IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

April 6, 2021 Session

O’NEAL JOHNSON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 08-05447 Chris Craft, Judge

___________________________________

No. W2020-00638-CCA-R3-PC

O’Neal Johnson, Petitioner, appeals from the post-conviction court’s denial of postconviction relief. After a thorough review of the record and applicable 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 JOHN EVERETT 

WILLIAMS, P.J., and ROBERT W. WEDEMEYER, J., joined.

Lance R. Chism (on appeal), and Benjamin Wilkins (at hearing), Memphis, Tennessee, for 

the appellant, O’Neal Johnson.

Herbert H. Slatery III, Attorney General and Reporter; Samantha L. Simpson, Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant 

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

OPINION

Procedural and Factual Background

Petitioner was indicted for attempt to commit first degree murder of Willie Burdett

(“the victim”) and for felony reckless endangerment of Quincy Woods. The jury found 

Petitioner guilty of the lesser-included offense of attempted second degree murder and 

acquitted him of reckless endangerment. The trial court sentenced Petitioner to serve 

twenty years in prison as a Range II multiple offender and ordered the sentence to be served 

consecutively to prior sentences for rape of a child and contempt of court. Petitioner 

appealed his conviction, contending that the evidence was insufficient to prove he acted 

05/20/2021
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knowingly and in the absence of a state of passion. This court affirmed the judgment. State

v. O’Neal Johnson, No. W2011-00975-CCA-R3-CD, 2012 WL 2299457, at *1 (Tenn. 

Crim. App. June 18, 2012).

Attempted Murder Case

We have summarized the factual background from the direct appeal opinion as 

follows:

On December 3, 2007, Petitioner heard that his fiancée was having an affair with 

the victim.1 Petitioner drove to Methodist Laundry, where the victim was employed as a 

truck driver, and confronted the victim as he sat in the passenger seat of a “bob truck.” 

During the multi-day jury trial, the State introduced several witnesses to the shooting. Mr.

Woods, the driver of the bob truck, told the victim that someone was approaching the truck. 

The victim recognized Petitioner as he came around to the passenger side. When the victim 

opened the door, Petitioner said, “I heard you was F’ing my girlfriend, and I’m going to 

kill you.” The victim testified that he saw Petitioner “had a gun in his waistband and tried 

to close the door.” When Petitioner prevented the victim from closing the door, the victim 

pushed the door open, jumped from the truck, and ran toward the Methodist Laundry

building. As he ran, he “heard ‘a couple’ of shots and was shot in his left leg.” After 

entering the building, he was shot in the right shoulder. The victim stated that “he kept 

running until he was shot again in his right leg, which broke” causing the victim to fall to 

the floor. Id. 

Mr. Woods testified that the first shot was fired while the victim was in the 

passenger’s seat and Mr. Woods was seated about a foot away. He said that the victim ran 

toward the building and that Petitioner ran after him and fired two more times and that he

heard five or six more shots after Petitioner followed the victim into the building. Mr. 

Woods testified that he had never seen the victim “with any sort of weapon.” Id. at *2. 

Petitioner’s fiancée testified that “she had been in a relationship with [Petitioner] 

for five years and had been living with him for two years at the time of the shooting.” She 

said that she worked at Methodist Laundry and that Petitioner usually drove her to work in 

her silver Mercury Sable. Id. at *3. On the day of the shooting, she discovered through 

her manager that some of her co-workers put a note about her by the machine where Ms. 

Jackson worked. Around 11:00 a.m., Petitioner arrived at Methodist Laundry to eat lunch 

with his fiancée. While the couple was seated in the vehicle, Ms. Jackson drove up to the 

 

1 Because Petitioner, in a separate case, was convicted of the rape of his fiancée’s twelve-year-old 

daughter, who shares her mother’s last name, we will not use the name of Petitioner’s fiancée in this 

opinion.
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driver’s side, got out of her car, and asked Petitioner if he knew that his fiancée was having 

a sexual relationship with the victim. Petitioner’s fiancée denied the accusation. When 

she returned from her lunch break, she informed her supervisor about what had happened. 

Id. at *4. 

Randy Drake, a Methodist Laundry employee, knew Petitioner because Petitioner

had previously been employed by Methodist Laundry. He saw the bob truck enter the 

parking lot followed by a silver vehicle that Petitioner typically drove when he picked up 

his girlfriend after work. Mr. Drake said that Petitioner “had an ‘automatic weapon’ of 

about three or four inches in his hand.” He said that his view of the passenger side of the 

truck was obstructed but that he heard three or four shots and then saw Petitioner exit the 

building, get in his vehicle, and drive away. “Mr. Drake then went inside and put a 

tourniquet on the victim’s leg.” Id. at *3.

Samuel Noe, a Methodist Laundry employee, witnessed the shooting inside the 

building. He said that “he heard approximately six shots fired” and saw Petitioner “wearing 

a hoodie, holding his arm out with a small handgun and shooting toward the back of the 

building.” Id. at *4.

Five Memphis Police Department (MPD) officers testified at trial. MPD Officer 

Jason Gallardo testified that he was the first law enforcement officer to arrive at the crime 

scene. He said that he “observed bullet casings from the door leading up to where the 

victim was lying on the ground.” MPD Patrolman Jeffrey Garey collected and tagged 

evidence at the crime scene. Patrolman Garey testified that he collected fifteen spent nine 

millimeter bullet casings and four bullet fragments. He said that one casing was found 

outside the building, one on the door jamb, and the rest inside the building. Id. at *5.

Tennessee Bureau of Investigation Special Agent Shelly Betts testified as a forensic 

science expert in firearms identification. Agent Betts received an envelope containing 

fourteen casings and five bullet fragments. She determined they were all fired from the 

same type of weapon, a nine millimeter Glock semi-automatic pistol. Id. at *6.

Paramedic Daryl McConnell testified that he found the victim alert but with early 

symptoms of shock when he arrived on the scene. He cut off the victims clothing and 

immediately began to treat the victim. He said that there was evidence of an entry wound

in the back of the victim’s leg and that his femur was broken and shattered. Mr. McConnell 

found two entry wounds in the victim’s left thigh and one entry wound in his right upper 

back. He said that injury to the femur can result in a fatal severing of the femoral artery 

and that the gunshot to the shoulder could have deflected to the heart, lungs, or spine and 

resulted in death. Id. at *5.
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Petitioner testified that he heard the victim was having an affair with his girlfriend

and that he went to Methodist Laundry to talk to the victim. Petitioner said that the victim 

opened the door a little and that he asked the victim if he was “messing with” his girlfriend. 

Petitioner testified that the victim denied the relationship and attempted to shut the door. 

Petitioner said that his arm “was caught in the door” and that a struggle ensued. He said 

that the victim jumped out of the truck and struck him three times in the face. Petitioner 

said that he noticed that the victim had a gun and that the two wrestled over the gun and it 

went off. Petitioner said that he gained control of the gun and that the victim ran. Petitioner 

said that he pursued the victim and testified, “[I] ‘fired up in the air, boom, boom, and I 

think when I fired it came down,’ and that was when the victim was injured in his right leg 

and his shoulder.” Id. at *7.

Rape of a Child Case

The rape of a child case and this attempted homicide case were both pending at the 

same time. A different attorney from the Public Defender’s Office represented Petitioner 

in each case. A single mental evaluation of Petitioner was ordered by the trial court for 

both cases. The twenty years settlement offer made by the State was for the settlement of 

both cases. Petitioner testified at the post-conviction hearing in this case that his fiancée 

and the victim conspired to artificially inseminate his fiancée’s twelve-year-old daughter 

to get her pregnant to frame Petitioner for rape of a child to get Petitioner out of the way 

so they could be together. The post-conviction court stated the following about what it 

called the “unique procedural facts” of the petition for post-conviction relief: 

[P]etitioner was indicted for the December, 2007 attempted [m]urder 

[f]irst [d]egree of the victim [] who was shot several times but survived. That 

shooting is the subject of this petition. He refused to surrender himself to the 

police, and was not arrested until September 11, 2008, nine months later. 

During this time, it was discovered that the [twelve]-year-old daughter of his 

fiancée was pregnant. She revealed that she had been forced to submit to 

intercourse with [P]etitioner several times, and when the baby was born, 

DNA showed that [P]etitioner was in fact the father of her child. He was 

then indicted for [r]ape of a [c]hild as well, and Assistant[] Public Defender 

[] was appointed to represent him on both indictments. [P]etitioner was 

extended a 20-year offer to settle both cases, but refused to choose between 

the State’s offer to settle both cases or a jury trial on both cases, even though 

given several continuances for him to make that election.
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Petition for Post-Conviction Relief

Petitioner filed a timely pro se petition for post-conviction relief on May 31, 2013, 

claiming that the State failed to comply with the statutory notice requirements for enhanced 

punishment, that the trial court improperly enhanced the sentence based on factors not 

found by the jury, and that he received the ineffective assistance of counsel at trial because 

counsel: (1) failed to confer with him without delay and as often as necessary in order to 

elicit matters of a defense; (2) failed to adequately prepare him for trial; (3) failed to 

investigate the facts and circumstances of his case; and (4) failed to object to his sentence 

being enhanced. The post-conviction court appointed counsel. On September 3, 2013, the 

first appointed counsel was allowed to withdraw, and new post-conviction counsel was 

appointed. An amended petition, which was filed on July 3, 2018, incorporated all issues 

raised in the pro se petition and also alleged that trial counsel was ineffective for: (1) 

“failing to develop a proper trial strategy in cooperation with Petitioner”; (2) failing to call 

Ms. Jackson as a witness; and (3) failing to file mitigating factors prior to sentencing 

hearing. The amended petition also claimed that appellate counsel was ineffective for 

failing to appeal the sentence.

Issues Preserved on Appeal

Although Petitioner raised numerous claims in the post-conviction court, he only 

raises four claims on appeal. Petitioner claims that he received ineffective assistance of 

counsel because trial counsel failed to adequately investigate Petitioner’s physical and 

mental health issues and failed to call witnesses needed for his defense. Petitioner also 

claims that appellate counsel was ineffective because counsel failed to challenge his 

sentence on direct appeal. Finally, Petitioner claims that he is entitled to a second postconviction hearing based on his post-conviction counsel’s deficient performance. We will 

limit our discussion of the evidence presented at the post-conviction hearing to that which 

is germane to the issues raised on appeal.

Post-Conviction Hearing

Petitioner testified at the first hearing held on December 17, 2018. Petitioner said 

that he was diagnosed with schizophrenia and intellectual disability in 1993. He said that 

he was not taking his medications during the time of his trials. He said that he told counsel

in both the rape case and attempted homicide case about his diagnosis and said that both 

counsel were aware of his condition “[d]ue to my behavior in court and stuff, that I was 

going through, I had – I think I threatened to kill the prosecutor” at a plea hearing for both 

cases. 
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Petitioner said that counsel advised him that the prosecution made a plea offer of 

twenty years at thirty percent service for both the rape of a child case and the attempted 

homicide case. A plea hearing was held on July 1, 2009, and Petitioner was advised that 

this was the last day to accept the plea offer. During the plea hearing, Petitioner refused to 

accept or to reject the plea offer, stating that he just wanted to go home. Petitioner said 

that he became angry because the prosecutor was smirking and smiling at him. In its March 

27, 2020 Order Denying Petition for Post-Conviction Relief, the post-conviction court 

described what occurred during the plea hearing as follows:

Petitioner then moved to “fire” his Assistant[] Public Defender [] which 

motion this court denied, and after he still refused to choose a trial or plea, 

this court set a date for his [r]ape of a [c]hild case to be tried to a jury. When 

[Petitioner] stepped down from the witness stand, he turned and called this 

court a “bitch” and after being found in summary contempt, turned to the 

prosecutor [] and stated words to the effect that “I’m going to kill you, bitch.”

Petitioner testified at the post-conviction hearing that, on the day of the shooting, he 

went to talk to the victim about the relationship between the victim and Petitioner’s fiancée. 

He said that the victim punched him in the face and pulled a pistol. Petitioner said that he 

took the pistol away from the victim and shot him in self-defense. On cross-examination, 

Petitioner agreed that the victim testified at trial that Petitioner approached the victim as 

he was exiting a vehicle, threatened to kill the victim for having an affair with Petitioner’s 

fiancée, pointed a pistol at the victim and fired, and then chased the victim as he fled firing 

several more times at the victim. However, Petitioner claimed that the victim was the only 

witness who testified to the above-described events. Petitioner agreed that the victim was 

shot in the right shoulder and the right leg. He complained that trial counsel argued for a 

lesser-included offense rather than self-defense and denied that trial counsel was successful 

in obtaining a conviction for a lesser-included offense of attempted second degree murder. 

Petitioner said that trial counsel told him that he had subpoenaed Ms. Jackson, the 

victim’s girlfriend, and John McCarthey, the director of human resources at Methodist 

Laundry. Mr. McCarthey supervised Petitioner’s fiancée, the victim, and the victim’s 

girlfriend. He said that even though he was led to believe they were subpoenaed, they were 

not present for the trial.

Petitioner claimed that he should have been sentenced as a Range I offender. On 

cross-examination, Petitioner admitted that he had been convicted of two counts of robbery 

in 2003, reckless endangerment with a deadly weapon in 2002, and facilitation of a drug 

offense in 2002.
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Trial counsel testified at the second post-conviction hearing held on March 1, 2019.

Trial counsel had been employed by the Shelby County Public Defender’s Office (PD’s 

office) since 1995. He said that another attorney at the PD’s office represented Petitioner

in the rape of a child case. He estimated that he had tried around one hundred jury trials, 

including several first degree murder cases, at the time he represented Petitioner. He said 

that trial counsel in the rape of the child case had Petitioner undergo a general mental 

competency evaluation and that the evaluation showed that Petitioner was competent. He 

said that he did not see anything that, in his opinion, justified a diminished capacity defense. 

He said that he had no trouble communicating with Petitioner.

Trial counsel said that his trial strategy was to try to get the jury to convict Petitioner 

of attempted voluntary manslaughter based on the proof that the victim was having an affair 

with Petitioner’s fiancée. He said that the fact that, after Petitioner initially shot the victim, 

he chased down the victim and fired several more times leaving a trail of spent shell casings

made the strategy difficult. 

Trial counsel said that he tried to get Petitioner to accept the plea offer. He described 

the facts of the rape of a child case as exceptionally strong based on DNA evidence. He 

said that he could not remember if he subpoenaed Ms. Jackson, but that, if Petitioner 

wanted her to testify, it was his customary practice to issue a subpoena. He said that he 

had discussions with Petitioner about testifying and explained that, if he did testify, the 

State could impeach him with prior convictions. 

On cross-examination, trial counsel agreed that he remembered the passenger in the 

vehicle and another witness testified that Petitioner had a pistol in his hand when he 

approached the vehicle in which the victim was riding.

At the conclusion of the March 1, 2019 hearing, Petitioner asked to keep the proof 

open to allow him time to locate Ms. Jackson, Darlene Fulton, and MPD Sergeant Tutt, so 

they could be subpoenaed as witnesses. Petitioner then stated that he tried to locate John 

McCarthy, but Mr. McCarthy was deceased. Petitioner also asked for time to hire a diabetic 

expert, apparently to show that elevated blood sugar levels and elevated blood pressure 

could have impacted his decision making in shooting the victim. Additional hearings were 

held on July 12, 2019, August 2, 2019, and August 23, 2019, to allow Petitioner an 

opportunity to locate witnesses. At each of these hearings, post-conviction counsel 

announced that he could not locate the witnesses or find an expert to testify. The proof 

was closed on August 23, 2019, after post-conviction counsel announced that he “had no 

expectation that our searches will be fruitful.”
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Order Denying Petition for Post-Conviction Relief

The post-conviction court entered a thorough and comprehensive order that

addressed all issues raised in the petition and amended petition, making credibility 

findings, findings of fact, and conclusions of law as to each issue raised. The postconviction court denied relief, and Petitioner timely appealed. We will address the postconviction court’s order as it relates to the issues raised by Petitioner on appeal in the 

analysis below.

ANALYSIS

Petitioner claims that he received ineffective assistance of counsel based on trial 

counsel’s failure to adequately investigate Petitioner’s physical and mental health issues 

and to call witnesses needed for his defense and based on appellate counsel’s failure to 

challenge his sentence on direct appeal. The State argues that the post-conviction court 

properly determined that Petitioner failed to prove any deficient performance on the part 

of trial counsel or appellate counsel and failed to show any prejudice. We agree with the 

State. 

Finally, Petitioner claims that he is entitled to a second post-conviction hearing 

based on his post-conviction counsel’s deficient performance. The State argues that postconviction counsel did all that was required of him by Tennessee Supreme Court Rule 28

and that Petitioner is not entitled to a second post-conviction hearing. We agree with the 

State.

Standard of Review

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

that his or her conviction or sentence is void or voidable because of the abridgment of a 

constitutional right. Tenn. Code Ann. § 40-30-103 (2018). 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. 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 [post-
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conviction court].” Fields, 40 S.W.3d at 456. The post-conviction 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.

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). 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 v. State, 960 S.W.2d 572, 579 (Tenn. 1997). We will not secondguess 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)). 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 v. State, 

938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S. at 688).

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).

Investigation of Mental and Physical Health of Petitioner

Petitioner claims that “trial counsel was ineffective for failing to adequately 

investigate Petitioner’s physical and mental health issues.” Trial counsel has a duty to 

“conduct appropriate investigations, both factual and legal, to determine what matters 

of defense can be developed.” Baxter, 523 S.W.2d at 933. “[A] court deciding an actual 
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ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on 

the facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland, 

466 U.S. at 690. “[W]hen a defendant has given counsel reason to believe that pursuing 

certain investigations would be fruitless or even harmful, counsel’s failure to pursue 

those investigations may not later be challenged as unreasonable.” Id.

In its order denying relief, the post-conviction court found that Petitioner “was 

mentally evaluated by Dr. John Hutson” for the rape of a child case and the attempted 

homicide case. The court quoted the “results” from Dr. Hudson’s evaluation:

On March 11, 2009, I completed the evaluation of [Petitioner] on the charges 

of Rape of a Child and Attempted Murder — First Degree pursuant to your 

order. At that time, he understood the nature of the legal process, he 

understood the charges and the potential consequences of the charges and he 

seemed capable of assisting counsel and participating in his defense.

The post-conviction court found that trial counsel “testified that he had no reason 

to suspect that [P]etitioner had any mental illness, and so no reason to have [P]etitioner 

reexamined after that had already been requested and an examination had been 

performed.” Trial counsel also testified that he had no difficulty in communicating with 

Petitioner.

The post-conviction court found that Petitioner’s mental illness claim was “totally 

unsupported by any other proof offered at the trial, the sentencing hearing[,] or the 

hearing on this petition.” The court noted that the post-conviction hearing was 

continued three times “to allow [P]etitioner to call an expert on diabetes, but none was 

ever called.” The court found Petitioner’s testimony concerning his mental illness not 

to be credible and that the issue was without merit. The evidence does not preponderate 

against the post-conviction court’s factual finding or credibility finding, and we agree

with the court’s conclusion.

Failure to Call Witnesses

Petitioner claims that “trial counsel was ineffective for failing to present important 

witnesses at trial.” Specifically, Petitioner claims that he asked trial counsel to subpoena 

Gloria Jackson, Darlene Fulton, and John McCarthy. Petitioner claims that “Ms. Jackson’s 

testimony would have been beneficial to the defense in establishing [P]etitioner’s reaction 

when he heard about the affair.” Petitioner claims that Mr. McCarthy fired his fiancée, the 

victim, Ms. Jackson, and fourteen other Methodist Laundry employees over the shooting. 
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Petitioner acknowledges that, in cases where a petitioner contends that trial counsel 

failed to present a witness in support of the petitioner’s defense, the petitioner must present 

such witness at the post-conviction hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. 

Crim. App. 1990). Neither a trial nor an appellate judge can speculate as to whether that 

witness’s testimony would have been favorable to the defense. Id. Therefore, the petitioner 

must “produce a material witness who . . . would have testified favorably in support of his 

defense if called [at trial]. Otherwise, the petitioner fails to establish the prejudice 

requirement mandated by Strickland v. Washington.” Id. at 758. 

The post-conviction court gave Petitioner multiple opportunities to produce 

additional fact or expert witnesses. Post-conviction counsel stated that he attempted to 

locate Gloria Jackson and other witnesses but was unable to find them and that Mr. 

McCarthy had passed away. Petitioner’s family was unable to obtain an expert on diabetes 

to testify on behalf of Petitioner. The court noted that, although Ms. Jackson could have 

testified about the victim’s affair with Petitioner’s fiancée, the victim admitted to the affair,

and Petitioner testified to his state of passion. The court found that Petitioner failed to 

show or explain how the testimony of Ms. Jackson, Ms. Fulton, Sergeant Tutt, or Mr. 

McCarthy would have benefitted Petitioner. The court found that Petitioner failed to prove 

deficient performance on the part of trial counsel or prejudice to Petitioner. We agree.

Failure to Raise Sentencing on Appeal

A criminal defendant has the right to effective assistance of counsel on direct appeal. 

Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995) (citing Evitts v. Lucey, 469 U.S. 387 

(1985)). The test devised in Strickland for ineffective assistance of counsel applies to both 

trial and appellate counsel. Id. That is, a petitioner alleging ineffective assistance of 

appellate counsel must prove both that appellate counsel was deficient in failing to 

adequately pursue or preserve a particular issue on appeal and that, absent counsel’s 

deficient performance, there was a reasonable probability that the issue “would have 

affected the result of the appeal.” Id. at 596-97. 

When a petitioner alleges that appellate counsel was deficient for failing to raise an 

issue on direct appeal, the reviewing court must determine the merits of that issue. Id. at 

597. “Appellate counsel are not constitutionally required to raise every conceivable issue 

on appeal. Indeed, experienced advocates have long emphasized the importance of 

winnowing out weaker arguments on appeal and focusing on one central issue if possible, 

or at most a few key issues.” Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004).

(internal quotation marks and citations omitted). “The determination of which issues to 

raise on appeal is generally within appellate counsel’s sound discretion[,]” and “appellate 

counsel’s professional judgment with regard to which issues will best serve the appellant 

on appeal should be given considerable deference.” Id. “Obviously, if an issue has no 
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merit or is weak, then appellate counsel’s performance will not be deficient if counsel fails 

to raise it.” Id. Further, when an omitted issue is without merit, the petitioner suffers no 

prejudice from appellate counsel’s failure to raise the issue on appeal and cannot prevail 

on an ineffective assistance of counsel claim. Id. at 887-88. 

Petitioner claims that appellate counsel should have challenged the sentence on 

direct appeal because “the trial court sentenced Petitioner at the very top of the Range II 

spectrum and ordered this sentence to be served consecutive to his other sentences.” 

Petitioner argues that the effective forty-five-year sentence was not “justly deserved in 

relation to the seriousness of the offense” and was “greater than that deserved for the 

offense committed” under Tennessee Code Annotated sections 40-35-102(1) and -103(2)

(2018). 

Although the record in this appeal does not include the transcript of the sentencing 

hearing, Petitioner specifically references volume 8 of the “Archived Record” in State v. 

O’Neal Johnson. Therefore, to determine the merit of the claim that appellate counsel was 

deficient in failing to challenge the sentence on direct appeal, we take judicial notice of the 

record from the direct appeal, which includes the transcript of the February 17, 2011 

Sentencing Hearing. See O’Neal Johnson, 2012 WL 2299457, at *1.

The trial court made extensive findings at the sentencing hearing. The trial court 

found that Petitioner had been “convicted of a facilitation to commit the sale of possession 

of cocaine with intent to sell, which is a D felony occurring October 12[], 2002” and 

“convicted of two robberies occurring July 31[] , 2003.” The court used one of the two

robberies, along with that D felony facilitation conviction, to find that Petitioner “was a 

range two offender, looking at 12 to 20 years in the Department of Correction on this Class 

B felony.” 

The trial court considered and weighed the enhancement factors. The court found 

that Petitioner had four prior felony convictions in addition to those necessary to establish 

the sentencing range, that Petitioner had previously failed to comply with conditions of a 

sentence based on his violations of probation, and that Petitioner employed a firearm during 

the commission of a violent felony. The trial court gave great weight to his prior record in 

addition to that necessary to establish the range, including a robbery, rape of child, a forgery 

and reckless endangerment with a weapon. The trial court found that, because of 

Petitioner’s “horrible record and record of violent offenses against children and adults with 

those three factors, one, eight and nine, giving factor one great weight and nine a good 

amount of weight, [the court] sentence[s] him to [twenty] years in the Tennessee 

Department of Correction.”
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The trial court found that Petitioner’s record of criminal activity was extensive and 

that Petitioner was a dangerous offender based on his criminal record, including numerous 

violent offenses and “his behaviors in the courtroom.” The trial court found that the 

circumstances surrounding the attempted murder were aggravated, stating that the offense 

occurred “in broad daylight and [Petitioner] with a firearm chased another man through a 

factory, firing repeatedly at the man to kill him.” Finally, the trial court found that 

“confinement for an extended period of time is necessary to protect society from 

[Petitioner]” and that Petitioner had shown an “unwillingness to lead a productive life” and 

had resorted “to criminal activity in furtherance of an anti-societal lifestyle.” Accordingly, 

the trial court ordered the sentence to be served consecutively to the rape of a child 

sentence.

The post-conviction court found that the State filed a “Notice of Intent to Seek 

Enhanced Punishment” on August 10, 2010, several months before the beginning of trial 

on November 9, 2010. According to the post-conviction court, the notice listed convictions 

for rape of a child, two counts of robbery, facilitation of possession of a controlled 

substance with intent to sell, a misdemeanor theft and a forgery, and the court found that

the notice set out the dates and counts of conviction. The post-conviction court noted that 

the convictions for rape of a child were not prior felonies for enhancement purposes since 

those offenses occurred after the attempted homicide. The post-conviction court found that 

“[i]t was uncontested that [P]etitioner, at the time of the instant offense, had at least one 

prior robbery conviction, a C felony, and a facilitation to possess cocaine under half gram 

with intent to sell, a Class D felony. Therefore, [P]etitioner was a Range II offender on the 

Class B offense of Criminal Attempt, to wit: Murder Second Degree.”

The post-conviction court noted that Petitioner had an extensive criminal record in 

addition to that necessary to establish the sentence range and a “horrible record and record 

of violent offenses against children and adults” that could be used to enhance his Range II 

sentence to 20 years in the Tennessee Department of Correction. 

The 2005 amendments to the Sentencing Act provided trial courts with broad 

discretionary authority in sentencing. State v. Bise, 380 S.W.3d 682, 708 (Tenn. 2012). A 

trial court’s “within-range sentences that reflect a decision based upon the purposes and 

principles of sentencing” are reviewed under a presumption of reasonableness. State v. 

Caudle, 388 S.W.3d 273, 279 (Tenn. 2012). The party challenging the sentence on appeal 

bears the burden of establishing that the sentence was improper. Tenn. Code Ann. § 40-

35-401 (2018), Sentencing Comm’n Cmts.

“[T]he applicable standard of appellate review for a challenge to the imposition of 

consecutive sentences is abuse of discretion with a presumption of reasonableness[.]” State 

v. Pollard, 432 S.W.3d 851 (Tenn. 2013). Tennessee Code Annotated section 40-35-
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115(b) (2011) establishes the criteria that a trial court may use to determine if sentences, 

that are not mandatorily required to be served consecutively, should be served concurrently 

or consecutively. A trial court must only find one of the seven listed criteria in section 40-

35-115(b) to order consecutive alignment of multiple convictions. Here, the trial court 

found three: Petitioner was “an offender whose record of criminal activity [wa]s 

extensive,” -115(b)(2); Petitioner was “a dangerous offender whose behavior indicates 

little or no regard for human life and no hesitation about committing a crime in which the 

risk to human life is high,” -115(b)(4); and Petitioner was “sentenced for criminal 

contempt” -115(b)(7). 

In Petitioner’s direct appeal, appellate counsel raised a single issue concerning “the 

sufficiency of the evidence supporting his conviction for second degree murder, based 

primarily on his contention that the evidence is not sufficient to show that he acted 

knowingly or without adequately provoked passion.” O’Neal Johnson, 2012 WL 2299457, 

at *1. Appellant counsel was not called as a witness at the post-conviction hearing so

neither the post-conviction court nor this court can speculate on the reasons appellate 

counsel did not raise the sentencing issue on appeal or what his testimony would have been. 

Black, 794 S.W.2d at 757.

The post-conviction court found, that after reviewing the sentencing hearing 

transcript, the “sentence was proper, strong enhancement factors entitled to great weight 

were present, [Petitioner] was properly found to be a dangerous offender, and that any 

further review by an appellate court of [P]etitioner’s sentence would not have resulted in 

the sentence being overturned.” The post-conviction court “found the claim to be without 

merit for lack of a showing of prejudice to the [P]etitioner.” We agree. 

Ineffective Assistance of Post-Conviction Counsel

The right to post-conviction counsel is statutory. Tenn. Code Ann. § 40-30-

107(b)(1) (2018). There is no constitutional entitlement to the effective assistance of 

counsel in a post-conviction proceeding. Frazier v. State, 303 S.W.3d 674, 680 (Tenn. 

2010) (citing Coleman v. Thompson, 501 U.S. 722, 756-57 (1991)). “[A] post-conviction 

petitioner does not stand in the same shoes as the criminally accused; therefore, 

performance of post-conviction counsel is not governed by the standard set forth in 

Strickland.” Id. at 682. “The Post-Conviction Procedure Act, when read together with our 

Supreme Court Rules, simply sets out the minimum standards for performance demanded 

of counsel in post-conviction cases.” Id.

Tennessee Supreme Court Rule 28 outlines the procedures to be followed after a 

post-conviction petition is filed. Post-conviction counsel is required “to review the pro se 
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petition, file an amended petition asserting other claims which petitioner arguably has or a 

written notice that no amended petition will be filed, interview relevant witnesses, 

including petitioner and prior counsel, and diligently investigate and present all reasonable 

claims.” Tenn. Sup. Ct. R. 28, § 6(C)(2). Rule 28(6)(C)(3) requires post-conviction 

counsel to certify that he or she (1) has “thoroughly investigated the possible constitutional 

violations alleged by petitioner . . . and any other ground that petitioner may have for 

relief”; (2) has “discussed other possible constitutional grounds with petitioner”; (3) has 

“raised all non-frivolous constitutional grounds warranted by existing law or a good faith 

argument for the extension, modification, or reversal of existing law which petitioner has”; 

and (4) is “aware that any ground not raised shall be forever barred . . . and ha[s] explained 

this to petitioner.” Tenn. Sup. Ct. R. 28, § 6(C)(3), app. C. Due process in the postconviction context requires merely that the petitioner have “the opportunity to be heard at 

a meaningful time and in a meaningful manner.” Stokes v. State, 146 S.W.3d 56, 61 (Tenn. 

2004) (quoting House v. State, 911 S.W.2d 705, 711 (Tenn. 1995)) (internal quotation 

marks omitted). 

Post-conviction counsel in this case fulfilled the requirement of Rule 28. Counsel 

filed two amended petitions for post-conviction relief, raised all non-frivolous 

constitutional grounds, attempted for several months to locate the witnesses Petitioner 

wanted to call, guided Petitioner’s testimony, and examined trial counsel. Post-conviction 

counsel filed the certification required by Rule 28(6)(C)(3). It is not clear from the record 

why appellate counsel was not called as a witness, but as we have previously discussed,

we agree with the post-conviction court “that any further review by an appellate court of 

[P]etitioner’s sentence would not have resulted in the sentence being overturned” and that 

the claim was “without merit for lack of a showing of prejudice to the [P]etitioner.” 

A petitioner under egregious circumstances may establish that he or she is entitled 

to a second post-conviction hearing based on the ineffective assistant of post-conviction 

counsel. See Thaddeus Johnson v. State, No. W2014-00053-CCA-R3-PC, 2014 WL 

7401989, at *9 n.10 (Tenn. Crim. App. Dec. 29, 2014) (post-conviction counsel’s 

“egregious violation(s) of Rule 28 might impermissibly violate the limited due process 

requirements for post-conviction proceedings so as to warrant a second post-conviction 

hearing”), perm. app. denied (Tenn. May 18, 2015); Frazier, 303 S.W.3d at 680 (the 

statutory right to counsel in a post-conviction case contemplates a conflict-free counsel); 

House, 911 S.W.2d at 714 (where, based on the ineffective assistance of post-conviction 

counsel, a post-conviction petitioner is denied an “opportunity to present proof and 

argument on the petition for post-conviction relief”). The circumstances of this case are in 

no way egregious, and Petitioner is not entitled to a second post-conviction hearing.
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CONCLUSION

We affirm the judgment of the post-conviction court denying post-conviction 

relief.

____________________________________

ROBERT L. HOLLOWAY, JR., JUDGE