S o m e o f th e in d ic tm e n ts a n d ju d g m e n t sh e e ts a re n o t i n c lu d e d in th e a p p e llate re c o rd ; t h e re fo re , w e re ly to 1

s om e ext ent on i nf or m at i on c ont ai ned i n t he t r ans cr i pt of t he gui l t y pl ea he ar i ng. 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT JAC KSON A ssi gne d on Br ie fs S ep te mb er 9, 200 8
MA RV IN C ATR ON v. ST ATE OF TEN NES SEE

Direc t Appeal from the Cr iminal Cou rt f or Shelby Coun ty No. P-25666 John T. Fowlkes, Jr., Jud ge

No. W2007-02408-C CA-R 3-PC - Filed October 6, 2008

The pe titioner, Marvin Catron, pled guilty to eig hteen va

rious felony

char g es i n exchang e for a sentenc e of fifty

y ear s serve d at 100%. The rea fter, the petitioner filed f or post-convic tion relief, alleg ing that his trial counsel was inef fec tive. After an evidentiar y hear ing, the post-conviction cour t denied his petition, and we aff irm that judgme nt. Tenn. R. App . P. 3 Appeal as of Right; Judgment of the Cr iminal Cou rt A ffirm ed

A LA N E. G LE NN , J., delivere d the opinion of the court, in which N OR MA M C G EE O GLE and C AM I LLE R. M C M ULLEN , JJ., joined.

Brett B. St ein, Memphis, Tenne ssee, f or the a ppellant, Marvin Catron. Robert E. Cooper, Jr ., Attorney Ge nera l and Reporter ; Elizabeth B. Marne y, Assistant Attorney Gene ral; William L. Gi b b o n s , District Attorney Ge nera l; and Trac ye Jones, Assistant District Attorney Ge nera l, for the a ppellee, State of

Tenne ssee.

OP IN ION

F AC TS

On September 21, 2000, the petitioner pled g uilty to thr ee counts of attempted f irst deg ree murder, two c ounts of especially ag g ravated robbery , nine counts of agg ravated robbe ry , one count of attempted a g g rava

ted robbe ry , one count of

espec ially ag g ravated ki dnapping , and two counts of ag g ravated assault. At the plea hear ing, the State summarized the nine sepa rate fac tual situations 1 g ivi ngri se to t

he pe tit ion e r’ s p le a s a s f

oll ow s: [ O] nFr i d ay , J u n e 4 , 1 9 9 9 , ab o u t 1 1 : 2 0 p

. m

. , W i l l i e S h i v er s s t o p p ed at t h e s t o p s i gn a t Will iam F ie lds , at Cle ve land , in Me mph is She lby County

. Tw o ma le s, arm e d w ith-2-

handg uns, approa ched Mr . Shivers[’] 1983 Chevrolet S-10 p ick-up, one from the driver’ s side and one f

rom the passeng er’ s side. The males made Mr. Shivers move to the cente r of the f

ront seat a

nd drove him off

. Mr. Shivers was dr iven to the 1100 block of Ag nus. The male that dr ove told the male that rode on the passeng er side to s ho ot M r. Shi ve rs if he did no t coo pe ra te . Mr. Shi ve rs wa s f

or c e d to ha

nd ov e r h is
mon e y and the n to take his c ov e ra lls of f, wh ic h th e mal es to ok

. The ma le s f le d in Mr. Shivers[’] work truc k, owned by Donald Micke ns.

. . . . [O] n Monday , J une 7, 1999 about 5:00 o’c lock p.m., Michae l Bothne

. . . was c losing the business that he own ed , M arrs I ncorpor ated . . ., located at 1001 Nor th Second Street, whe n he was approa ched by a male on the parkinglot. The male a sked Mr. B othne fo r a

dr ink of wate r i ns ide the bu ild ing , whi c h M r. B othne re fu se d. At thi s time the male display ed a silver handg un and order[ ed ] M r. Bothne ’s wallet a nd money , order ed him to hand them over . After g iving the ma le the wa llet, money and key s, the male fir ed two shots. Mr. B othne was struc k once in the r ight side. . . .

. . . . [O]n F ri da

y , M ay 26 , 1 99 9 at a

bo ut 8 :20 p. m., El on a

Sha rb ina e wa s atte mpt ingto enter the front door

of her home, locate d at 1943 L y ndale. She wa s approa ched by a lone male , arme d with a re volver. The male dema nded Ms. Sharbinae ’s purse a nd she re fused. A br ief strug g le ensue d and the male quickly g ained c on trol of her purse. As the male turne d to flee w ith her purse , he point ed his revolve r in the dir e c tio n o f M s. Sha

rb ina e ’s he a d a

nd fi re d a sh ot that str

uc k the ho us e

. Th e ma le ran to a n older model, da

rk colore d car

and fle d.

. . . . [O] n May 24, 1999 at about 9:50 p.m., Michael L ehr, . . . a nd his wife, Jenny

L ehr,
we re g e tti ngou t of the ir ve hic le a t 19 47 Cr ump wh e n th e y

we re a pp ro a c he d in

the ir dr ive wa y by a lon e ma le . T he ma le wa s arm e d w itha han dgun and de mand e d a ll the ir mon e y

. L e hr and his wi fe g a ve the ma le a purs e and a wa lle t c on ta ini ngc re dit
car ds and ca sh. The male took the items a nd as he was leaving turned a nd fired one shot striking Ms. L ehr in the ba ck.

. . . . [O] n May 22nd, 1999 at about 11:00 p.m., J oseph Will iams and Patrick Yoda wer e g ettin g in to th e ir v e h ic le a t 5 1 6 St o n e w a ll w h e n th e y w e r e a p p r o a c h e d b y a lone male, arme d with a handgun. The male pointed the g un at Wil liams and Yoda a nd-3-

demande d their wa llets. Both victim s g ave the male their wallets, which c ontained $35.00 cash. . . .

. . . . [ O ] nM ay 2 1 s t , 1 9 9 9 , ata b o u t1 1 : 5 0 p

. m

. , E v e r e t tL a f o n , . . . w a s i nh i s dr i v e w ay, located at 762 Holly , when approac hed by a lone male arme d with a handgun. The male put the g un to L afon’ s head a nd demande d his money . L afon g ave the male a wallet conta ining $250.00 c ash. . . .

. . . . [O] n Fr iday , May

21st, 1999 at about 8:25 p.m. Say wa rd E l y , . . . was in her drivewa y located a t 1970 Crump when she wa s approa ched b y a l o n e male armed wi th a re vo lve r. Th e ma le de mand e d Ms. Ely ’s purs e a s he co c ke d a g un

. Ms. El y told the ma le that she did not have a purse, a nd he g rabbe d a pair

of shoes out of he r hands and thre w them to the ground. Ms. Ely state[d] that she hea rd a “ click[,”] li ke the male pulled the tr igg er a nd t he we apon did not fire. T he male f led on foot and Ms. Ely ran into her

house and told her

mother, Alice Gibson[,] to call the police.

. . . . [O] n May 21st, 1999, L eonetta Bla ckwe ll wa s attempting to g o inside h er h o u se, loc a te d at 10 47 No rt

h A va lon wh e n s he wa s a

pp ro a c he d b y

a lon e ma le , arm e d w ith a handgun. The male demande d and took Blackwe ll’s purse, which contained $20.00 cash. . . .

. . . . [O] n May 21st, 1999 at about 9:00 o’cloc k p.m., Christian Denmon,

. . . was g etting out of the ca

r at 475 Nor

th McNea l, when she was approac hed by a lone male arme d wi th a ha nd g un . T he ma le de mand e d a nd too k D e nmo n’ s p ur se and a ll o f i t[s] contents. He also pointed a ha ndg un at J anet Williams and made her lay down d u r i n g t h e r o b b e r

y.

. . . . [O]n M ay 18 , 1 99 9 at a

bo ut 10: 05 p. m. To ny a Campb e ll Ma so n wa s att e mpt ingto g o inside her home at 933 North Willett, when she was a pproac hed by

a lone male , arme d with a g un. The male demande d and t o o k Mason’s purse , which conta ined $150.00 cash. . . .-4-

T h e p e t i t i o n e r

s u b s e q u e n t l y f

i l e d a t i m e l y pr o s e petition for post-conviction re lief, and, following the appointment of counsel, an amende d petition wa s filed. The post-convi ct i o n court conducte d an evide ntiary hear ing on two dates, Fe bruar y 17, 2 0 0 6 , an d April 6, 2006. At the hear ing, the petitioner testified that he met with counsel appr ox imately five times from the time she
was a ppointed as his at t o rney

in late J une 1999 to the day he pled guilty

in September 2000. The petit i o n er admitted that counsel provided him with discover y in all of his case s and discussed d ef en s es wi t h him. His main concer n with counsel wa s that she did not investigate his drug addiction eve n though he had g iven her the names and addre sses of people who could testify about his addiction. He a cknowledg ed that counse l asked him questions about whether he had r ece ived fo rm al dr ugtr e a tme nt a

nd oc c a sio na lly

too k n ote s d

ur ingthe ir

c on ve rs a tio ns , b ut h e sa id t hat hi s meeting s with counsel would last “[m] ay be about thirty

minutes.”

T h e p e t i t i o n e r

r e c a l l e d t h a to n e o f

h i s c a s e s w a s o r i g i n a l l y s e t f o r t r i a l t h e d ay h e p l e d

g u i l t y, and counse l had n ot discussed any kind of strateg y

or the fa cts of the c ase w ith him. He did not
reme mber whe ther c ounsel filed any motions to suppress but sa id she did g o over what the State’s pr oo f w ou ld b e a t tr ia l. T he pe tit ion e r s ta te d th a t he did no t te ll the c ourt

he wa s n ot r e a dy

to g o to trial bec ause “ [i ]tdidn’t seem like they [were] hear i n g i t

. ” T h e petitioner te stified that he aske d
c ouns e l a bo ut dim ini sh e d c a

pa c ity and g e tti ng wi tne sse s to te sti fy a bo ut h is c oc a ine us e , a

nd sh e sa id “she w ould ge t around to it” and “ she wa nted to talk to the prosec utor.” The pe titioner stated that bef ore the trial was supposed to start, counsel talke d to him about the State’s off

er a nd how much time he face d if he went to trial. He sa id that he initially told counsel that he did not think the Stat e’ s o ffe r wa s rea sonable, but he later de termined that he “didn’t see [hi m] self winning.” The pe titioner elaborated that “it didn’t look like my lawy er w as fig hting f

or me.” The petitioner alleg ed that counse l did not properly investigate hi s case and that “there w ere people that I

asked he r t o contac t and they haven’ t seen he r.” A t the hear ing, the petitioner noted that Chr is V a le n a

nd Rob e rt Mil le r we re tw o of the name s he f ur nis he d to c ouns e l. T he pe tit ion e r s a id that he wa s on drug s, specific ally Elavil, when he enter ed his g uilty plea, but he did not inform the
c ourt . H e sa id h e ob ta ine d th e dr ug s f ro m ot he r i nmate s.
On c ro ss- e xami natio n, the pe tit ion e r a dmi tte d th a t he had di sc us se d h is f ir st c a se wi th
c ouns e l; h e jus t di d n ot k no w i t w a s th e c a se that w ou ld be tr ied fir st. Th e pe tit ion e r s a id t hat, i n a dd iti on to V a le n a

nd Mil le r, he ha d wante d co un se l to c a ll some me mbe rs of his fa mil y a t tr ia l to testify about his drug problem. Howe ver, the petitioner ac knowledg ed that he did not bringany of those witnesses to the post-convic tion hearingbut expl ained tha t h e t h o u ght the hear ing w as schedule d another

day . The pe titioner admitted t h at o n t h e d ay he pled guilty , his case w as not actua lly set to g o to trial as he ha d al l ege d ear lier. Instead, it was the date set for him to decide wh e th e r h e w an te d to p le a d g u il ty o r s e t a tr ia l d a te

. T h e p e ti ti o n e r a ls o a c kn o w le d g e d th a t he ult imate ly

de c ide d n ot t o g o to tr ia l be c a us e se ve ra l of

the vic tim s h a d id e nti fi e d h im f ro m a photogr aphic line- up, and he ha d made c onfession s rega rding the offe nses in sever al of the indi c tm e n ts

. T h e p e ti ti o n e r s a id th a t h e li e d

a t t h e g u il ty p le a h e ar in g w h e nh e to ld

th e tr ia l c ourt that he did not have a

ny complaints o r problems with counsel’s r epre sentation. On re direc t examination, the petitioner expl ained that he lied beca use “[ a]t that time Ihad basic ally g iven up.”-5-

Counsel testified that she re prese nted the petitioner from J une 28, 1999, until the da y he pled g uilty , September 21, 2000. Counsel said that she had “nume rous oppor t u nities to talk with [ the petitioner].” Counsel visit ed the pe titioner in jail six times and sever al other times in cour t. Counsel dis c us se d th e pe tit ion e r’ s c a se s w ithhim , a nd he a dmi tte d tha t he c omm itt e d th e of fe ns e s “ be c a

us e he had a drughabit and wa s try ing to support that drug habit.” Counsel stated t hat s he was provided with discovery

from the St ate, which she di scussed with the petitioner. Counsel re called that they discussed t h e petitioner’s drughabit, and she e x plained to him the require ments of a voluntar y intox ication def

ense. Counsel requested a mental eva luation of the petitioner whic h showed that the petitioner wa s “compe tent with no defe nse of insanity and that he w asn’t committable.”

Counsel stated that she discussed w ith the petitioner all the off ers e x tended by the S tate, and in f act the petitioner made a counter offe r to the State. Acc ording to c ounsel, the petitione r n ever ind ic a te d th a t he wa

nte d to g o to tr ia l bu t, ins te a d, “ a lw ay s w ante d to ple a d. ” Couns e l sa id t hat it was not until the petitioner and the State c ould not ag ree on an off er that the petit i o n er said he “wa nted to take it to trial.” Counsel r eca lled that while the trial court was que stioning the pe titioner about setting the matter f

or trial, the petitioner said that he wa nted to talk to counsel and a sked her what he should do. Counsel told the petitioner that he had to be the one who ma de the de cision, but she discussed that the offe r was “almost a life sentenc e” or he could “g et it in piece s at a trial.” After another series of discussions with the St ate, the pe t itioner dec ided to acc ept an of fer of fifty y ear s serve d at 100%. Counsel re membere d that they discussed filing a motion to suppre ss the petitioner’s statements to the police but d et er mined that “[they ] had no basis to file a motion to suppress the statements.”

On c ro ss- e xami natio n, c ouns e l st a te d th a t sh e ha d th e p e tit ion e r m e nta lly e va luate d “ be c a

us e of the natur e of

the c ha rg es, be c a

us e [the y ] we re se ri ou s.

. . . A nd we did dis c us s, wh e the r o r n ot, beca use of his dr

ug problem if he reme mbere d all of these incidents. And he did, he reme mbere d them, very

well.” When aske d if the petiti o n er ev er p rovi ded her with the names or a ddresse s of
any on e wh o c ou ld c or

ro bo rate that he ha d a se ri ou s dru g pr ob le m, c ouns e l sa id, “ No . A nd , in fa c t, g oing ove r his testimony

on the post-conviction hea ring , the names that he g ave dur ing dir ect wa s the first time that I ’ve e ver he ard those names.” Counsel a g ree d that she had the petitioner e valuated to determine his mental capacity , not to check him for possible drug problems. Counsel considere d the possibilit y

that the petitioner wa s on drug s g iven he we nt on “a c rime spre e in a short pe riod of time,” but, afte r talking to him, she did not t hink she could sustain that position.

At the conc lusion of the hear ing, the post-conviction cour t entere d a wr itten order de ny ing the pe tit ion e r p os t- c on vic tio n r e lie f. Th e c ourt c on c lud e d th a t th e pe tit ion e r fa ile d to pr ov e his alleg ations by

clea r and c onvincing evidenc e, noting that the “[p]etit ioner’s true complaint is in the nature of buy er’ s remorse . He is unhappy beca use af ter having time to re flec t upon the plea, he now complains that he e ntere d into a bad dea l.”-6- AN AL YSI S

On appea l, the petitioner raises the sole issue that he was denied the eff ective assistance of counsel be cause counsel did not proper ly investigate hi s drug problem. The petitioner asser ts that the nature and deg ree of his drug problem, once established, would have been r eleva nt to his defense. He contends that a letter counsel rece ived from a mental health center should have put her on notice that he could be nefit fr om a drugreha bilitation progra

m.
Pos t- c on vic tio n r e lie f “ sh a ll be g ra nte d wh e n the c on vic tio n or se nte nc e is v oid or vo ida ble beca use of the a

bridg ment of any

rig ht gua

ra nteed by

the Constitut ion of Tenne ssee or the Constit ution of the United States.” Te nn. Code Ann. § 40-30-103 ( 2006). The pe titioner bear s the burden of

proving fac tual alleg ations by clea r and c onvincing evidenc e. T en n

. C o de Ann. § 4 0 -3 0 -1 1 0 (f

) ( 2 0 0 6 ). W h en an ev i d en t i ary h ea ri n g i s h el d i nt h e p o s t -c o n v i ct i o ns et t i n g, t h e f i n d i n gs of fa c t ma de by

the c ourt are c on c lus ive on a

pp e a l un le ss t

he e vid e nc e pr e po nd e rate s a g a ins t th e m. Se e Wile y v. State , 18 3 S.W. 3d 31 7, 32 5 (T e nn

. 20 06 ). Whe n r e vie wi ngfa c tua l is su e s, the a pp e llate court will not rewe igh the evidence and w ill ins tead de fer to the trial court’ s findings a s to the
cre dibilit y

of w i t n es s es or the w eig ht of their testimony . I d. Howeve r, re view of a trial court’ s a pp lic a tio n of the la

w to th e fa c ts o f t

he c a se is de novo , with no presumption of corr ectne ss. See Ruff v. State, 978 S.W .2d 95, 96 (Tenn. 1998). The issues of defic ient perf ormanc e of counsel a

nd possible pr ejudice to the defe nse are mix ed questions of law and f act a nd, thus, subject to de novo revie w by the appe llate cour

t. See Wiley , 18 3 S

. W

. 3 d at 325; State v. Bur ns, 6 S.W .3d 453, 461 (Tenn. 1999)

. The rig ht to eff

ective assistance of counse l is safeguarde d by the Constitut ions of both the U n i t e d S t a t e s an d t h e S t a t e o f T e n n e s s e e

. S e e U

. S

. C o n s t

. a m e n d

. V I; T e n n

. C o n s t

. art

. I, § 9

. In order to determine the competenc e of c ounsel, Tenne ssee c ourts have applied standa rds deve loped in fede ral c ase la

w. See St ate v. Ta

y lor, 968 S.W .2d 900, 905 (Tenn. Crim. App. 1997) (noting that the same standa

rd for deter mining inef

fec tive assistance of counse l that is applied in feder al ca ses also applies i n Tenne ssee)

. The United St ates Supreme Court articulate d the standar d in Strickland
v. Was hin g ton , 4 66 U. S. 6 68 , 1 04 S. Ct . 2 05 2 ( 19 84 ), wh ic h is wi de ly a c c e pte d a s th e a

pp ro pr ia te standard f or all cla ims of a convicte d petitioner t h at counse l’s assistance was de fec tive. The standa rd is firmly g rounded in the be lief that counse l play s a ro l e that is “c ritical to the ability of the adver sarial sy stem to produce just re sults.” I d. at 685, 104 S. Ct. at 2063. The Strickland standar d is a tw o- pr on g te st:

F ir st, the de fe nd ant m

us t sh owthat c ouns e l’ s per fo rm a nc e wa s d e fi c ie nt. Th is requires showing that counsel made err ors so serious that counse l was not fu nc tio nin g a s th e “ c ouns e l” g ua ra nte e d th e de fe nd ant b y

the Sixth A me ndme nt. Second, the defe ndant must show that the defic ient perf ormanc e prejudice d t he defe nse. This requir es showing that counsel’s error s wer e so ser ious as to deprive the defe ndant of a

fair tr ial, a trial whose result is reliable.-7-

I d. at 687, 104 S. Ct. at 2064. T h e S t ri ck l and Court furthe r explained the mea ning of “def icient p e r f o r m an c e ” i nt h e f

i r s tp r o n g o f

t h e t e s ti nt h e f

o l l o w i n g w ay:

I n any case prese nting a

n ineffe ctiveness c laim, the per formanc e inquiry must be whether counsel’s a ssistance wa s rea sonable considering all the circumstances. . . . No p arti c u la

r s e t o f d e ta il e d r u le s f o r c o u n s e l’ s c o n d

u c t c ans a ti s f

a c to r il y ta ke
acc ount of the var iety

of circ umstances f

ace d by defe nse counsel o r t he ra ng e of le g iti ma te de c isi on s r e g ard ingho w b e st t o r e pr e se nt a c ri min a l de fe nd ant.

I d. a t 68 8- 89 , 10 4 S. Ct . a t 20 65 . T he pe tit ion e r m

us t e sta bli sh“ that c ouns e l’ s r e pr e se ntatio n f e ll below an obje ctive standa rd of r easona

bleness under

preva iling prof

essional n o r

ms

. ” H o u se v. State, 44 S.W .3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996))

. As for the prejudice prong of t he test, the Strickland Court stated: “The defe ndant must show that there is a rea sonable probability that, but for counse l’s unprofe ssional error s, the result of the pr oc e e din g wo uld

have be e n d if

fe re nt. A r e a so na

ble pr ob abi li ty is a

pr ob a bil ity su ff ic ie nt t o undermine c onfidenc e in the outcome.” 466 U.S. at 694, 104 S. Ct . at 2068; see a lso Overton v. State , 8 74 S.W. 2d

6, 11 (T e nn . 1 99 4) (c on c lud ingtha t pe tit ion e r f

a ile d to e sta

bli shtha t “ the re is a
rea sonable proba

bility that, but for counse l’s err ors, the outcome of the proc eeding s w o u ld have be en differ ent”)

. “In case s involving a g uilty plea or plea of no lo c on te nd

e re , the petitioner must show ‘pre judice’ by

demonstrating that, but for counse l’s err ors, he wou l d n o t have ple aded guilty but would have insist ed upon g oing to trial.” Hicks v. State, 983 S.W .2d 240, 246 (Tenn. Crim. App. 1998) (c iting Hill v. L ockhar t, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); Ba nkston v. State, 815 S.W .2d 213, 215 (Tenn. Crim. App. 1991) ). To satisfy the pre judice re quirement of Strickla nd when alleg ing tha t co u n s el was ineffe ctive for failing to offer

testimony

from a f avora ble witness, the post-conviction petitioner must “(1) produce the witness at his p o s t- c o nv ic tion hearing ; (2) show that thr ou g h reas ona

ble inv e sti g a tio n, tr ia l c ouns e l c ou ld h a ve loc a te d th e wi tne ss; and (3 ) e lic it b oth favor able a

nd materia l testimony

from the witness.” Denton v. St at e, 9 4 5 S .W.2d 793, 802-03 (Tenn. Crim. App. 1996) (citing Bla ck v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990)).

Th e re vie wi ngc ourt

mus t in du lg e a

str on g pr e su mptio n tha t th e c on du c t of c ouns e l f

a lls wi th in t he ra ng e of re a so na ble pr of e ssi on a l a ssi sta

nc e , s e e Str ic kla

nd , 4 66 U. S. at 69 0, 10 4 S. Ct.
a t 20 66 , a nd may no t se c on d-gues s the ta c tic a l and str a te g ic c ho ic e s ma de by tr ia l c ouns e l un le ss those choice s were uninformed be cause of i nadequate preparation. See He llard v. State, 629 S.W.2d 4, 9 (Tenn. 1982)

.
I nitially , we note that the petitioner ha s arguably waived his inef

fec tive assistance of counse l claim for failing to provide thi s court with an ade quate a rg ument in support of his claim. See Te nn. Ct. Crim . App. R. 10(b) (“ I ssues which a re not supporte d b y ar gu m en t, citation to authorities, or appropr iate re fer ence s to the rec ord will be t reated as waived in this court.” ). Howeve r, eve n if we do not consider his ar g ument waived, the petitioner’s c laim stil l fails.-8-

F ir st, th e petitio ne r’ s p ri mary su pp or t f or his ine ff e c tiv e a ssi sta

nc e of c ouns e l c la im i s a “letter of MM HI ” that said he c ould benef it from a drugreha

bilitation progra

m. Howeve r, the letter he is r efe rring to is actua lly a letter conce rning one of counse l’s other c lients, not the petitioner. On pag e eig hteen of

the transc ript of the Apr il 6, 2006, post-conviction re lief proc eeding , the following exchang e occ urre d:
[Ap pe llate Couns e l]: Ok ay

. So are y ou sa y ing , le t me ba c k u

p, wh e n y ou

ha d h im
e xami ne d in

Ge ne ra l Se ssi on s, of

c ours e , y ou

did n’ t put in the or de r t o h a ve him
e xami ne d to c he c k h im f

or po ssi ble , y ou

kn ow , d ru g pr ob le ms; is t

hat c or re c t?
[Tr ia l Co un se l]: N ot t

hat I re c a ll.
[ A p p e l l a t e C o u n s e l ] : J u s ts t r i c t l y f o r i n s an i t y, h i s m e n t a l c a

p a c i t y? [Trial Counsel] : I ’d have to look at the order , but probably so. [Appellate Counsel]: But, g ener al[ly ] speaking though, would it be corr ect, thoug h, that un le ss y ou pu t it in the re the y wo uld no t loo k fo r t hat pa rt ic ula r t y pe of pr ob le m, wh e the r h e mig ht h a ve so me kin d o f d ru g pr ob le m? [Trial Cou n s el ] : I d o n ’t know. I just got a le tter bac k this morning . . . fr om M.M.H.C., on a client who I did not ask hi m to be evaluated for a drug problem, but their re sponse to me was that h e was competent, no sig ns of insanity , not committable, but however , he could be nefit fr om drug reha b.
So sometimes, Mid-town Mental Hea lth Cente r does addre ss t h o s e i ssues. [The Court] : Yeah, the y ’re g ood about that.

Con se qu e ntl y , a

larg e po rt ion

of the argume nt the pe tit ion e r pr ov ide d to this co ur t is e nti re ly irrele vant.

Se c on d, the pe ti ti on e r h a s f a ile d to e sta

bli shde fi c ie nt p e rf

or manc e on the pa rt of c ouns e l. He a rg ues that counse l should have investig ated the nature a nd deg ree of his drug problem in order to e stablish his defe nse. The rec ord, howeve r, shows that counsel perf ormed “ within the rang e of competenc e dema

nded of attorney s in criminal case s.” Bax ter v. Ros e, 523 S.W.2d 930, 936 (Tenn. 19 75 ). Couns e l te sti fi e d th a t sh e dis c us se d the pe tit ion e r’ s dr ug ha bit wi th him

and e xpla ine d to him the r e qu ir e me n ts o f a v o lu n ta r y in to xic a ti o n d e f

e n s e

. Co u n s e l s tate d th a t s h e d id n o t th ink the petitioner could sustain a de fense that he wa s on drug s at the time of the of fen s es b ec ause “ he
reme mbere d all of t h es e incidents. . . . he remembe red the m, very well.” Counsel also stated that the petit ioner

n e v e r p r o v id e d h e r w it h th e n a me s o f

w it n e s s e s w h o c o u ld

te s ti f y a b o u t h is dr

ug problem. The post-conviction court implicitl y acc redited counsel’s testimony when it conclude d, immediately

afte r discussing the petitioner’s and counsel’s contra ry testimonies, “This Court finds-9-

that counsel’s c onduct fe ll within t he wide rang e of r easona ble profe ssional assistance a nd does not constitute ineffe ctive assist ance of counsel. The Petitioner has fa iled to prove his claim by clea r and convincingevidenc e.” T he evide nce doe s no t p re ponderate ag ainst the post-conviction cour t’s deter mination. See Wil ey , 183 S.W .3d at 325.
Third, eve n if we a ssume counsel wa s deficie nt in her re prese ntat i on of the pe titioner, the petitioner has f

ailed to establish the pre

judice prongof Strick l an d

. He cl aims that he provided counsel with the names and addresses of people who could testify about his drug problem and that
c ouns e l ne ve r c on ta c te d th os e pe op le . Y e t, t he pe tit ion e r d id n ot p ro du c e the se wi tne sse s at the po stconvic t i o n relief

hear ing a nd there fore has fa iled to establish prejudice . See De nton, 945 S.W .2d
a t 80 2- 03 . We no te that ne ith e r t he po st- c on vic tio n cou rt no r thi s c ourt may sp e c ulate on

wh a t a
w i t n e s s ’ s t e s t i m o n y

m i g h th a v e b e e ni f

i n t r o d u c e d b y c o u n s e l

. S e e B l a c k , 7 9 4 S

. W

. 2 d a t 7 5 7

. In addition, the petitioner fa iled to establish prejudice in relation to his guilty pleas be cause he neve r e ve n a lle g e d tha t he wo uld no t hav e ple d g uil ty bu t for c ouns e l’ s def ic ie nt r e pr e se ntatio n. Se e Hi c ks , 983 S.W .2d at 246.

Mo re ov e r, by

the pe tit ion e r’ s o wn a dmi ssi on a t the g uil ty ple a he ari ng , he wa s satis fi e d w ith
coun s el’s re prese ntation. During the plea he aring , the following colloquy took place be tween the trial court a

nd the petitioner: [The Court] : A ny problem that y ou’ve ha d with [ trial counsel] . . . that makes y ou wa nt t o e nte r a

ple a , in ste a d o f h a ve a

tr ia l? [The Petiti oner]: No, sir. [The C o u rt ]: Okay . You nee d to understand that you’re under oath, sir, and the
answe rs t o the questi ons that y ou’re being asked, subject to the penalty of ag g ravated pe rj ur y wh ic h c arr ie s tw o to tw e lve y e a rs in pr iso n. I f y ou

have so me thi nga g a ins t [t ri al counsel], if she didn’t investigate the ca ses, or didn’t talk to y ou, or visit y ou a bo ut t he se c a se s, or

thr e a te ne d y ou

in a ny wa y , y ou ne e d to te ll m e no w, be c a us e if y ou la te r on, du ri ngthi s n e xt y e ar, fi le a po st- c on vic tio n p e tit ion

and sa y sh e did wrongthings to y ou or lied to y ou, or threa tened y ou, or any thing like that, we need to hear that now, bec ause if you file it later on, you could subject y ourself to the penalty of per jury . I f later

on y ou signe d something that’s not true.

So I ’m g oing to a sk y ou now, do y ou have a ny complaints, at all, about [trial
c o u n s e l ] a s yo u r

a t t o r n e y? [Th e Pe tit ion e r]: No , I

do n’ t. [Th e Court ]: Has sh e vi sit e d y ou e no ug h, to your s a tis fa c tio n, wo rk ingon the se c a s e s ?-10-

[The Petiti oner]: Yes, sir. [Th e Court ]: She ha s? [The Petiti oner]: Yes, sir. [The Court] : Did she have these c ases investig ated? [The Petiti oner]: To my

knowledg e, y es, sir. [The Court] : And did she talk to y ou about the re sults of that investigation? [The Petiti oner]: Yes, sir. [Th e Court ]: Do y ou

have any c omp la int s, a t a ll? [The Petiti oner]: No, sir. [The Court] : And are y ou enter ing this plea because y ou want to enter it, free ly and
v o l u n t ar i l y? [The Petiti oner]: Yes, sir.

CO NC LU SION

After revie w, we conclude that the petitioner ha s failed to prove , by clea r and c onvincing evidenc e, either

defic ient perf

ormanc e on the pa

rt of counse l, or any

resulting prejudice . There fore , we a ffirm the post-c onviction court’s de nial of post-convic tion relief.

___________________________________ ALAN E. G LENN, JUD GE