IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 13, 2004

ALBERT YARBROUGH v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-26800 Arthur T. Bennett, Judge

No. W2004-00867-CCA-R3-PC - Filed August 13, 2004

The petitioner, Albert Yarbrough, was convicted by a jury in the Shelby County Criminal Court of

rape, a Class B felony. The trial court sentenced the petitioner as a violent offender to fourteen years

in the Tennessee Department of Correction. Following an unsuccessful appeal of his conviction, the

petitioner filed a petition for post-conviction relief, alleging, among other grounds, ineffective

assistance of counsel. The post-conviction court denied the petition, finding the petition to be barred

by the statute of limitations and the petitioner’s allegations to be without merit. The petitioner now

brings this appeal challenging the denial of his petition for relief. Upon review of the record and the

parties’ briefs, we conclude that the petitioner timely filed his petition for post-conviction relief.

However, we affirm the post-conviction court’s denial of the petition on the merits. 

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

NORMA MCGEE OGLE,J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

ALAN E. GLENN, JJ., joined.

Juni S. Ganguli, Memphis, Tennessee, for the appellant, Albert Yarbrough.

Paul G. Summers, Attorney General and Reporter;Jennifer L. Bledsoe, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Lee Coffee, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

I. Factual Background

The petitioner was convicted by a jury of rape and sentenced as a violent offender to fourteen

years incarceration. The petitioner subsequently filed a direct appeal challenging the sufficiency of

the evidence. On April 12, 2002, this court affirmed the conviction. State v. Albert Yarbrough, No.

W2001-01150-CCA-R3-CD, 2002 WL 1732337 (Tenn. Crim. App. at Jackson, Apr. 12, 2002). On

September 30, 2002, the petitioner filed a pro se petition for post-conviction relief. The post-
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conviction court appointed counsel, and an amended petition was filed, alleging ineffective

assistance of counsel at trial. On September 18, 2003, the post-conviction court held an evidentiary

hearing at which the petitioner, his trial counsel, and a fellow inmate testified.

At the evidentiary hearing, trial counsel testified that she was licensed to practice law in 1987

and was employed by the public defender’s office for fifteen years. She related that she had

previouslytried approximatelyfiftycriminal cases. Trial counsel testified that upon being appointed

to represent the petitioner, she filed the appropriate motions, including a motion for discovery and

a motion to suppress the victim’s out of court identification. Additionally, she filed the proper

responses to the State’s motions and challenged the chain of custodyof the petitioner’s DNA sample.

Trial counsel testified that she spent twenty to thirty hours preparing for the petitioner’s trial, not

including three days of trial and several hearings on sentencing. Moreover, trial was reset numerous

times while the parties awaited the results of DNA analysis.

Trial counsel testified that the petitioner was in custody when she was first appointed to

represent him; however, he was subsequently released on bond. Trial counsel related that she did

not learn that the petitioner had been released on bond until a subsequent court date. Trial counsel

visited the petitioner in jail on three occasions and also talked with him at court appearances. She

explained that once the petitioner was released on bond, it was his responsibility to contact her for

appointments. According to trial counsel, the petitioner never came to the public defender’s office

and telephoned only twice. Nevertheless, trial counsel related that her visits with the petitioner were

productive. Trial counsel stated, “We talked about the DNA at length . . . [and] I gave him copies

of the DNA report and [other discovery materials].”

Trial counsel conceded that neither she nor the investigator from the public defender’s office

interviewed the victim in the instant case. However, trial counsel stated that she learned of the

victim’s allegations through the affidavit of complaint, discovery materials, and testimony at the

suppression hearing. Moreover, prior to trial, the State allowed trial counsel to review and take notes

from the victim’s statement. Trial counsel maintained that she was not surprised by any of the

victim’s testimony and she questioned the victim regarding the “number of inconsistencies” in her

testimony.

Regarding the theory of defense, trial counsel testified that the petitioner maintained his

innocence throughout the trial process, claiming that he had never seen the victim. The petitioner

provided trial counsel with the names of alibi witnesses, and trial counsel and the investigator

contacted these witnesses. Trial counsel subsequently learned that the results of DNA analysis of

semen found on the victim matched the petitioner’s DNA. Trial counsel explained to the petitioner

that based upon the DNA results, an alibi defense would not likely be successful. Nevertheless, the

petitioner insisted on going to trial. However, prior to trial, the petitioner decided not to present the

testimony of the alibi witnesses. At trial, counsel vigorously challenged the chain of custody of the

petitioner’s blood samples in an attempt to attack the reliability of the DNA analysis. Trial counsel

testified that because the petitioner denied having sex with the victim, she did not pursue the defense

of consent. She further explained that the defense of consent would not have been successful
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because the victim had been beaten during the rape, resulting in the loss of teeth and bruising about

the face.

When asked if she had questioned the victim on cross-examination about being a prostitute,

trial counsel replied that she asked the victim about her employment. The victim responded that she

was unemployed. Trial counsel then asked the victim why she was out late at night, and the victim

responded that she had been to a party. Trial counsel testified that unless the victim had admitted

she was a prostitute, there was no way to prove it.

Trial counsel testified that in November of 2000, the State offered the petitioner a sentence

of eight years. In light of the DNA results and the victim’s identification of the petitioner, trial

counsel believed eight years was “a great offer.” Trial counsel informed the petitioner of the State’s

offer two weeks later, at which time she also provided him with copies of the DNA results and

discovery materials and discussed the contents of the victim’s statement. Trial counsel advised the

petitioner of the State’s evidence, including the DNA results and the victim’s identification of the

petitioner. She further explained that rape was a violent offense for which the petitioner could

receive a sentence of twelve to twenty years with no possibility of parole. The petitioner refused to

accept the State’s offer.

Trial counsel testified that the State’s offer of eight years was available until jury selection.

Once the jurywas selected, the trial court voir dired the petitioner about his refusal to accept the plea

offer. Trial counsel stated that the petitioner knowingly, intelligently, and voluntarily rejected the

State’s offer, explaining that she and the petitioner had discussed the offer several times and the

petitioner was well-advised of the facts of the case. Moreover, the petitioner had prior convictions

and was familiar with the criminal justice system. According to trial counsel, the petitioner was

confident that a jury would not believe the victim. “[The petitioner] was adamant from day one that

he did not do this and he wanted a trial.” 

Donald Watkins testified that he was an inmate in the Tennessee Department of Correction,

serving sentences for drug convictions and violating the Motor Vehicle Habitual Offender’s Act.

Prior to incarceration, Watkins had lived in Memphis where he sold drugs. Watkins related that he

had known the petitioner for approximately five years and he and the petitioner were currently

incarcerated at the same facility. Watkins testified that prior to the petitioner’s trial, the petitioner

informed him that he had been charged with raping the victim. Watkins told the petitioner that he

had previously sold cocaine to the victim and the victim had offered sex in exchange for drugs.

Watkins testified that he would have testified to these facts at the petitioner’s trial, but he was never

contacted by anyone from the public defender’s office. On cross-examination, Watkins conceded

that he had never seen a picture of the victim.

At the evidentiaryhearing, the petitioner testified that trial counsel failed to provide adequate

representation. According to the petitioner, trial counsel failed to consult with him and failed to file

the proper motions. The petitioner claimed that trial counsel should have filed a motion to hire a

DNA expert to refute the testimony of the State’s DNA expert. The petitioner further claimed that
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he did not receive the results of the DNA analysis until the day of trial. The petitioner conceded that

he never informed anyone about the ineffectiveness of trial counsel, but claimed that he did not know

who to contact.

The petitioner testified that trial counsel advised him that rapewas a Class Bfelony for which

he could receive a sentence of twenty to thirty years incarceration without the possibility of parole.

He further acknowledged that trial counsel advised him that his prior convictions could be used to

enhance his sentence. The petitioner stated that on the day of trial, counsel provided him with the

results of the DNA analysis. The petitioner claimed that at that time he believed that the State’s offer

was twenty years. He denied that counsel informed him prior to trial of the State’s offer of eight

years incarceration. According to the petitioner, “[h]alfway through trial she asked me why wouldn’t

I take the eight. And I asked her what eight?” The petitioner stated that he might have accepted the

State’s offer of eight years, but he did not have adequate time to consider the offer. The petitioner

claimed that he did not know that he could have pled guilty in the middle of trial.

The petitioner further testified that trial counsel did not present an adequate defense. The

petitioner acknowledged that he told trial counsel that he did not rape the victim. Nevertheless, the

petitioner claimed that upon receiving the DNA results, trial counsel should have insisted upon

pursuing a defense of consent. However, the petitioner conceded that he never informed her that he

had consensual sex with the victim. He claimed that because trial counsel believed he was guilty,

it would not have made a difference. Moreover, he did not want his family to learn of the

extramarital affair. The petitioner explained that he had known the victim prior to the alleged rape

and she had previously performed oral sex on him.

The petitioner testified that trial counsel visited him several times in jail and they met once

in the courtroom. He acknowledged that he provided trial counsel with the names of alibi witnesses,

but subsequently decided not to call them to testify. He explained that he did not want them to

provide false testimony. On cross-examination, the petitioner conceded that he had previously been

convicted of twomisdemeanors and seven felonies, including burglary, sexual offenses, assault with

intent to commit murder, robbery, and aggravated kidnapping.

At the conclusion of the testimony, the post-conviction court denied the petition for postconviction relief. Specifically, the post-conviction court found that the petitioner had been untruthful

in his petition and in his testimony. The post-conviction court found that trial counsel was effective

and vigorously represented the petitioner at trial, stating, “[she] put forth the best defense she could

based on the factual situation that she had to deal with. She did everything that a lawyer could have

done under the facts of your case.” Thereafter, the post-conviction court entered written findings of

facts and conclusions of law, finding the petition to be barred by the statute of limitations and the

petitioner’s allegations to be without merit. The petitioner now brings this appeal challenging the

denial of his petition for post-conviction relief.
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II. Analysis

A. Statute of Limitations

Tennessee Code Annotated section 40-30-102(a) (2003) provides in pertinent part that

a person in custody under a sentence of a court of this state must

petition for post-conviction relief under this part within one (1) year

of the date of the final action of the highest state appellate court to

which an appeal is taken or, if no appeal is taken, within one (1) year

of the date on which the judgment became final, or consideration of

such petition shall be barred.

As the State concedes, the post-conviction court erred by finding that the instant petition was

time-barred. In its findings of fact, the post-conviction court stated that the petitioner was convicted

on March 21, 2001, but did not file his petition for post-conviction relief until September 30, 2002,

more than one year after the judgment became final. However, the petitioner filed a direct appeal

to this court. Thus, the judgment did not become final until this court affirmed the petitioner’s

conviction on April 12, 2002. Accordingly, the petitioner timely filed for post-conviction relief.

B. Ineffective Assistance of Counsel

In a post-conviction proceeding, the petitioner bears the burden of proving the grounds raised

in the petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003).

“Evidence is clear and convincingwhen there is no serious orsubstantial doubt about the correctness

of the conclusions drawn from the evidence.” Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim.

App. 1998) (citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Questions

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

factual issues raised by the evidence are to be resolved by the post-conviction court as the trier of

fact. Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we afford the post-conviction

court’s findings of fact the weight of a jury verdict, with such findings being conclusive on appeal

absent a showing that the evidence in the record preponderates against those findings. Id. at 578.

On appeal, a claim of ineffective assistance of counsel presents a mixed question of law and

fact subject to de novo review. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). As such, the postconviction court’s findings of fact are entitled to a presumption of correctness unless the evidence

preponderates against those findings. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). However,

a post-conviction court’s conclusions of law, such as whether counsel’s performance was deficient

or whether that deficiency was prejudicial, are subject to a purely de novo review with no

presumption of correctness. 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
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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, 104 S. Ct. 2052, 2064 (1984)).

Because 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.

Id. at 370. 

To establish constitutionally deficient performance, the petitioner must demonstrate that

counsel’s representation fell below an objective standard of reasonableness. Strickland, 466 U.S.

at 687-88, 104 S. Ct. at 2064; Burns, 6 S.W.3d at 462. Specifically, the petitioner must show that

counsel’s performance was not within “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, 104 S. Ct. at 2068;

see also Dean v. State, 59 S.W.3d 663, 667 (Tenn. 2001).

On appeal, the petitioner alleges numerous instances of ineffective assistance of trial counsel.

The petitioner contends that trial counsel failed to interview the victim or other witnesses, made no

effort to suppress the victim’s out of court identification of the petitioner, failed to prepare the

petitioner for trial, failed to inform the petitioner of the futility of an alibi defense, failed to present

the testimony of Donald Watkins who would have testified that the victim was a cocaine-addicted

prostitute, and failed to adequately prepare for trial. The petitioner argues that cumulatively these

deficiencies gave rise to a reasonable probability that, but for trial counsel’s errors, the result of the

proceeding would have been different. We find the petitioner’s allegations to be without merit.

As previously noted, the post-conviction court found that trial counsel was effective and

vigorously represented the petitioner at trial, stating that trial counsel had “put forth the best defense

she could based on the factual situation she had to deal with.” The post-conviction court obviously

accredited the testimony of trial counsel. The record does not preponderate against those findings.

III. Conclusion

Accordingly, we affirm the judgment of the post-conviction court.
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___________________________________ 

NORMA McGEE OGLE, JUDGE