### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs N ove m be r 2, 200 4

MIK O T. BURL v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Shelby Coun ty

No. P -27215 Bernie We inman, Judge

No. W2004-00327-C CA-R 3-P C - F iled Dece m ber 23, 2004

The Petitioner, Miko T. B url, was convicted of a g g ravated assault, ag g ravated burg lary , and

e s p e c i a l l y a g g r a v a t e d r o b b e r y, a n d t h e t r i a l c o u r ts e n t e n c e d h i mt o a n e f f e c t i v e s e n t e n c e o f

t w e n t yfive y ear s. On direc t appea l, this Court vacated the Petitioner’s ag g ravated assault convic tion, but aff irmed all of the Petitioner’ s o t h er co n v ictions. The Petitioner subsequently filed a pe tition for post-conviction re lief alleg ing, a mong o t h er things, inef fec tive assistance of counse l. After a hearing, the post-conviction court dismi ssed the Petitioner’s pe tition. On appeal
, t he Petitioner contends that the post-conviction court erre d beca use t he P etitioner’s trial counsel wa s ineffe ctive. F ind ing no re ve rs ibl e e rr or , w e a ff ir m th e jud g me nt o f the po st- c on vic tio n c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

R OB E R T W. W EDEMEYER , J
., delivere d the opinion of the court, in which J ER R Y L. S MI TH a ndJ.C. M C L I N J J ., joined.
C. Anne Tipton, Memphis, Tennesse e, for the appe llant, Miko T. Burl.

Pa ul G . Su mme rs , A tto rn e y Ge ne ra l a ndRe po rt e r; Da vidE. Coe ne n, As sis ta nt A tto rn e y Ge ne ra l; Wil liam L . Gibbons, District Attorney Gene ral; and EmilyCampbell, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.
OP IN ION I. F acts

On F e br ua ry 7, 20 00 , a

She lby Cou nty jury c on vic te d th e Pe tit ion e r o f a g g ra va te d a ssa ult
, ag g ravated burg lary
, and espec ially ag g ravated robbery

. The trial court se ntence d the Petitioner, a Ran g e I s ta n d ar d o f

f e n d e r , to f

o u r y e ar s f

o r th e a g g r a v a te d a s s a u lt c o n v ic ti o n , f o u r y e ars for the ag g ravated burg lary

conviction, and twe nty -five y ear s for the e specia lly ag g ravated robbe ry conviction, and or dere d these sentences to run c oncurr ently . This Court summ arized the unde rly ing fa c ts o f the Pe tit ion e r’ s c a se on dir e c t app e a l a s f oll ow s:-2-

On September

22, 1998, J osephine Woodson, the eig hty -six -y ear -old victim, and her daug hte r- in- la w, L ind a

F ly , w e re a t Ms . Wo od so n’ s h ome in Mem ph is. Ms. Woo ds on he ardso me on e a t th e do or . T hin kin g it wa s her so n, sh e g ot u p to le t hi m in. When she g ot up, she was met by the Appellant, who w as holding a g un in her fa c e a nd de ma nd ing mon e y

. Ms. Woo ds on g ra bb e d the g un , a ndbe g a n to “ tus sle a ll

ov e r the fl oo r” wi th the Ap pe lla nt. Th e Appe lla nt thr e w M s. Woo ds on a g a ins t a he a te r, br e akin g he r ribs . H e fl e d th e ho me a ft er t akin g $2 30 fr om a po c ke t of

Ms. Woodson’s clothing. During the robbe ry , th e Ap p el l ant droppe d a pag er. B ased upon this fact, the Appe llant w as develope d as a suspe ct. During the investig ation, tw o p ho to l ine up s w e re sh ow n to Ms. Woods on and Ms. F ly , a ndbo th p os iti ve ly identified the Appe llant as the robbe r.

Sta te v. Mik o T. B ur l, No

. W20 00 -0 20 74 -C CA -R 3- CD
, 20 02 WL 14 83 20 7, a t *1 -2 (T e nn . Crim. App., at Jackson, J an. 28, 2002), perm. app. de nied (Tenn. June 24, 2002).

On dir e c t a

pp e a l, this Cou rt

he ld that the Pe tit ion e r’ s con vic tio ns fo r b otha g g ra va te d a ssa ult and espe cially

ag g ravated robbe ry

violated double jeopa

rdy principles

. T h e r e f

o r e , th is Court va cate d the Petitioner’s convic tion for ag g ravated assault. The Te nnessee Supreme Court denie d the Petitioner’s reque st for permission t o a p peal. The Petitioner filed a pe tition for post-conviction relief alleg ing, a mong othe r thing s, that he wa s denied eff ective a ssistance of c ounsel. After a hea ring , the post-conviction court dismi ssed the petition, and the Petitioner filed a timely notice of a ppeal. On appea l, the Petitioner asserts that the post-conviction court err ed when it dismiss ed his petition based on its finding that ther e wa s no merit to the Petitioner’s claim that he was denied e ffe ctive assistanc e of c ou ns e l.
The following evidenc e wa s prese nted at th e p o s t- c o n v ic ti o nh e a

ring : The Petitioner testified that he wa s convicted in 2000 on thre e cha rg es and was serving time for those c onvictions with the Tenne ssee De partment of Corr ections. He said that he wa s arr ested on those c harg es in 1999 and that he wa s ap p o i n t ed a publi c def ender in ge nera l sessions court for his pre liminary hearing. H e testified that another

public defe nder, William Moore, was a ppointed to repr esent him in Division I I

. The P etitioner ex plained that Moore repre sented him from Mar ch until November of 1999. The Petitioner said that, on November 30, 1999, his sc heduled trial date, the trial court relieve d Moore from re prese nting him and instructe d the P eti tioner to return to court for his trial on J anuary

24, 2000, with an attorney

. The Petitioner said that, prior to Nove mber 30, 1999, he beg an wor king f or a temporary service in an attempt to g et the money to hire an attorney . He e x plained that he did not have enoug h money to hir e an attorne y until “a couple of

day s” bef

ore his January

24, 2000, court da te

. He te sti f

i e d t h a t , a

c o u p l e o f

d a y s b e f o r e Ja n u ar y

2 4
, 2 0 0 0
, h e s p o k e t o a

l a w y e r , M arv in B a lli n, wh o c a me wi th h im t o c ou rt on Janu ary

24 , 2 00 0. Th e Pe tit ion e r s a id tha t, a ft e r B a lli n c a me wi th h im t o c ou rt

on the 24 th, he re fu se d to re pr e se nt h im a ndtol d th e Pe titione r t o c ome to h is office to obtain a re fund of his re tainer. The Petitioner said that he was taken into custody when he

came to court on the 24th, and stay ed in custody until 12:30 p.m . that same da y . There afte r, the c ourt rele ased him t o find an a ttorney and told him to be back at court by 1:30 p.m., with an attorney-3-

prepa red to re prese nt him.

The Petitioner testified that he contac ted B rent S tein (“Counsel” ) t o repr esent him, and, a fter he spoke with Counsel for twenty to thirtyminutes, Counsel came ba ck to court with the Petiti oner at 1:30 p.m. The Petitioner said that he and C ounsel did not discuss strateg ies or potential witnesses on t hat day . He sa id that Counsel asked for , and wa s g rante d, a continuanc e, and the trial was se t for F ebrua

ry 2, 2000. The Petitioner testi fied that the court held hi m in contempt and he r emained in c us tod y fo r te n da y s. He sa id that Cou ns e l c a me to v isi t hi m on c e a ndthe y sp ok e abo ut the c a se fo r a pprox im ate ly fi ft e e n mi nu te s, wh e n th e y dis c us se d, a mon g oth e r thin g s, ho w C ou ns e l c ou ld contac t the Petitioner’s witnesses. Addit ionally , the Petitioner said that Counsel met with him “rig ht befor e [he] went to trial.”

The Petitioner testified that Counsel neve r discussed with him any disc overy

that he had

rec eived f rom the State, any

pretria l motions that neede d to be filed, or a ny defe nses. The Petitioner said that his me eting with Counsel on the day of trial lasted be tween te n and fifte en minutes and that they discussed picking a jury and the Petitioner’s witnesses. The P etitioner said that Counsel had an assistant with him at this m eeting . He testified that, at his trial, he testified on his own beha lf, and Counsel never

revie wed what his testimonywould be with him prior to his testify ing. T he Petitioner said that Counsel never

told him i f he inve stiga ted the crime scene . The Petitioner said that one of the two ey ewitnesses misidentified him at the pre liminary hearing, a nd the other w itness said that he loo ke d li ke the pe rs on , b ut t e sti fi e d th a t th e int ru de r w or e a

ha t.

The P etitioner said that Counsel filed a motion to suppress the two witnesses’ identification of him, and that t he trial judge should have gr anted that motion. The Petitioner testified that Counsel

never told him whether he obta ined a video tape of the prelimi nary hearing, and C ounsel neve r talked to the State’s witnesses prior to trial. The Petitioner said that Counsel cross-examined the witnesses ag ainst him and called his alibi witnesses. He testified that Counsel repre sented him on appe al and fi le d a br ie f on his be ha lf

. He sa id he fi le d a c omp la int wi th the B a r be c a us e Cou ns e l did no t vi sit him to discuss his a

ppeal. Further, he testified that his c onvictions w ere aff irmed in p ar t and

re ve rs e d in part, but he wa s cur re ntl y inc arc e rate d o n th e tw e nty -f ive y e ar s e nte nc e fo r the e sp e c ia lly

a g g ra va te d r ob be ry

c on vic tio n. Th e Pe tit ion e r s a id tha t Co un se l f ile d a Rul e 11 app lic a tio n, bu t it was de nied by

the Supreme Court.

On cr oss-examination, the Petit ioner said that he became displeased with his first attorney and so he ha d him dism issed. He said that he was char g ed with the se crimes on F ebrua ry 25, 1999, and first a ppear ed in court on March 17, 1999. H e said that, on his trial date in November of 1999, he told the judg e that he w anted to hire another attorney

. The P etitioner said that he hire d another attorney who did not want to repr esent him and re turned his retainer. The Petitioner testified that he hired Counsel, and Counsel re quested a continuance that the trial court gr anted. The Petitioner

conce ded that Counsel spoke with him, g ot his file from his first attorney , and spoke with his a libi wi tne sse s. Th e Pe tit ion e r also c on c e de d th a t Co un se l trie d “ in earn est” to g e t th e ph oto g ra ph ic identification suppre ssed.-4-

Counsel testified that he cur rently prac tices criminal law exclusivelyin Shelby Countyand ha d d on e so sin c e 19 63 . Co un se l te sti fi e d th a t he ha d r e pr e se nt ed def e nd a nts c ha

rg e d w ith ag g ravated burg lary

or espe cially

ag g ravated robbery in over fifty case s. Counsel testified that he repr esente d the P etitioner, but he could not locate his file on t he matter . He sa id that the Petitioner

came into his office and told him that two other attorney s ref used t o repr esent him

. He said that the Peti t i oner ha d a proble m with the trial judge , who told him to find an attorney , and the Petitioner started crying when telling Counsel a bout the situation. Couns el testified that he be g an re prese nting the Petitioner two wee ks prior to the Petitioner’s trial. He s ai d t h at h e had full discovery , had

rec eived the Petitioner’ s file from his pre vious attorney , and he kne w what the issues w ere . Counsel testi fi ed t h at h e i nvestig ated the a libi witnesses and that he wa s rea dy to try the ca se. Counsel testified that he c ould not remember whether he li stened to the t ape from t he P etitioner’s pre liminary hearing. He said that he did not discuss defe nse strate g ies with the Petitioner beca use the Petitioner said that h e wa s not at the scene of the c rime, there fore , the def ense w as one of

mistaken identification. Counsel said that he a rg ued mistaken identification to the jury

.
Counsel said that he filed a motion to s uppress the photog raphi c i d en t i fi cation, but it was de nie d. He sa id tha t hearg ue d th a t is su e on app e a l, b ut the Cou rt de nie d th a t is su e . Co un se l sa id that, even thoug h he ca lled the alibi w itnesses, the jury did not believe the Petitioner’s a libi witnesses beca use the jury

found t he P etitioner guilty

. Counsel testified t hat he be lieved that he w as pre pare d fo r the Pe tit ion e r’ s tria l.

On c ro ss- e xami na tio n, Cou ns e l te sti fi e d th a t he did no t re c a ll h ow ma ny tim e s h e sp ok e wi th the Pe tit ion e r, bu t he ta lke d to him a n “ a de qu a te e no ug h tim e to u nd e rs ta ndwh a t hi s p os iti on [wa s] and how [he] was g oing to pr ocee d to trial.” Counsel said that it was less than two we eks betwe en the time that he took the Petitioner’s ca se and w hen the c ase w as tried. Counsel stated tha t he talked to e ve ry wi tne ss be fo re he c a lle d th e m to te sti fy . Co un se l sa id tha t he c ro ss- e xami ne d th e wi tne ss who cha ng ed her

story and that he broug ht that fac t out before the jury . Counsel testified that the Petitioner told him that he wa s not guilty and that he w ould not acce pt any kind of offe r. Counsel said that he never visited the crime scene

. He said that the Petitioner testified on his own beha lf and made a g ood witness. Counsel te stified that, afte r the trial, he did not discuss the issues for appe al with the Petitioner. Counsel tes t i fi ed t hat he did not ra ise the issue that the Court of Criminal Appea ls rever sed. He also said t hat he did not hire a private inve stiga tor in this case be cause he wa s fa mil iar w ith the fa c ts, the the ory , a ndthe wi tne sse s.
The post-c onviction court took this evide nce a nd the ar g uments of counse l under a dvisement and, in its order de ny ing the Petitioner post-conviction relief , the post-conviction court stated:

This case prese nts a somewhat unusua l set of circ umstances. The [P etiti oner] was repr esente d b ya member of the public de fende r’s off ice at his preliminary

hearing

a nda no the r m e mbe r o f the pu bli c de fe nd e r’ s o ff ic e wa s a pp oin te d to re pr e se nt h im in the trial court. Acc ording to the [P ]etit ioner’s testimony this a ttorney was appointed in Marc h of 1999. I n November of 1999 a t the joint request of the [Pet iti on e r] a nd the pu bli c de fe nd e r the a tto rn e y wa s re lie ve d of his re sp on sib ili ty to-5-

repr esent the [Petitioner] at t rial and the t rial court ordere d the [P etitioner] to return to c ourt in January 2000 with a private attorney rea dy to g o to trial. The [P] etitioner state d that he wa s wo rking fo r a te mpo ra ry se rv ic e a nd wa s un able to e arn e no ug h to pa y a n a tto rn e y

a re ta ine r un til tw o da y s pr ior to the tr ia l da te

. He state d th a t he pa id

a re tainer to one attorney and when that attorney found out that he would have to be

r e a d y f o r tria l o n s u c h s h o r t n o ti c e h e r e f u n d e d th e [P ]e ti ti o n e r ’ s mo n e y a n d the [P ]etit ioner located another attorney who di d repr esent him at trial. On the date when the ca se wa s set for tria l the attorney reque sted a continuance, the trial judg e g rante d a ten- day continuance and [the Petiti oner] was he ld in contempt of court a nd place d in custody

.

I n t he inte ri m th e tr ia l a tto rn e y fi le d a mot ion to s up pr e ss the ph oto ide nti fi c a tio n w hic h mo tio n was heard a ndov e rr ule d b y the tr ia l c ou rt

. Un fo rtun a te ly

the tr ia l a tto rn e y c ou ld no t loc a te his fi le prior to the he ari ng on thi s petition for post-conviction re lief.

The Court finds fr om all the evidenc e presented at this hearing that the trial

a tto rn e y wa s a ble to ob ta in a nd fu lly re vie w the pu bli c de fe nd e r’ s f ile pr ior to t ri a l. He discusse d the ca se with the [Petit ioner] and interview ed the a libi witnesses. He de ve lop e d a

de fe ns e of

mis take n id e nti fi c a tio n a nda t tria l he pu t on pr oo f o f a n a lib i, and he c ross-examined the State’s witnesse s conce rning their identification.

. . . .
The Court finds that the trial attorney competently

cross-e x amined the S tate’s wi tne sse s c on c e rn ing the ir ide nti fi c a tio n o f the [Pet iti on e r] an d in a dd iti on pu t on a ll the a lib i pr oo f a va ila

ble to h im.

. . . Th e Cou rt fi nd s th a t un de r the tim e c on str a int s inv olv e d in thi s c a se the a tto rn e y mor e tha n a de qu a te ly

re pr e se nte d h is c lie nt.

. . . . By holding the [ Petitioner] i n contempt obviously the trial court found that the [P etitioner] did not ex erc ise due dil i gen ce in obtaining private counse l which

cause d additional delay s in the trial. I t would appea r that the [Petiti oner] was

re sp on sib le fo r the sh ort pe ri od of tim e tha t de fe ns e c ou ns e l ha d to pr e pa re fo r t ri a l.

The Court find s t h at the advic e g iven and the se rvice s rende red by the [P etitioner’s] counsel w[ere ] wit hin t h e ra ng e of c ompetency demande d by

an attorney in a criminal case and that Mr. Stein’s repr esenta tion of the [P etitioner] at his trial complied with the require ments set out by the Supreme Court of T ennesse e in Ba x ter v. Rose, 523 S.W.2d 930.

I t is fr om this or de r o f the po st- c on vic tio n c ou rt that th e Pe tit ion e r n ow app e a ls.-6- II. Ana lys is

On app e a l, the Pe tit ion e r c on te nd s th a t th e po st- c on vic tio n c ou rt e rr e d b y no t g ranti ng him po st- c on vic tio n r e lie f b e c a us e his tr ia l c ou ns e l w a s in e ff e c tiv e . Sp e c if

ic a lly , th e Pe tit ion e r a sse rt s that Co un se l’ s a ssi sta nc e wa s in e ff e c tiv e be c a us e Cou ns e l f

a ile d to e sta

bli sh a re la tio ns hip wi th h im

a ndbe c a us e Cou ns e l f

a ile d to a de qu a te ly

inv e sti g a te the Pe tit ion e r’ s c a se . In o rde r t o o bta in post-conviction re lief, a pe titioner must show that his or her conviction or se ntenc e is void or voidable bec ause of

the abridgme nt of a c onstitut ional rig ht. Tenn. Code Ann. § 40- 30-103 (2003)

. The pe titioner bear s the burden of p r o v in g fac tual alleg ations in the petition for post-conviction re lief by clea r and c onvincing evidenc e. T en n

. C ode Ann. § 40- 30-110(f ). A post-c onviction court’s fac tual finding s are subject to a de novo revie w bythis Court; howeve r, we must accor d these fa ctual finding s a pr es u m p t i o n of cor rec tness, which is overc ome only when a preponde ranc e of the evidenc e is contra

ry to the pos t-conviction court’s fac tual finding s. Fields v. State, 40 S .W.3d 450, 456 (Tenn. 2001) . A post-conviction court’s conclusions of law are subject t o a purely de novo revie w by this Court, wit h no presumption of cor rec tness. I d. at 457.

Th e ri g ht o f a

c ri min a lly

a c cuse d to re pr e se ntatio n is g ua rante e d b y

bo th the Sixth Amendment to the United States Constituti on and Article I , section 9, of the Te nnessee Constit ution. State v. Whit e, 114 S.W .3d 469, 475 (Tenn. 2003) ; State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Ba x ter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975). This right to r epre sentation includes the rig ht to “re asonably

eff ective” assistance . Burns, 6 S.W .3d at 461. The Te nnessee Supreme Court has held that the issue of ine ffe ctive assistanc e of c ounsel is a mix ed question of law and fa ct and, a s such, is subject to a de novo revie w. I d.

I n revie wing a cla im of ineffe ctive assistance of counse l, this C ourt must determine whe ther the advice given or service s rende red by the attorney are within the rang e of competenc e dema nded of attorney s in c r im in a l c a s e s

. B a xte r , 5 2 3 S. W. 2 d a t 9 3 6

. T o p r e v a il o n a c la im o f in e f f e c tive assistance of counse l, a petitioner must show that “c ounsel’s repr esenta tion f ell below an objec tive sta nd ard of re a so na

ble ne ss, ” Str ic kla nd v. Was hin g ton , 46 6 U. S. 66 8, 68 8 (1 98 4)
, a nd that th is perf ormanc e pre

judiced the de fense , resulting in a fa ilure to produce a reliable re sult. I d. at 687; Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993). To satisfy the re quirement of pr ejudice, a petitioner must show a re asonable probability that, b u t for c ounsel’s unre asonable err or, the fa ct finder would have had rea sonable doubt reg arding the petitioner’s g uilt. S trickland, 466 U.S. at 695. This rea sonable proba

bilitymust be “suffic ient to undermine c onfidenc e in the outcome.” I d. at 694;

see a lso Harris v. St ate, 875 S.W.2d 662, 665 ( Tenn. 1994). In case s involving a g uiltyplea or a plea of nolo con tender e, the pe titioner must show prejudice by demonstrating that, but for counse l’s

err ors, he would not have pleade d g uiltybut would have insisted upon going to trial. See Hill v. L ockhart, 474 U.S. 52, 59 (1985); Bankston v. State, 815 S.W .2d 213, 215 (Tenn. Crim. App. 1991)

.

W h en ev alu at i n g an i n ef

fe ct i v e a s s i s t an ce o f c o u n s el cl ai m , t h e r ev i ew i n g co u rt s h o u l d j u d ge the attorne y ’s per formanc e within the contex t of t he case as a whole, taking into acc ount all releva nt

c ir c ums ta nc e s. Str ic kla nd , 4 66 U. S. at 69 0; S ta te v. Mit c he ll, 75 3 S.W. 2d 14 8, 14 9 ( Te nn . Crim. App. 1988). The revie wing court must evaluate the questionable co n d u ct from the attorney ’s-7-

perspe ctive at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W .2d at 746; Hellar d v. State, 629 S.W .2d 4, 9 (Tenn. 1982) . I n doing so, the revie wing court must be hig hly defe rential a nd “s h o u l d i ndulge a strong presumption that counsel’s c onduct fa lls withi n the wide r ang e of

rea sonable profe ssional a ssistance.” Burns, 6 S.W .3d at 462. Counsel should not be deemed to ha ve been ine ffe ctive mer ely

beca use a diff ere nt proce dure or

strateg y might have produce d a diffe rent result. Will iams v. State, 599 S.W .2d 276, 279-80 (Te nn. Crim. App. 1980). Th e fa c t th a t a pa rt ic ula r s tr a te g y or ta c tic fa ile d or hu rt the de fe ns e do e s n ot, sta nd ing a lon e , e sta bli sh un re a so na

ble repr esenta tion. House v. Stat e, 44 S.W .3d 508, 515 (Tenn. 2001) (citation omitted); Thomas B ra nd on B oo ke r v . St a te , N o. W20 03 -0 09 61 -C CA -R 3- PC, 2 00 4 WL 58 76 44 , a t *4 (T e nn . Crim. App., at Jackson, Mar. 24, 2004)
, no perm. app. filed

. Howeve r, defere nce to matter s of strateg y and tactical choices a

pplies only

if the choic es ar e informe d ones base d upon adequate pre paration. House, 44 S.W.3d at 515.

After throug hly

revie wing the re cord, w e conc lude that the P et itioner was not denie d eff ective a ssistance of c ounsel. The Petitioner testified that he wa s found indige nt and the trial c ourt appointed an attorney

to repre sent him. The Petitioner waited until the day of his trial to inform the trial court that he was dissatisfied with his attorney and that he w ished to hire anothe r attorne y

. The tr ia l c ou rt g a ve the Pe tit ion e r t wo mon ths to fi nd a no the r a tto rn e y

. Th e Pe tit ion e r wa ite d a g a in u nti l the day of his trial to f

ind a nother a ttorney , Counsel, who ag ree d to repre sent him. Counsel asked for, a nd was g rante d, a continuanc e to pre pare for tria l, but the Petiti oner w as found in conte mpt of

c ou rt fo r n ot ha vin g his a tto rn e y pr e pa re d fo r tr ia l on the tr ia l da te

. De sp ite the sh ort on e -w e e k ti me pe ri odthat Co un se l ha d to pr e pa re fo r t ri a l, C ou ns e l f

ile d a mot ion to supp re ss a

ph oto g ra ph ic lineup, met with the P etitioner, t he P etitioner’s witnesses, and prepare d for tria l. The Petitioner’s defe nse wa s one of mis t ak en identifica tion, and he provide d alibi witnesses who testified. The Petitioner also testified on h i s o wn b ehalf . The fa ct that the jury acc redited the testimonyof the State’s witnesses, ove r the testimony of the Petitioner, does not pr ove that Counsel was ine ffe ctive. Counsel t es t i fi ed that he wa s fully prepa red to de fend the Petitioner at trial, and he defe nded the Petitioner to the best of his ability . We conclude, a s did the post-conviction court, that the Petitioner has fa il e d to p r o v e b y c le ar a n d c o n v in c in g e v id e n c e th a t Co u n s e l’ s r e p r e s e n tati o n f e ll below an objective standa

rd of r easona

bleness.

III. Conclusi on

I n acc ordanc e with the for eg o i ng rea soning a nd authorities, we a ffirm the post-c onviction court’s judg ment dismiss ing the Petitioner’s petition for post-convic tion relief.

___________________________________ ROBERT W. WEDEMEYER, J UDGE