# FILED

October 1, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON APRIL 1997 SESSION

DAVID FLOYD, ) NO. 02C01-9604-CC-00123 ) Appellant ) DYER COUNTY ) V. ) HON. JOE G. RILEY, JU DGE ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee ) )

FOR THE APPELLANT FOR THE APPELLEE William K. Randolph John Knox Walkup P.O. Bo 611 Attorney General and Repor ter Dyersburg, Tennessee 38025- 0611 450 James Robertson Parkwa y Nashville, Tennessee 37243-0493 Janis L. Turner Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, Tennessee 37243-0493 C. Phillip Bivens District Attorney General P.O. Box E Dyersburg, Tennessee 38025

OPINION FILED:______

AFFIRMED

William M. Barker, Judge2 Opinion The appellant, David Floy d, appeals as of right the judg ment of the Dyer County Circuit Cour

t dismissing his petition for post-conviction relief. He argues on appeal that he was unconstit utionally denied his r ight to effective assistanc e of counsel because of his trial counsel’s failure to interview potential defe nse witnesses, failure to peremptorily c hallenge a juror, and failur e to provide the appellant w ith a copy of the trial transcr ipt for appellate purposes. We have rev iewed the record upon appeal and, finding no rever sible error, affirm the tri al court’s dismissal o f the petition. On May 4, 1993, the appellant was found guilty by a jury of his peers of theft of property over the v

alue of one thousand dollars ($1,000) , a Class D felony. He was sentenced to a term of seven y ears and six months incar ceration as a Range II multiple offender. His sentence w as ordered to be served c onsecutively to pri or unrelated sentences. The appellant thereafter appealed his convi ction to this Court. A panel of this Court affirmed the tri al court. State v. Da vid Floyd , C.C.A. No. 02C01- 9311-CC-00265 (Tenn. Crim. Ap p., Jackson, May 4, 1994) . No application for permission to appeal was filed in the supreme court. Ho wever, on September 5, 1995, the appellant filed his petition for post-conviction relief. After the appointment of counsel, the trial court conducted an evidentiary hearing and, by order entered November 22, 1995, dismissed the petition. In reviewing an appellant’s Sixth Amendment cl aim of ineffective assistance of counsel, this Court must det ermine whether the advi ce given or serv ices rendered by the attorney were w

ithin the range of competency demanded of attorneys in crimina l

cases. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a claim of ineffective counsel, a petitio ner “must show that counsel ’s representation fell below an objective standard of reasonab leness” and that this performanc e prejudiced the defense. There must be a reasonable pro bability that but for counsel’s error the result of the proceeding would hav e been different. Strickland v. Washington , 466 U.S. 668,3

687-88, 692, 694, 104 S. Ct. 2053, 2064, 2067-68, 80 L. Ed. 674 (1984); Best v. State , 708 S.W.2d 421, 422, (Tenn. Crim. App. 1985). The appellant first argues that his attorney was i neffective because he failed to exclude a potential juror who was a prison g uard at the penitentiary w here the appellant was incarcer

ated. The evidence presented at the post-conviction heari ng revealed that the appellant’ s trial counsel had planned t o exclude the prison gu ard, using his last remaini ng peremptory challeng e. After consulting wi th the appellant, however, the appellant’ s trial counsel allow ed the prison guard to remai n on the jury. Although appellant’s tri al counsel had no specific memory of his conversation with the appella nt regardi ng the pris on guard a s a juror, h e testif ied that he would ha ve excused the guard if his client had wanted him excused. The trial court correctly held that tactical decisions, such as this one, are not subj ect to post-conviction challenges. Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). The appellant next argues th at his trial counsel w as ineffective in that he failed to adequately prepare for t rial by not interv iewing all potential

defense witnesses. The appellant testified that he furnished his counsel with the na mes of four potential defense witnesses but none of them w ere called to testify on hi s behalf at trial. Appellant’s counsel interviewed all potential witnesses and the witnesses who were not called to testify prov ided testimony that was either irrelevant or

damaging to the appellant’s case. In fact, one of the witnesses testified for the State. Moreover, ev en were we to assume arg uendo that appellant’s counsel fail ed to interview all potential witnesses, the appellant did not introduce those wi tnesses’ testimony at the postconviction hearing. Without that testimony in the record, w e cannot determine whether the appellant w as prejudiced by their

failure to testify at tri al. See Wad e v. State , 914 S.W.2d 97, 102 (Tenn. Crim. App. 1995); Black v. State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).4 Finally, the appellant argues that his attorney was ineffective for failing to send him the trial transcript so that the appellant could prepare his pro se application for permission to appeal to the Tenness ee Supreme Court. For the same r eason, the appellant also requests a delayed appeal. After the appell ant’s counsel was permitted by this Court to withdraw from further repres entation, he sent a package to t he appellant which included the brief filed in this Court setting forth the relev

ant facts and issues raised on direct appeal. Additionally, c ounsel furnished the appellant w ith a form motion for the appellant to file in the supreme court, if he chose, see king an extension of time within which to file his application. Appellant, however, did not file the motion. The appellant’s counsel did not send the appellant a copy of the trial transcript. Even though the appellant’s counsel may have erred by not sending the transcript, the appellant ha s failed to show that he w as prejudiced. The brief forwarded to the appellant cont ained all the necessary facts and legal issues that the appellant needed in order to file a petition seeking permis sion to appeal to the Tennessee Supreme Court. See Tenn. R. App. P. 11(b). Mor eover, since the appellant never filed the moti on requesting an extens ion of time to file his petition for permission to appeal, the appell ant has failed to show that he w as prejudiced. For the same reason, we are not inc lined to permit the appellant t o proceed under T.R.A.P. 11 by withdrawing

our previously ent

ered opinion of May 4, 1994, and r e-entering it as of the date of this opinion. Accordingly, the deni al of the appellant’s post-conv iction petition is affirmed.5 __________________________ WILLIAM M. BARKER, JUDGE CONCUR:

__________________________ JOSEPH M. TIPTON, JUDGE

__________________________ DAVID G. HAYES, JUDG E