IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 17, 2019

RICHARD WAYNE PEACOCK, JR., v. STATE OF TENNESSEE

Appeal from the Circuit Court for Bedford County

No. 18560 Forest A. Durard, Jr., Judge

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No. M2018-02220-CCA-R3-PC

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The Petitioner, Richard Wayne Peacock, Jr., appeals the post-conviction court’s denial of 

his petition for post-conviction relief in which he challenged his conviction for initiating 

the process to manufacture methamphetamine. On appeal, the Petitioner alleges that he 

received ineffective assistance of counsel based on trial counsel’s failure to negotiate a 

more favorable plea. After a review of the record and applicable law, we affirm the postconviction court’s judgment. 

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which D. KELLY 

THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Matthew J. Crigger (on appeal), Brentwood, Tennessee; and Andrew Self (at hearing), 

Shelbyville, Tennessee, for the appellant, Richard Wayne Peacock, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant 

Attorney General; Robert J. Carter, District Attorney General; and John Cawley, 

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

OPINION

FACTS AND PROCEDURAL HISTORY

The Petitioner was indicted on simple possession of methamphetamine, possession 

of drug paraphernalia, and initiating the process to manufacture methamphetamine. The 

Petitioner entered a guilty plea to initiating the process to manufacture methamphetamine 

in violation of Tennessee Code Annotated section 39-17-435, and the State dismissed the 

possession charges. Pursuant to the plea agreement, the Petitioner received a twelve-year 

10/15/2019
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sentence to be served consecutively to his conviction in case number 18559, a felony 

failure to appear conviction with a sentence of three years.

According to the prosecutor’s recitation of facts at the plea hearing, members of 

the Bedford County Sherriff’s Department were searching for the Petitioner so that they 

could serve warrants on him. The officers had information that the Petitioner was 

residing at a home in Bedford County. When the officers arrived at the home, Ms. Vicky 

Peacock, the Petitioner’s mother, greeted them and informed the officers that the 

Petitioner was in a shed in the back yard. The officers knocked on the door of the shed,

and the Petitioner answered the door. The officers immediately smelled a strong 

chemical order that they believed indicated methamphetamine was being manufactured. 

The officers proceeded to take the Petitioner into custody and conducted a 

protective sweep of the shed to make sure that no one else was in the shed. The officers 

procured written consent to search the shed from Ms. Peacock. Inside the shed, the 

officers found aluminum foil, a baggie with white residue, a glass bottle with holes 

punched in the top, and a one quart Gatorade bottle that appeared to have been used to 

produce methamphetamine through the “shake” method. Officers also found a black 

pouch that contained several plastic baggies, scales, and a coffee filter that contained a 

small amount of white powder residue. The officers conducted a field test on the white 

residue, and it tested positive for methamphetamine. Additionally, the officers found a 

camouflage bag that contained a glass bong, a white gallon jug without a label believed to 

contain muriatic acid, a bag of Epsom salt, and a bottle of lighter fluid. 

After the prosecutor finished reciting the facts, the trial court recited the elements 

of the offense of initiation of the process to manufacture methamphetamine, and the 

Petitioner indicated that he understood the elements of the offense and had discussed the 

offense with trial counsel. The trial court also explained the Petitioner’s charges for 

felony failure to appear. At that point, the trial court stated, “We’ve talked about the law 

in the case and the facts of this case[.] [I]s it your intention here today to enter a plea of 

guilty to these charges?” To which, the Petitioner responded, “Yes, sir.” The trial court 

then asked, “And are you in fact guilty?” The Petitioner answered, “Yes, sir.” The trial 

court questioned the Petitioner regarding whether he was entering his plea voluntarily, 

and the Petitioner indicated that he was. 

The Petitioner filed a pro se petition seeking post-conviction relief alleging that 

trial counsel failed to provide him with evidence that he believed was favorable in his 

defense. The Petitioner also argued that there was insufficient evidence to support his 

conviction for initiating the manufacture of methamphetamine because certain 

ingredients used to manufacture methamphetamine were not found during the search, 

including pseudoephedrine, lithium, sodium hydrochloride, and ammonium nitrate. The 
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post-conviction court appointed counsel, and post-conviction counsel filed an amended 

petition for post-conviction relief, which incorporated the Petitioner’s pro se petition. 

The amended petition also asserted that trial counsel was ineffective for failing to: 1) 

investigate all possible defenses; 2) file a motion to compel the production of certain 

pieces of evidence; 3) challenge the consent to search form; and 4) file a motion to 

dismiss for insufficient evidence. 

Trial counsel did not testify at the post-conviction hearing because he passed away 

shortly before the hearing. The Petitioner testified that he believed that trial counsel 

should have filed a “motion to dismiss for insufficient evidence.” The Petitioner 

acknowledged that trial counsel filed a motion to suppress the evidence found during the 

search of the shed. The Petitioner said that trial counsel advised him that he should 

accept the plea that the State had offered and that he and trial counsel spoke at length 

about the charges he faced. He claimed that trial counsel failed to provide him with color 

copies of the photographs law enforcement took of the evidence in the shed. The 

Petitioner testified that he had to explain the differences between the promotion of the 

manufacture of methamphetamine and initiating the manufacture of methamphetamine to 

trial counsel. 

On cross-examination, the Petitioner acknowledged that his pending felonies were 

reduced to misdemeanors as a result of his plea agreement. He recalled trial counsel 

discussing the photographs that he received in discovery but alleged that trial counsel 

never discussed the specifics of the photographs or provided him with color copies of the 

photographs. The Petitioner discussed the ingredients found during the search and

asserted that several ingredients that were required to manufacture methamphetamine 

were not found during the search of the shed. 

Ms. Peacock, the Petitioner’s mother, testified at the post-conviction hearing that 

she was present when the Petitioner was arrested. She stated that trial counsel did not 

answer or return her phone calls. She recalled speaking to trial counsel on one occasion 

at his office. Ms. Peacock testified that a clean-up crew never came to her house to clean 

or determine if the shed was considered a contaminated area. She also said the shed was 

never quarantined. 

The prosecutor who represented the State during the negotiations in the trial court 

testified on behalf of the State. The prosecutor testified that he provided trial counsel 

with a compact disc that contained the photographs trial counsel allegedly did not provide 

to the Petitioner. He recalled meeting with trial counsel on numerous occasions 

regarding the Petitioner’s case. The prosecutor stated that trial counsel “was very diligent 

at discovery, various motions, negotiations, I met with him I would say more than a 

dozen times just on this case.” The prosecutor recalled that the Gatorade bottle was not 
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tested, but the residue found on the coffee filter tested positive for methamphetamine. He 

testified that he and trial counsel discussed amending the indictment and allowing the 

Petitioner to plead guilty to promotion of the manufacture of methamphetamine, but the 

prosecutor declined to amend the indictment. The prosecutor noted that he agreed to the 

minimum within-range sentence, which was something that he typically refused to do.

On cross-examination, the prosecutor noted that the Petitioner was also charged 

with simple possession of methamphetamine as a result of the residue found in the coffee 

filter. When asked why the Tennessee Bureau of Investigation (“TBI”) did not test the 

Gatorade bottle that was believed to be a “shake” bottle, the prosecutor explained that he 

believed the TBI would not test these types of items and that the Gatorade bottle was 

destroyed. 

The post-conviction court issued a very thorough written order denying the 

Petitioner relief. Specifically, the post-conviction court found that trial counsel was not 

ineffective for: 1) receiving “incomplete and vague discovery;” 2) discovery not 

containing photographs of the evidence found during the search; 3) discovery not 

including lab results of the testing of the Gatorade bottle; 4) failing to question Sergeant 

Daugherty regarding his promise not to call cleanup crew; 5) failing to challenge the 

consent to search for signed by Ms. Peacock; 6) failing to challenge the search; 7) failing 

to challenge the sufficiency of the evidence or moving to dismiss the indictment; 8) 

failing to fully investigate the case; and 9) failing to compel the State to produce the 

container of muriatic acid and Epson salt. 

ANALYSIS

The Petitioner maintains that trial counsel was ineffective for advising him to 

plead guilty and for failing to effectively negotiate a reduced charge with the State. We 

conclude that this issue, which was not raised in the petition, not raised at the hearing, 

and not ruled on by the post-conviction court, has been waived. A petitioner is entitled to 

post-conviction relief from any conviction or sentence that 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. The petitioner has the burden of 

proving the allegations of fact in the petition by clear and convincing evidence. T.C.A. § 

40-30-110(f); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009). “‘Evidence is clear 

and convincing when there is no serious or substantial doubt about the correctness of the 

conclusions drawn from the evidence.’” Grindstaff, 297 S.W.3d at 216 (quoting Hicks v. 

State, 983 SW.2d 240, 245 (Tenn. Crim. App. 1998)). The post-conviction court’s 

findings of fact are conclusive on appeal unless the evidence preponderates against them. 

Tenn. R. App. P. 13(d); Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). 
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A post-conviction petition must include “all claims known to the petition for 

granting post-conviction relief.” T.C.A. § 40-30-104(d); see T.C.A. § 40-30-106(d) 

(stating that the petition must “contain a clear and specific statement of all grounds upon 

which relief is sought”); Tenn. Sup. Ct. R. 28, § 5(E) (“The petition shall contain ... each 

and every error that petitioner asserts as a ground for relief, including a description of 

how petitioner was prejudiced by the error(s).”). This court has allowed “‘a petitioner to 

present an issue for the first time at a post-conviction evidentiary hearing, even if it was 

not listed in his petition and still obtain appellate review of this issue.’” Kenneth Hayes 

v. State, No. W2016-01522-CCA-R3-CD-PC, 2017 WL 3106918, at *8 (Tenn. Crim. 

App. July 17, 2017), no perm. app. filed (quoting Timothy Lamont Thompson v. State, 

No. M2015-00846-CCA-R3-PC, 2016 WL 496996, at *4 n.1 (Tenn. Crim. App. Feb. 9, 

2016) (citing cases)). However, “[i]t is a well-established rule that this court will not 

address post-conviction issues that were not raised in the petition or addressed by the 

post-conviction court.” Joshua L. Carter v. State, No. M2017-02401-CCA-R3-PC, 2018 

WL 3770036, at *17 (Tenn. Crim. App. Aug. 8, 2018), perm. app. denied (Tenn. Nov. 

14, 2018) (citing Brown v. State, 928 S.W.2d 453, 457 (Tenn. Crim. App. 1996); State v. 

Smith, 814 S.W.2d 45, 49 (Tenn. 1991)).

Here, there was limited testimony during the post-conviction hearing regarding 

trial counsel’s negotiations with the prosecutor. However, the Petitioner did not argue 

that trial counsel was ineffective for failing to effectively negotiate a reduced charge with 

the State as a basis for relief in his written petition or amended petition for postconviction relief. Additionally, the Petitioner did not argue this issue during the postconviction hearing, and the post-conviction court did not address this issue in its written 

order denying relief. Accordingly, we conclude that this issue is waived. See Marcus 

Rhodes v. State, No. W2018-01220-CCA-R3-PC, 2019 WL 1996912, at *4 (Tenn. Crim. 

App. May 6, 2019), no perm. app. filed (concluding the petitioner waived appellate 

review of an issue when he failed to raise the issue in his post-conviction petition and 

during the post-conviction evidentiary hearing, even when there was limited testimony 

regarding the issue, and the post-conviction court did not address the issue). 

CONCLUSION

Based on the foregoing, the judgment of the post-conviction court is affirmed. 

JOHN EVERETT WILLIAMS, PRESIDING JUDGE