# FILED
March 10, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT NASHVILLE TOMMY MA

CK BLEVINS, ) ) Appellant, ) C.C.A. NO. 01C 01-9711-CR-00508 ) (No. 933- 0062 Belo w) VS. ) ) PUTNAM COUNTY STATE OF TENN ESSEE, ) ) The Hon. Leon C. Bu rns, Jr. Appellee. ) ) (Denial of Post-Conviction Relief) ) AFFIRMED PU RSUANT TO R ULE 20 O R D E R Th is matter is before the Court upon the state’s motion requesti ng that t h e judgmentin the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of Criminal Appeals Rules. Findin g that t he tria l court properl y denied post-c

onvict ion rel ief, we grant the state’s motion to affirm the judgment pursuant t o Rule 20.

The petitioner contends that he received ineffective assistance o f counsel. Specifi cally, he contends that counsel was ineffective by failin g to call Allen Gullett and Keith Napier to testify onhis behalf and by den ying him th e opport unity to te stify on h is own behalf.

In denying relief, the trial court held that the testimony of the petitioner was not credible and that there was no ineffective assistance of counsel. The trial court determined that trial counsel made efforts to reach wi tnesses whose names

were provided to him by the petitioner, i ncluding Mr. Napier , that Mr. Gullett’s name w as not given to trial counsel until the trial was nearl y over, givi ng him no chance to locate and talk with hi m, and that trial c

ounsel a dvised the petitioner not to te

stify on his own behalf, and“certainly with the prior record and being on parole, and counsel cann ot b e held to be ineffective for advising the petitioner that he s houldn’t testi fy in light of the prior record that Mr. Blevins had.”

In seeking post-convict io n relief on the basis of ineffective assistance of counsel, a petitioner must first establ ish that the services rendered or the advice g iven was below "the range of compet ence demanded of attorneys in crimina l cases." Baxter v.-2-

Rose , 523 S.W.2d 930, 936 (Tenn. 19 75). Secon d, the petitioner must show that the deficiencies"actually had an advers e effect on the defense." St rickland v. Washington , 466 U.S. 668, 693, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984).

On appeal, the findi ngs of fact made by the post-conviction court are conclusi ve and will not be distur bed unless the evidence contained in the record preponderates against them. Rhoden v. State , 816 S.W.2d 56, 60 (Tenn. Crim. App. 1991). The burden is on the petiti oner to show that the evidence preponderates against those findings. Clenny v. State , 576 S.W.2d 12, 14 (T enn. Crim. App. 1978), cert
. denied , 441 U.S. 947, 99 S.Ct. 2170, 60 L.Ed. 2d 1050 (1979).

Having reviewed the record in this case, the petitioner’s brief, and the state’s motion, we find that the petitioner has failed to sho w that the evidence preponderat es against the trial cour

t’s findings.

IT IS, THEREFORE, ORDERED that the judgment of the trial court is affirmed pursuant to Rule 20, Tennessee Co urt of Criminal Appeals Rules. The petitioner being indigent, costs are taxed to the state.

ENTER, this the ____ day of _____________ __, 1998.

_____________________________ JOHN H. PEAY, JUDG E
CONCUR:

_____________________________ JERRY L. SMITH, JUD GE

_____________________________ THOMAS T. WOODALL, JUDGE