Sunfire, and a white 

vehicle leave the area that night. Cleveland also told officers that an 

African-American in a red Sunfire returned to the scene and threw his shirt 

under another vehicle. Lieutenant Hubbard stated that the suspect who 

returned in the Sunfire was located, but because he did not match the 

descriptions given by witnesses at the scene, other than the fact that he had 

dreadlocks, he was released after he refused to cooperate. He said this 
- 14 -

suspect’s picture was never placed into a photographic lineup and was 

never shown to witnesses in this case. Another witness told him that the 

suspect in the shooting was tall, approximately six feet, one inch tall, and 

weighed between 175 to 195 pounds. Lieutenant Hubbard asked patrol 

officers familiar with the area to look for the three vehicles Cleveland had 

described. He said that one of the patrol officers knew that [Petitioner]

drove a green Ford Expedition and located [Petitioner] and the vehicle a 

few days later.

After learning that [Petitioner] drove a green Ford Expedition, 

Lieutenant Hubbard included [Petitioner]’s picture in a photographic 

lineup. On March 25, 2008, Redell King positively identified [Petitioner]

from the lineup. That same day, K.C. Carter also positively identified 

[Petitioner] in the photographic lineup. Carter said [Petitioner] was tall, 

was “bright-skinned[,]” and wore his hair in long dreadlocks. Lieutenant 

Hubbard stated that it took King and Carter less that one minute to identify 

[Petitioner] as the perpetrator in the photograph lineup.

Shelly Betts, a special agent with the firearm identification unit of 

the Tennessee Bureau of Investigation, was declared an expert in the area of 

firearms identification and ballistics. She examined the nine fired .40 

caliber shell casings and the one fired projectile that were collected as 

evidence in this case. Of these nine shell casings, two were Remington .40 

caliber fired shell cases, two were Federal .40 caliber fired cartridge cases, 

two were Winchester .40 caliber fired cartridge cases, and three were Speer 

.40 caliber fired cartridge cases. She concluded that all nine of the shell 

casings had been fired from the same weapon because they all had the same 

mechanical fingerprints. She also examined the fired projectile, but 

because the copper jacket was not recovered from the crime scene and the 

lead bullet never contacted the gun, she was unable to identify the caliber of 

gun that fired that projectile and was unable to connect that projectile to a 

particular handgun.

Agent Betts stated that most .40 caliber handguns are semiautomatic pistols that can hold ten to fifteen rounds. She said Mauser is a 

German manufacturer that makes rifles and handguns, including a .40 

caliber handgun that can fire the type of bullet matching the shell casings 

collected as evidence in this case. However, she said that she could not 

determine whether the bullet casings had been fired from a Mauser firearm 

without examining the specific Mauser handgun. After examining the gun 

box that was found in [Petitioner]’s bedroom, she concluded that the gun 
- 15 -

originally sold in the box was a Mauser .40 caliber Smith and Wesson M2 

semi-automatic pistol. She also concluded that the box of ammunition 

found in [Petitioner]’s bedroom contained nine Federal .40 caliber hollow 

point shells, that were originally sold in the ammunition box, and seven 

reloaded .40 caliber shells from a different manufacturer that were placed in 

the box after it was sold. She stated that all sixteen shells in the 

ammunition box could have been fired from a Mauser .40 caliber Smith and 

Wesson M2 semi-automatic pistol.

Defense’s Proof

Wanda McKinnon, the Senior Human Resource Business Partner for 

the Hershey Company in Memphis, Tennessee, testified that [Petitioner]

was hired by the Hershey Company in March 2007 as an assembly worker. 

She explained that employees of the Hershey Company have to scan their 

badges to access the building and the building’s parking lot. McKinnon 

said the company keeps journal reports documenting each employee’s 

unique number and the times the employee scans his or her badge to access 

the building or the parking lot.

The Hershey Company’s report shows that on March 18, 2008, 

[Petitioner] scanned his badge at the company parking lot at 8:43 p.m. and 

scanned his badge at the building at 8:47 p.m. The company’s records also 

showed that [Petitioner] clocked into work at 8:50 p.m. on March 18, 2008, 

and then signed the training log for the training session. She said that it 

was not possible for someone else to have shown up to work on 

[Petitioner]’s behalf because there were two security guards at the 

checkpoints at the parking lot and the building and because a supervisor 

who was familiar with [Petitioner] was at the training session. McKinnon 

explained that although [Petitioner] was scheduled to work from 10:00 p.m. 

to 6:00 a.m., the company had a mandatory training session at 9:00 p.m. the 

night of March 18, 2008.

Faith Cunningham, a lieutenant with the Shelby County Sheriff’s 

Department, testified that she responded to the scene on March 18, 2008, 

and interviewed K.C. Carter and Rodney Allen. She acknowledged that 

Carter and Allen, who were fifteen and sixteen years old respectively, had 

been waiting in squad cars until she talked to them. She stated that 

although Allen and Carter both appeared scared and nervous, they 

cooperated with her. Carter told her that the person holding the gun was 

“dark skinned.” When Lieutenant Cunningham asked him what the man 
- 16 -

holding the gun was wearing, Carter, replied, “I couldn’t really see in the 

dark.” When she asked him if he could see any of the men that shot at him, 

Carter, said, “[N]o ma’am. After we started running we [were not] looking 

back or nothing.” Allen told Lieutenant Cunningham that there had been 

six people in the other group that night and that he said he did not recognize 

any of them. She said Allen never mentioned that he had bought a dog 

from one of the men in the group prior to the incident. When she asked 

him to describe the suspect, Allen said, “It was dark. This whole street is 

like pitch black.” When she asked him if he could remember anything 

about the person with the guns, Allen replied, “[D]reads.” Allen also said 

that the person with the guns was approximately six feet, three or four 

inches tall and weighed approximately 230 pounds. Lieutenant 

Cunningham acknowledged that Allen and Carter did not get a chance to 

review the transcripts of their recorded statements. She also admitted it 

was possible that the secretary who transcribed Allen’s and Carter’s 

statements could have misheard something during her transcription. She 

also acknowledged that witnesses are sometimes reluctant to identify an 

individual at the beginning of the case because they are scared. However, 

she admitted that Allen and Carter appeared truthful when talking to her 

about what happened.

Paula Mickens, [Petitioner]’s mother, testified that in March 2008, 

[Petitioner] was twenty-five years old, lived at her house, and worked at the 

Hershey Company’s factory downtown. She said that [Petitioner] had his 

own bedroom and his own set of keys to her home. On March 18, 2008, 

Ms. Mickens awakened [Petitioner] at 7:45 p.m. so that he could attend a 

safety meeting at work. She said that after she woke him, she saw 

[Petitioner] get ready for work, get his lunch, and leave her home by 8:15 

p.m. She said [Petitioner] returned home the next morning on March 19, 

2008, although she could not recall the exact time. She stated that the 

police came to her home on March 24, 2008, and placed [Petitioner] in 

handcuffs.

Ms. Mickens asserted that [Petitioner] did not drive her Ford 

Expedition on March 18, 2008, because he was asleep. That day, she drove 

the Expedition until around 5:30 p.m. because she was delivering packages 

for her job. When she returned home, she kept the keys for the Expedition 

with her. She later testified that on March 18, 2008, her last delivery was at 

2:00 p.m., and she stayed home for the rest of the afternoon. She stated that 

although she allowed [Petitioner] to drive the Expedition, the car belonged 

to her, and [Petitioner] drove a PT Cruiser, which was [Petitioner]’s
- 17 -

primary car. Although she had two sets of keys to the Expedition, 

[Petitioner] never had the extra set of keys to the Expedition unless she 

deliberately gave them to him. She explained that [Petitioner] had to ask 

her permission to get the keys to the Expedition regardless of where he was 

going. Ms. Mickens stated that [Petitioner] usually drove his PT Cruiser to 

work and only drove the Expedition if his car was not operating. She 

testified that [Petitioner] had driven her Expedition to work only four or 

five times within the last year. She was not surprised that [Petitioner] left 

his shoes or his direct deposit slip in the Expedition.

Ms. Mickens stated that she did not own a gun. She knew that 

[Petitioner] owned a gun, although she did not know what kind, and knew 

that he kept it in his gun case in his bedroom. She also knew that 

[Petitioner] kept a holster, a target, and ammunition in a shoe box next to 

his bed. She said [Petitioner] had purchased the gun prior to his arrest on 

March 24, 2008, and she had never seen him leave the house with it. She 

said she had never seen [Petitioner] with two guns and had never noticed 

two guns inside her house. She asserted that [Petitioner] had applied for a 

gun permit prior to the offense in this case.

Ms. Mickens said that she was “devastated” when [Petitioner] was 

arrested on March 24, 2008. She cooperated with officers and allowed 

them to search her house and her Ford Expedition and allowed them to take 

photographs of her Expedition on March 24, 2008, and March 26, 2008.

Ms. Micken acknowledged that she had never told the police that she 

awakened [Petitioner] at 7:45 p.m. on March 18, 2008, for his safety 

meeting at work. She also acknowledged that although officers came to her 

home on March 24, 2008 and March 26, 2008, she never told them that 

[Petitioner] had been asleep on March 18, 2008, during the incident. She 

admitted that she never testified at her son’s preliminary hearing and that 

the first time she had presented this alibi was at trial.

[Petitioner] testified that in March 2008 he was twenty-five years old 

and worked on the assembly line at the Hershey Company during the 

graveyard shift from 10:00 p.m. to 6:00 a.m. He said he was six feet, one 

inch tall and in 2008 wore his hair in dreadlocks, which he wore down.

[Petitioner] said he owned a 2003 PT Cruiser, and his mother owned a Ford 

Expedition. Although his mother had a spare set of keys to the Expedition, 

he had to ask her for the keys before he could drive her car. He admitted 

that he had driven the Expedition to work on February 29, 2008, and to the 
- 18 -

gym on March 24, 2008. He said that because his mother did not work at 

night, he sometimes drove her Expedition to work.

[Petitioner] asserted that he drove his PT Cruiser on March 18, 2008, 

and did not go to Nelson Way Drive. He denied knowing T.B. and denied 

being with a group of people that night that included T.B. He said he did 

not spend time with his friends before going to work on March 18, 2008, 

because he was asleep. He claimed he did not have friends in his 

neighborhood because he was always at work.

[Petitioner] said he did not know Redell King, Paul O’Bannon, 

Rodney Allen, K.C. Carter, Barkary Kassama, or Durrell Mickens and had 

never had any arguments with these men. He denied shooting at any of the 

victims and claimed he was “not that type of guy.” He said the shell 

casings found at the crime scene did not belong to him. He also asserted 

that he had never sold or bought a dog from Rodney Allen.

[Petitioner] admitted that King, O’Bannon, Allen, and Carter had 

identified him as the suspect in this case at his preliminary hearing and at 

trial. He also admitted that King and Carter had identified him in a 

photographic lineup as the person who threatened them and pointed the gun 

at them on Nelson Way Drive on March 18, 2008.

[Petitioner] said that his home was five to seven minutes away from 

Nelson Way Drive. He said he knew one person, Walter Watkins, who 

lived with his mother and younger brother, Christopher Watkins, a couple 

of houses down from 6665 Nelson Way Drive. [Petitioner] asserted that he 

did not spend any time with Walter Watkins on March 18, 2008.

At the time of the incident on March 18, 2008, between 7:45 and 

8:00 p.m., [Petitioner] said he was waking up and getting ready to leave for 

work. He said his mother awakened him on March 18, 2008, around 7:45 

p.m., as was her custom. He went to work, attended the safety meeting, 

completed his shift, clocked out, and played basketball and worked out at 

the YMCA gym in Whitehaven before returning home and going to sleep. 

He admitted that the first time he presented this alibi defense was at trial.

[Petitioner] acknowledged that the offenses in this case occurred 

around 8:01 p.m. on March 18, 2008. He said his home was a thirty to 

thirty-five minute drive from his work and that it would also take him thirty 

to thirty-five minutes to drive from Nelson Way Drive to his work. He 
- 19 -

acknowledged that the Hershey Company’s records showed that he arrived 

at work at 8:43 p.m.

[Petitioner] said that he could remember what he did on March 18, 

2008, because it was one of the worst days of his life and a day he would 

never forget. He explained, “I was accused of a crime that I did not do, [did 

not] have anything to do with it. I never seen these . . . guys a day in my

life and they got my life on the line right now.” He later acknowledged that 

March 24, 2008, was actually the worst night of his life because that was 

the night he was arrested. He said that he did not know that a shooting had 

occurred on March 18, 2008, until the officers informed him of it the day of 

his arrest.

[Petitioner] admitted that the police found a shooting target, gun 

box, holster, and shells in his room. He acknowledged that in 2007, he 

bought a .40 caliber semi-automatic handgun for safety purposes but 

asserted that he never owned two guns. He said he went to the shooting 

range every week and had applied for a gun carry permit on February 26, 

2008. He said his handgun shot .40 caliber bullets.

[Petitioner] said he never discarded his weapon and that he “honest 

to God” did not know what happened to his gun. He said he realized that . . 

. his gun was missing when the police opened his gun box and told him that 

it was empty. He claimed his missing gun was “something totally new to 

[him] when the officers came to [his] house on that day and picked [him] 

up[,]” and assumed someone had stolen his gun. Although he said he had 

many friends who came over to his house to play video games and 

basketball, he did not know who could have taken his gun. The last time he 

saw his gun was around two weeks before his arrest.

[Petitioner] said he cooperated with officers on March 24, 2008. 

After his arrest, he told officers that he had not done anything wrong and 

had been at work the night of the shooting. He was later released and 

continued to work. In May 2010, [Petitioner] was fired from the Hershey 

Company because of the criminal charges associated with this case.

[Petitioner] asserted that he did not commit the crimes in this case 

and was “nowhere on the scene.” Instead, he had a job and was “doing the 

right things in life.” He claimed he would “never do something like this 

and head to work. That wouldn’t make no sense.”
- 20 -

State v. Phillip Harris, No. W2013-01028-CCA-R3-CD, 2014 WL 3954054, at *1-14 

(Tenn. Crim. App. Aug. 13, 2014) (footnotes omitted), perm. app. denied (Tenn. Dec. 18, 

2014). Following deliberations, the jury convicted Petitioner of one count of attempted 

second degree murder, five counts of misdemeanor reckless endangerment, and one count 

of unlawful employment of a firearm during the attempt to commit a dangerous felony. 

Id. at *1. The trial court sentenced Petitioner to twelve years for attempted second degree 

murder and to a mandatory consecutive sentence of six years for unlawful employment of 

a firearm during the attempt to commit a dangerous felony. Id. The court also imposed 

sentences of eleven months and twenty-nine days for each of the reckless endangerment 

convictions and ordered these sentences to be served concurrently with the sentence for 

attempted second degree murder. Id. This court affirmed Petitioner’s convictions but 

remanded for resentencing as to the conviction for second degree murder, and the 

Tennessee Supreme Court denied further review. Id. On remand, Petitioner was 

sentenced to serve an effective sentence of fourteen years and six months. 

On December 14, 2015, Petitioner filed a timely pro se petition for post-conviction 

relief and then retained post-conviction counsel. Petitioner alleged that trial counsel 

rendered ineffective assistance of counsel based on trial counsel’s failure to meet with 

Petitioner and keep him informed of the evidence against him and trial counsel’s failure

to meaningfully investigate, present, or challenge witnesses. At a hearing on the petition, 

trial counsel testified that he had twelve to thirteen years’ experience representing 

criminal defendants by the time that he represented Petitioner. Trial counsel explained 

that he took over the case after Petitioner’s prior counsel discovered that he had a conflict 

during the first trial of the case. Trial counsel could not recall how many times he met 

with Petitioner before trial, but he explained that his general practice was to meet with 

clients on court dates and to review discovery. Additionally, trial counsel stated that he

would meet with clients “as things came up” and that he would have meetings more 

frequently with clients as a trial date approached. 

Trial counsel recalled that, when he took over the case, Petitioner’s prior counsel 

gave him a trial notebook, which was a “very organized” file “breaking down witnesses[] 

[and] their statements.” Trial counsel stated that Petitioner’s defense at trial was “that he 

was innocent.” Petitioner claimed that he had been at work at the time of the shooting, 

and trial counsel presented witnesses and work records at trial that supported Petitioner’s 

claim. Trial counsel recalled that Petitioner’s alibi was imperfect; the defense 

“established that [Petitioner] clocked in to work as he normally would have, close in time 

. . . . But . . . on cross[-examination] it was determined that he probably still would have 

had enough time.” Trial counsel did not recall any issues regarding how the police 

conducted the witnesses’ out-of-court identifications. He stated that, if he had seen 

evidence of improper police tactics, he would have filed a motion to suppress the witness 

identifications. According to trial counsel, the State made an offer to settle the case in 
- 21 -

which Petitioner was to receive a fifty-four year sentence. Trial counsel explained that 

Petitioner rejected this offer and that Petitioner “was never interested in an offer” because 

“he was innocent.” Trial counsel did not recall any issue relating to an officer’s 

collecting evidence at the crime scene without wearing gloves and then storing shell 

casings from the scene in his office for a few days before they were tagged and put into 

the evidence locker. Trial counsel said that, if he had been aware of such an incident, he 

would have challenged the chain of custody at trial. He stated that he did not file a 

motion to dismiss two of Petitioner’s charges based on the victims not being called to 

testify because there were other additional witnesses at the scene, and there was sufficient 

testimony to support the charges. 

On cross-examination, the trial court said that there had been inconsistencies in the 

witnesses’ identification of Petitioner, which he brought out through his crossexamination of the witnesses. Trial counsel stated that he “definitely challenged the

proof,” explaining that Petitioner was convicted of lesser-included offenses in four 

counts. He noted that Petitioner was “intelligent, smart, presented well, [and his] family 

presented well” and had a good work history. 

Petitioner testified that trial counsel represented him for about two years while 

Petitioner was out on bond. Petitioner stated that trial counsel never met with him to 

discuss the case and that the only time Petitioner was at trial counsel’s office was to 

“make a payment.” Petitioner said that trial counsel never discussed with him trial 

strategy, the State’s evidence, or witnesses that the defense might call at trial. Petitioner 

testified that trial counsel was unprepared for trial and asserted that trial counsel should 

have filed some pretrial motions and objected more during trial. Specifically, Petitioner 

stated that trial counsel should have moved to suppress one of the victim’s identification 

of Petitioner based on improper police procedure and objected to certain photographs 

introduced at trial and to portions of the prosecutor’s closing argument. 

On cross-examination, Petitioner agreed that prior counsel met with him in 

preparation for trial. Petitioner stated, “I met with [prior counsel] and he told me how 

everything was looking and this is the way we [were] going to go and stuff like that.” He 

recalled that prior counsel eventually referred him to trial counsel. Petitioner further 

recalled that trial counsel raised an alibi defense at trial and put on witnesses to establish 

the defense, including a representative from Hershey’s and Petitioner’s mother. 

At the conclusion of the hearing, the post-conviction court took the matter under 

advisement and later issued a written order denying relief. Regarding Petitioner’s claim 

that trial counsel rendered ineffective assistance by failing to discuss with Petitioner trial 

strategy and the proof to be presented by the defense, the post-conviction court found as 

follows:
- 22 -

[Petitioner] was arrested on March 24, 2008, made a $250,000 bond 

and was indicted June 5, 2008, for six counts of attempted second degree

murder and employing a firearm during a dangerous felony. He hired 

[prior counsel] to represent him at trial, and this court presided over his first 

jury trial, which began on March 21, 2011. The defense was one of alibi. 

The jury was sworn, and on the third day of trial it was discovered that one 

of the victims in the trial, who was an essential witness for the State, after 

the offense on trial, had been charged with Murder First Degree in an 

unrelated case and had consulted with the law partner and son of [prior 

counsel] . . . about arraigning him once his case was indicted. [Prior 

counsel’s] firm had already requested and received a copy of the murder 

file from the Office of the Public Defender which had represented the 

witness in General Sessions court for its use after indictment and 

arraignment. Although the file was brought to court and was found not to 

have been opened (and was still sealed in its original mailing), this court 

found there was a conflict in representation, and [Petitioner] did not wish to 

waive that conflict and instead stated that he wished to have the trial 

stopped and reset for him to hire another attorney. This court therefore 

found a manifest necessity to mistry the case, discharged the jury and reset 

the matter until April 25, 2011 to give [Petitioner] time to hire another 

attorney, and [prior counsel] suggested [trial counsel], [who was] another 

criminal defense attorney who worked in [prior counsel’s] office building, 

and [prior counsel] asked him to take the case. [Petitioner] then hired [trial 

counsel] . . . and his second trial began on April 30, 2012, a year later, 

again with the same defense of alibi. [Petitioner] was convicted as charged 

of attempting to commit Second Degree Murder of the intended victim, but 

only of reckless endangerment of the other [five] victims, including the 

[fifteen]-year-old who was permanently paralyzed as a result of the 

shooting.

[Petitioner] testified at the hearing on this petition that [trial counsel] 

never met with him to talk about strategy, only asking him to come in to 

make a payment, and never “went over anything.” However, this court 

finds that regardless of the number of times that they met, [Petitioner] was 

thoroughly familiar with the facts of his case, the trial strategy and his alibi 

witness testimony, because he had already begun the trial before with [prior 

counsel]. [Petitioner] testified that “I met with [prior counsel] and he told 

me how everything was looking and this is the way we [were] going to go 

and stuff like that.” [Trial counsel] testified that he did not recall 

specifically how many times he met with [Petitioner] (it had been over five 
- 23 -

years since the trial at the time of his testimony), but he stated that his 

practice was to meet as needed. 

. . . .

This court finds this testimony of [ ] trial [counsel] credible, and that 

of [Petitioner] that he did not know what was going on prior to his trial not

credible. Further, [Petitioner] has not mentioned any discovery that was 

developed or any new evidence that came to light during the time between 

the two trials that would have made any difference in the outcome of his 

trial for which his trial attorney should have kept him informed. This 

allegation fails for lack of any credible proof that [trial counsel’s] 

performance was deficient or that there was any prejudice to [Petitioner] in 

failing to meet more often.

The post-conviction court found that trial counsel thoroughly cross-examined the 

State’s witnesses and put on several defense witnesses, “doing his best to put forth for 

[Petitioner] the best defense he could.” The post-conviction court denied relief, 

concluding that “[Petitioner] received a fair trial and was extremely fortunate to have 

received the verdicts that he did, particularly the reckless endangerment verdict as to the 

young boy who is now permanently paralyzed from the chest down as a result of the 

shooting.” This timely appeal follows.

Analysis

On appeal, Petitioner contends that he received ineffective assistance of counsel 

based on trial counsel’s failure to discuss with Petitioner trial strategy and the proof to be 

presented by the defense at trial. The State responds that the post-conviction court 

properly denied Petitioner relief on his claim of ineffective assistance of counsel. We 

agree with the State. 

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 post-conviction 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 
- 24 -

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

[post-conviction 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.

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 

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).
- 25 -

In this case, the post-conviction court properly denied relief. At the postconviction hearing, trial counsel testified that it was his practice to meet with clients as 

needed but with increased frequency as a trial date approached. Trial counsel stated that 

he had no reason to believe that he failed to do so with Petitioner. Additionally, trial 

counsel testified that, due in part to prior counsel’s work putting together the trial 

notebook, he was fully prepared for trial. In denying relief, the post-conviction court 

accredited trial counsel’s testimony and determined that Petitioner’s testimony that trial 

counsel never met with him was not credible. The post-conviction court found that trial 

counsel was prepared for trial and that the defense strategy employed by trial counsel had 

been, to an extent, successful. Thus, Petitioner has not shown deficient performance on 

the part of trial counsel. Moreover, Petitioner has failed to allege, much less prove, how 

he was prejudiced by counsel’s alleged deficiency. Petitioner is not entitled to relief 

under Strickland. 

Conclusion

For the aforementioned reasons, the judgment of the post-conviction court is 

affirmed.

____________________________________

ROBERT L. HOLLOWAY, JR., JUDGE