IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 7, 2017

CURTIS KELLER v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 10-07532 James M. Lammey, Judge

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No. W2016-00416-CCA-R3-PC

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Petitioner, Curtis Keller, appeals the denial of his petition for post-conviction relief, in 

which Petitioner alleged that he received the ineffective assistance of counsel. Having 

reviewed the record and the briefs of the parties, we affirm the judgment of the postconviction court. 

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

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which JAMES 

CURWOOD WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.

Andrea D. Sipes, Jackson, Tennessee, for the appellant, Curtis Keller.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney 

General; Amy P. Weirich, District Attorney General; Jessica Banti, Assistant District 

Attorney General, for the appellee, State of Tennessee.

OPINION

Procedural history

Petitioner was convicted by a jury of two counts of especially aggravated 

kidnapping, one count of especially aggravated robbery, one count of especially 

aggravated burglary, three counts of aggravated assault, and one count of employing a 

firearm during the commission of a dangerous felony. State v. Curtis Keller, No. W2012-

00825-CCA-R3-CD, 2013 WL 3329032, at *1 (Tenn. Crim. App. June 27, 2013), perm. 

app. denied (Tenn. Dec. 10, 2013). The trial court sentenced Petitioner to a total 

effective sentence of 240 years’ incarceration. Id. On direct appeal, Petitioner argued 

that the jury instructions concerning especially aggravated kidnapping were inadequate, 

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the jury instructions concerning the employment of a firearm during the commission of a 

dangerous felony were erroneous, and his eight separate convictions violated his 

constitutional protection from double jeopardy. A panel of this court concluded that the 

jury instructions were inadequate, but the error was harmless beyond a reasonable doubt; 

that the instructions concerning the employment of a firearm were erroneous and that 

conviction was reversed; and that it was plain error for Petitioner to be convicted of both 

especially aggravated burglary and attempted especially aggravated robbery based on the 

same act of causing serious bodily injury to Mr. Morrow. Accordingly, the panel reduced 

Petitioner’s conviction for especially aggravated robbery to aggravated burglary and 

imposed a new sentence of 15 years for that count. The panel affirmed the remaining 

judgments of the trial court. 

Petitioner timely filed a pro se petition for post-conviction relief, alleging several 

grounds of ineffective assistance of counsel. Following the appointment of counsel, 

Petitioner filed an amended petition. Following an evidentiary hearing, the postconviction court entered a written order denying post-conviction relief. Petitioner 

appeals the post-conviction court’s ruling. 

Facts

The facts underlying Petitioner’s convictions were summarized in this court’s 

opinion on direct appeal as follows:

During the early morning hours of May 26, 2010, the defendant 

and at least two accomplices kicked in the door of a house and terrorized 

its occupants because the defendant – an admitted drug dealer – believed 

that one of them owed him some money as a result of a prior transaction. 

After breaking into the premises, the defendant went into a bedroom and 

woke up his intended target, victim Andrew Morrow, and his target’s 

girlfriend, Tamika Jones. He demanded money. Two of Ms. Jones’ 

children, fifteen-year-old victim M.B. and fourteen-year-old J.G., were 

present in the home when the intrusion occurred. One of the intruders 

quickly located victim M.B., who was brought into the adults’ bedroom. 

The intruder proceeded to press his pistol against the boy’s head and 

asked Mr. Morrow: “Do you see what you are fixin’ to make me do?” 

Another of the assailants repeatedly struck Mr. Morrow in the head with 

a gun, injuring his face and causing a substantial amount of bleeding. 

Then the intruders began ransacking the residence. 

Fearing for the safety of her other child, Ms. Jones demanded to 

know the whereabouts of J.G. Surmising from her queries that there was 
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another individual who was unaccounted for and located somewhere on 

the premises, the intruders searched the house and finally located J.G. 

hiding in a bedroom closet – but not before J.G. was able to call the 

police from a cell phone and report the intrusion. Thinking quickly, J.G. 

also managed to hide the cell phone – still connected to 911 – underneath 

a pillow, where it continued to record the ongoing criminal activity for 

some time after his capture. Meanwhile, Ms. Jones asked one of the 

intruders if he wanted some of her jewelry, and the intruder responded 

affirmatively. Mr. Morrow, after struggling with one of the intruders, 

managed to break out one of the bedroom windows and yell outside for 

help. 

Suddenly, officers of the Collierville Police Department knocked 

on the door of the residence and announced their presence to those 

inside. The intruders panicked and sought any means of egress but 

discovered that the house was surrounded. The defendant took off his 

mask and attempted to flee on foot. Encountering the police outside, the 

defendant claimed that he had been the victim of a robbery and that the 

culprits were still located inside the residence – later clarifying that the 

“robbery” had occurred sometime earlier, when Mr. Morrow had taken 

his drugs without paying for them. Apparently unmoved by the 

defendant’s plight, the police arrested him and one of his accomplices, 

while the other accomplice(s) escaped into the night. 

Keller, 2013 WL 3329032, at *1-2. 

Post-conviction hearing

Trial counsel testified that she had practiced criminal law “exclusively” for 35 

years. She testified that she met with Petitioner three times in jail, but that most of their 

conversations were at the courthouse. She provided discovery materials to Petitioner. 

Trial counsel testified that the State offered a plea agreement that included an 18-year 

sentence, and Petitioner refused to accept the offer. 

On the day of trial, Petitioner claimed that he was unaware of his court date, and 

the trial court read the court minutes, which reflected that Petitioner was present when the 

trial date was set. Trial counsel testified that Petitioner was “always cordial” to her, and 

that he never asked her to withdraw as counsel. She testified, “I believe he said he 

wanted a new attorney on the day of trial. And there was no basis given except in my 

opinion he was trying to postpone the proceedings.” 
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Trial counsel reviewed the State’s discovery response and noted that no drugs or 

money were found in the victims’ house. She testified, “There was absolutely nothing to 

substantiate ‘the victim’ being involved in a drug deal.” Trial counsel testified that 

Petitioner insisted that Mr. Morrow had stolen drugs from him and that he later found out 

that was not true. Trial counsel clarified that “5 grams . . . of marijuana [was] found on 

the bedroom floor just kind of loose.” Trial counsel testified that Mr. Morrow’s

statement to a detective that he had purchased marijuana from Petitioner in the past was 

“not at all relevant to what happened [on the] night [of the incident].” She testified that 

she did not attempt to impeach any of the State’s witnesses using their prior statements. 

She cross-examined Mr. Morrow about the presence of marijuana in the house. Trial 

counsel testified that she did not cross-examine Mr. Morrow about having purchased 

drugs from Petitioner because “it certainly wouldn’t [have] help[ed] [Petitioner] for it to 

come out that he had been buying drugs or selling drugs.” 

Trial counsel testified that Petitioner, against her recommendation, testified at 

trial. She testified that Petitioner “did several very objectionable things in the courtroom 

. . .” Petitioner and his co-defendant were tried together. Petitioner never requested that 

his trial be severed from his co-defendant, and counsel did not believe there were grounds 

upon which to sever. Trial counsel testified that the State provided “open-file” discovery. 

She advised Petitioner to accept a plea agreement. Counsel testified that a detective 

testified at trial that he found Petitioner in the garage of the victims’ house, and Petitioner 

“stood up and raised his hand and said that was me.” One of the victims was made to lie 

down on the bedroom floor and was not allowed to leave. According to trial counsel, 

“[s]he kept calling out for her children because she was scared for them.” 

Petitioner asserted at the post-conviction hearing that trial counsel failed to crossexamine one of the victims, Tamika Jones, about a prior inconsistent statement. Trial 

counsel testified that “there w[ere] no material differences at all” between the witness’s 

statements to police and her testimony at trial. 

Petitioner testified that he asked trial counsel to withdraw from representing him 

on the day before trial. He testified that he did not know that his case was set for trial the 

following day, and he did not feel prepared for trial. He testified that trial counsel did not 

communicate with him while he was in jail about his case. He testified that trial counsel 

“brought [him his] discovery packet. That was it.” Petitioner testified that he was 

“forced to go to trial.” Petitioner testified that he requested a continuance, and that the 

trial court denied his request and “didn’t inquire about the conflict that me and my

attorney had or none of that.” 

Petitioner testified that he wrote letters to trial counsel, and trial counsel did not 

respond to his letters. Petitioner testified that all of the State’s witnesses “gave perjured 
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testimony” at trial. He testified that trial counsel failed to impeach the witnesses on 

cross-examination with their prior inconsistent statements. He testified that Andrew 

Morrow told a detective that he had never seen Petitioner before the incident and that 

“the big guy” held a pistol to his stepson’s head, but Mr. Morrow testified at trial that 

Petitioner did not put a pistol to the child’s head. Petitioner also thought that trial counsel 

should have objected to the prosecutor’s statements during voir dire concerning 

discrepancies in the witnesses’ testimony. 

Analysis

Petitioner contends that counsel provided ineffective assistance. Specifically, 

Petitioner asserts that counsel failed to properly investigate the case, and that she failed to 

cross-examine the victims about their prior inconsistent statements. The State responds 

that the Petitioner failed to establish that counsel was ineffective. 

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

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

Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A petitioner 

has the burden of proving his factual allegations by clear and convincing evidence. Id. § 

40-30-110(f). A post-conviction court’s findings of fact are binding on appeal, and this 

court must defer to them “unless the evidence in the record preponderates against those 

findings.” Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997); see Fields v. State, 40 

S.W.3d 450, 456-57 (Tenn. 2001). A post-conviction court’s application of law to its 

factual findings is subject to a de novo standard of review without a presumption of 

correctness. Fields, 40 S.W.3d at 457-58. 

To establish a post-conviction claim of the ineffective assistance of counsel in 

violation of the Sixth Amendment, a petitioner has the burden of proving that (1) 

counsel’s performance was deficient and (2) the deficient performance prejudiced the 

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see Lockhart v. Fretwell, 

506 U.S. 364, 368-72 (1993). The Tennessee Supreme Court has applied the Strickland

standard to an accused’s right to counsel under article I, section 9 of the Tennessee 

Constitution. See State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989). 

A petitioner must satisfy both prongs of the Strickland test in order to prevail in an 

ineffective assistance of counsel claim. Henley, 960 S.W.2d at 580. “[F]ailure to prove 

either deficiency or prejudice provides a sufficient basis to deny relief on the ineffective 

assistance claim.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). To establish the 

performance prong, a petitioner must show that “the advice given, or the services 

rendered . . . , are [not] within the range of competence demanded of attorneys in criminal 

cases.” Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975); see Strickland, 466 U.S. at 
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690. The post-conviction court must determine if these acts or omissions, viewed in light 

of all of the circumstances, fell “outside the wide range of professionally competent 

assistance.” Strickland, 466 U.S. at 690. A petitioner “is not entitled to the benefit of 

hindsight, may not second-guess a reasonably based trial strategy by his counsel, and 

cannot criticize a sound, but unsuccessful, tactical decision.” Adkins v. State, 911 S.W.2d 

334, 347 (Tenn. Crim. App. 1994); see Pylant v. State, 263 S.W.3d 854, 874 (Tenn. 

2008). This deference, however, only applies “if the choices are informed . . . based upon 

adequate preparation.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992). 

To establish the prejudice prong, a 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.” Strickland, 466 U.S. at 694. “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id. 

In his brief on appeal, Petitioner alleges that trial counsel “did not conduct proper 

investigation of the case as she was apparently unaware that Andrew Morrow and 

Tamika Jones had given prior inconsistent statements.” Petitioner cites in his brief a 

document that was filed as an exhibit to his post-conviction petition. The document 

apparently contains a narrative of Detective Riley’s interviews in connection with the

investigation of the case. Petitioner argues that the inconsistencies in the witnesses’ 

statements “cast a serious doubt as to the veracity and character of both witnesses . . . .” 

Specifically, Petitioner asserts that trial counsel should have cross-examined Andrew 

Morrow about his statement to police that he knew Petitioner because he had purchased 

marijuana from him. 

At the post-conviction hearing, trial counsel testified that Mr. Morrow had told a 

detective that he had bought marijuana from Petitioner in the past, and that she did not 

think that delving into Petitioner’s history of selling drugs would have helped his defense. 

The State argues that this was a strategic decision by trial counsel, and we agree. 

Deference is given to trial strategy or tactical choices if they are informed ones based 

upon adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). 

In its written order denying post-conviction relief, the post-conviction court 

concluded that counsel was not ineffective for failing to impeach Andrew Morrow “with 

prior statements that would have suggested that either that the witness knew the 

Petitioner and/or that he was a drug dealer or user.” The post-conviction court also 

concluded that “even if the information [that Andrew Morton had purchased drugs from 

Petitioner previously] had been used, it is quite likely that the outcome of the trial would 

have been the same.” 

Petitioner also asserts that “[t]he prior inconsistent statement of Tamika Jones 

calls into question her recitation of events that took place.” However, Petitioner does not 
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explain, nor cite to the record, what prior inconsistent statement he alleges that trial 

counsel should have used to impeach Tamika Jones at trial. Petitioner has therefore 

waived review of this claim. See Tenn. Ct. Crim. App. R. 10(b). Notwithstanding 

Petitioner’s waiver of the issue, counsel testified at the post-conviction hearing that Ms. 

Jones’ had never provided a sworn statement. A narrative of Detective Riley’s interview 

with Ms. Jones was attached as an exhibit to Petitioner’s amended petition. Trial counsel 

testified that she reviewed a police report and did not find any material differences 

between the information contained in the report and Ms. Jones’ testimony at trial. 

Petitioner has failed to establish that counsel’s performance was deficient. Thus, 

we need not reach the issue of whether any alleged deficiencies in counsel’s performance 

prejudiced Petitioner. See Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006) (“If either 

element of ineffective assistance of counsel has not been established, a court need not 

address the other element.”). We conclude that the post-conviction court properly denied 

relief. 

CONCLUSION

The judgment of the post-conviction court is affirmed. 

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THOMAS T. WOODALL, PRESIDING JUDGE