IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 11, 2018

TIMOTHY CARTER v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2012-B-1221 Cheryl Blackburn, Judge

No. M2018-00061-CCA-R3-PC

The petitioner, Timothy Carter, appeals from the denial of his petition for post-conviction 

relief, which petition challenged his Davidson County Criminal Court jury convictions of 

theft of property valued at more than $60,000 and possession of a firearm by a convicted 

felon. In this appeal, the petitioner asserts that the post-conviction court erred by 

concluding that he had forfeited the right to appointed counsel in the post-conviction 

proceeding and by ruling that he was not entitled to post-conviction relief. Discerning no 

error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN and J. ROSS DYER, JJ., joined.

Timothy Carter, Hartsville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Assistant 

Attorney General; Glenn R. Funk, District Attorney General; and Megan King, Assistant 

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

OPINION

A Davidson County Criminal Court jury convicted the petitioner of theft of 

property valued at more than $60,000 and possession of a firearm by a convicted felon, 

and the trial court sentenced the petitioner, a Career Offender, to 30 years’ incarceration. 

In our opinion affirming the convictions and accompanying sentence, this court 

summarized the case on direct appeal:

This case arises from the theft of a comic book collection 

from a residence in La Vergne, Tennessee in April 2010. The 

03/11/2019
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[petitioner] was identified as a suspect in the theft when he 

sold or attempted to sell some of the comic books at area 

stores. During the investigation, law enforcement officers 

went to the [petitioner’s] apartment and, upon seeing the 

stolen comic books in the backseat of a vehicle registered to 

the [petitioner], impounded his vehicle to the police 

department. After obtaining a search warrant, law 

enforcement officers searched the [petitioner’s] vehicle and 

recovered a handgun.

State v. Timothy Damon Carter, No. M2014-01532-CCA-R3-CD, slip op. at 2 (Tenn. 

Crim. App., Nashville, Mar. 8, 2016), perm. app. denied (Tenn. June 23, 2016).

In a timely, 40-page petition for post-conviction relief accompanied by 

some 300 pages of exhibits, the petitioner alleged myriad grounds for relief. In its 

preliminary order, the post-conviction court noted that the petitioner had proceeded pro 

se at trial after the trial court concluded that the petitioner had, by his obstreperous 

behavior, forfeited his right to appointed counsel and that this court had affirmed that 

decision on direct appeal. Citing State v. Carruthers, 35 S.W.3d 516 (Tenn. 2000), the

post-conviction court noted that the petitioner could only present claims of ineffective 

assistance of counsel for those times that he was represented by counsel. Because, the 

court concluded, all the issues raised by the petitioner in his original petition against the 

attorneys who represented him before he forfeited the right to counsel had been fully 

litigated on direct appeal, those issues qualified as previously determined and could not 

be a basis for post-conviction relief. The court similarly concluded that the petitioner’s 

claims of prosecutorial misconduct had been previously litigated. The post-conviction 

court ruled that allegations of ineffective assistance by appellate counsel could be raised 

in a petition for post-conviction relief but strongly cautioned newly appointed postconviction counsel to consult with the petitioner to present only cognizable claims in an 

amended petition for relief.

Just over a month later on February 6, 2017, the petitioner filed pro se a 

Motion for Arrest of Judgment, which motion argued that the judgment had not been duly 

entered in the court minutes; that “Rutherford County authorities exceeded their 

jurisdiction by investigating criminal activities in Rutherford County, Tennessee and 

reporting their findings to the Davidson County, Tennessee, grand jury for indictment”; 

that prosecutors had “acted in bad faith” by seizing his car without a warrant; and that 

“the search warrant was issued . . . outside of their jurisdiction.” Appointed postconviction counsel moved to withdraw just three days later, citing the petitioner’s desire 

to represent himself in the post-conviction proceeding.
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At the hearing on the motion to withdraw, the petitioner told the court that 

he wanted to represent himself with the assistance of elbow counsel. The court refused to 

appoint elbow counsel and observed that the petitioner was “not going to cooperate with 

anybody.” When the petitioner alleged that the problem lay with appointed counsel’s 

failure to adequately communicate with him, the court allowed appointed counsel to 

respond:

Your Honor, I have received a number of letters from 

[the petitioner] in a very short amount of time all directing me 

to do very different things. None of which I really 

understood what he wanted. So I thought the safest course of 

action would be to file the motion to withdraw, which is what 

he said he wanted me to do.

The post-conviction court cautioned the petitioner that if the court appointed counsel, 

then “the counsel makes the decisions,” before asking the petitioner if he wanted counsel 

appointed. The petitioner replied, “I’m asking that this court allow me to be pro se so I 

can guard my federal and state constitution within my post-conviction.” When the court 

again refused to appoint elbow counsel, the petitioner expressed a desire to have counsel 

appointed. Despite this request, the petitioner threatened “to go to the Board again” on 

any person appointed as counsel who failed to communicate with him.

Less than three months following her appointment, the petitioner’s second 

appointed counsel moved to withdraw as counsel, stating that she “has been threatened 

with action in the Federal courts and with complaint to the Tennessee Board of 

Professional Responsibility if Petitioner’s directives are not made.” Second appointed 

counsel stated that it was her belief that her relationship with the petitioner was “beyond 

repair.” At the hearing on her motion, second appointed counsel told the post-conviction 

court that the petitioner had threatened to file a complaint against her with the Board of 

Professional Responsibility if she “didn’t do what he told [her] to do.” When the court 

asked the petitioner why he refused to cooperate, he replied, “I wrote this woman a letter, 

this attorney a letter, asking her to guard my statement and my fair constitution in my 

original post and do not amend my post. And if you amend my post, I will contact 

Federal Court and make them command you to[.]” At that point, the post-conviction 

court concluded that the petitioner had demonstrated his unwillingness to work with 

appointed counsel and had, therefore, waived his right to appointed counsel. The postconviction court invited the petitioner to “file something else” and promised to hold a 

hearing on any of his claims that could “qualif[y] for post-conviction relief.” The court 

admonished the petitioner that he could not raise a claim of ineffective assistance of 

counsel for anything that occurred at trial when he represented himself and that the 

propriety of the pretrial rulings had already been litigated on direct appeal.
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Following the hearing, the post-conviction court entered an order reiterating 

its ruling that the petitioner had forfeited his right to appointed counsel in the postconviction proceeding. In the order, the post-conviction court included a chart indicating 

which claims the petitioner was precluded from addressing in the post-conviction 

proceeding because he had represented himself at trial, because the claims qualified as 

either previously determined or waived, or because the claims were not cognizable 

grounds for post-conviction relief.

At the May 7, 2018 evidentiary hearing, the petitioner insisted that he could 

not proceed “because there was never a written waiver of [me] waiving my right to 

proceed pro se.” The petitioner maintained that the post-conviction court had violated 

due process principles because it had forced him to proceed pro se and, at the same time, 

had denied him the right to be heard on his pro se filings. The court ordered the 

petitioner to proceed.

Manuel Russ, who was appointed to represent the petitioner following the 

hearing on the motion for new trial and on appeal, agreed that the petitioner had asked 

him to file a supplemental brief addressing the fact that the trial court had refused to hear 

those pretrial motions the petitioner had filed pro se. He said that he “did not file any 

request [with] the trial court [to] add those issues in” because the filings at issue were 

simply a rehashing of “what [the petitioner’s previous counsel] had done regarding the 

suppression issues and had already had two hearings in front of the Court about it.” He 

said that it was his opinion that those issues had been “adequately addressed” and that he 

made those issues “a very big point in our appellate brief.” He said, “The pro se motions 

I didn’t think really added anything to the argument that we were making at the Court of 

[Criminal] Appeals.”

Mr. Russ said that he did not recall the petitioner’s asking him to obtain a 

bill of particulars, but he noted that he received “a lot of written correspondence” from 

the petitioner “with all kinds of things being requested and suggested.” Mr. Russ agreed 

that the petitioner “probably did” ask counsel to “supplement the bill of particulars into 

[the] appellate brief,” but he said that he could not recall whether a bill of particulars had 

been filed, that a bill of particulars would not have been helpful to a determination of the 

issues raised on direct appeal, and, most importantly, “supplementing the record is not 

simply that you start submitting documents that you would like for [the appellate court] 

to look at.” Mr. Russ noted that, if a bill of particulars had been filed, it would have been 

part of the record and that, when he was appointed to represent the petitioner after the 

hearing on the motion for new trial, “for the most part the record is fixed at what the 

record is because that’s just procedurally how things work.” In any event, Mr. Russ 
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emphasized, a bill of particulars would not “have added anything to [the petitioner’s] 

appeal.”

Mr. Russ recalled having had “several conversations either by mail or 

otherwise” with the petitioner wherein the petitioner “had trouble understanding” how he 

could be charged in one county when he had been arrested in another. Mr. Russ said that 

he explained to the petitioner that the location where the stolen property was discovered 

was “proper jurisdiction” for a theft charge. He said that the petitioner’s claim that 

Davidson County lacked subject matter jurisdiction to charge him with the weapons 

offense lacked merit because the petitioner was arrested in Davidson County in 

possession of a weapon. Mr. Russ said that he did not challenge the sufficiency of the 

evidence supporting the felon in possession conviction because he “felt that the evidence 

was probably sufficient as well as the fact that we had much better issues regarding a 

more serious charge, theft, than we did regarding the handgun.”

As to the petitioner’s allegation that Mr. Russ performed deficiently by 

failing to bring a Confrontation Clause challenge to the trial court’s allowing the State to 

present the affidavit of a State’s witness, Mr. Russ said that he did include that issue on 

appeal. He said the issue was also raised in the motion for new trial.

After Mr. Russ left the stand, the petitioner noted that none of the witnesses 

he had subpoenaed on the issue of subject matter jurisdiction were present. The postconviction court stated that the witnesses were not there because they were not relevant to 

those issues that the petitioner was permitted to address via a claim for post-conviction 

relief. The court then continued the hearing so that the petitioner could secure the 

testimony of Jack Byrd, one of the attorneys who represented him prior to trial.

Mr. Byrd testified that he was originally appointed to represent the 

petitioner in May 2012 and that he was permitted to withdraw from the case after the trial 

court determined that the petitioner had forfeited the right to appointed counsel. Mr. 

Byrd said that he did not request funds for an expert to value the comic books stolen by 

the petitioner despite the petitioner’s request that he do so, explaining that, by that time, 

the “comic books were no longer in the possession of the State, so there was no way that 

an appraisal could be done of each comic book. So that would have been a moot motion 

to even try to attempt.” Mr. Byrd said that, based upon his own research, he learned that 

“the only way to do an accurate appraisal of those comic books would be to have the 

actual comic book in hand and to be able to assess the value of it.” Mr. Byrd explained 

that he could not have obtained the comic books for the purpose of having them 

appraised because, as he understood it, “some of those comic books had been traded, 

sold, and other things. So they would not be obtainable.” He agreed that all of the stolen 

comic books had been returned to the victim.
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During cross-examination by the State, Mr. Byrd said that, prior to 

becoming an attorney, he “was a command criminal investigator in the United States 

military” and that, after leaving the military, he worked as a private investigator for some 

13 years. He said that, utilizing the skills he garnered as an investigator, he attempted to 

ascertain the value of the comic books but soon learned that an appraisal of the comic 

books could not be performed without having possession of the actual books that were 

taken. He said that he obtained funds to hire a handwriting expert and that, before being 

relieved as counsel of record, he consulted with the handwriting expert he hired. He said 

that he did not ask for funds to hire an investigator because he already has an investigator 

with whom he works when he is unable to perform investigations on his own.

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

under advisement. In its order denying post-conviction relief, the post-conviction court 

meticulously detailed the history of the case, including the sheer volume of lengthy pro se 

pleadings filed by the petitioner in the post-conviction court, another Davidson County 

Criminal Court, and our supreme court. The history provided by the court also details the 

petitioner’s inability to effectively communicate with any of the attorneys that have 

previously been appointed to represent him. The post-conviction court concluded that all 

claims regarding ineffective assistance of counsel at trial were pretermitted by the trial 

court’s decision that the petitioner forfeited the right to appointed counsel, a decision that 

was affirmed by this court on direct appeal. As such, the court concluded, the petitioner 

could only raise those claims of ineffective assistance of counsel directed at those 

attorneys who represented him prior to and after his trial. Of those claims directed at 

counsel who had represented him prior to trial, the post-conviction court observed that 

most qualified as either waived or previously determined. Specifically, the court 

concluded that petitioner’s claims regarding his counsel’s handling of the seized evidence 

was previously adjudicated at trial and on appeal. The court further found that the 

petitioner’s claims of “prosecutorial misconduct,” which might otherwise have been 

cognizable in a post-conviction proceeding, were “simply reframing the same issue 

addressed during the suppression hearing and direct appeal,” and, as such, were 

previously determined.

The post-conviction court found that Mr. Byrd’s failure to request funds to 

hire an expert to appraise the stolen comic books did not amount to deficient 

performance. The court accredited Mr. Byrd’s testimony that an accurate appraisal was 

impossible because the books were no longer in the possession of the victim or the State. 

The court found that the proof adduced at trial confirmed that not all the books were 

available because “many books were not recovered and some of the recovered books had 

sustained damage so their value could not be accurately assessed.” The post-conviction 
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court also observed that the petitioner had failed to submit any evidence at the evidentiary 

hearing suggesting that the valuation of the comic books was erroneous.

The post-conviction court accredited Mr. Russ’s testimony and found that 

“he made [] reasonable strategic decisions when determining which issues should be 

raised in the direct appeal.” The court observed that the petitioner’s claim that Mr. Russ 

failed to challenge the admission of certain testimony was belied by the record, which 

showed that the issue was fully litigated at trial and on direct appeal.

In this timely appeal, the petitioner alleges that the post-conviction court 

erred by requiring him to proceed pro se, by refusing to permit him to orally amend his 

petition at the evidentiary hearing, and by concluding that many of his claims for postconviction relief were either waived or previously determined. The petitioner also 

contends that the State engaged in prosecutorial misconduct by seeking a second 

superseding indictment in his case and that he was deprived of the effective assistance of 

counsel on direct appeal.

We view the petitioner’s claims with a few well-settled principles in mind. 

Post-conviction relief is available only “when the conviction or sentence is void or 

voidable because of the abridgment of any right guaranteed by the Constitution of 

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A postconviction petitioner bears the burden of proving his or her factual allegations by clear 

and convincing evidence. Id. § 40-30-110(f). On appeal, the appellate court accords to 

the post-conviction court’s findings of fact the weight of a jury verdict, and these findings 

are conclusive on appeal unless the evidence preponderates against them. Henley v. 

State, 960 S.W.2d 572, 578-79 (Tenn. 1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. 

Crim. App. 1997). By contrast, the post-conviction court’s conclusions of law receive no 

deference or presumption of correctness on appeal. Fields v. State, 40 S.W.3d 450, 453 

(Tenn. 2001).

A. Forfeiture of the Right to Counsel

The petitioner first asserts that the post-conviction court erred by 

determining that he had forfeited his right to appointed counsel and requiring him to 

proceed pro se.

A brief history of the petitioner’s prior behavior toward his appointed 

attorneys is in order at this juncture. As we detailed in our opinion on direct appeal, the 

petitioner behaved abhorrently toward the attorneys who were appointed to represent him 

prior to the trial court’s determination that he had forfeited the right to appointed counsel 

at trial. Although the trial court provided limited information regarding the reasons that 
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the petitioner’s first two attorneys, Jessamine Grice and Graham Pritchard, were 

permitted to withdraw, the record established that the trial court permitted attorney Paul 

Walwyn to withdraw after the petitioner became verbally abusive to Mr. Walwyn’s staff. 

See Timothy Damon Carter, slip op. at 2-4.

The trial court then appointed Mr. Byrd. Shortly thereafter, Mr. Byrd 

reported to the court that the petitioner refused to cooperate with Mr. Byrd’s trial 

preparation. A few days later, Mr. Byrd moved to withdraw, but the trial court denied the 

motion despite that, among other things, the petitioner “spat at Mr. Byrd after the

suppression hearing held on September 4, 2012.” Id., slip op. at 5. One month later, Mr. 

Byrd again moved to withdraw, and the trial court granted the motion. The court ruled 

that the petitioner would be required to represent himself with Mr. Byrd acting as elbow 

counsel.

Three months later, the petitioner moved the court to reappoint Mr. Byrd as 

his counsel. The trial court denied the motion and concluded that the petitioner had 

forfeited the right to appointed counsel by his “extremely serious misconduct.” In 

support of its ruling, the trial court found that the petitioner “refused to cooperate with 

any of his appointed counsel and filed complaints against them with the Consumer

Assistance Program Board of Professional Responsibility”; that the petitioner spat on Mr. 

Byrd following a suppression hearing; and that the petitioner made threats “to Mr. Byrd, 

his family, and his law office staff,” including a threat “to ‘slash’ Mr. Byrd in court 

should he continue as counsel on the case.” The court also found that the petitioner was 

attempting to delay his trial by repeatedly requesting counsel and then asking to proceed 

pro se.

This court affirmed the trial court’s ruling on direct appeal:

Even though the forfeiture of counsel occurred prior to 

trial, based on these facts, we conclude that the [petitioner’s]

behavior was “sufficiently egregious to support a finding that

he forfeited his right to counsel” and in such a situation, the 

trial court had no other choice than to conclude that the 

[petitioner] had forfeited his right to counsel. Due to 

numerous delays caused by the [petitioner], this case was not 

tried until three years after the crime was committed. The 

[petitioner] was uncooperative or refused to participate in 

multiple proceedings, and he repeatedly demanded that he be 

appointed a new attorney or be allowed to represent himself. 

The [petitioner’s] threatening and abusive behavior towards 

his attorneys and their staff seemed to escalate with each new 
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appointment of counsel. Indeed, the [petitioner] sp[a]t on his 

fourth attorney and threatened to physically assault him on 

multiple occasions. In such a situation, the trial court would 

be hard-pressed to appoint a fifth attorney without serious 

concern for his or her safety.

Id., slip op. at 6.

Against this backdrop, the post-conviction court appointed counsel to 

represent the petitioner as part of its preliminary order. Within a very short period of 

time, the petitioner inundated appointed counsel’s office with correspondence “directing 

[counsel] to do very different things,” none of which directives counsel could even 

understand. Appointed counsel also indicated that the petitioner had asked her to 

withdraw so he could represent himself. The post-conviction court granted counsel’s 

motion to withdraw but offered to appoint another attorney should the petitioner desire 

one. The petitioner replied, “I’m asking that this court allow me to be pro se so I can 

guard my federal and state constitution within my post-conviction,” but asked the court to 

appoint elbow counsel. When the court refused to appoint elbow counsel, the petitioner 

expressed a desire to have counsel appointed but threatened “to go to the Board again” on 

any person appointed as counsel who failed to communicate with him. Within three 

months, newly appointed post-conviction counsel moved to withdraw, citing the 

petitioner’s threats of “action in the Federal courts and with complaint to the Tennessee 

Board of Professional Responsibility if Petitioner’s directives are not made.” The 

petitioner acknowledged threatening to “contact Federal Court and make them command”

newly appointed counsel to comply with his demands. Based upon the petitioner’s welldemonstrated unwillingness to work with any attorney, the post-conviction court 

concluded that the petitioner had forfeited his right to appointed counsel.

Although there is no constitutional right to counsel in post-conviction 

proceedings, see House v. State, 911 S.W.2d 705, 712 (Tenn. 1995), the Post-Conviction 

Procedure Act includes a statutory right to counsel, see T.C.A. § 40-30-107(b)(1). “The 

appointment of counsel assists in ensuring that a petitioner asserts all available grounds 

for relief and fully and fairly litigates these grounds in a single post-conviction 

proceeding.” Leslie v. State, 36 S.W.3d 34, 38 (Tenn. 2000); see also Frazier v. State, 

303 S.W.3d 674, 680 (Tenn. 2010) (emphasizing “that a post-conviction petitioner does 

not stand in the same shoes as the criminally accused” and stating that “the petitioner 

seeking post-conviction relief is entitled to counsel ‘not to protect them from the 

prosecutorial forces of the State, but to shape their complaints into the proper legal form 

and to present those complaints to the court’” (citation omitted)). The statutory right to 

counsel, and indeed the entire post-conviction process itself, “may be denied to a 

petitioner who abuses the post-conviction process.” Leslie, 36 S.W.3d at 39 (citing Cazes 
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v. State, 980 S.W.2d 364, 365 (Tenn. 1998)).

Our standard of review of the trial court’s determination that the postconviction petitioner forfeited his statutory right to counsel “is whether the trial court 

abused its discretion in . . . requiring the petitioner to proceed without counsel.” Leslie, 

36 S.W.3d at 37-38.

Initially, the post-conviction court appointed counsel to represent the pro se 

petitioner following the filing of his timely petition for post-conviction relief. Despite the 

appointment of counsel, the petitioner continued to file pro se pleadings in the postconviction court.1

 Just over a month following the entry of the order, appointed counsel 

moved to withdraw at the petitioner’s behest. Unlike the court in Leslie, the postconviction court held a hearing on the motion to determine whether the petitioner, in fact, 

wanted to proceed pro se. See Lovin v. State, 286 S.W.3d 275, 285 (Tenn. 2009) (“While 

the constitutional right to self-representation does not apply to post-conviction 

proceedings, both the statutes authorizing the appointment of counsel in post-conviction 

proceedings and the rules implementing these statutes recognize that prisoners have the 

right of self-representation in post-conviction proceedings.”). Appointed counsel 

testified that, within the short time since her appointment, she had been inundated with 

correspondence from the petitioner directing her to act and that, by and large, she was 

unable to discern the petitioner’s desires. She said that, ultimately, it was her 

“understanding that [the petitioner] wanted to represent himself in this matter, and he 

asked me to withdraw.” The petitioner spent the bulk of the hearing arguing with the 

post-conviction court about those grounds for relief that would be cognizable in the postconviction proceeding. He initially asked to represent himself, acknowledging that he 

had asked appointed counsel to withdraw. He then asked for elbow counsel. When the 

court refused to appoint elbow counsel, the petitioner agreed to the appointment of 

counsel but immediately threatened “to go to the Board” on any attorney that did not 

communicate with him in the manner he desired. The second attorney appointed to 

represent the petitioner likewise moved to withdraw in short order, noting that the 

petitioner had threatened her with action in federal court if she did not comply with his 

demands. The petitioner acknowledged the threat, and, at that point, the post-conviction 

court concluded that the petitioner’s past behavior indicated that he was “not going to 

cooperate with anybody.”

In our view, the record fully supports the conclusion of the post-conviction 

court that the petitioner forfeited his statutory right to counsel. The petitioner’s behavior 

toward his appointed counsel during the post-conviction proceeding was essentially an 

 

1

Indeed, the sheer volume of pro se pleadings, most of which are accompanied by repetitive and 

irrelevant exhibits, is substantial. The petitioner’s pro se petition and exhibits totaled more than 350 

pages.
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extension of his behavior toward his appointed counsel during the trial proceeding. The 

petitioner simply failed to grasp the concept that appointed “[c]ounsel is in no way 

obligated to comply with a petitioner’s demands to investigate or pursue unreasonable or 

frivolous claims.” Leslie, 36 S.W.3d at 38. We cannot say that the post-conviction court 

abused its discretion by refusing to continue appointing attorneys to represent the 

petitioner given the history in this case. Consequently, the petitioner is not entitled to 

relief on this issue.

B. Amendment of Petition

The petitioner next contends that the post-conviction court erred by 

refusing to permit him to orally amend his petition at the evidentiary hearing to add a 

claim that his counsel performed deficiently by failing to adequately litigate a Fourth 

Amendment claim prior to trial. We need not tarry long over the petitioner’s claim 

because, although the post-conviction court “may allow amendments and shall do so 

freely when the presentation of the merits of the cause will otherwise be subserved,”

Tenn. R. Sup. Ct. 28, §8, the post-conviction court is under no duty to allow the addition 

of an issue that is not cognizable in a post-conviction proceeding or that is clearly without 

merit.

The petitioner’s counsel moved to suppress the evidence seized from his 

car on a number of constitutional grounds, including the one that the petitioner claims 

counsel failed to adequately litigate, and the trial court denied the motion. See Timothy 

Damon Carter, slip op. at 9-12. Counsel then moved for a rehearing on the motion to 

suppress, and the trial court again refused to suppress the evidence. See id., slip op. at 

12-14. Mr. Russ included the denial of the motion to suppress as an issue on appeal, and 

this court affirmed the ruling of the trial court:

We conclude that: (1) the comic books were in plain 

view; (2) Officer Eubank had a right to be in the 

condominium complex and standing next to the [petitioner’s]

vehicle when he viewed the comic books; and (3) the 

incriminating nature of the comic books was immediately 

apparent. Detective Eubank’s observation of the comic books 

in plain view gave him probable cause to believe that the 

[petitioner’s] vehicle contained stolen property, and thus, the 

seizure of the vehicle pursuant to the automobile exception 

was justified.

As to the [petitioner’s] argument that, pursuant to 

Tennessee Code Annotated section 6-54-301, Detective 
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Eubank was operating outside the parameters of his 

jurisdiction and his authority as a police officer, we agree 

with the trial court’s conclusion that this statutory violation is 

not a violation of the [petitioner’s] constitutional rights, 

rendering the exclusionary rule inapplicable. The trial court 

did not err when it denied his motion to suppress.

Id., slip op. at 29 (citations omitted).

Consequently, as a stand-alone ground for relief, the petitioner’s challenge 

to the search of his vehicle qualifies as having been previously determined and, as such, 

he cannot raise it in a post-conviction petition. See T.C.A. § 40-30-106(h) (“A ground 

for relief is previously determined if a court of competent jurisdiction has ruled on the 

merits after a full and fair hearing. A full and fair hearing has occurred where the 

petitioner is afforded the opportunity to call witnesses and otherwise present evidence, 

regardless of whether the petitioner actually introduced any evidence.”). Moreover, 

because nothing suggests that the validity of the search was anything other than fully and 

fairly litigated, the “presentation of the merits of the cause” would not “otherwise be 

subserved” by the trial court’s refusal to allow the addition of this issue couched in terms 

of ineffective assistance of counsel.

C. Trial Court Errors

The petitioner next asserts that the post-conviction court erred by 

concluding that his “pro se motions were waived because he represented himself at trial.” 

Initially, it is not clear to which pro se motions the petitioner is referring. As indicated, 

the petitioner filed numerous pro se pleadings in the post-conviction court. Additionally, 

at the hearings on the removal of counsel and the evidentiary hearings, the petitioner 

made more than one reference to both the post-conviction court’s ruling on some of his 

pro se pleadings prior to the hearing and the trial court’s refusal to rule on some of his pro 

se pleadings prior to trial. To the extent that the petitioner is referring to the postconviction court’s failure to rule on his pro se pleadings prior to the evidentiary hearing, 

the petitioner has failed to establish that any omission by the post-conviction court inured 

to his detriment. To the extent that the petitioner is referring to the trial court’s failure to 

rule on pro se pleadings filed prior to trial, any claim of error in this regard that occurred 

prior to trial has been waived by the petitioner’s failure to present it as a ground for relief 

on direct appeal. See T.C.A. § 40-30-106(g) (“A ground for relief is waived if the 

petitioner personally or through an attorney failed to present it for determination in any 

proceeding before a court of competent jurisdiction in which the ground could have been 

presented . . . .”).
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Similarly, the post-conviction court did not err by concluding that the 

petitioner’s claim that the district attorney general committed prosecutorial misconduct 

by obtaining a superseding indictment was waived by his failure to present it as a ground 

for relief on direct appeal.

D. Ineffective Assistance of Counsel

Before a petitioner will be granted post-conviction relief based upon a 

claim of ineffective assistance of counsel, the record must affirmatively establish, via 

facts clearly and convincingly established by the petitioner, that “the advice given, or the 

services rendered by the attorney, are [not] within the range of competence demanded of 

attorneys in criminal cases,” see Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), and 

that counsel’s deficient performance “actually had an adverse effect on the defense,” 

Strickland v. Washington, 466 U.S. 668, 693 (1984). In other words, 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. at 694. Should the 

petitioner fail to establish either deficient performance or prejudice, he is not entitled to 

relief. Id. at 697; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Indeed, “[i]f it is 

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, 

. . . that course should be followed.” Strickland, 466 U.S. at 697.

When considering a claim of ineffective assistance of counsel, a reviewing 

court “begins with the strong presumption that counsel provided adequate assistance and 

used reasonable professional judgment to make all significant decisions,” Kendrick v. 

State, 454 S.W.3d 450, 458 (Tenn. 2015) (citing Strickland, 466 U.S. at 689), and “[t]he 

petitioner bears the burden of overcoming this presumption,” id. (citations omitted). We 

will not grant the petitioner the benefit of hindsight, second-guess a reasonably based trial 

strategy, or provide relief on the basis of a sound, but unsuccessful, tactical decision 

made during the course of the proceedings. Adkins v. State, 911 S.W.2d 334, 347 (Tenn. 

Crim. App. 1994). Such deference to the tactical decisions of counsel, however, applies 

only if the choices are made after adequate preparation for the case. Cooper v. State, 847 

S.W.2d 521, 528 (Tenn. Crim. App. 1992).

1. Prior to Trial

The petitioner contends that he was deprived of the effective assistance of 

counsel prior to trial because his counsel failed to challenge the validity of the search 

warrant based upon the absence of a judge’s signature on the warrant, failed to dismiss 

the superseding indictment for violation of the rule of mandatory joinder, failed to request 

grand jury materials, failed to file a motion for a bill of particulars, failed to seek a 
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change of venue, failed to file a motion for alibi, failed to request funds to hire an expert 

to appraise the stolen comic books, and failed to subpoena a witness to the hearing on the 

motion to suppress.

As indicated above, although the petitioner’s claims of ineffective 

assistance of counsel relative to the handling of the motion to suppress the evidence 

seized from his car have not been waived or previously determined, the underlying claims 

have been fully and fairly litigated. No evidence suggests that counsel could have done 

anything more. Consequently, the petitioner is not entitled to relief on this issue.

The petitioner’s claims regarding counsel’s failure to file motions with 

regard to venue, alibi, and a bill of particulars are utterly unsupported by evidence in the 

record, citation to authorities, or argument. The petitioner’s claim that counsel performed 

deficiently by failing to seek dismissal of the superseding indictment is also unsupported 

by evidence, authorities, or argument. Accordingly, these claims are waived. See Tenn. 

Ct. Crim. App. R. 10(b). Additionally, the petitioner’s claim regarding joinder is 

completely without merit because the petitioner was charged with only one theft offense.

As to the petitioner’s claim that counsel performed deficiently by failing to 

seek funds for an expert appraisal of the stolen comic books, Mr. Byrd’s accredited 

testimony established that he did not seek funds for an expert appraisal because the comic 

books were not available for appraisal. Additionally, the post-conviction court observed 

that many of the comic books sustained damage that affected their value. Under these 

circumstances, the petitioner failed to establish that counsel performed deficiently.

2. Post-Trial

The petitioner asserts that his counsel performed deficiently by failing to 

file a motion for arrest of judgment based upon the lack of subject matter jurisdiction. 

The petitioner presented no evidence on this claim at the evidentiary hearing. Mr. Byrd 

did testify that the petitioner asked him to add a claim challenging the subject matter 

jurisdiction to the motion for new trial and that he unsuccessfully attempted to explain to 

the petitioner why that claim lacked merit. The petitioner’s confusion arises from the fact 

that although he originally took the comic books from the victim’s residence in 

Rutherford County, the stolen comic books were seized in Davidson County, and he was 

subsequently prosecuted in Davidson County. The jurisdictional question, as framed by 

the petitioner, is actually a claim of improper venue. Although our state constitution 

“provides that an accused must be tried in the county in which the crime was committed,” 

the State need only establish venue, and thereby the jurisdiction of the trial court, by a 

preponderance of the evidence. State v. Young, 196 S.W.3d 85, 101-02 (Tenn. 2006)

(citations omitted). Moreover, “[v]enue is a question for the jury,” and “the jury is 
-15-

entitled to draw reasonable inferences from the evidence” when determining venue. Id.

(citations omitted). “Importantly, where different elements of the same offense are 

committed in different counties, ‘the offense may be prosecuted in either county.’” Id.

(citing Tenn. R. Crim. P. 18(b)).

Theft is committed by knowingly obtaining or exercising control over 

property without the owner’s consent. See T.C.A. § 39-14-103(a). In this case, although 

the petitioner obtained the comic books from the victim’s residence, he clearly exercised 

control over the comic books when they were inside his car in Davidson County. 

Because some elements of the theft offense were committed in Davidson County, the 

offense was properly prosecuted in Davidson County. Because the offense was properly 

prosecuted in Davidson County, counsel did not perform deficiently by failing to seek an 

arrest of judgment on the basis of a lack of jurisdiction.

The petitioner also asserts that his counsel performed deficiently by failing 

to obtain certified copies of his prior convictions for use at the sentencing hearing and 

that he was prejudiced because “he received an illegal career offender sentence.” 

Unfortunately for the petitioner, however, he represented himself at the sentencing 

hearing and, as such, cannot present a claim of ineffective assistance of counsel for 

anything related to his sentence. Moreover, as we noted on direct appeal, “the State 

offered the presentence report and certified copies of the [petitioner’s] convictions,” 

which established that the petitioner “had previously been convicted of: two counts of 

burglary, three counts of aggravated burglary, two counts of aggravated robbery, one 

count of felony possession of a weapon, one count of theft of property valued at over 

$10,000, one count of theft of property valued at over $1,000, and one count of 

aggravated assault.” Timothy Damon Carter, slip op. at 21. Thus, the petitioner was 

properly sentenced as a career offender.

3. Appeal

The petitioner claims that Mr. Russ performed deficiently by failing to 

challenge the subject matter jurisdiction of the Davidson County Criminal Court on 

appeal. As discussed above, there is no merit to the petitioner’s claim of lack of 

jurisdiction.

The petitioner also claims that Mr. Russ performed deficiently by failing to 

challenge on appeal the trial court’s failure to issue a ruling on the petitioner’s pro se 

pretrial motions and the sufficiency of the convicting evidence for his conviction of being 

a felon in possession of a firearm.
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Mr. Russ testified that he reviewed the record in this case and raised only 

those issues he believed to be meritorious on appeal. Specifically, Mr. Russ testified that 

he did not challenge the sufficiency of the evidence for the weapons conviction because it 

was his opinion that the evidence was sufficient to support the petitioner’s conviction for 

that offense. As to the petitioner’s pro se pretrial motions, Mr. Russ said that he did not 

include that as an issue because the filings at issue were simply a rehashing of “what [the 

petitioner’s previous counsel] had done regarding the suppression issues and had already 

had two hearings in front of the Court about it” and that he had adequately addressed 

those issues in his appellate brief.

“Counsel is not constitutionally required to argue every issue on appeal,” 

State v. Matson, 729 S.W.2d 281, 282 (Tenn. Crim. App. 1986) (quoting State v. 

Swanson, 680 S.W.2d 487, 491 (Tenn. Crim. App. 1984)), and, “[e]xperienced advocates 

since time beyond memory have emphasized the importance of winnowing out weaker 

arguments on appeal and focusing on one central issue if possible, or at most on a few 

key issues,” Jones v. Barnes, 463 U.S. 745, 751-52 (1983). The determination to raise or 

forego an issue on appeal is a matter “generally within appellate counsel’s sound 

discretion,” Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004) (citing Jones, 463 

U.S. at 751; King v. State, 989 S.W.2d 319, 334 (Tenn. 1999); Cooper v. State, 849 

S.W.2d 744, 747 (Tenn. 1993)), and, as a result, counsel’s decision in this regard “should 

be given considerable deference” on appeal, Carpenter, 126 S.W.3d at 887 (citing 

Campbell v. State, 904 S.W.2d 594, 597 (Tenn. 1995); Strickland, 466 U.S. at 689).

Typically, to determine whether the petitioner is entitled to relief based 

upon counsel’s failure to raise an issue on appeal, this court must examine the merit of 

the omitted issue. As to the petitioner’s claim that Mr. Russ should have challenged the 

sufficiency of the evidence supporting his weapons possession conviction, we observe 

that the evidence was more than sufficient to support that conviction. During the search 

of the vehicle registered in the petitioner’s name, authorities discovered the victim’s 

stolen comic books, “a vehicle registration and cell phone bill, both listing the 

[petitioner’s] name,” and “a gun in the engine compartment of the vehicle,” which “gun 

was shown to the jury and entered into the record as evidence.” Timothy Damon Carter, 

slip op. at 20. Elaine Ragan, an employee of the criminal court clerk’s office “identified 

a certified copy of the [petitioner’s] prior conviction for a felony in case number 2004-B1762, Theft of Property, a Class C Felony.” Id., slip op. at 21. Under these 

circumstances, Mr. Russ did not perform deficiently.

As to the petitioner’s claim that counsel should have challenged the trial 

court’s failure to rule on his pro se pretrial motions, we observe, as we did above, it is 

unclear from the record exactly to which motions the petitioner, a prolific filer of a 

variety of pleadings, refers. Moreover, the petitioner’s questioning of Mr. Russ 
-17-

established that Mr. Russ did not believe that the court’s failure to rule on any of the pro 

se motions presented a viable issue on appeal, and the petitioner presented no evidence to 

suggest otherwise. Under these circumstances, the petitioner cannot establish that Mr. 

Russ performed deficiently.

Finally, the petitioner contends that Mr. Russ performed deficiently by 

failing to challenge the admission of an affidavit from Tamara Cain, an accountant at one 

of the businesses to which the petitioner sold the victim’s comic books and from which 

the victim was able to repurchase some of his stolen comic books, on grounds that 

admission of the affidavit violated the Confrontation Clause. At trial, the State presented 

a receipt for the sale of the comic books to a business called Metropolis that bore the 

petitioner’s name along with an affidavit by Ms. Cain establishing that the receipt was a 

business record from Metropolis. The petitioner did not object to the admission of the 

affidavit or receipt at trial. On appeal, the petitioner challenged the admission of the 

affidavit and accompanying receipt on hearsay grounds but did not challenge them on 

Confrontation Clause grounds. Such a challenge would not have availed the petitioner of 

relief. The receipt, once properly qualified as a business record, was not testimonial and, 

as such, the Confrontation Clause had no application to its admission into evidence. See

State v. Cannon, 254 S.W.3d 287, 303 (Tenn. 2008).

Conclusion

Based upon the foregoing analysis, we affirm the judgment of the postconviction court.

_________________________________ 

JAMES CURWOOD WITT, JR., JUDGE