IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs July 29, 2020

JIM HUDGINS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Knox County

No. 111382 Bobby R. McGee, Judge

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No. E2019-02173-CCA-R3-PC

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The Petitioner, Jim Hudgins, appeals the Knox County Criminal Court’s denial of his 

petition for post-conviction relief, seeking relief from his conviction of first degree 

premediated murder and resulting life sentence. On appeal, the Petitioner contends that he 

received the ineffective assistance of counsel because trial counsel failed to present 

evidence that he was too intoxicated to form the requisite intent for premeditation. Based 

upon the record and the parties’ briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JAMES CURWOOD 

WITT, JR., and D. KELLY THOMAS, JR., JJ., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Jim Hudgins.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant 

Attorney General; Charme P. Allen, District Attorney General; and Takisha Fitzgerald, 

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

OPINION

I. Factual Background

On October 16, 2013, the Petitioner shot and killed the victim, Larry Turner. In 

August 2014, a Knox County jury convicted the Petitioner of first degree premeditated 

murder.

The Petitioner appealed his conviction to this court, and we have summarized the 

facts from this court’s opinion as follows: The Petitioner and Laura Swaggerty were in a 

relationship sixteen years before the shooting and had a daughter (hereinafter “the 

12/22/2020
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daughter”). State v. James K. Hudgins, No. E2015-01363-CCA-R3-CD, 2016 WL 

4413281, at *1 (Tenn. Crim. App. at Knoxville, Aug. 18, 2016), perm. app. denied, (Tenn. 

Oct. 19, 2016). Ms. Swaggerty ended her relationship with the Petitioner three months 

after the daughter was born, and Ms. Swaggerty began dating the victim in December 2011. 

Id. At the time of the shooting, the victim, Ms. Swaggerty, the daughter, and the victim’s 

son lived in a home on Churchwell Avenue. Id. The daughter testified at trial that she 

eventually came to regard the victim as a second father, and Ms. Swaggerty testified that 

the Petitioner and the victim “had always interacted peacefully and civilly” prior to the 

shooting. Id. 

On the evening of the shooting, the Petitioner got into a confrontation with the 

victim outside of Ms. Swaggerty’s mother home. See id. at *1-2. Ms. Swaggerty and the 

daughter, who also were outside, testified that the Petitioner appeared to be intoxicated. 

Id. at *1. Some of the Petitioner’s friends pulled him away from the confrontation. Id. at 

*2. The Petitioner and a female companion drove away from the scene, and the Petitioner 

returned to his own home. Id.

The Petitioner telephoned the victim, and Ms. Swaggerty heard the victim say, 

“‘Hmm, you’re going to kill me. Okay. You know where I’m at.’” Id. During the call, 

the victim handed his telephone to the daughter and asked if he had ever molested her. Id. 

The daughter told the Petitioner that the victim had never molested her. Id. Ms. Swaggerty 

testified that prior to that night, she had never heard the Petitioner allege that the victim 

had molested the daughter. Id. The daughter testified that the victim had never touched 

her inappropriately. Id. 

The Petitioner’s son and mother arrived at the Petitioner’s home while the Petitioner 

was on the telephone with the victim. Id. The Petitioner’s son testified that he heard the 

Petitioner speaking with someone. Id. The Petitioner “‘looked angry’” and said into the 

telephone that he “‘was going to kill [the person].’” Id. After the call, the Petitioner asked 

his mother to drive him to the daughter’s house and said he was “‘going to shoot the bastard 

that molested [his] daughter.’” Id. The Petitioner’s mother began driving the Petitioner 

and the Petitioner’s son to the daughter’s house. Id. The Petitioner’s mother said she 

needed to use the restroom, stopped at a Kroger grocery store, and went inside and called 

the police. Id. The Petitioner and his son remained outside in the vehicle. Id. While they 

were waiting for the Petitioner’s mother to return, the Petitioner told his son that the 

Petitioner was “‘probably going to die with’” the victim and that the Petitioner was going 

to give the victim “‘a one-way ticket to heaven.’” Id. 

Knoxville Police Department Officer Jeremy Moses arrived at the Kroger at 9:12 

p.m., approached the vehicle, and spoke with the Petitioner. Id. at *3. Officer Moses told 

the Petitioner that he had received a call that a person in the vehicle was behaving 
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suspiciously. Id. Officer Moses said that the Petitioner appeared “quite intoxicated” and 

that he asked the Petitioner how much the Petitioner had had to drink. Id. The Petitioner 

never provided a specific amount and did not say the daughter was being molested. Id. 

Another officer went into the Kroger and returned with the Petitioner’s mother. Id. At that 

point, the officers learned about allegations that the daughter was being molested and 

learned the daughter’s address. Id. The officers left the Kroger parking lot at 9:35 p.m. 

and went to a home on Churchwell. Id. They knocked on the doors and windows but did 

not receive a response. Id. Meanwhile, the Petitioner’s mother drove the Petitioner and 

his son back to the Petitioner’s residence. Id. The Petitioner and his son went inside, and 

the Petitioner’s mother left. Id.

The Petitioner’s son testified that the Petitioner was “‘just pacing’” in the living 

room, that he did not speak to the Petitioner because he did not want to upset the Petitioner, 

and that he knew the Petitioner was “emotionally fragile.” Id. The Petitioner told his son, 

who had a learner’s permit, that they should “‘go riding’”; handed his son the keys; and 

suggested that they drive by the daughter’s house to see if anyone was home. Id. at *3. 

The Petitioner’s son drove the Petitioner to the daughter’s residence, and the Petitioner 

attempted to telephone her. Id. at *4. The victim answered the telephone and told the 

Petitioner that the Petitioner could not speak with the daughter because she was sleeping. 

Id. The Petitioner’s son said that the Petitioner went onto the front porch and that the 

Petitioner was “‘obviously mad.’” Id. Ms. Swaggerty heard the Petitioner “‘banging’” on 

the door, heard the victim argue with the Petitioner, and heard the Petitioner accuse the 

victim of molesting the daughter. Id. The daughter testified that she heard the Petitioner’s 

voice and that he did not sound intoxicated. Id. Ms. Swaggerty, the daughter, and the 

Petitioner’s son heard gunshots. Id. The Petitioner’s son testified that he heard “‘five 

pops.’”

Ms. Swaggerty and the daughter ran outside to check on the victim, and the daughter 

saw the Petitioner “‘walking away.’” Id. Several neighbors also heard the gunshots and 

attempted to help the victim, who appeared to have been shot at least twice in the chest. 

Id. One of the neighbors applied towels to the victim’s wounds to stop the bleeding, but 

the blood stopped flowing and the victim stopped breathing several minutes later. Id.

The Petitioner’s son drove him from the scene, and the Petitioner said he needed to 

go to Walmart to buy a new charger for his telephone. Id. After buying the charger, the 

Petitioner had his son drive him to the home of friends Dennis and Diane Graves. Id. The 

Petitioner’s son testified that the Petitioner was not intoxicated at that time and that he 

would have known if the Petitioner was “drunk.” Id.
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The Petitioner arrived at the Graves home about 1:00 a.m. and told them that he 

“‘did something bad.’” Id. at *5. The Petitioner began crying, and Mr. and Mrs. Graves 

convinced him to turn himself in to the police. Id.

The medical examiner who performed the victim’s autopsy testified that the victim 

was shot five times and that several shots were fired at close range. Id. A forensic scientist 

for the Tennessee Bureau of Investigation testified about four .40-caliber casings recovered 

from the scene.1 Id. All of the .40-caliber casings were fired from the same handgun, most 

likely a Glock or Smith & Wesson Sigma. Id.

Dennis Graves and the Petitioner testified for the defense. Id. Mr. Graves testified 

that he talked with the Petitioner twice on the day of the shooting. Id. Mr. Graves said that 

he first spoke with the Petitioner in the afternoon, that the Petitioner sounded “‘[s]mashed’” 

and “‘[d]runk,’” and that the Petitioner “could barely speak and had slurred speech.” Id. 

The Petitioner telephoned Mr. Graves later that evening and sounded “even more 

intoxicated than he did during the first phone call.” Id. Mr. Graves stated that when the 

Petitioner arrived at his home after the shooting, the Petitioner “appeared upset and 

frustrated.” Id. The Petitioner began crying and told Mr. Graves, “‘I’ve done the most 

horrible thing I could. God will never forgive me. . . . I’ve shot a man and I think he’s 

dead.’” Id. Mr. Graves said the Petitioner had overheard a conversation between the

daughter and two of her friends in which the daughter claimed the victim was molesting 

her. Id. 

The Petitioner testified that on day of the shooting, he went to Applebee’s for lunch 

and consumed six double vodkas. Id. About 2:00 or 3:00 p.m., the Petitioner drove home 

“drunk.” Id. The Petitioner then went to a bar with a female friend and consumed seven 

or eight drinks. Id. The Petitioner testified that he was “‘really drunk’” and that he did not 

remember making his second telephone call to Mr. Graves. Id. 

The Petitioner testified that he and his female friend ended up at a home across the 

street from the daughter’s grandmother’s house and that he continued to consume alcohol. 

Id. at *6. The Petitioner went across the street to ask the daughter, who was outside with 

the victim and Ms. Swaggerty, if she was going to spend time with him during the 

upcoming weekend. Id. The Petitioner testified that “‘[she] said that she had plans, but 

when she did she got this kind of smirk on her face, and she glanced over at [the victim], 

and he’s looking back at her, and they kind of pass this look. It was weird. It just wasn’t 

right.’” Id. The Petitioner thought that something was “very ‘wrong’” and thought that 

 

1 According to this court’s opinion, five casings were “recovered from the scene”: One Winchester

.380 casing and four .40-caliber casings. Id. However, our review of the trial transcript shows that the .380 

casing was actually found in the victim’s pocket during the victim’s autopsy.
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the daughter was having sex with the victim. Id. The Petitioner accused the victim of 

being “‘nothing but a child molester,’” and the victim did not respond to the Petitioner’s 

statement. Id. The Petitioner’s friends led him away from the scene, and the Petitioner’s 

female friend drove him home because he was too “drunk” to drive. Id.

The Petitioner testified that he continued drinking alcohol at his home and that he 

telephoned the daughter. Id. The victim answered but would not let the Petitioner speak 

with her. Id. The Petitioner said that the victim did not hand the telephone to the daughter 

and that the daughter never told the Petitioner that the victim was not molesting her. Id. 

The Petitioner’s mother and son arrived at his home, and the Petitioner remembered telling 

the victim that he was going to kill the victim. Id. 

The Petitioner testified that he asked his mother to drive him to the daughter’s home 

and that they left in his mother’s van. Id. The Petitioner testified about stopping at Kroger 

and said he never told his son that he was going to give the victim “‘a one-way ticket to 

heaven.’” Id. The Petitioner talked with police officers in the Kroger parking lot. Id. He

told them that he thought the daughter was being molested and that the victim threatened 

him. Id. The Petitioner acknowledged that the daughter never told him that the victim was 

molesting her. Id.

After leaving Kroger, the Petitioner’s mother dropped him off at home, and he 

resumed consuming alcohol. Id. Later that night, the Petitioner had his son drive him to 

the victim’s house so that he could remove the daughter from the victim’s home. Id. 

According to this court’s opinion, the Petitioner “recalled the precise route that they took 

to get to the residence, identifying all of the streets on which they traveled.” Id. The 

Petitioner approached the victim’s house about 11:00 p.m. and had his Glock .40-caliber 

pistol in a holster on his hip. Id. The Petitioner said that he only went to the home to get 

the daughter and that he had his gun “because the victim was much larger than he was.” 

Id. 

The Petitioner testified that he “‘pounded’” on the door. Id. at *7. The Petitioner 

told the victim that he knew what was “‘going on,’” and the victim responded, “‘What if I 

am? . . . Prove it.’” Id. The Petitioner removed his gun from its holster, pointed the gun at 

the victim, and pulled the trigger. Id. The Petitioner said that after the shooting, he realized 

he had “‘just made a terrible mistake’” and that he was so traumatized he could not think 

clearly. Id. Nevertheless, he “agreed that he had been able to explain and recall the events 

and conversations that preceded the killing and that he was able to point out portions of the 

son’s, Ms. Swaggerty’s, and the daughter’s testimony that he believed were inaccurate.” 

Id. The Petitioner also agreed “that despite his heavy drinking, he was able to clearly recall 

details that preceded the killing.” Id.
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The Petitioner testified that he went to Walmart to buy a new telephone charger so 

that he could report the killing to the police. Id. After purchasing the charger, the Petitioner 

made several telephone calls, including a call to his mother. Id. He disassembled his gun, 

had his son pull over, and threw the gun into a lake. Id. The Petitioner recalled going to 

the Graves home but said he did not tell Mr. Graves that he overheard the daughter tell her 

friends that the victim was molesting her. Id. The Petitioner said the victim was the first 

person he ever accused of molesting the daughter. Id.

Kellie Martin testified on rebuttal for the State that she worked at Applebee’s, that 

she served the Petitioner on the day of the shooting, and that the Petitioner did not appear 

to be “drunk.” Id. Ms. Swaggerty testified on rebuttal that when the daughter was four or

five months old, the Petitioner “would call the police and do welfare checks saying [the 

daughter] was being molested.” Id. Finally, the daughter testified on rebuttal that she did 

not have a conversation with her friends about the victim molesting her and that “she did 

not give the victim a look as if she [were] having sexual intercourse with him.” Id. at *8.

After the jury convicted the Petitioner of first degree premeditated murder, the trial 

court sentenced him to life in confinement. On appeal of his conviction to this court, the 

Petitioner claimed that the evidence was insufficient to support the conviction, that the trial 

court erred by admitting jailhouse telephone calls between the Petitioner and his mother 

into evidence, and that the trial court erred by permitting testimony that the Petitioner 

previously had accused someone of molesting the daughter. Id. This court affirmed the 

Petitioner’s conviction. Id. at *12. In finding the evidence sufficient, this court explained, 

in pertinent part, as follows: 

The defendant argues that he was so intoxicated that he was incapable 

of premeditation and that he should have been convicted of voluntary 

manslaughter. While voluntary “intoxication itself is not a defense to 

prosecution for an offense,” it “is admissible in evidence, if it is relevant to 

negate a culpable mental state.” [Tenn. Code Ann.] § 39-11-503(a). Whether 

the defendant’s intoxication negated his ability to premeditate and form the 

intent to kill were questions for the jury to consider and resolve. State v.

Vaughn, 279 S.W.3d 584, 602 (Tenn. Crim. App. 2008). Similarly, whether 

a “killing resulted from ‘a state of passion produced by adequate provocation 

sufficient to lead a reasonable person to act in an irrational manner’ is a jury 

question.” State v. Williams, 38 S.W.3d 532, 539 (Tenn. 2001) (quoting 

[Tenn. Code Ann.] § 39-13-211(a)).

Here, the jury resolved both of these questions against the defendant. 

He contends that the jury unreasonably rejected evidence of the copious 

amount of alcohol that the defendant consumed on the day of the shooting, 
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including the testimony of several of the State’s witnesses. While the 

defendant testified that on the day of the shooting, he had been drinking all 

day, and while the daughter and Ms. Swaggerty testified that he appeared 

drunk during the confrontation in front of Ms. Swaggerty’s mother’s home, 

there was also evidence to show that the defendant was not so intoxicated 

that he was incapable of premeditation. The son testified that the defendant 

did not appear drunk at the time of the shooting or after the shooting, and he 

testified that he would know if the defendant was drunk. Similarly, the 

daughter testified that the defendant did not sound drunk when he was 

arguing with the victim just before the shooting. Further, the defendant was 

able to recall the events that led up to and followed the shooting in great 

detail, even identifying portions of the testimony that he believed were 

inconsistent with his recollection of the night of the killing. The jury found 

that the defendant’s intoxication did not negate his ability to premeditate and 

form the intent to kill, and the evidence is sufficient to support that finding. 

Similarly, the jury heard evidence that the defendant believed that the victim 

was molesting the daughter. By their verdict of guilty to the charge of first 

degree (premeditated) murder, the jury necessarily rejected the claim that the 

defendant acted in “a state of passion produced by adequate provocation 

sufficient to lead a reasonable person to act in an irrational manner.” [Tenn. 

Code Ann.] § 39-13-211(a). This question was in the province of the jury, 

and we conclude that the evidence is sufficient to support the defendant’s 

conviction. He is not entitled to any relief.

Id. at *10.

After our supreme court denied the Petitioner’s application for permission to appeal, 

he filed a timely petition for post-conviction relief, claiming that he received the ineffective 

assistance of counsel because trial counsel failed to cross-examine witnesses effectively, 

failed to present evidence that would have “countered” the State’s witnesses, failed to 

object to “obviously perjured” testimony, and “did not present any kind of defense at all.” 

The post-conviction court appointed counsel, and post-conviction counsel did not file an 

amended petition.

At the evidentiary hearing, the Petitioner testified that trial counsel died about two 

months after his trial and that another attorney represented him on direct appeal of his 

conviction. The Petitioner said that trial counsel met with him three or four times before 

trial and that their discussions were “mostly” about trial counsel telling the Petitioner “what 

a great lawyer he was in the Eric McLean case.” The Petitioner told trial counsel he had 

receipts which showed that the Petitioner had been drinking alcohol on the day of the 

shooting. The Petitioner told trial counsel to obtain his bank records, but trial counsel 
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“didn’t bother doing that.” The Petitioner said that he consumed alcohol at Applebee’s, 

Preservation Pub, and Latitude 35 prior to the shooting and that his bank statements would 

have shown that he spent almost one hundred dollars for alcohol at Preservation Pub and 

Latitude 35. Post-conviction counsel asked the Petitioner, “Do you have those [bank 

records] with you?” The Petitioner said yes, and post-conviction counsel asked to see the 

records. However, post-conviction counsel did not introduce the records into evidence. 

The Petitioner testified that at the time of the shooting, he had been prescribed three 

Opana pills and two hydrocodone pills per day. Moreover, after the Petitioner’s trial, he 

learned that his mother had “drugged” him on the night of shooting by putting “a handful 

of Xanax” into his drink. The Petitioner did not tell trial counsel about being drugged 

because he did not know about it at the time of trial. 

The Petitioner testified that the State offered to let him plead guilty to second degree 

murder. However, trial counsel told the Petitioner, “‘I’m not going to let you take that. . . 

. I can get that at trial just based on your intoxication. . . . We’re going for manslaughter.’” 

The Petitioner asked trial counsel how much “time” he could receive for second degree 

murder, and trial counsel responded, “Well, that doesn’t matter. . . . [W]e’re not taking it.” 

The Petitioner wanted to accept the State’s plea offer because the range of punishment for 

second degree murder was fifteen to twenty-five years, but trial counsel would not let the 

Petitioner accept the offer. 

The Petitioner testified that trial counsel failed to cross-examine “most” of the 

witnesses at trial effectively. For example, Kellie Martin testified that she served the 

Petitioner “six doubles in two hours” at Applebee’s but that he was not intoxicated. Trial 

counsel should have cross-examined Martin about her “server’s license” and how to “spot” 

the effects of alcohol on an intoxicated person. Trial counsel also did not effectively crossexamine the State’s ballistics expert, who testified that the Petitioner used hollow point 

bullets to shoot the victim. The Petitioner said he actually used “controlled expansion” 

bullets. The Petitioner explained that hollow point bullets caused “maximum damage and 

death” whereas controlled expansion bullets were designed to “knock down” a victim, not 

kill the victim. The Petitioner said his use of controlled expansion bullets supported his 

testimony that he did not intend to kill the victim.

The Petitioner testified that the victim was shot five times but that only four .40-

caliber casings were found at the scene. The Petitioner told trial counsel that the State’s 

facts were not “lining up,” but trial counsel “just dismissed it.” The Petitioner said that he 

did not fire the fifth bullet and that the fifth bullet could have been the bullet that killed the 

victim. Trial counsel never cross-examined the State’s witness about the fact that only four 

bullets were fired from the Petitioner’s gun. Trial counsel also did not argue that fact 

during his closing argument. The “only real argument” trial counsel made during closing 
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was that the Petitioner was intoxicated at the time of the shooting. However, trial counsel 

failed to obtain the Petitioner’s bank statements or introduce his prescriptions into evidence 

in order to prove his intoxication. 

The Petitioner testified that trial counsel seemed “quite impaired” during the trial, 

that trial counsel was “nodding out,” and that the Petitioner kept having to “nudge” trial 

counsel in order to get trial counsel to pay attention. The Petitioner said trial counsel 

“wasn’t on his A game” and “seemed to completely drop the ball” in the Petitioner’s case. 

Trial counsel failed to call any investigators to testify. When the Petitioner expressed 

concern about no investigators testifying, trial counsel told the Petitioner, “‘I know what 

I’m doing. I’ve done 35 murder trials.’” The Petitioner said that if trial counsel had “put 

on investigators,” the defense could have presented evidence that vindicated the Petitioner 

“at least in the eyes of some of the jurors.” 

The Petitioner testified that he never received a psychological examination because 

trial counsel said the Petitioner did not need one. The Petitioner thought he needed an 

examination, explaining, “I don’t know how you can say you’re in the heat of passion or 

you’re, you know, basically temporarily gone insane if you don’t have a professional there 

who can either collaborate or not collaborate.” The Petitioner said he did not intend to kill 

the victim. He said he went to the victim’s house that night because he just wanted to take 

the daughter to the police department so that she could be interviewed in a controlled 

setting without being influenced by the victim or Ms. Swaggerty. 

On cross-examination, the Petitioner testified that on the night of the shooting, he 

went onto the victim’s front porch and yelled through the door that he wanted to see the 

daughter. At some point, the Petitioner called the victim “a child molester.” The Petitioner 

said that he was “holding [onto] the wall” and that his gun was on his hip. The victim came 

outside, and the Petitioner demanded to see the daughter. The victim told the Petitioner 

no, so the Petitioner asked to speak with Ms. Swaggerty. The victim again told the 

Petitioner no. The Petitioner said that “this [went] back and forth” and that he became 

“completely frustrated.” The Petitioner told the victim that he knew the victim was a child 

molester, and the victim responded, “‘Well, what if I am? What are you going to do about 

it?’” The Petitioner shot the victim. 

The Petitioner acknowledged that he testified at trial about the liquor he consumed 

before the shooting. The Petitioner’s mother and son told Ray and Melissa Green about 

the level of the Petitioner’s intoxication, and the Greens could have testified at trial about 

what the Petitioner’s mother and son told them. Ray Green was the “arresting officer” in 

the Petitioner’s case. On redirect examination, the Petitioner testified that his mother was 

unable to testify at the evidentiary hearing because she was deceased. On recrossexamination, the Petitioner acknowledged that his mother was present during his trial.
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The parties chose to forego closing arguments, and the post-conviction court 

announced its ruling. The post-conviction court said that “[t]his Court tried this case” and 

that “there was certainly nothing to indicate that [trial counsel] was impaired in any way. 

The Court would have intervened had that occurred.” The post-conviction court stated that 

trial counsel’s defense strategy was to show that the Petitioner was too intoxicated to 

premeditate killing the victim, which was “about the only strategy available.” The postconviction court noted that the Petitioner’s son testified at trial that the Petitioner “was able 

to walk okay” and was not intoxicated and that the Petitioner’s daughter also testified that 

he did not sound intoxicated before the shooting. The post-conviction court found that trial 

counsel “tried a defense and it didn’t work” and denied the petition for post-conviction 

relief.

After the post-conviction court announced its ruling, post-conviction counsel 

advised the post-conviction court that the court needed to address the issue regarding trial 

counsel’s refusal to allow the Petitioner to accept the State’s plea offer. The State noted 

that the Petitioner did not introduce any emails or letters about the alleged offer into 

evidence and asserted that the Petitioner’s testimony about the alleged offer was 

“questionable.” The State advised the post-conviction court that the State never made a 

plea offer to the Petitioner, noting that this court could not consider that statement as 

evidence. The post-conviction court found that the Petitioner failed to establish by clear 

and convincing evidence that the State ever made a plea offer to the Petitioner.

II. Analysis

On appeal, the Petitioner claims that trial counsel was ineffective because, given the 

defense’s strategy, it was “imperative” that trial counsel present all proof available to show 

that the Petitioner was too intoxicated to premeditate the killing.2 The Petitioner contends 

that trial counsel should have obtained the Petitioner’s bank records to show that the 

Petitioner spent almost one hundred dollars on alcoholic beverages prior to the shooting

and that the bank records would have bolstered the Petitioner’s credibility. The Petitioner 

also contends that trial counsel should have presented proof that the Petitioner had been 

prescribed three Opana pills and two hydrocodone pills daily due to a severe back 

deformity and that trial counsel should have presented proof that his “late” mother told 

several people she “drugged” him with Xanax on the night of the shooting. The State 

argues that the trial court properly denied the petition for post-conviction relief. We agree 

with the State.

 

2 We note that the Petitioner did not raise the issue regarding the plea offer in his appellate brief.
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To be successful in a claim for post-conviction relief, a petitioner must prove the 

factual allegations contained in the post-conviction petition by clear and convincing 

evidence. See Tenn. Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means 

evidence in which there is no serious or substantial doubt about the correctness of the 

conclusions drawn from the evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. 

App. 1999) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). 

Issues regarding the credibility of witnesses, the weight and value to be accorded their 

testimony, and the factual questions raised by the evidence adduced at trial are to be 

resolved by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d 

572, 579 (Tenn. 1997). Therefore, the post-conviction court’s findings of fact are entitled 

to substantial deference on appeal unless the evidence preponderates against those findings. 

See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).

A claim of ineffective assistance of counsel is a mixed question of law and fact. See

State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction 

court’s findings of fact de novo with a presumption that those findings are correct. See

Fields, 40 S.W.3d at 458. However, we will review the post-conviction court’s conclusions 

of law purely de novo. Id.

When a petitioner seeks post-conviction relief on the basis of ineffective assistance 

of counsel, “the petitioner bears the burden of proving both that counsel’s performance was 

deficient and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363, 

369 (Tenn. 1996) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To 

establish deficient performance, the petitioner must show that counsel’s performance was 

below “the range of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 

523 S.W.2d 930, 936 (Tenn. 1975). To establish prejudice, the 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. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. Further,

[b]ecause a petitioner must establish both prongs of the test, a failure to prove 

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

ineffective assistance claim. Indeed, a court need not address the 

components in any particular order or even address both if the [petitioner] 

makes an insufficient showing of one component. 

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). 

Turning to the instant case, the Petitioner claims that trial counsel should have 

introduced the Petitioner’s bank records and prescriptions into evidence at trial. However, 

the Petitioner failed to introduce the bank records or prescriptions into evidence at the 
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evidentiary hearing. We note that the Petitioner brought the bank records to the evidentiary 

hearing but that post-conviction counsel did not introduce the records into evidence. The 

Petitioner also did not have any witnesses testify at the hearing about his mother’s drugging 

him with Xanax on the night of the shooting. This court may not speculate as to the content 

of a witness’s testimony. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 

1990). Therefore, the Petitioner has failed to show that trial counsel was deficient for 

failing to present the evidence at trial.

Regardless, several of the State’s witnesses at trial, including the Petitioner’s 

daughter, testified that the Petitioner was intoxicated at some point on the day of the 

shooting. Mr. Graves also testified for the Petitioner that the Petitioner was intoxicated. 

The proof showed, though, that in the hours leading up to the victim’s death, the Petitioner 

made several declarations of intent to kill the victim. Even the Petitioner’s own son 

testified that the Petitioner said he was going to kill the victim. Moreover, the Petitioner’s 

son said that the Petitioner was angry but not intoxicated at the time of the shooting. On 

direct appeal of the Petitioner’s convictions, this court noted that the Petitioner was able to 

recall at trial the “precise” route that he and his son took to get to the victim’s residence. 

Likewise, we note that although the shooting occurred more than six years before the 

evidentiary hearing, the Petitioner was able to recall what occurred on the victim’s front 

porch prior to the shooting. Therefore, we also conclude that the Petitioner has failed to 

demonstrate that he was prejudiced by any deficiencies by trial counsel. Accordingly, the 

post-conviction court properly denied the petition for post-conviction relief. 

III. Conclusion

Based upon the record and the parties’ briefs, we affirm the judgment of the postconviction court.

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NORMA MCGEE OGLE, JUDGE